United States v. Jacque, No. 11-2142 (2d Cir. 2012)

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Justia Opinion Summary

After obtaining an indictment against Jacques for the kidnapping, rape, and murder of a 12-year-old girl, the government filed a Notice of Intent to Seek the Death Penalty. Included in the Notice, as required by the Federal Death Penalty Act, 18 U.S.C. 3591, were allegations of aggravating factors the government proposed to put before the jury in the penalty phase that would follow a conviction. These factors included allegations of six prior rapes and an attempt to obstruct justice by influencing the testimony of a juvenile witness/victim. In pre-trial orders, the judge struck allegations of three of the prior rapes and suppressed evidence of the attempt to obstruct justice as having been obtained in violation of the Sixth Amendment. The Second Circuit affirmed exclusion of evidence of two of the alleged prior rapes, remanded the third for reconsideration, leaving the outcome to the district court’s discretion, and vacated exclusion of evidence of the attempted obstruction of justice.

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11-2142-cr United States v. Jacques 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: May 31, 2012 5 Decided: July 9, 2012) Docket No. 11-2142-cr 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 8 UNITED STATES OF AMERICA, Appellant, 9 v. 10 11 MICHAEL JACQUES, Defendant-Appellee. 12 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 13 B e f o r e: WINTER, CHIN, and DRONEY, Circuit Judges. 14 Interlocutory appeal from pre-trial orders of the United 15 States District Court for the District of Vermont (William K. 16 Sessions, III, Judge) excluding evidence that the government 17 sought to offer in the punishment phase of a capital case. 18 affirm in part and vacate in part. 19 20 21 22 23 24 25 26 27 28 29 We WILLIAM B. DARROW, Assistant United States Attorney (Craig S. Nolan, Paul J. Van De Graaf, and Gregory L. Waples, Assistant United States Attorneys, on the brief,) for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellant. 1 1 2 3 4 5 6 7 8 9 10 11 DAVID A. RUHNKE (Jean D. Barrett, Ruhnke & Barrett, Montclair, New Jersey, and Michael L. Desautels and Barclay T. Johnson, Office of the Federal Public Defender, Burlington, Vermont, on the brief), Ruhnke & Barrett, Montclair, New Jersey, for Defendant-Appellee. WINTER, Circuit Judge: The government appeals from Judge Sessions s in limine 12 ruling excluding certain evidence from the penalty phase of a 13 death penalty case. 14 Michael Jacques for the kidnapping, rape, and murder of a 15 12-year-old girl, the government filed a Notice of Intent to Seek 16 the Death Penalty ( Notice ). 17 required by the Federal Death Penalty Act, 18 U.S.C. § 3591, et 18 seq., were allegations of aggravating factors the government 19 proposed to put before the jury in the penalty phase that would 20 follow a conviction. 21 prior rapes and an attempt to obstruct justice by influencing 22 the testimony of a juvenile witness/victim. 23 After obtaining an indictment against Included in the Notice, as These factors included allegations of six In pre-trial orders, Judge Sessions struck allegations of 24 three of the prior rapes from the Notice under 18 U.S.C. § 25 3593(c) and suppressed evidence of the attempt to obstruct 26 justice as having been obtained in violation of the Sixth 27 Amendment. 28 29 The government appealed. We affirm the exclusion of evidence of two of the alleged prior rapes, remand the third for reconsideration but leave the 2 1 outcome to the district court s discretion, and vacate the 2 exclusion of evidence of the attempted obstruction of justice. 3 We address each issue in turn. 4 a) Prior Rapes 5 1) Relevant Facts 6 In the Notice, the government alleged several prior rapes by 7 Jacques. The alleged victims included four juveniles and two 8 adults, whom we refer to as J1-J4 and A1-A2, respectively. 9 district court ruled that evidence of the rape of J1 was The 10 admissible during the penalty phase. 11 more fully discussed infra, defendant s sexual contacts with J1 12 occurred over several years and were in part contemporaneous with 13 the kidnapping/rape/murder in the present matter which is alleged 14 to have occurred in 2008. 15 used J1 to lure the murdered 12-year old to her encounter with 16 Jacques. 17 Briefly stated here, and Moreover, defendant is alleged to have The court also allowed the admission of evidence of the rape 18 of A2 in the penalty phase. 