United States v. Jacques, No. 11-2142-cr (2d Cir. July 9, 2012) (Winter, Chin, Droney, CJJ)

In this capital case, the district court entered an order excluding some evidence that the government intended to offer at the penalty phase. On this, the government’s interlocutory appeal, the circuit reversed in part and affirmed in part.


Michael Jacques was charged with the kidnaping, rape and murder of a young girl. In the death notice, the government included aggravating factors that it would seek to prove at the penalty phase: allegations of prior rapes, and an attempt to obstruct justice by influencing the testimony of a victim/witness. The district court permitted evidence of two of the prior rapes - one of a juvenile and one of an adult - but struck three of the prior rape allegations, all of which involved juveniles (J2, J3 and J4), finding that the conduct was unadjudicated and more than twenty years old. The court also suppressed the evidence of the obstruction attempt, finding it was obtained in violation of the Sixth Amendment.  

The circuit affirmed the exclusion of two of the three rapes, remanded for further findings on the third, and reversed the Sixth Amendment Ruling.

The Rape Allegations

J2 was a younger relative of Jacques. In 1985, J2 became pregnant and told the authorities that Jacques, who was then 18, had raped her. Jacques ultimately admitted that he “experimented” with J2; he was arrested but never prosecuted. He was accused of raping J3 around the same time; she was a young girl who spent the night at Jacques’ home with a younger sibling.  The rape of J4, a friend of one of Jacques’ siblings, occurred in 1987. Jacques pled guilty to “lewd and lascivious conduct” and received a three-year deferred sentence.

The circuit could not find much to fault in the district court’ decision to exclude this evidence. The admissibility of evidence at the penalty phase of a capital trial is governed by 18 U.S.C. § 3559(c), not by the Federal Rules of Evidence. That section provides that information is admissible at a penalty trial regardless of its admissibility under the rules of evidence, but “information may be excluded if its probative value is outweighed by the danger of ... creating unfair prejudice.” The circuit observed that the standard for exclusion under this section is “broader” than that contained in Rule 403. Evidence can be excluded under Rule 403 only if its probative value is “substantially” outweighed by its potential for prejudice.

The circuit noted next that all three of the rapes were alleged to have occurred about twenty-five years ago and that this “remoteness reduces the reliability” of the evidence. The remoteness also reduced the probative value of the evidence with respect to Jacques’ character, because he was “a youth himself at the time.” In addition, in the J2 and J3 cases the reliability was further undermined by the lack of a “relatively contemporaneous adjudication,” and for J4, while there was an adjudication, it was not for rape.  There was also “murkiness as to each with regard to” the degree of coercion.

The circuit panel concluded that “although we might well have ruled otherwise were we in the district court’s position,” the court acted within its discretion. That said, however, since the district court ruled as if the J4 rape was unadjudicated, which was not true, the circuit remanded for reconsideration as to that allegation. It cautioned, however, that the district court would still be within its discretion to exclude the evidence.

The Obstruction of Justice Allegation

The court’s discussion of  this issue begins with the bizarre conduct underlying Jacques’ case, which began as a scheme, in 2003, to sexually abuse J1, who was nine years old. He did so by making her believe that a fictitious organization called “Breckenridge” would kill her and her family if she did not follow the group’s instructions. Some of those instructions induced J1 into believing that she had to submit to Jacques as her “sexual trainer.”  This continued until 2008, when she was 14. Also, in 2008, Jacques persuaded J1 that she had to help him abduct and kill a young girl named Brooke. With J1’s coerced assistance, Brooke was brought to a convenience store near Jacques’ home; he is charged with drugging, raping and murdering her.

Jacques was eventually arrested and charged with the kidnaping. While in custody, he reached out to a friend, Michael Garcia, asking for help. Amongst other things, he asked Garcia to pose as his civil attorney so that they could speak on an unmonitored phone line. Garcia went to the authorities, and eventually he made recorded calls to Jacques on the supposedly unmonitored attorney line. In those calls, Jacques tried to persuade Garcia to pose as a member of Breckenridge, reach out to J1 and induce her to inform the authorities and the media that Jacques was innocent. Garcia eventually met with Jacques in prison wearing a wire, and Jacques continued to give him instructions about his plans for J1. Garcia, throughout, was instructed by the FBI not to ask Jacques about the charged crimes. He mostly followed those instructions, although he at one point asked a few clarifying questions and, contrary to the instructions, also asked a question about some of Jacques’ past criminal conduct.

The district court concluded that the evidence of Jacques’ attempt to obstruct justice was obtained through a knowing circumvention of Jacques’ right to counsel, in violation of the Sixth Amendment, and suppressed it.

The circuit, however, reversed because Jacques did not show that Garcia “took actions amounting to an ‘indirect and surreptitious interrogation’ ... with regard to the kidnaping/rape/murder offenses.”  Jacques’ conversations with Garcia occurred at Jacques’ own insistence, and Garcia was “entirely passive” when Jacques explained how Garcia could help him. The few questions that Garcia asked were not of a “probing nature” with respect to the underlying charges and did not alter the fundamental nature of the exchange, which was Jacques’ enlisting Garcia’s help. Since Jacques “shared information on his own initiative and on his own terms,” Garcia was nothing more than the classic “listening post.”