     06-1462-cr
     United States v. Pepin

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2007

4    (Argued:    September 6, 2007                  Decided: February 5, 2008
5                                               Errata Filed: March 11, 2008)

6        Docket No. 06-1462-cr(L), 06-2566-cr(con), 06-3284-cr(con)

7                    -------------------------------------

8                             UNITED STATES OF AMERICA,

9                                    Appellant,

10                                      - v -

11   HUMBERTO PEPIN, ALSO KNOWN AS HOMBERTO PEPIN TAVERAS, ALSO KNOWN
12                   AS TONY, HUMBERTO PEPIN TAVERAS,

13                               Defendant-Appellee.

14                   -------------------------------------
15
16   Before:     WALKER, CALABRESI, and SACK, Circuit Judges.

17               Appeal from orders of the United States District Court

18   for the Eastern District of New York (Jack B. Weinstein, Judge)

19   excluding (1) from the penalty phase of a capital trial, evidence

20   of child abuse by the defendant and evidence relating to the

21   defendant's previous conviction for child endangerment, and (2)

22   from both the guilt and penalty phases of the trial, evidence of

23   post-mortem dismemberment of the victims.         We affirm as to the

24   orders related to the admission of evidence of child abuse and

25   the child endangerment conviction, but vacate as to the order

26   barring all evidence related to post-mortem dismemberment.

27               Affirmed in part; vacated in part.
1                              DAVID L. LEWIS (Louis M. Freeman,
2                              Freeman Nooter & Ginsberg, of counsel),
3                              New York, NY, for Defendant-Appellee.

4                              LEE J. FREEDMAN, Assistant United States
5                              Attorney for the Eastern District of New
6                              York (Roslynn R. Mauskopf, United States
7                              Attorney, Peter A. Norling, Assistant
8                              United States Attorney, of counsel),
9                              Brooklyn, NY, for Appellant.

10   SACK, Circuit Judge:

11             The defendant, Humberto Pepin,1 awaits trial on (1) one

12   count of obstruction of justice, and (2) two counts of murder

13   committed while engaged in drug trafficking.   The government

14   seeks the death penalty as to the latter.

15             The government proffered as evidence supporting a "non-

16   statutory aggravating factor" of "future dangerousness," Pepin's

17   "engage[ment] in a continuing pattern of violence," including

18   "child abuse," for the jury to consider at the penalty phase.

19   Notice of Intent to Seek a Sentence of Death dated October 20,

20   2005, United States v. Taveras, No. 04-cr-156 (E.D.N.Y.)

21   ("Notice"), at 4, 12.   The district court (Jack B. Weinstein,

22   Judge) granted a motion by Pepin to preclude such evidence at the

23   penalty phase on grounds that such matters were unrelated to

24   "future dangerousness" or the crimes charged in the indictment.

25             The government then sought to amend its Notice to

26   include, as a separate non-statutory aggravating factor, "moral


          1
             The defendant has been referred to in and by the district
     court as Humberto Pepin Taveras. See, e.g., United States v.
     Taveras, 436 F. Supp. 2d 493 (E.D.N.Y. 2006). On appeal, though,
     he is referred to as Humberto Pepin. We therefore use the latter
     name.

                                     -2-
1    condemnation," to be supported by the defendant's prior

2    conviction for child endangerment and related behavior.   The

3    court concluded that "[s]ubstantively, the amendment cannot

4    stand."   United States v. Taveras, 436 F. Supp. 2d 493, 502

5    (E.D.N.Y. 2006).   All evidence the government might adduce to

6    support the proposed factor would therefore be excluded for

7    essentially the reasons that the same evidence had been excluded

8    as support for a "future dangerousness" factor.

9               Finally, after Pepin raised the issue of the

10   admissibility of photographs of the victims' dismembered bodies,

11   the district court, sua sponte, issued an order precluding all

12   evidence as to dismemberment at either the guilt phase or the

13   penalty phase of the trial.

14              We affirm as to the orders related to the admission of

15   evidence of Pepin's alleged child abuse and of his child-

16   endangerment conviction at the penalty phase, but vacate the

17   order barring all evidence related to dismemberment.

18                                 BACKGROUND

19              In a superseding indictment dated October 20, 2005,

20   filed in the United States District Court for the Eastern

21   District of New York,2 Pepin was charged with, inter alia, (1)

22   one count of obstruction of justice, in violation of 18 U.S.C.

23   § 1512(b)(3), and (2) two counts of murder committed while Pepin

24   was engaged in drug trafficking, in violation of 21 U.S.C.


          2
             Pepin was first indicted in the Eastern District on
     February 20, 2004.

                                      -3-
1    § 848(e)(1)(A).3     If convicted on either or both of the latter

2    two charges, Pepin is subject to a minimum sentence, under 21

3    U.S.C. § 848(e)(1)(A), of 20 years' imprisonment and a maximum

4    penalty of death.4     The government seeks the death penalty.

5               Because this is a capital case, the Federal Death

6    Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., provides the

7    procedures to be employed at sentencing.     The district court is

8    required by the FDPA, among other things, to "conduct a separate

9    sentencing hearing to determine the punishment to be imposed."

10   18 U.S.C. § 3593(b).     The hearing will ordinarily be held "before

11   the jury that determined the defendant's guilt."     18 U.S.C.

12   § 3593(b)(1).

13              [T]he jury . . . shall consider whether all
14              the aggravating factor or factors found to
15              exist sufficiently outweigh all the
16              mitigating factor or factors found to exist
17              to justify a sentence of death, or, in the

          3
             The superseding indictment also charged Pepin with a
     firearm-related murder under 18 U.S.C. § 924(j)(1), but the
     district court granted Pepin's motion to dismiss that charge.
     The dismissal is not before us.
          4
              That statute provides in part:
                any person engaging in . . . an offense
                punishable under section 841(b)(1)(A) of this
                title . . . who intentionally kills or
                counsels, commands, induces, procures, or
                causes the intentional killing of an
                individual and such killing results, shall be
                sentenced to any term of imprisonment, which
                shall not be less than 20 years, and which
                may be up to life imprisonment, or may be
                sentenced to death.
     21 U.S.C. § 848(e)(1)(A).



                                       -4-
1              absence of a mitigating factor, whether the
2              aggravating factor or factors alone are
3              sufficient to justify a sentence of death.
4              Based upon this consideration, the jury by
5              unanimous vote . . . shall recommend whether
6              the defendant should be sentenced to death,
7              to life imprisonment without possibility of
8              release or some other lesser sentence.
9    18 U.S.C. § 3593(e).