19 resulted in a kidnapping and rape conviction. 20 the government no longer seeks to introduce evidence with regard 21 to her. 22 23 24 25 This crime occurred in 1992 and A1 has died, and The court excluded evidence concerning J2, J3, and J4, and the government has appealed. We turn now to these rulings. In January 1985, J2, a younger relative of Jacques, sought an abortion, which came to the attention of law enforcement 3 1 authorities. J2 told the Vermont State Police that she was 2 pregnant as a result of being raped by Jacques, who was then 18. 3 Jacques admitted that he had experimented with J2 and was 4 arraigned on various charges; however, the case was dismissed 5 after the family decided not to pursue the case. 6 Jacques is accused of raping J3 around the same time. She 7 was a young girl who spent the night at Jacques s residence with 8 a younger sibling. 9 because she feared that they would not believe her. J3 never reported this incident to the police 10 Finally, Jacques is alleged in 1987 to have raped J4, 11 another young girl, who was a friend of one of Jacques s younger 12 siblings. 13 provided alcohol to her at his apartment. 14 learned of the rape and called the police. 15 investigation, Jacques was arrested and charged. 16 guilty to lewd and lascivious conduct, he was given a three-year 17 deferred sentence. 18 The rape is alleged to have occurred after Jacques J4's school nurse Following an After pleading The district court struck the allegations concerning J2, J3, 19 and J4 from the Notice, concluding that, because the conduct 20 alleged was unadjudicated and over twenty years old, their 21 probative value was outweighed by their potential prejudice. 22 2) Discussion 23 Evidentiary rulings under 18 U.S.C. § 3593© are reviewed 24 only for abuse of discretion. 25 See United States v. Fell, 531 F.3d 197, 209 (2d Cir. 2008). 4 1 The government argues that the exclusion of these 2 allegations will deprive the jury of a full picture of Jacques s 3 personal characteristics and his past conduct as a serial rapist. 4 The government also argues that the district court based its 5 ruling with regard to the allegations concerning J4 on an 6 erroneous finding of fact because those allegations were in fact 7 adjudicated. 8 a capital case, [i]nformation is admissible regardless of its 9 admissibility under the rules governing admission of evidence at Section 3593© provides that in the penalty phase of 10 criminal trials except that information may be excluded if its 11 probative value is outweighed by the danger of . . . creating 12 unfair prejudice, confusing the issues, [or] misleading the 13 jury. 14 is broader than under Fed. R. Evid. 403, which allows the 15 exclusion of relevant evidence if its probative value is 16 substantially outweighed by a danger of . . . unfair prejudice, 17 confusing the issues, [or] misleading the jury. 18 added). 19 The standard for exclusion of evidence under this Section (emphasis Generally, more evidence, not less, should be admitted on 20 the presence or absence of aggravating and mitigating factors in 21 the penalty phase of a capital case. 22 (emphasis in original) (quoting United States v. Fell, 360 F.3d 23 135, 143 (2d Cir. 2004)). 24 the discretion to exclude any type of unreliable or prejudicial 25 evidence. 26 2008)(quoting Fell 360 F.3d at 145). Fell, 531 F.3d at 219 n.12 Nevertheless, district courts retain United States v. Pepin, 514 F.3d 193, 204 (2d Cir. 5 1 Defendant s alleged conduct toward J2, J3, and J4 is alleged 2 to have occurred almost, or over, twenty-five years ago. Such 3 remoteness reduces the reliability of testimony as to the events 4 occurrences. 5 unreliability is somewhat enhanced by the lack of a relatively 6 contemporaneous adjudication. 7 adjudication, but the resultant judgment was not for rape. 8 is, moreover, murkiness as to each with regard to whether, or how 9 much, coercion was involved. In the case of J2 and J3, the danger of In the case of J4, there was an There Finally, the remoteness of the 10 allegations also reduces their probative value with regard to 11 Jacques s character because he was a youth himself at the time. 12 Cf. Fed. R. Evid. 609(b) (suggesting that the probative weight of 13 prior crimes used to impeach character is less reliable once 14 significant time has passed); United States v. Figueroa, 618 F.2d 15 934, 942 (2d Cir. 1980) ( [B]oth Rule 609 and Rule 403, which is 16 pertinent here, oblige the trial court to assess the probative 17 value of every prior conviction offered in evidence and the 18 remoteness of a conviction, whatever its age, is always pertinent 19 to this assessment. ). 