USA v. Brand et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	No. 1:23-cr-00953-KWR-2
NORA BACA,
Defendant.
ORDER GRANTING MOTION IN LIMINE TO EXCLUDE REFERENCE TO
SENTENCING OR PUNISHMENT
THIS MATTER comes before the Court on the Government’s Unopposed Motion in
Limine to Prohibit Discussion of Sentencing or Punishment at Trial (Doc. 106). 	In making the
Motion, Defendant also notes that she reserves the right to cross-examine any cooperating
witnesses as to bias. Id. at 1; Doc. 113 at 2–3 (Defendant’s Response). For the reasons stated
below, the Court finds that the Motion is well taken and, therefore, is GRANTED.
The sentence or punishment following a guilty verdict is not relevant to the jury’s
determination. 	See 10th Cir. Crim. Pattern Jury Instr. 1.20 (2025) (“You should not discuss or
consider the possible punishment in any way while deciding your verdict.”). 	“Unless a statute
specifically requires jury participation in determining punishment, the jury shall not be informed
of the possible penalties.” United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991),
abrogated on other grounds by, United States v. Wacker, 72 F.3d 1453 (10th Cir.1996).
It is firmly established that when the jury has no sentencing function, as is the case here, it
“should reach its verdict without regard to what sentence might be imposed.” Rogers v. United
States, 422 U.S. 35, 40 (1975). Allowing a jury to consider punishment invites jury nullification
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and is prejudicial. See United States v. Greer, 620 F.2d 1383, 1384–85 (10th Cir. 1980) (presenting
information to jury about possible sentence is prejudicial). 	Further, there is no right to jury
nullification in the Tenth Circuit. Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999); see
also United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983) (“While we recognize that a jury
may render a verdict at odds with the evidence or the law, neither the court nor counsel should
encourage jurors to violate their oath.”), quoted in United States v. Gonzalez, 596 F.3d 1228, 1237
(10th Cir. 2010). Accordingly, the Court will exclude any reference to punishment or sentence at
trial for Defendant.
Additionally, the Court acknowledges that, within the Motion, Defendant moves to reserve
the right to cross-examine any cooperating witnesses at trial about their relevant criminal liability
related to the charged offenses. Doc. 106 at 1; Doc. 113 at 2–3. The Government does not appear
to object. See Doc. 106 at 1.
Here, Defendant may cross-examine the Government’s witnesses as to their prior
convictions—and any expected benefit conferred for testifying—to assess credibility as allowed
by the Confrontation Clause and the Federal Rules of Evidence. 	See Delaware v. Van Arsdall,
475 U.S. 673, 678 (1986) (stating that a defendant has the constitutional right to confront witnesses
against her, including “exposure of a witness’s motivation in testifying”) (quoting Davis v. Alaska,
415 U.S. 308, 316–17 (1974)); United States v. Howell, 285 F.3d 1263, 1268–69 (10th Cir. 2002)
(holding that under Fed. R. Evid. 609(a)(1), “ordinarily, evidence of a [non-defendant] witness’s
felony conviction shall include information about the nature of that conviction unless, after Rule
403 balancing, the probative value of such evidence is outweighed by its prejudicial effect”).
Yet, Defendant is not guaranteed an unlimited scope of cross-examination, and the Court
may impose reasonable limits based on concerns related to harassment, prejudice, confusion of the
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issues, witness safety, or relevance. 	See Davis, 415 U.S. at 679. 	Since the testimony of any
cooperating witnesses has not been confirmed and the scope of any plea agreement contingent on
testifying has not been disclosed, the Court reserves ruling on the extent that Defendant may
inquire into the nature of a witness’s conviction, the details of any plea agreement, and the potential
sentence that has been or will be imposed. 	See United States v. Henry, No. 1:16-cr-1097-JCH-
KK-2, 2018 WL 802006, at *2 (D.N.M. Feb. 8, 2018) (recognizing that courts determine
admissibility of plea agreement and sentencing details on a case-by-case basis); see also United
States v. Foghorn, No. 1:03-cr-2365-JB-2, 2004 WL 7337478, at *8–11 (D.N.M. Oct. 25, 2004)
(allowing cross-examination that reveals plea agreement’s benefit and nature of conviction but
limiting scope as to sentencing based on language of the plea and case’s facts).
Further, the Court will not permit Defendant to engage in cross-examination that may
directly or indirectly reveal Defendant’s possible penalties. See United States v. Woods, No. 1:17-
cr-1235-WJ-3, 2020 WL 4816456, at *2–3 (D.N.M. Aug. 19, 2020) (allowing defendant to “delve
into the plea agreement in sufficient detail to draw out any evidence of [witness’s] bias or
motivation without trying to sidestep the Tenth Circuit’s prohibition against informing the jury of
possible penalties”).
Finally, should direct or cross-examination reveal a plea agreement, the Court will issue a
limiting instruction directing the jury to consider the plea agreement only for the purpose of
assessing credibility. See United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983) (finding that
court erred for failing to issue instruction limiting use of codefendant’s guilty plea to credibility).
IT IS SO ORDERED.
____/S/__________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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