10             Charged Murders and Post-Homicide Conduct

11             In support of the charges contained in the October 20,

12   2005 superseding indictment, the government states that it

13   intends to prove "through witness testimony, Pepin's statements

14   to law enforcement officers, photographs of his victims after

15   they were recovered, and autopsy reports and photographs," Gov't

16   Br. at 3, the following facts:

17             Pepin was born in the Dominican Republic.   In or about

18   1981, he entered the United States illegally, eventually settling

19   in New York City.    At all relevant times, he sold drugs from an

20   apartment in the Bronx which he rented for that purpose.     See

21   id.; Written Statement of Humberto Pepin Taver[a]s to Yonkers

22   Police Detective Geiss dated October 15, 20025 (the "Pepin

23   Statement") (stating that the apartment was on Sherman Avenue in

24   the Bronx).

25             The Rosario Killing.   José Rosario was one of Pepin's

26   sources for drugs.   The two of them had an arrangement under

27   which Rosario robbed dealers of their drugs and then supplied



          5
             In the statement, Pepin says that Yonkers Detective
     Wilson Gonsalez was also present.

                                      -5-
1    those drugs to Pepin.    Pepin then sold them, sharing the proceeds

2    with Rosario.   Gov't Br. at 4.    In or about September 1992, a

3    Pepin associate known as "Nelo" told Pepin that Rosario had

4    instructed him, Nelo, to kill Pepin.      Id.

5               On or about September 17, 2002, Rosario visited Pepin's

6    Bronx apartment where Pepin, in the presence of George Loyola,

7    one of Pepin's drug sellers, shot Rosario several times.      Pepin

8    then ordered Loyola at gunpoint to help Pepin carry Rosario's

9    body into the bathroom.    They placed the body in the bathtub and

10   left the bathroom.   Pepin returned shortly thereafter when he

11   heard noises suggesting that Rosario might still be alive.      Pepin

12   cut Rosario's neck so that he would bleed to death and the blood

13   would drain from the tub.    Id.

14              Loyola and Pepin left the Bronx apartment.     Pepin went

15   home where his girlfriend, Julia Mendez, was waiting.      Pepin told

16   Mendez that he had killed Rosario.       He then ordered her to make

17   dinner for him.   Afterward, Pepin forced Mendez to come with him

18   to the Bronx apartment, stopping en route to purchase a knife.

19   Id.

20              Pepin's cousin, Apolinar Taveras, and Loyola joined

21   Pepin at the Bronx apartment.      Unable to coerce Loyola to assist

22   him, Pepin dismembered Rosario's body by himself, using the knife

23   he had just purchased.    He placed the body parts into garbage

24   bags.   Pepin then forced Loyola to accompany Pepin to Yonkers,




                                        -6-
1   where Pepin dumped the bags.      Rosario's remains were discovered

2   soon thereafter.6   Id. at 4-5.

3             The Madrid Killing.     More than two years later, on

4   October 4, 1994, Pepin was arrested by Federal Drug Enforcement

5   Administration agents following a search of another apartment


         6
            On October 15, 1992, Pepin, incarcerated in the Otisville
    [N.Y.] Federal Correctional Facility, gave this version of the
    events to at least one Yonkers, New York, detective:
              I walked into the bedroom, when I came out of
              the bedroom I had a 22 cal pistol. . . .
              [Rosario] was still seating [sic] on the
              couch . . . . I told him I was going to kill
              him. [Rosario] started to rise up off of the
              couch, I then pointed the gun at him and I
              shot him, I think 4 times, one was in the
              right eye I think, one was in the neck, one
              in the chest, and I am not sure where the
              other shot went. . . . [M]yself and George
              [Loyola] dragged [Rosario] into the bathroom
              and put him in the tub. I put a cut into his
              neck so the blood would drain out. I then
              left to go to my house . . . . When I got
              home I ate and I told . . . Julia [Mendez]
              that I killed [Rosario] and that I had to go
              back and cut up his body. . . . Julia asked
              me if I needed any help. I told her that I
              did. I then left with [her]. . . . I bought
              a large knife in the hardware store which is
              on Sherman Ave. . . . When I got to the
              apartment George [Loyola] asked me if my
              cousin Apolinar Taver[a]s could help us. I
              told him yes and for him to get him. . . . A
              short time later we all cut up [Rosario] who
              was in the tub. I know how to cut up a body
              because in my country I worked as a butcher.
              I cut [Rosario] up by the joints, I cut off
              his head at the neck, I cut off his arm at
              the shoulder, his torso, his legs, his knees.
              I cut him up at the joints. We then placed
              him into separate garbage bags, I believe it
              was around 4 P.M. . . . [M]yself and George
              [Loyola] and Apolinar . . . came back when it
              was dark[,] . . . drove to Yonkers and I
              dumped the garbage bags in a park.
    Pepin Statement at 1-2.
                                       -7-
1    that Pepin was renting.   The search resulted in the seizure of

2    drugs and Pepin's indictment in the United States District Court

3    for the Southern District of New York on federal drug charges.

4    Pepin was released pending trial on a bond signed by Carlos

5    Madrid, another Pepin associate, as a surety.     Id. at 6.

6               Sometime thereafter, Pepin and Mendez went to Madrid's

7    home in Queens, where Pepin asked Madrid for money.      Madrid gave

8    Pepin twenty dollars, far less than Pepin had sought.     On the way

9    home, Pepin's BMW struck a guardrail.    Upset, Pepin told Mendez

10   that Madrid was "going to have to pay."    Id.

11              By October 1995, Mendez, by then separated from Pepin,

12   had moved into her sister's residence.    Pepin and Mendez were

13   nonetheless attempting to reconcile.    On or about October 9,

14   1995, Pepin picked Mendez up at her sister's home, saying that he

15   wanted to take Mendez to dinner.   Instead, he drove her to his

16   house.   Id.

17              When they arrived, Pepin ordered Mendez into the

18   bedroom.   He told her that he was waiting for Madrid because that

19   day Madrid was "going to pay for what he did."     Id.   He told her

20   to play video games with the television sound turned up.      He then

21   left the bedroom, locking Mendez inside.    Id.

22              Pepin had asked Madrid to the house on the pretext that

23   he, Pepin, wanted to buy drugs from Madrid.      When Madrid arrived

24   with the drugs, Pepin brought Madrid into the bedroom to say

25   hello to Mendez.   The two men then left the room.    Id. at 7.

26   Shortly thereafter, Mendez heard several loud noises.     They were,

                                     -8-
1    it turned out, the sounds of Pepin hitting Madrid over the head

2    with a blunt instrument.    Pepin also stabbed Madrid with a knife.

3    The injuries Pepin inflicted on Madrid were fatal.

4              About fifteen minutes later, Pepin entered the bedroom

5    and told Mendez to buy garbage bags and cleaning supplies and to

6    avert her eyes from the kitchen area as she left.     Mendez

7    nonetheless looked into the kitchen as she passed and saw a pair

8    of legs in a puddle of blood.    On her return, the door leading to

9    the kitchen was closed.    Mendez returned to the bedroom.     Id. at

10   7-8.