20 Therefore, although we might well have ruled otherwise were 21 we in the district court s position, we conclude that the court 22 acted within its considerable discretion to rule that the lack of 23 reliability of the allegations with regard to J2, J3, and J4 6 1 outweighed their probative values.1 2 based its order concerning J4 in part on the assumption that 3 those allegations were unadjudicated. 4 guilty to lewd and lascivious conduct in connection with his 5 conduct with J4. 6 allegations regarding her and remand for the district court to 7 reconsider its ruling in light of that adjudication. 8 however, that the district court would still be within its 9 discretion to conclude that the age of these allegations and the 10 ambiguity of the plea as to rape is sufficient to warrant their 11 exclusion under § 3593©. 12 b) However, the district court In fact, Jacques pleaded We vacate the order with regard to the We add, Obstruction of Justice 13 1) Relevant Facts 14 Because the obstruction of justice relates to evidence of 15 the underlying offense, we briefly set out pertinent allegations 16 with regard to those charges. 17 The government alleges that in 2003 Jacques concocted a 18 scheme to sexually abuse the then nine-year-old J1. This scheme 19 involved making J1 believe that a fictitious organization named 20 Breckenridge would kill her and her family if she did not 1 We note that the district court is free to alter these rulings, if appropriate, as the case progresses. See Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir. 1996) (A ruling in limine is subject to change when the case unfolds. (quoting Luce v. United States, 469 U.S. 38, 41-42 (1984))). Such a change may be in the court s discretion if these allegations become necessary to rebut evidence offered by the defense concerning Jacques s past. See, e.g., Luce, 469 U.S. at 41-42 (change of in limine ruling may be appropriate where defendant introduces testimony contrary to statements given in a proffer). 7 1 follow the group s instructions. 2 messages from two accounts seemingly owned by members of 3 Breckenridge named Charles and Eric. 4 that Jacques was to act as her sexual trainer and advised her 5 to engage in various sex acts with Jacques. 6 she received e-mail threats that included the killing of family 7 pets. 8 continued until 2008, when J1 was 14 years old. 9 Jacques allegedly sent e-mail The e-mails told J1 When J1 protested, Jacques s exploitation of J1 through Breckenridge In May 2008, J1 received messages from Breckenridge that a 10 12-year-old named Brooke needed to be terminated and that J1 was 11 to help in the termination by inviting Brooke to a party. 12 morning of the party in late June 2008, Jacques and J1 picked 13 Brooke up and drove to a convenience store about ten minutes from 14 Jacques s home. 15 of the store s surveillance camera but told her to walk to a 16 nearby spot where they would pick her up. 17 allegedly left but circled back to pick Brooke up. 18 government alleges that Jacques then drugged, raped, and murdered 19 Brooke. 20 On the Once there, Jacques dropped Brooke off in front Jacques and J1 then The Four days later on June 29, 2008, police discovered the e- 21 mails from Eric and Charles to J1 and traced them to Jacques s 22 computer. 23 charge of sexually assaulting J1. 24 criminal complaint was filed charging Jacques with the kidnapping 25 of Brooke, and, on July 2, her body was discovered. 26 initial appearance on July 7, the court appointed the Office of Jacques was then arrested and detained on a state 8 On July 1, 2008, a federal At his 1 the Federal Public Defender to represent Jacques on the federal 2 kidnaping charge. 3 On July 4 and 8, while in custody, Jacques sent letters to 4 his friend Michael Garcia. These letters asserted Jacques s 5 innocence and asked Garcia for help. 6 Garcia and asked him to come from Arizona to Vermont, stating 7 that he could not talk to Garcia on the monitored prison phone. 8 He also suggested that Garcia pose as Jacques s attorney in a 9 civil matter and call on the attorney line, which was not On July 10, Jacques called 10 monitored. 11 government obtained a recording of the phone conversation between 12 Jacques and Garcia. 13 government agents and attorneys not working on the case pending 14 against Jacques was assigned to investigate. 