USA v. Brand et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 	No. 1:23-cr-00953-KWR-2
NORA BACA,
Defendant.
MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION IN LIMINE
AND DEFENDANT’S OBJECTION TO JURY INSTRUCTIONS
THIS MATTER comes before the Court on Defendant’s Second Amended Motion in
Limine to Exclude Defendant’s October 2024 Post-Arrest Statement (Doc. 213) and Defendant’s
Amended Objection to Jury Instructions 19 and 26 (Doc. 221). The Court ordered Defendant to
amend her initial Motion in Limine. Doc. 181 (Motion); Doc. 192 (Order to Amend). After finding
that Defendant’s First Amended Motion did not comply with the order, the Court required her to
amend the motion again. Doc. 202 (First Amended Motion); Doc. 209 (Second Order to Amend).
The motion and objection relate to Defendant’s prior conviction: the motion seeks to
exclude evidence related to Defendant’s prior conviction and the objection seeks to exclude
reference of Defendant’s prior conviction until after a guilty verdict. Accordingly, the Court chose
to combine its rulings into one order to address bifurcation and the remaining issues.
For the reasons discussed below, the Court will bifurcate trial into two phrases: one for
guilt and one for penalty, provided that the jury returns a guilty verdict as to Counts One and/or
Two. Because the Court will bifurcate trial, the Court SUSTAINS Defendant’s objection to Jury
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Instruction 26 and GRANTS in part Defendant’s motion in limine. 	Additionally, the Court
OVERRULES in part Defendant’s objection to Jury Instruction 19.
BACKGROUND
Defendant is charged with possession with intent to distribute 50 grams and more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 18 U.S.C. § 2 (Count
One), possession with intent to distribute 5 grams and more of methamphetamine, in violation of
§ 841(a)(1), (b)(1)(B)(viii) (Count Two), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) and Pinkerton v. United States, 328 U.S. 640
(1946) (Count Three). Doc. 150 at 1–2 (Second Superseding Indictment).
Should the jury find Defendant guilty of Counts One or Two, her sentence length will
depend on whether she was convicted of a prior “serious drug felony.” 	See § 841(b)(1)(A).
Under 21 U.S.C. § 802(58), a “serious drug felony” is a controlled substance offense described
in 18 U.S.C. § 924(e)(2) for which the defendant (1) served a term of imprisonment more than 12
months and (2) was released within 15 years of the commencement of the current offense. If the
jury finds Defendant guilty of the lesser included offense of possession, a prior felony may also
lengthen Defendant’s sentence. See 21 U.S.C. § 844(a). It does not appear that Defendant will
stipulate to the prior conviction. See Doc. 221 at 2–4.
DISCUSSION
First, the Court turns to the issue of bifurcation. Defendant objects to Jury Instruction 26,
which instructs the jury as to the elements that the Government must prove for the purposes of
sentencing. 	Doc. 221; see also Doc. 200 at 42 (Second Amended Proposed Jury Instructions).
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Defendant argues that the instruction must be excluded before the jury reaches a verdict on the
substantive offenses. Doc. 221 at 3. Without formally filing a motion for bifurcation, Defendant
asserts that the Court “must hold a bifurcated trial.” Id.
District courts have broad discretion in ruling on a motion to sever or bifurcate. United
States v. Garcia, 74 F.4th 1073, 1109 (10th Cir. 2023). Federal Rule of Criminal Procedure 14
“leaves the determination of risk of prejudice and any remedy for such prejudice to the sound
discretion of the district court.” Id. (citing United States v. Clark, 717 F.3d 790, 818 (10th Cir.
2013)). A decision must not be “arbitrary, capricious, whimsical, or manifestly unreasonable.” Id.
(citing United States v. Landers, 564 F.3d 1217, 1224 (10th Cir. 2009)).