11             Pepin dismembered Madrid's body and placed the body

12   parts in trash bags.   Mendez later saw Pepin placing a bag in the

13   trunk of Madrid's automobile.    Id. at 8.

14             Pepin and Mendez left together -- Pepin driving

15   Madrid's car; Mendez driving Pepin's.     Pepin dumped most of the

16   bags containing the body parts, but at least one -- with Madrid's

17   severed head inside it -- was left in the automobile, which Pepin

18   unsuccessfully attempted to burn.      Soon thereafter, authorities

19   recovered the remains.    Id.

20             Child Abuse Allegations

21             The government seeks to present evidence during the

22   penalty phase of Pepin's trial -- if there is one -- regarding

23   Pepin's treatment of Mendez's children.

24             According to the government, Mendez moved in with Pepin

25   in 1989, along with her son and daughter from a prior

26   relationship.   At the time, the girl was eight years old.     Pepin

                                      -9-
1    confined the children to a single room of their apartment, made

2    them use a bucket as a latrine, and frequently prevented Mendez

3    from providing food to them.       The government also contends that

4    Pepin vaginally and anally raped Mendez's daughter on many

5    occasions, beat her when she informed Pepin, truthfully, that she

6    was pregnant, and carved his name into her chest using a needle.

7    Id. at 9-10.

8                   On January 2, 1997, the Bronx County District

9    Attorney's office charged Pepin with rape, sodomy, assault,

10   possession of a weapon, and endangering the welfare of a child.

11   Pepin later pleaded guilty to a misdemeanor charge of endangering

12   the welfare of a child, in satisfaction of all charges against

13   him.       He served nine months in prison and was then deported to

14   the Dominican Republic.       Id. at 10.

15                  Less than six months later, Pepin was arrested

16   attempting to re-enter the United States.       He was subsequently

17   convicted on federal charges of illegal re-entry, bail jumping,

18   and drug trafficking.       Id.   While in prison on those charges, he

19   wrote a letter to a Yonkers police officer admitting that he had

20   had sexual relations with Mendez's daughter but denying that he

21   did so against her will.       Id.7 (citing letter, date obscure, from

22   Pepin, in Otisville, to "Señor John Geiss.").

23                  District Court Ruling as to Evidence of Child Abuse




            7
             The letter is in Spanish. The record contains copies of
     the original and an English translation.
                                    -10-
1                   On October 20, 2005, the government filed a superseding

2    Notice of Intent to Seek a Sentence of Death, pursuant to 18

3    U.S.C. § 3593(a), in which "future dangerousness" was proffered

4    as a "non-statutory aggravating factor" as follows:

 5                  The defendant HUMBERTO PEPIN TAVERAS is
 6                  likely to commit criminal acts of violence in
 7                  the future that would constitute a continuing
 8                  and serious threat to the lives and safety of
 9                  others, as evidenced by, at least, one or
10                  more of the following:
11                    a.   Continuing Pattern of Violence
12                    The defendant HUMBERTO PEPIN TAVERAS has
13                    engaged in a continuing pattern of
14                    violence, attempted violence, and
15                    threatened violence, including, at
16                    least, (a) the crimes charged in the
17                    Indictment, (b) the crimes for which the
18                    defendant has been previously convicted,
19                    (c) child abuse, (d) domestic abuse and
20                    (e) threatening and attempting to kill
21                    John Doe, a witness against the
22                    defendant.

23   Notice at 3-4, 11-12 (emphasis added).8

24                  On February 28, 2006, the district court issued a

25   Memorandum and Order that, inter alia, excluded at the penalty

26   phase all evidence related to allegations of acts of violence and

27   abuse against the child and the adult women set forth in the

28   Notice as non-statutory aggravating factors.       The court found the

29   evidence to be unduly prejudicial under Federal Rule of Evidence

30   403.       United States v. Taveras, 04-cr-156, 2006 WL 473773, at *6,

31   2006 U.S. Dist. LEXIS 7408, at *17-*18 (E.D.N.Y. Feb. 28, 2006)

32   ("Memorandum and Order on Challenges to Death Penalty") ("Taveras

33   I").       The court concluded:


            8
                 Prior versions of the Notice contained the same text.
                                        -11-
 1              [F]or Rule 403 reasons and others
 2              [previously] explained orally [by the court],
 3              evidence of the aggravating factors of sexual
 4              crimes committed on a minor and a sexual
 5              assault on an adult will not be permitted.
 6              They do not relate to the homicidal
 7              characteristics which form the basis of the
 8              prosecution and they might well be overvalued
 9              in light of recent publicity on sexual
10              assaults on children in this geographic area.
11   Id., 2006 U.S. Dist. LEXIS 7408, at *17-*18.

12              On March 16, 2006, the court, relying on 21 U.S.C.

13   § 848(j) (repealed),9 revisited its decision excluding evidence

14   of Pepin's violence against adult women and decided to allow it.

15   But the court reaffirmed its decision to exclude evidence as to

16   child abuse, which it explained in greater detail.   United States

17   v. Taveras, 424 F. Supp. 2d 446 (E.D.N.Y. 2006) ("Taveras II").

18   Noting that there was a "great likelihood that defendant, if

19   convicted and spared death, will spend the rest of his life in

20   prison," id. at 463, the court viewed evidence of sexual and

21   physical abuse against minors as irrelevant to future

22   dangerousness because of the unlikelihood of his release into the

23   community, id.   The court also concluded that admission of such

24   evidence would confuse the jury, id., and, "[s]ince the

25   government bears the burden of proving these charges beyond a

26   reasonable doubt, proof would require a diversionary trial within



          9
              21 U.S.C. § 848(j) provided, in pertinent part:
                [I]nformation may be excluded if its
                probative value is substantially outweighed
                by the danger of unfair prejudice, confusion
                of the issues, or misleading the jury.
          Id.
                                    -12-
1    a trial that would have minimal relevance to the future danger

2    posed by defendant to those with whom he is, if convicted, likely

3    to spend the rest of his life -- adult guards and male inmates,"

4    id. at 463-64.   The court continued:

 5             More importantly, the evidence would be
 6             likely to so inflame the passions of the
 7             jurors as to inhibit their careful
 8             consideration of the future dangerousness
 9             factor. Wide attention to a recent spate of
10             sexual assaults against minors would make it
11             almost impossible for a jury to disconnect
12             its anger at the prevalence of the crimes
13             from the issue of future dangerousness of
14             this defendant. Defendant's contentions that
15             the relationship was consensual would confuse
16             the issues by directing the jury's energies
17             towards divining the nature of the
18             relationship between the two rather than the
19             need to protect society from future crimes of
20             defendant, the basis of the future
21             dangerousness factor. Introduction of this
22             evidence would not produce the heightened
23             reliability required of a capital sentence.
24   Id. at 464.

