United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)
Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.
Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, if spared, Pepin would spend the rest of his life in prison and would not have contact with minors. When the government tried to recast the issue in a new notice as one of “moral condemnation,” and not future dangerousness, the judge stood his ground.
On appeal, the circuit first had to deal with the government’s claim that Judge Weinstein made a legal error – obviously the government was hoping for de novo review. The government lost on this point. In exercising his discretion, Judge Weinstein did not commit a legal error. Despite Supreme Court precedent holding that a wide range of evidence is expected, and perhaps even desirable, at the penalty phase, district courts are not required by law to admit all of the evidence proffered by the government.
Turning next to the district court’s exercise of its discretion, the circuit affirmed, as well. Judge Weinstein supported his ruling with detailed reasoning that was neither arbitrary nor irrational, and the circuit explicitly noted that it was not going to “simply substitute” its judgment for his.
Judge Weinstein’s primary concern had been that the dismemberment evidence would be too prejudicial to be admitted at the penalty phase. The relevant statute, 18 U.S.C. § 3593(c), permits the exclusion of evidence the prejudicial potential of which “outweighs” its relevance, and the judge concluded that this standard was met. With respect to the guilt phase, Rule 403 permits exclusion only if the prejudice “substantially outweighs” the relevance, a more stringent standard. But, since the same jury was to sit at both phases, the judge concluded that the evidence should be be precluded from the guilt phase as well, to protect the penalty phase.
The circuit first held that Judge Weinstein committed a legal error because he applied the wrong legal standard. In effect, he applied the more lenient § 3593(c) admissibility standard to the guilt phase, when Rule 403 should have governed.
The appellate court did not stop there, however. It also held that the district court abused its discretion by precluding the evidence from the guilt phase, even under Rule 403. Since the issue at the guilt phase was whether the murders were “intentional,” the fact that Pepin dismembered the bodies was “potentially too important a factor in the jury’s determination as to Pepin’s guilt vel non of the crimes of which he is accused for it to be excluded altogether at the guilt phase.” The court went on to note that it might well be that the evidence will be inadmissible at the penalty phase, if there is one, but that “the possibility of curative instructions” would take care of the problem. In any event, the court declined to rule on this issue now.
The court did qualify its ruling somewhat, noting that perhaps “all evidence of dismemberment” should not be admitted at the guilt phase, but that the district court’s “blanket ban” could not stand.