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
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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
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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
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