25             On or about March 23, 2006, the government, undaunted,

26   sought to file another superseding Notice of Intent to Seek a

27   Sentence of Death.   Notice of Intent To Seek Sentence of Death

28   dated March 22, 2006, United States v. Taveras, No. 04-CR-156

29   (E.D.N.Y.), accompanying motion for leave to file the amended

30   Notice filed on March 23, 2006.   This time, instead of adverting

31   to child abuse as an indication of future dangerousness, the

32   proposed superseding Notice set forth as a separate non-statutory

33   aggravating factor Pepin's previous conviction for child

34   endangerment and related behavior.    Id. at 5-6.   The proposed

35   superseding Notice added the assertion that "[b]eyond raping the

                                    -13-
1    child, the defendant repeatedly falsely imprisoned the child,

2    deprived her of food and water, and beat her.   On one occasion,

3    the defendant carved his nickname, 'Tony,' on the child's chest."

4    Id.   These facts, the proposed superseding Notice said,

5    "demonstrate[] that the defendant merits moral condemnation by

6    the community."   Id. at 6.

7               On May 4, 2006, at a status conference, the district

8    court invoked its discretion, not under 21 U.S.C. § 848(j)

9    (repealed) as it had previously done, but under 18 U.S.C.

10   § 3593(c), which governs admissibility of evidence at the penalty

11   phase of capital trials.   Section 3593(c) provides, in part, that

12   "[i]nformation is admissible regardless of its admissibility

13   under the rules governing admission of evidence at criminal

14   trials except that information may be excluded if its probative

15   value is outweighed by the danger of creating unfair prejudice,

16   confusing the issues, or misleading the jury."10   The court

17   decided that "[the government's] amendment is permitted but [it

18   will] be allowed no evidence on it."   Hearing Transcript, May 4,

19   2006, at 29.

20              The court further explained its position in an "Omnibus

21   Pretrial Memorandum and Order" dated June 29, 2006.   United



           10
             By contrast, Federal Rule of Evidence 403, which applies
     during the guilt phase, provides: "Although relevant, evidence
     may be excluded if its probative value is substantially
     outweighed by the danger of unfair prejudice, confusion of the
     issues, or misleading the jury, or by considerations of undue
     delay, waste of time, or needless presentation of cumulative
     evidence." Id. (emphasis added). The analogous language in 18
     U.S.C. § 3593(c) omits the word "substantially."
                                    -14-
1    States v. Taveras, 436 F. Supp. 2d 493 (E.D.N.Y. 2006) ("Taveras

2    III").    "The new proposed notice would not add new allegations,

3    but merely reorganize them in response to this court's ruling"

4    excluding evidence as to child abuse.    Id. at 502.   Although the

5    motion to amend was procedurally "unobjectionable" because the

6    government's application was made in good faith and Pepin was not

7    prejudiced by it, id., "[s]ubstantively, the amendment cannot

8    stand.    Nothing in the government's motion justifies [the

9    court's] departure from [its] previous ruling excluding this same

10   evidence.    See [Taveras II], 424 F. Supp. 2d at 463-64.     The more

11   stringent standard of admissibility provided for by title 18's

12   FDPA strengthens the basis for the ruling that this evidence is

13   inadmissible."    Taveras III, 436 F. Supp. 2d at 502-03.11

14               District Court Ruling as to Evidence
15               of Post-Mortem Dismemeberment

16               In Taveras III, the district court also excluded all

17   evidence of post-mortem dismemberment of the victims in both the

18   guilt and penalty phases of trial.    The court indicated that if

19   one looked at the guilt phase alone, the dismemberment evidence

20   would be permitted.    "These details form part of the res gestae,

21   the narrative that the government rightly seeks to tell at the

22   guilt phase of a trial.    Old Chief v. United States, 519 U.S.


          11
             Although not entirely clear to us, it appears that the
     court was not denying the motion to file the amended notice. It
     was adhering to its earlier oral decision to permit the amendment
     to the Notice of Intent to Seek a Sentence of Death, but ordering
     all evidence as to the child endangerment conviction excluded.
     See Hearing Transcript, May 4, 2006, at 29. The precise
     characterization of the order in this regard does not, however,
     affect our consideration of this appeal.
                                    -15-
1    172, 187 (1997).     Their probative value would not be

2    'substantially outweighed by the danger of unfair

3    prejudice . . . .'    Fed. R. Evid. 403."   Id. at 514.

4    But, the court ruled, any such evidence was inadmissible in the

5    penalty phase because it would "short-circuit" the process

6    "carefully choreographed" by section 3593 for determining the

7    appropriate sentence "by tending to rush the jury into an

8    emotional conclusion."    Id. at 515.

 9             "It is of vital importance to the defendant
10             and to the community that any decision to
11             impose the death sentence be, and appear to
12             be, based on reason rather than caprice or
13             emotion." Gardner v. Florida, 430 U.S. 349,
14             358 (1977). The court has a duty to minimize
15             the "risk [of] a verdict impermissibly based
16             on passion, not deliberation." Payne v.
17             Tennessee, 501 U.S. 808, 836 (1991) (Souter,
18             J., concurring).
19   Id. (brackets in original).
20             The court then decided that despite its conclusion that

21   the dismemberment evidence would have been allowed under Federal

22   Rule of Evidence 403 if the court's concern was solely whether

23   its probative value was substantially outweighed by the danger of

24   unfair prejudice at the guilt phase of the trial, the need to

25   exclude the evidence at the penalty phase required its exclusion

26   at the guilt phase, too.    "Since one jury will hear both the

27   penalty and guilt phases, such evidence also will not be received

28   at the guilt phase."    Id. at 515-16.

29             Instead, the court said, it "expected" the parties to

30   "stipulate that:   After killing Rosario, defendant returned home,

31   ate dinner, and then returned to the apartment with Julia Mendez.

                                      -16-
1    Defendant wrapped the body, drove it to Yonkers with Loyola, and

2    dumped it.     After killing Madrid, defendant wrapped the body,

3    placed it in Madrid's car, drove the car to Queens, and set it on

4    fire."     Id. at 516.   "This ruling sacrifices some of the

5    probative force of the government's proposed evidence.       Yet it is

6    necessary to preserve defendant's right to capital proceedings

7    that are properly channeled and focused on the issue for which

8    the evidence is offered -- i.e., future dangerousness."        Id.