Other than the finding of a prior conviction, the Sixth Amendment requires that a jury
determine 	any 	facts 	that 	increase 	a 	statutory 	maximum 	or 	mandatory-minimum
punishment. Alleyne v. United States, 570 U.S. 99, 103 (2013); Apprendi v. New Jersey, 530 U.S
466, 490 (2000). 	And when the government must prove the facts of a prior conviction for
sentencing, bifurcation may be the fairest process to prevent the risk of unfair prejudice by
reference to the prior conviction. See Erlinger v. United States, 602 U.S. 821, 848 (2024) (“By
sequencing and separating the jury’s determinations, a court decreases the likelihood that a jury
will be overpersuaded by the defendant’s prior criminal conduct.” (citation modified)). The phased
introduction of prior conviction evidence reduces the tension between the government’s need to
present sufficient evidence to the jury and the risk of unfair prejudice to a defendant—which is
intensified when facts of a prior conviction can only be resolved by a unanimous jury and beyond
a reasonable doubt. See Erlinger, 602 U.S. at 835 (holding that defendant was entitled to have a
jury determine whether three convictions took place on three different occasions to satisfy ACCA
sentencing enhancement).
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Here, Defendant correctly asserts there is a risk that a jury will convict her based on
propensity if they learn that her prior conviction was for drug trafficking. Doc. 221 at 3. Yet the
Government must be able to present evidence that Defendant was convicted of a serious drug
felony, served a term of imprisonment more than 12 months, and was released within 15 years of
the commencement of the current offense—the term of imprisonment and release date are factual
findings within the province of the jury. See Erlinger, 602 U.S. at 835. However, the jury does
not need to hear the conviction evidence before a finding of guilt. Bifurcating the proceeding into
guilt and penalty phases fairly balances the parties’ interests and the cost and expense to the Court.
See id. at 848 (recognizing that “all sides agree” that bifurcation is appropriate when a jury must
decide both conviction of felon-in-possession and increased penalty of “occasion” under ACCA).
Therefore, the Court will bifurcate the trial.
Since the Court will bifurcate the trial, Defendant’s objection to Jury Instruction 26 is
sustained. The Court’s first proposed jury instructions will reflect the two phrases of trial.
Next, the Court turns to Defendant’s motion in limine. Here, she seeks to exclude lengthy
sections of her post arrest-statement made to a Federal Bureau of Investigation (“FBI”) agent on
October 30, 2024. 	Doc. 213. 	Particularly, she seeks to exclude any reference to her prior
conviction. See id. at 9. The Government argues that evidence of her prior conviction is relevant
to sentencing enhancements. Doc. 220. Consistent with the Court’s ruling above, the Court finds
that the Government may not introduce statements referencing her prior conviction (prison,
sentence, sentence reduction, and probation) as part of its case-in-chief during the conviction phase
of trial. The probative value of those statements is significantly outweighed by the risk of unfair
prejudice. To be clear, this ruling does not extend to the penalty phase of trial—the Court reserves
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ruling as to the admissibility of these statements during the penalty phase of trial until it can better
assess their probative value.
As for the remaining statements, the Court will reserve ruling after reviewing the text of
the transcript, Defendant’s second amended motion, and the Government’s response. 	The
admissibility of these statements will likely come down to Rule 403 balancing. 	Until the
Government seeks to introduce specific statements, the Court is unable to properly assess their
probative value.
Finally, the Court turns to Defendant’s objection to Jury Instruction 19. Defendant argues
that it improperly infringes on her defense and invades the province of the jury. Doc. 221 at 1–2.
The Court disagrees. As the Tenth Circuit stated in United States v. Cota-Meza, such an instruction
does not misstate the law. 367 F.3d 1218 (10th Cir. 2004); see also United States v. Trent, 767
F.3d 1046 (10th Cir. 2014), abrogated on other grounds by, Mathis v. United States, 579 U.S. 500
(2016). 	The Court overrules Defendant’s objection and will allow Jury Instruction 19 to be
presented to the jury. The Court will supplement the instruction with a portion from Cota-Meza
but will not replace it in full. 	The change will be reflected in the Court’s first proposed jury
instructions.
CONCLUSION
IT IS THEREFORE ORDERED that:
 	The Court will bifurcate Defendant’s trial as described in this Order.
 	Defendant’s Second Amended Motion in Limine to Exclude Defendant’s October 2024
Post-Arrest Statement (Doc. 213) is GRANTED in part and RESERVED in part.
 	Defendant’s 	Amended 	Objection 	to 	Jury 	Instructions 	19 	and 	26 	(Doc. 	221) 	is
OVERRULED in part and SUSTAINED in part.
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____/S/____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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