15 The next day, Garcia contacted the authorities. The A taint team consisting solely of On July 13, Jacques called Garcia again and asked him to 16 call on the prison s attorney line, stressing that time was of 17 the essence and that Garcia was Jacques s last hope. 18 followed up with another letter, dated July 14, requesting 19 Garcia s help and assuring him that it would require only a few 20 e-mails and text messages. 21 Jacques On July 16, FBI agents met with Garcia and helped him place 22 a recorded telephone call to Jacques on the attorney line. 23 Prior to the call, the agents instructed Garcia not to ask 24 Jacques anything about the crimes charged. 25 Jacques told Garcia that he was being framed by some bad guys 26 who were involved with J1. During the call, Jacques said that he needed Garcia to 9 1 send messages to J1 telling her that the bad guys were still out 2 there. 3 number and suggested what he should say in messages to her. 4 After this conversation, Jacques again sent Garcia letters 5 begging for his help and expressing dismay that Garcia had not 6 contacted him again. 7 To accomplish this, Jacques gave Garcia J1 s cell phone Garcia called Jacques on July 22, a call again recorded by 8 the FBI. 9 be carried out soon because the indictment had not yet issued. 10 He also instructed Garcia to take precautions, such as using a 11 secondary hard drive or sending e-mail messages from internet 12 cafes, to prevent the messages from being tracked back to Garcia. 13 Garcia made yet another recorded call to Jacques on July 24, 14 during which Jacques again asked Garcia to contact J1 and told 15 Garcia that he had mailed a package to him that would explain 16 what steps he should take. 17 Jacques stated that the plan to contact J1 needed to The package of instructions told Garcia to send J1 messages 18 in the names of Eric and Charles from Breckenridge. The messages 19 would instruct her to inform the authorities and the media that 20 Jacques had been framed and to tell Jacques s wife that he had 21 been framed. 22 as Eric, telling her to send editorials to major newspapers 23 stating that Jacques was innocent. 24 instructions on the timing of these steps and recommended that 25 Garcia send these e-mails from public computers in other states. Garcia was instructed, if necessary, to e-mail J1 26 10 Jacques also gave 1 The next recorded conversation between Jacques and Garcia 2 took place on July 28. Garcia told Jacques that he was flying to 3 Vermont to meet him. 4 the facility posing as his attorney. 5 Garcia not to initiate any inquiries about the charges pending 6 against Jacques or to talk about Jacques s lawyers. 7 and 31, Garcia visited Jacques in prison, where their 8 conversations were recorded by the FBI. 9 conversations, Jacques sought confirmation of Garcia s receipt of Jacques instructed Garcia on how to visit The FBI again instructed On July 30 During these 10 the package, reiterated that Garcia should use a second hard 11 drive or public computer to send the messages to J1, and told 12 Garcia to expect to be contacted by the authorities. 13 Throughout these telephone calls and meetings, Jacques 14 frequently asserted that he was innocent; that he was set-up by 15 Breckenridge, who planted evidence in the form of Google 16 searches, e-mails, and orders of items such as handcuffs; and 17 that he had simply dropped Brooke off at the convenience store 18 the morning that she had gone missing. 19 clarifying questions and told Jacques that he would assist with 20 the plan.2 21 Garcia actively sought information unrelated to what Jacques was 22 already telling him. 23 criminal conduct allegedly committed during the early 1980 s 24 about which Garcia was curious. Garcia asked two On one occasion, contrary to the FBI s instructions, The question concerned Jacques s prior 2 As noted by the district court, when Jacques stated that the actual killers had planted evidence, Garcia asked [W]hat did they do? What, what kind of evidence? , to which Jacques was largely unresponsive. Garcia also asked whether Jacques s arrest occurred at the time Brooke s body was found. 11 1 After these meetings, the taint team sent copies of 2 Jacques s packet of instructions and transcripts of the phone 3 calls to Jacques s defense counsel, along with a letter 4 explaining the events and giving counsel ten days to object 5 before the taint team provided the materials to the prosecution. 