9    Reference to dismemberment during voir dire was also prohibited.

10   Id.

11                The government appeals from the orders excluding

12   evidence of child abuse or evidence related to the child

13   endangerment conviction from the penalty phase, and the order

14   excluding post-mortem dismemberment evidence from both the guilt

15   and penalty phases of trial.       On September 6, 2007, we granted

16   the government's motion for a stay of the trial pending our

17   resolution of this appeal.

18                                    DISCUSSION

19                I.   Jurisdiction

20                We have jurisdiction to consider this appeal under 18

21   U.S.C. § 3731.      See, e.g., United States v. Chevere, 368 F.3d 120

22   (2d Cir. 2004) (hearing government's challenge to pre-trial

23   evidentiary ruling on interlocutory appeal).12


           12
                18 U.S.C. § 3731 provides in pertinent part:
                  An appeal by the United States shall lie to a
                  court of appeals from a decision or order of
                  a district court suppressing or excluding
                                       -17-
1              II.    Standard of Review

2              "[W]e review evidentiary rulings for abuse of

3    discretion."    United States v. Sewell, 252 F.3d 647, 650 (2d

4    Cir.), cert. denied, 534 U.S. 968 (2001); see also Awadallah, 436

5    F.3d at 131 ("We review the exclusion of evidence pursuant to

6    Rule[] 403 . . . for abuse of discretion."); United States v.

7    Salameh, 152 F.3d 88, 110 (2d Cir. 1998) (per curiam) (concluding

8    that Fed. R. Evid. 403 determinations may be overturned "'only if

9    there is a clear showing that the court abused its discretion or

10   acted arbitrarily or irrationally'" (quoting United States v.

11   Valdez, 16 F.3d 1324, 1332 (2d Cir. 1994))), cert. denied sub

12   nom. Abouhalima v. United States, 525 U.S. 1112 (1999).

13             Although we have not squarely addressed the question

14   before, we see no reason to apply a different standard of review

15   to a district court’s ruling that information proferred by the

16   government as evidence is inadmissible at the penalty phase of a



               evidence . . . in a criminal proceeding, not
               made after the defendant has been put in
               jeopardy and before the verdict or finding on
               an indictment or information, if the United
               States attorney certifies to the district
               court that the appeal is not taken for
               purpose of delay and that the evidence is a
               substantial proof of a fact material in the
               proceeding.
     This statute permits the government, under certain circumstances,
     to mount a pre-trial appellate challenge to a district court's
     decision rejecting trial evidence proffered by the government.
     But for the statute, in the event of an acquittal, the government
     would have no post-trial remedy for an erroneous evidentiary
     ruling, however serious the error, because of the operation of
     the Fifth Amendment's double-jeopardy bar. See United States v.
     Wilson, 420 U.S. 332, 335-40 (1975).
                                    -18-
1    capital prosecution under section 3593(c).   The other circuit

2    courts to reach this issue have taken a similar approach,

3    deciding that, absent constitutional or other legal errors, a

4    district court’s section 3593(c) rulings are reviewed for abuse

5    of discretion.   See United States v. Hall, 152 F.3d 381, 397-98

6    (5th Cir. 1998) ("[T]he district court has considerable

7    discretion in controlling the presentation of the 'information'

8    to the jury in both content and form." (internal quotations

9    omitted)); United States v. McVeigh, 153 F.3d 1166, 1214 (10th

10   Cir. 1998) ("We review a district court's determination that

11   evidence is not relevant to a mitigating factor for abuse of

12   discretion."); United States v. Johnson, 223 F.3d 665, 674 (7th

13   Cir. 2000) ("The [section 3593(c)] balancing is committed to the

14   discretion of the district judge, not here abused." (citing Hall,

15   152 F.3d at 397)).

16             Our review must, however, "be de novo on the question

17   whether, in exercising its discretion to admit evidence, the

18   district court applied the proper legal test."    Borawick v. Shay,

19   68 F.3d 597, 601 (2d Cir. 1995) (citing A/S Dampskibsselskabet

20   Torm v. Beaumont Oil Ltd., 927 F.2d 713, 716 (2d Cir. 1991)),

21   cert. denied, 517 U.S. 1229 (1996).

22             The government is understandably wary of our reviewing

23   the district court's rulings under the deferential abuse of

24   discretion standard.   It therefore attempts to phrase its

25   arguments as challenges to the legal bases for the district

26   court's rulings, which we would review de novo.   The government
                                    -19-
1    does not so much as mention the abuse of discretion standard

2    until the second footnote of its reply brief.   We nonetheless

3    review the court's orders both for errors of law and abuse of

4    discretion.13

5               III.  The Exclusion of Evidence of Child Abuse
6                     and the Child Endangerment Conviction
7    A.   Errors of Law

8               18 U.S.C. § 3593(c) provides, in pertinent part:

 9              Proof of mitigating and aggravating
10              factors. . . . At the sentencing hearing,
11              information may be presented as to any matter
12              relevant to the sentence, including any
13              mitigating or aggravating factor permitted or
14              required to be considered under section 3592.
15              Information presented may include the trial
16              transcript and exhibits if the hearing is
17              held before a jury or judge not present
18              during the trial, or at the trial judge's
19              discretion. The defendant may present any
20              information relevant to a mitigating factor.
21              The government may present any information
22              relevant to an aggravating factor for which
23              notice has been provided [by a notice to seek
24              the death penalty]. Information is
25              admissible regardless of its admissibility


           13
             We ordinarily adhere to the rule that "[i]ssues not
     sufficiently argued in the briefs are considered waived and
     normally will not be addressed on appeal." Norton v. Sam's Club,
     145 F.3d 114, 117 (2d Cir.), cert. denied, 525 U.S. 1001 (1998).
     And "[w]e generally do not consider issues raised in a reply
     brief for the first time because if an appellant raises a new
     argument in a reply brief an appellee may not have an adequate
     opportunity to respond to it." In re Harris, 464 F.3d 263, 268-
     69 n.3 (2d Cir. 2006) (internal quotation marks and citations
     omitted). But we think that, in this case, the issues we address
     were indeed raised by the government, even though it asserted
     what was, in large measure, the wrong standard of review. There
     is no doubt, moreover, that the defendant had an opportunity to
     respond. His first words to us on this subject are: "The
     standard governing appellate review of the [district] court's
     evidentiary rulings is 'abuse of discretion.'" Def.-Appellee Br.
     at 18.
                                    -20-
 1              under the rules governing admission of
 2              evidence at criminal trials except that
 3              information may be excluded if its probative
 4              value is outweighed by the danger of creating
 5              unfair prejudice, confusing the issues, or
 6              misleading the jury. . . . The government
 7              and the defendant shall be permitted to rebut
 8              any information received at the hearing, and
 9              shall be given fair opportunity to present
10              argument as to the adequacy of the
11              information to establish the existence of any
12              aggravating or mitigating factor, and as to
13              the appropriateness in the case of imposing a
14              sentence of death. . . . The burden of
15              establishing the existence of any aggravating
16              factor is on the government, and is not
17              satisfied unless the existence of such a
18              factor is established beyond a reasonable
19              doubt. The burden of establishing the
20              existence of any mitigating factor is on the
21              defendant, and is not satisfied unless the
22              existence of such a factor is established by
23              a preponderance of the information.
24   Id.   Section 3593(c) therefore provides the legal standard upon

