U.S. v. Apicelli

2015 DNH 106

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 14-cr-012-01-JD Opinion No. 2015 DNH 106 Peter Apicelli

O R D E R

The government moves, in limine, to preclude defense

counsel from introducing evidence and making arguments related

to jury nullification. In support, the government notes the

current public debate about marijuana. Apicelli objects to the

motion.

Standard of Review

The jury may not independently decide what law to apply in

deciding a criminal case. See Sparf v. United States, 156 U.S.

51, 101 (1895); see also United States v. Luisi, 568 F. Supp. 2d

106, 119-22 (D. Mass. 2008) (discussing jury process and threat

posed by jury nullification). Although juries have the power to

ignore the law in reaching verdicts, their duty is to apply the

law as it is given by the court. See United States v. Gonzalez-

Perez, 778 F.3d 3, 18-19 (1st Cir. 2015); United States v.

Appolon, 695 F.3d 44, 65 (1st Cir. 2012); United States v.

Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993). Neither the court nor counsel may inform the jury of its nullification power

or urge the jury to use it. Appolon, 695 F.3d at 65; United

States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996); Sepulveda,

15 F.3d at 1190 (“[W]hile jurors may choose to flex their

muscles, ignoring both law and evidence in a gadarene rush to

acquit a criminal defendant, neither the court nor counsel

should encourage jurors to exercise this power.”).

Discussion

The government seeks to preclude defense counsel from

encouraging the jury to use nullification to acquit Apicelli.

Specifically, the government moves to prevent questions,

evidence, and argument about laws allowing medical use of

marijuana, medical necessity for marijuana, a possible

legalization of marijuana, and Apicelli’s beliefs about

marijuana and legalization of marijuana. In his objection,

Apicelli argues that his rights to free speech, due process, and

a fair trial would be infringed by the limits the government

seeks and also asks the court to instruct the jury on the power

of nullification.

Apicelli states at the end of his objection that he “also

demands a hearing.” Under the local rules in this district,

motions are decided without oral argument unless a party

provides a written statement “outlining the reasons why oral

2 argument may provide assistance to the court.” LR 7.1(d).

Apicelli did not provide a statement, and the court finds no

reason to schedule oral argument.

The law is well-settled that a jury cannot be encouraged to

exercise the power of nullification. Apicelli cites no contrary

authority nor any support for his theory that a limit on his

counsel’s ability to raise issues of jury nullification would

violate his rights to free speech, due process, or a fair trial.

Therefore, defense counsel is precluded from raising issues

related to jury nullification at trial, and the court will not

instruct the jury on the nullification power. Sepulveda, 15

F.3d at 1190; United States v. Diaz, 820 F. Supp. 2d 301, 306

(D.P.R. 2011).

Jury nullification issues arise in a variety of contexts.

Evidence and argument about the defendant’s potential punishment

is not relevant to guilt or innocence and is an impermissible

attempt to move the jury acquit despite the law. See Manning,

79 F.3d at 219. Evidence of the defendant’s particular point of

view about drug use or belief in a “higher law” is not

admissible as it tends to urge the jury to ignore existing laws

and raises issues under Federal Rule of Evidence 403. United

States v. Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009). Arguments

or testimony that the charged conduct should not be a crime or

3 should not be prosecuted because others have done the same thing

are also impermissible attempts at jury nullification. See

United States v. O’Brien, 18 F. Supp. 3d, 25, 35 (D. Mass.

2014). Similarly, argument or testimony that the government

should focus on “worse people” rather than “going after” the

defendant encourages jury nullification and is not permitted.

Gonzalez-Perez, 778 F.3d at 18-19.

Defense counsel shall not make arguments, introduce

evidence, or ask questions that pertain to those topics, to

marijuana laws and legalization, to medical use of marijuana, or

to any other issues related to jury nullification.

Conclusion

For the foregoing reasons, the government’s motion in

limine (document no. 51) is granted.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

May 26, 2015

cc: Donald A. Feith, Esq. Charles L. Rombeau, Esq. Sven D. Wiberg, Esq. United States Marshal United States Probation