6 The defense did not object within the ten days. 7 Jacques moved to suppress this evidence as obtained in 8 violation of his Sixth Amendment rights. Noting that kidnapping 9 and obstruction of justice were separate charges, the district 10 court stated that this evidence would clearly be admissible at a 11 separate trial for obstruction of justice but nevertheless 12 concluded that the evidence was inadmissible in the present 13 prosecution. 14 The district court concluded that the government had 15 knowingly circumvented Jacques s right to counsel on the 16 kidnapping/rape/murder charges under Massiah v. United States, 17 377 U.S. 201 (1964). 18 that Jacques would confide in Garcia due to their longstanding 19 friendship and that incriminating evidence about the current 20 charges would be obtained because the obstruction plan was 21 focused on avoiding those charges.3 The court reasoned that it was foreseeable 22 3 The government also disputes the district court s conclusion that, based on Estelle v. Smith, 451 U.S. 454 (1981), the suppression of evidence obtained in violation of the Sixth Amendment applies to the penalty as well as the guilt phase of a capital case. Given our disposition of this matter, we need not, and do not, address this issue. 12 1 2) Discussion 2 The facts pertinent to Jacques s Sixth Amendment claim are 3 embodied in correspondence and recorded conversations and are, 4 therefore, undisputed. 5 court applied the correct legal standard to those facts is a 6 question of law to be resolved de novo. 7 Vasquez, 389 F.3d 65, 75 (2d Cir. 2004). 8 that standard. 9 The question of whether the district See United States v. We turn, therefore, to [A]fter the . . . right to counsel attaches and is invoked, 10 any statements obtained from the accused during subsequent 11 police-initiated custodial questioning regarding the charge at 12 issue . . . are inadmissible. 13 171, 179 (1991). 14 questioning by identified police officers, but also to statements 15 obtained where the government uses an undercover agent to 16 circumvent the Sixth Amendment right to counsel. 17 Perkins, 496 U.S. 292, 299 (1990). 18 McNeil v. Wisconsin, 501 U.S. This exclusionary rule applies not only to Illinois v. However, a defendant does not make out a violation of [the 19 Sixth Amendment] simply by showing that an informant, either 20 through prior arrangement or voluntarily, reported his 21 incriminating statements to the police. 22 U.S. 436, 459 (1986). 23 only when the government uses investigatory techniques that are 24 the equivalent of direct police interrogation. 25 the Sixth Amendment does not forbid[] admission in evidence of Kuhlmann v. Wilson, 477 Rather, a defendant s rights are violated 13 Id. Therefore, 1 an accused s statements to a jailhouse informant who was placed 2 in close proximity but [made] no effort to stimulate 3 conversations about the crime charged. 4 in original)(quoting United States v. Henry, 447 U.S. 264, 271 5 n.9 (1980)). 6 police and their informant took some action, beyond merely 7 listening, that was designed deliberately to elicit incriminating 8 remarks. 9 Id. at 456 (alteration Instead, a defendant must demonstrate that the Id. at 459. Moreover, the government does not violate the Sixth 10 Amendment rights of a defendant charged with a crime by 11 investigating or interrogating that defendant with regard to a 12 separate crime that has not been charged. 13 474 U.S. 159, 180 (1985). 14 crime is factually related to a charged offense, so long as 15 the offense being investigated is not considered the same 16 offense for the purposes of determining the applicability of the 17 Fifth Amendment s Double Jeopardy Clause. 18 U.S. 162, 168, 172-73 (2001).4 See Maine v. Moulton, This is true even where the latter Texas v. Cobb, 532 4 Prior to the Supreme Court s opinion in Cobb, several circuits had interpreted the opinions in Brewer v. Williams, 430 U.S. 387 (1977), and Moulton to suggest that a defendant s Sixth Amendment right extends to charges under investigation that are so inextricably intertwined . . . that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense. United States v. Covarrubias, 179 F.3d 1219, 1223-24 (9th Cir. 1999) (collecting cases). That conclusion was explicitly rejected by the Court. See Cobb, 532 U.S. at 168, 172-73. However, incriminating statements relating to a charged offense obtained during an investigation of a separate offense are inadmissible at the trial of [the charged offense], . . . if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused s right to the assistance of counsel. Moulton, 474 U.S. at 180. 