25   which the district court could exclude what it deemed to be

26   unduly prejudicial evidence at the penalty phase of trial.    See

27   United States v. Fell, 360 F.3d 135, 140-41 (2d Cir.), cert.

28   denied, 543 U.S. 946 (2004).14 The gravamen of the government's

29   legal argument is that despite the statute's instruction that

30   "information may be excluded if its probative value is outweighed

31   by the danger of creating unfair prejudice, confusing the issues,


           14
             In several instances, the district court does not appear
     to apply § 3593(c) in its analysis, instead discussing evidence
     in light of 21 U.S.C. § 848(j), now repealed. However,
     § 848(j)'s language utilized the less stringent "substantially
     outweighed" wording similar to that in Fed. R. Evid. 403.
     Because the test in section 3593(c) gives the court greater power
     to exclude prejudicial evidence than does the test in section
     848(j) or Rule 403, the district court's conclusion would not
     likely have been different had it applied section 3593(c) from
     the outset, as the court acknowledges. See Taveras III, 436 F.
     Supp. 2d at 500-01.
                                    -21-
1    or misleading the jury," section 3593(c) as a whole mandates the

2    district court's admission, in the penalty phase of this case, of

3    evidence as to child abuse or the child endangerment conviction,

4    or both.   We conclude that it does not.

5               It is true, as the government points out, Gov't Br. at

6    31, that in United States v. Fell, we noted, "the Supreme Court

7    has . . . made [it] clear that in order to achieve [the required]

8    'heightened reliability[]' [in the penalty phase of a capital

9    case], more evidence, not less, should be admitted on the

10   presence or absence of aggravating and mitigating factors."

11   Fell, 360 F.3d at 143 (citing Gregg v. Georgia, 428 U.S. 153,

12   203-04 (1976)).   But it hardly follows from that general

13   observation that relevant evidence is always permitted.

14   Acceptance of that reasoning would eviscerate the trial court's

15   ability to exclude unduly prejudicial material from the penalty

16   hearing inasmuch as any decision to exclude necessarily means

17   less evidence, not more.

18              In upholding the constitutionality of section 3593(c)

19   in Fell, we noted that the requirement of a fundamentally fair

20   trial

21              is certainly met [by section 3593(c)], given
22              that the balancing test set forth in the FDPA
23              is, in fact, more stringent than its
24              counterpart in the [Federal Rules of
25              Evidence], which allows the exclusion of
26              relevant evidence "if its probative value is
27              substantially outweighed by the danger of
28              unfair prejudice, confusion of the issues, or
29              misleading the jury." Fed. R. Evid.
30              403 . . . . Thus, the presumption of
31              admissibility of relevant evidence is

                                    -22-
1                actually narrower under the FDPA than under
2                the FRE.
3    Fell, 360 F.3d at 145 (first emphasis added).    We then pointed

4    out that:

 5               The FDPA does not eliminate [the] function of
 6               the judge as gatekeeper of constitutionally
 7               permissible evidence; nor does it alter or
 8               eliminate the constitutional baseline for the
 9               admissibility of evidence in a criminal
10               trial. To the contrary, under the FDPA
11               [s]tandard, judges continue their role as
12               evidentiary gatekeepers and, pursuant to the
13               balancing test set forth in § 3593(c), retain
14               the discretion to exclude any type of
15               unreliable or prejudicial evidence that might
16               render a trial fundamentally unfair.
17   Id. (citations, internal quotation marks, and brackets omitted).

18   Fell does not support the government's contention.

19               Citing Gregg v. Georgia, supra, and Williams v. New

20   York, 337 U.S. 241 (1949), the government also insists that "to

21   be constitutional, a capital sentencing procedure must be

22   individualized and based on the fullest possible information

23   about the defendant."    Gov't Br. at 33.   But Gregg did not hold

24   that the government is entitled to present to the jury "the

25   fullest possible information about the defendant" regardless of

26   what that information might be.    It concluded that a Georgia

27   capital trial scheme much like the FDPA was constitutional, in

28   part because it "provides for a bifurcated proceeding at which

29   the sentencing authority is apprised of the information relevant

30   to the imposition of sentence and provided with standards to

31   guide its use of the information."    Gregg, 428 U.S. at 195.    The

32   proceedings before us meet that standard, whatever the district

33   court's ruling was on the admissibility of evidence of child
                                    -23-
1    abuse.        Similarly, the Williams Court approved a sentencing

2    judge's ability, in determining that a death sentence was

3    warranted, to consider evidence of other crimes of which the

4    defendant had not been convicted but in which he had been

5    implicated.        Williams, 337 U.S. at 244.15   The ability of the

6    court to admit such evidence at the penalty phase is not at issue

7    here.        While both Gregg and Williams might be read to suggest

8    that the district court was permitted to admit evidence related

9    to child abuse and the conviction for child endangerment

10   consistent with the requirements of due process, they plainly do

11   not require the district court to do so as a matter of law.

12                   The other arguments the government makes on this score

13   are of a similar stripe.          For example, the government tells us

14   that the Ninth Circuit "upheld a sentencing jury's consideration

15   of the defendant's lewd and lascivious conduct conviction . . .



             15
                   The Court stated:
                     A sentencing judge . . . is not confined to
                     the narrow issue of guilt. His task within
                     fixed statutory or constitutional limits is
                     to determine the type and extent of
                     punishment after the issue of guilt has been
                     determined. Highly relevant -- if not
                     essential -- to his selection of an
                     appropriate sentence is the possession of the
                     fullest information possible concerning the
                     defendant's life and characteristics. And
                     modern concepts individualizing punishment
                     have made it all the more necessary that a
                     sentencing judge not be denied an opportunity
                     to obtain pertinent information by a
                     requirement of rigid adherence to restrictive
                     rules of evidence properly applicable to the
                     trial.
     Williams, 337 U.S. at 247.
                                           -24-
1    and his unadjudicated rape of an adult."   Gov't Br. at 36 (citing

2    McDowell v. Calderon, 107 F.3d 1351, 1366, amended and superseded

3    in part by 116 F.3d 364, vacated in part, 130 F.3d 833 (9th Cir.

