The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court are the following motions in limine filed by the government:
* MOTION IN LIMINE REGARDING PENALTIES AND MANDATORY MINIMUMS AND SUPERSEDING INDICTMENT(Document No. 34) and the brief in opposition filed by the Defendant (Document No. 38); and
* MOTION IN LIMINE REGARDING LETTERS TO DEFENDANT FROM VICTIM, HANDWRITTEN DIRECTIONS, IMPROPER CHARACTER EVIDENCE AND SEXUAL HISTORY OR PREDISPOSITION(Document No. 35), and the brief in opposition filed by Defendant (Document No. 37).
Motion in Limine Regarding Penalties and Mandatory Minimums and Superseding Indictment
The government requests that the Court enter an Order which precludes the defense from referring, either directly or indirectly, to the potential penalties, statutory minimums and maximums, or sentencing range upon conviction in the presence of the jury. The government also requests that the Court preclude the defense from referring to the Superseding Indictment as "governmental vindictiveness, or referring to 'plea discussions and related statements'."
Defendant, relying upon United States v. Biaggi, 909 F.2d 662, 690-91 (2d Cir. 1990), responds that "the defense will not seek to introduce evidence of the ten year mandatory minimum sentence for the purpose of permitting the jury to assess the consequences of a verdict, [but] rather may seek to introduce the Superseding Indictment and the harsher penalty . . . for the purpose of showing consciousness of innocence." Response at 7.*fn1
At the outset, the Court notes that Defendant's Motion to Dismiss the Superseding Indictment on prosecutorial vindictiveness has been denied. Accordingly, Defendant will not be permitted to argue or refer to the Superseding Indictment as governmental vindictiveness.
As to Defendant's "consciousness of innocence" argument, his reliance upon Biaggi appears to be misplaced. In Biaggi, the defendant sought to prove that the government had offered him immunity if he would provide information about the wrongdoing of others. The district court failed to admit such proffered evidence. The United States Court of Appeals for the Second Circuit overturned certain convictions of the defendant finding that "[al]though there may [have] be[en] reasons for rejecting the [immunity] offer that are consistent with guilty knowledge, such as fear of reprisal from those who would be inculpated, a jury is entitled to believe that most people would jump at the chance to obtain an assurance of immunity from prosecution." Id. at 690. The appellate court, however, also drew a distinction between plea agreements and immunity agreements noting that "the two types of negotiations differ markedly in their probative effect when they are sought to be offered against the Government." Id.
The facts of the instant case are clearly distinguishable from those in Biaggi. To begin with, the pending charges against Defendant stem from his own acts, not from the acts of others. Secondly, in Biaggi, the defendant sought to prove that the government had offered him immunity if he would provide information about others' wrongdoing. In this case, there has been no offer of immunity. The facts of this case are much more analogous to a typical rejection of a plea offer, in which the defendant prefers to take his chances on an acquittal by the jury, rather than accept the certainty of a punishment after a guilty plea. See Biaggi, 909 F.2d at 691.
The Court further notes that it appears that any introduction of a rejection of a possible plea agreement would likely confuse the issues because the jury would have to understand the calculus likely undertaken by the defendant and his counsel to reject the plea offer, which would in turn require the jury to be informed as to the application of the Sentencing Guidelines and the statutory mandatory minimum and maximum penalties. Such an exposition would lead to confusion and substantially outweigh the limited probative value of the evidence. There is also a serious risk of unfair prejudice to the Government created by placing before the jury information related to the defendant's potential sentence if convicted.
In Shannon v. United States, 512 U.S. 573 (1994), the United States Supreme Court noted the well-established principle that "when a jury has no sentencing function, it should be admonished to 'reach its verdict without regard to what sentence might be imposed.' " Id. at 579 (footnote omitted) (quoting Rogers v. United States, 422 U.S. 35, 40 (1975)).
Further, the Shannon Court recognized the following: jurors [generally] are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense. . . .The jury's function is to find the facts and to ...