14 1 Therefore, it is not enough to show a foreseeability that 2 Jacques s friendship with Garcia would lead Jacques to say things 3 he would not say to someone identified as a law enforcement 4 agent. 5 also show that Garcia took actions amounting to an indirect and 6 surreptitious [interrogation] of Jacques with regard to the 7 kidnapping/rape/murder offenses. 8 (internal quotation marks omitted). 9 such actions. 10 To prove a violation of the Sixth Amendment, Jacques must Kuhlmann, 477 U.S. at 458 In our view, Garcia took no Unlike Henry, where a jailhouse informant who was paid for 11 producing only useful information on pending charges had 12 ingratiated himself with a fellow prisoner through conversations, 13 447 U.S. 264, 270, 274 n.12 (1980), or Moulton, where a 14 cooperating defendant feigned forgetfulness and reminisced with a 15 co-defendant about the charged conduct, 474 U.S. at 165-66, 16 Garcia never took any initiative that elicited information from 17 Jacques concerning the charged offense. 18 invited conversations with Garcia because of their friendship, 19 but these conversations were at Jacques s initiative -- actually, 20 insistence -- not Garcia s. 21 while Jacques was insisting on explaining to Garcia how to help 22 him. To be sure, Jacques Indeed, Garcia was entirely passive 23 Nor were the few questions that Garcia asked during his 24 conversations with Jacques of a probing nature with regard to the 25 kidnapping/rape/murder charges. We have previously declined to 15 1 decide whether limited follow-up questions could be found to 2 stimulate discussion, United States v. Rommy, 506 F.3d 108, 3 136 (2d Cir. 2007), and need not do so here. 4 questions did not alter the fundamental nature of the exchange 5 between the two men: 6 help. 7 97 (3d Cir. 1999). 8 focused on Jacques s using Garcia to influence J1 s statements 9 and providing Garcia with the information that Jacques believed Garcia s infrequent namely, [Jacques] enlist[ing] [Garcia s] Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 896From beginning to end, the conversations 10 was necessary to accomplish that goal. 11 deliberate elicitation when an incarcerated defendant asked a 12 friend to retrieve evidence and the telephone calls concerning 13 that request were recorded by the government with the friend s 14 consent).5 15 Id. (finding no To be sure, the FBI actively assisted Garcia in making calls 16 on the attorney line and in visiting Jacques in prison. 17 those acts are not the equivalent of direct police 18 interrogation. 19 authorities place an informant in close proximity to a defendant, 20 even when expecting the defendant to divulge incriminating 21 information, id. at 456, the Sixth Amendment is not violated 22 unless the informant actively elicits statements that are 23 incriminating with regard to charged crimes. Kuhlmann, 477 U.S. at 459. 5 However, When prison Id. at 459. Garcia s inquiry concerning the charges against Jacques in the early 1980 s clearly elicited information; however, that information concerned a crime other than those charged. See McNeil, 501 U.S. at 175 (the Sixth Amendment is offense specific). 16 1 Moreover, neither Garcia nor the FBI selected use of the 2 attorney line or prison visits as the means of communication. 3 Rather, it was Jacques who selected them. 4 simply allowed Jacques to undertake his own chosen course of 5 action. 6 Garcia and the FBI Finally, the fact that Garcia represented that he was 7 willing to assist in the obstruction scheme did not violate 8 Jacques s rights with regard to the underlying charges. 9 assent did not seek to elicit a response, because merely Garcia s 10 expressing agreement is not comparable to engaging the defendant 11 in active conversation. 12 Moulton, 474 U.S. at 177, n.13); see also Matteo, 171 F.3d at 13 895-97. 14 Kuhlmann, 477 U.S. at 459 (quoting In sum, Jacques shared information on his own initiative and 15 on his own terms. 16 action, beyond merely listening, that was designed deliberately 17 to elicit incriminating remarks. 18 19 Therefore, the government did not take any Kuhlmann, 477 U.S. at 459. CONCLUSION For the foregoing reasons, we affirm the exclusion of the 20 allegations with regard to J2 and J3, vacate and remand with 21 regard to the allegations concerning J4, and vacate the order 22 suppressing evidence of the alleged plan to obstruct justice. 17