4    1997) (en banc), cert. denied, 523 U.S. 1103 (1998)).    And, it

5    asserts, "[o]ther courts have admitted information about prior

6    violent acts such as rape, assault and child abuse to inform the

7    jury’s decision regarding future dangerousness."   Gov't Br. at 38

8    (citing McDowell, 107 F.3d at 1366; Hogue v. Scott, 874 F. Supp.

9    1486, 1509-11, 1524 (N.D. Tex. 1994), aff'd, 131 F.3d 466 (5th

10   Cir. 1997), cert. denied, 523 U.S. 1014 (1998)).   That may be so.

11   But it does not follow that the district court in this case and

12   on this record was required by law to rule that the prejudicial

13   effect of the evidence in question did not outweigh its probative

14   value.

15              There was no error of law.

16   B.   Abuse of Discretion

17              When reviewing the exercise of a district court's

18   discretion in the context of admissibility of evidence under

19   Federal Rule of Evidence 403, we will not disturb the court's

20   conclusion "so long as [it] has conscientiously balanced the

21   proffered evidence's probative value with the risk for

22   prejudice," and our intervention is limited only to those cases

23   where the court's decision is "arbitrary or irrational."

24   Awadallah, 436 F.3d at 131 (citing United States v. Han, 230 F.3d

25   560, 564 (2d Cir. 2000)); see also id. (quoting Hester v. BIC

26   Corp., 225 F.3d 178, 181 (2d Cir. 2000) ("A district court's

                                    -25-
1    evidentiary rulings will be disturbed only if they are

2    'manifestly erroneous.'" (quoting Luciano v. Olsten Corp., 110

3    F.3d 210, 217 (2d Cir. 1997)))).   We perceive no reason why the

4    same degree of deference does not apply when a district court has

5    excluded government-proffered evidence under 18 U.S.C. § 3593(b)

6    in the penalty phase of a capital trial.

7              In the case before us, the district court explained at

8    different times, and in some detail, its decision to exclude

9    evidence as to child abuse and the prior child endangerment

10   conviction.   According to the court:   "[This evidence does] not

11   relate to the homicidal characteristics which form the basis of

12   the prosecution," Taveras I, 2006 WL 473773, at *6, 2006 U.S.

13   Dist. LEXIS 7408, at *18; it "might well be overvalued in light

14   of recent publicity on sexual assaults on children in this

15   geographic area," id., 2006 U.S. Dist. LEXIS 7408, at *18; there

16   is a "great likelihood that defendant, if convicted and spared

17   death, will spend the rest of his life in prison" and therefore

18   his dangerousness to minor children and women is of little

19   relevance, Taveras II, 424 F. Supp. 2d at 463; it is possible

20   that admission of the evidence would necessitate a "diversionary

21   trial within a trial" as to whether Pepin's sexual relationship

22   with Mendez's daughter was consensual and whether he abused her,

23   id. at 463-64; it is likely that the evidence would "so inflame

24   the passions of the jurors as to inhibit their careful

25   consideration of the future dangerousness factor," id. at 464.

26   When the government amended its Notice of Intent to Seek a

                                    -26-
1    Sentence of Death to add the child endangerment conviction as a

2    means of putting much the same evidence before the jury under the

3    rubric of "moral condemnation," the court further observed that

4    it had earlier failed to have admitted as evidence of "future

5    dangerousness," and that "[n]othing in the government's motion

6    justifies departure from the court's previous ruling excluding

7    this same evidence," Taveras III, 436 F. Supp. 2d at 502-03.     The

8    district court thus made "a 'conscientious assessment' of whether

9    unfair prejudice substantially outweighs probative value."

10   Salameh, 152 F.3d at 110 (quoting United States v. Birney, 686

11   F.2d 102, 106 (2d Cir. 1982)).    We cannot conclude that its

12   analysis bespeaks an "arbitrary or irrational" exercise of

13   discretion, Awadallah, 436 F.3d at 131, or results in an

14   evidentiary ruling that is "manifestly erroneous," Hester, 225

15   F.3d at 181.   We therefore affirm as to these orders.

16             We pause to note that this evidentiary challenge is

17   unusual because it is made, properly under 18 U.S.C. § 3731, by

18   way of pre-trial interlocutory appeal rather than being brought

19   post-trial, post-verdict, and post-judgment.    Nonetheless, the

20   fair and proper conduct of a trial must be, and is, primarily in

21   the hands of the trial judge.    The standard of review, whether

22   before trial or after, is, therefore, abuse of discretion.      See,

23   e.g., Awadallah, 436 F.3d at 131 (applying abuse of discretion

24   review in a pre-trial appeal by the government to a district

25   court's evidentiary ruling pursuant to 18 U.S.C. § 3731).    Even

26   were we to disagree with its conclusion as to the admissibility

                                      -27-
1    of child abuse evidence, then, we would not simply substitute our

2    judgment for that of the district court.

3              IV.    The Exclusion of Evidence
4                     of Post-Mortem Dismemberment

5              The government's challenge to the exclusion from both

6    the guilt and penalty phases of all evidence regarding the

7    victims' post-mortem dismemberment raises somewhat different

8    issues.

9              The parties offer different accounts of the reasoning

10   behind the district court's decision to exclude the dismemberment

11   evidence from the guilt phase of the trial.     The government

12   argues, in essence, that the district court found the evidence

13   admissible under Rule 403, but went on to exclude it nonetheless,

14   because the evidence was not independently admissible during the

15   penalty phase.   The defense contends that the district court

16   based its ruling on Rule 403 alone, which permits a judge to

17   consider both the defendant's willingness to stipulate and the

18   potential for prejudice in the penalty phase in conducting the

19   requisite balancing.   Thus, under the government's view, we would

20   review the decision de novo as a question of law, while under the

21   defendant's view, we would only ask whether the application of

22   Rule 403 constituted an abuse of discretion.      While both are

23   reasonable characterizations of the district court's order in

24   Taveras III, we find it unnecessary to choose between them.

25   Whether the district court applied a novel rule of law or relied

26   on Rule 403, we conclude that its order with respect to the

27   dismemberment evidence at the guilt phase must be vacated.
                                    -28-
1               A.   Errors of Law

2               First, as the district court acknowledged, Federal Rule

3    of Evidence 403, providing that "evidence may be excluded if its

4    probative value is substantially outweighed by the danger of

5    unfair prejudice . . . ." (emphasis added), governs admissibility

6    of evidence at the guilt phase.    Taveras III, 436 F. Supp. 2d at

7    513.   As we have noted, a district court ordinarily has somewhat

8    less latitude to exclude probative evidence based on unfair

9    prejudice at the guilt phase, under Rule 403, than it does where

10   the evidence is offered only at the penalty phase and where the

11   court's exercise of discretion is, therefore, governed by the

12   more stringent evidentiary standard of 18 U.S.C. § 3593(c).

13   Inasmuch as the question before us is the admissibility of

14   dismemberment evidence at the guilt phase, it would appear that

15   Rule 403 applies here.    If so, the district court can exclude

16   such evidence only if the danger of unfair prejudice

17   "substantially outweighs" its probative value under Rule 403, not

18   if the one merely "outweighs" the other as section 3593(c)

19   permits.

20              According to the government, the district court

21   excluded the evidence at the guilt phase, even after finding it

22   admissible under Rule 403, because it was not independently

23   admissible during a potential penalty phase.    This decision, it

24   argues, is both contrary to section 3593(c) and unsupported by

25   any authority.



                                     -29-
1               As the district court was keenly aware, a court has two

2    separate sets of responsibilities with respect to evidence that a

3    single jury may consider twice, once when deciding between guilt

4    and acquittal, the other when deciding between life and death.

5    Insofar as the district court fashioned a novel rule governing

6    evidence at the guilt phase of a capital trial, it was clearly

7    attempting to meet both responsibilities rather than one at the

8    expense of the other.   Nevertheless, if and to the extent that

9    the district court excluded evidence from the guilt phase solely

10   because it was excluded at the penalty phase, we conclude that it

11   erred as a matter of law.

12              We do not think that the district court, in making its

13   Rule 403 determinations, is required to ignore its subsequent

14   obligation to apply the section 3593(c) standard at the penalty

15   phase.   To rule that only evidence independently admissible at

16   the penalty phase is admissible during the guilt phase, however,

17   would impermissibly allow the section 3593(c) admissibility

18   standard to govern evidentiary rulings not only at the penalty

19   phase, but throughout the entire proceeding.

20   B.   Abuse of Discretion

21              Although acknowledging once again the degree of

22   deference we pay to a district court's ruling on the

23   admissibility of evidence, we also conclude that the order

24   excluding all evidence as to post-mortem dismemberment, to the

25   extent that it relies on Rule 403, was an abuse of discretion.



                                    -30-
1              The issue at the guilt phase will be whether the

2    killings of Rosario and Madrid by Pepin were "intentional."   See

3    Taveras III, 436 F. Supp. 2d at 514.   The importance of

4    dismemberment evidence to the prosecution was cogently stated by

5    the district court:

6              [A]spects of the photographs and testimony --
7              particularly the precise manner in which the
8              bodies were dismembered –- are . . . highly
9              probative of [the] mental state [in issue].
10             At the guilt phase, such evidence would be
11             pertinent. To secure a conviction on the
12             capital charges, the prosecution must
13             convince the jury beyond a reasonable doubt
14             that defendant "intentionally kill[ed] or
15             counsel[led], command[ed], induce[d],
16             procure[d], or cause[d] the intentional
17             killing of an individual and such killing
18             result[ed]." 21 U.S.C. § 848(e)(1)(A).
19             Defendant has indicated that he does not
20             intend to contest that he killed Madrid and
21             Rosario, lessening the need for witness
22             testimony on the fact of the killing. A
23             stipulation to the victims' deaths at
24             defendant's hands would thus be an
25             alternative source of proof. See Old Chief
26             v. United States, 519 U.S. [172,] 184
27             [(1997)] ("[T]he Rule 403 'probative value'
28             of an item of evidence . . . may be
29             calculated by comparing evidentiary
30             alternatives."). Yet the government must
31             prove not merely the fact of the killing, but
32             defendant's intent.
33             Evidence that defendant calmly dismembered
34             the victims' bodies shortly after killing
35             them would tend to show that the killings
36             were not accidental -– that is, that he was
37             calm, collected, and rational shortly before
38             the killings. The precise manner in which
39             defendant disposed of the bodies -- using a
40             knife and drawing on his skill as a butcher
41             to cut at the joints -- suggests not a
42             panicked reaction to accidental death but a
43             considered effort to hide a criminal act.
44             These details form part of the res gestae,
45             the narrative that the government rightly
46             seeks to tell at the guilt phase of a trial.
                                    -31-
1              Old Chief v. United States, 519 U.S. [at]
2              187 . . . (1997). Their probative value
3              would not be "substantially outweighed by the
4              danger of unfair prejudice . . . ." Fed. R.
5              Evid. 403.
6    Id. (some brackets added).

7              Even after factoring in the potential for unfair

8    prejudice at the penalty phase, we conclude that in light of its

9    importance in the context of the case as a whole -- its "res

10   gestae," as the district court termed it, id. -- the fact that

11   Pepin dismembered the bodies of the deceased is potentially too

12   important a factor in the jury's determination as to Pepin's

13   guilt vel non of the crimes of which he is accused for it to be

14   excluded altogether at the guilt phase.    We assume without

15   deciding that the evidence may later be excludable and therefore

16   excluded under section 3593(c) during the penalty phase of the

17   trial conducted before the same jury, and that the jury would

18   thus have had access to information that should not be before it

19   for purpose of evaluating the sentence to be imposed.    But it

20   would be odd, indeed, if the very gruesomeness of the killings of

21   which Pepin has been charged were to disjoint and abbreviate the

22   prosecution's presentation of the case against him, thus

23   disadvantaging the government in its ability to establish to the

24   jury beyond a reasonable doubt that Pepin committed an

25   intentional homicide in the first place.    The importance of the

26   dismemberment evidence to the proper prosecution of the case,

27   combined with the possibility of curative instructions at the

28   penalty phase, if necessary, convince us that evidence of the

                                   -32-
1    dismemberments and their context must be allowed at the guilt

2    phase.

3                We do not mean to suggest that all evidence of

4    dismemberment must be admitted at the guilt phase.    But the

5    blanket ban of dismemberment evidence from the guilt phase was an

6    abuse of discretion, and we therefore vacate the order of the

7    district court effecting such a ban.

8                The government also asks us to decide that evidence of

9    dismemberment must be permitted at the penalty phase.    We decline

10   to do so.    Much will have happened between now and then,

11   particularly the likely use of evidence of dismemberment at the

12   guilt phase.    We cannot know with anything approaching certainty

13   what the precise issue before the court will be if and when it

14   actually is framed.    We therefore vacate the order now in force

15   barring dismemberment evidence from the penalty phase.    Should

16   these proceedings enter a penalty phase, we leave it to the

17   district court at that time -- in light of the views expressed in

18   this opinion and in the district court's sound discretion -- to

19   enter an order as to the admissibility of such evidence.

20                                CONCLUSION

21               For the foregoing reasons, the orders of the district

22   court are affirmed, except its order with respect to evidence of

23   dismemberment at the guilt and penalty phases of trial, which is

24   vacated.    The order of this Court staying the trial is vacated

25   effective upon issuance of the mandate.    Each party shall bear

26   his or its own costs.

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