US v. Diaz

Filing 920100303

Opinion

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var WPFootnote1 = ' To avoid confusion, we refer to Evelyn Diaz by her first\
name throughout the remainder of the opinion. \
'

var WPFootnote2 = ' Diaz was sentenced to a term of imprisonment of fifty-one\
months and twenty-four months of supervised release.\
'

var WPFootnote3 = ' Evelyn was apparently out on bail following the first\
arrest.\
'

var WPFootnote4 = ' Blair testified that he knew the person P called was male\
because he could hear the person\'s voice on the phone.\
'

var WPFootnote5 = ' The note was marked to be included in the record, but it was\
not preserved.\
'

var WPFootnote6 = ' The court told the jury:\
\
              Now, a few words about your conduct as jurors. You\
cannot talk about this case with anyone. . . . You cannot\
talk to anyone about the case now. Once the case is\
concluded, you can talk about it with whoever you want\
to, but for now you can\'t. You can\'t even talk about it\
in the jury room, and I say that because what we don\'t\
want is the first three jurors deciding the case after\
the first witness and then the next three after the next\
one. It\'s important for you to hear all of the witnesses\
and my instructions of law before you form an opinion as\
to the appropriate outcome of this case.\
'

var WPFootnote7 = ' In his reply brief, Diaz suggests that the district court\
was acting under the misconception that, even if further\
investigation revealed that the jurors had engaged in premature\
deliberations, the only remedy would be a curative instruction. He\
points to the court\'s observation that, "there\'s no remedy even if\
they did talk about it . . . , other than what I\'m about to do,\
which is tell them not to do it again."\
              Whatever the court\'s understanding of the range of available\
remedies, it is apparent that the court viewed the circumstances in\
this case to present only a slight possibility of improper\
deliberations, for which a curative instruction was a sufficient\
remedy. As we have explained, that judgment is supportable. \
'

var WPFootnote8 = ' Two of these seven "statements" consist of multiple\
sentences that the parties grouped together for purposes of\
discussion.\
'

var WPFootnote9 = ' "Verbal acts" include statements whose utterance "gives rise\
to legal consequences," such as the words used by contracting\
parties in reaching an agreement or by individuals charged with\
making a threat, bribe or misrepresentation. 5 Weinstein\'s Federal\
Evidence § 801.11[3], at 801-18-20. The "verbal parts of actions"\
doctrine establishes that "utterances that help to clarify or\
define ambiguous conduct are not hearsay." Id. at § 801.11[4], at\
801-21.\
'

var WPFootnote10 = ' Diaz concedes that he failed to object to the two statements\
made in phone calls with Cherubino. Admission of those statements\
would in any event be subject only to plain error review.\
'

var WPFootnote11 = '   The only one of the six suggestive of Diaz\'s complicity\
was P\'s statement "[w]e\'re in" because Blair could hear that she\
was reporting that information to a male. Even within that\
context, however, the statement did not point to Diaz. \
'

var WPFootnote12 = ' Rule 803 lists various exceptions to the hearsay rule,\
including subsection (3) as follows:\
\
              Then existing mental, emotional, or physical condition. \
A statement of the declarant\'s then existing state of\
mind, emotion, sensation, or physical condition (such as\
intent, plan, motive, design, mental feeling, pain, and\
bodily health), but not including a statement of memory\
or belief to prove the fact remembered or believed unless\
it relates to the execution, revocation, identification,\
or terms of declarant\'s will.\
'

var WPFootnote13 = ' The court instructed the jury as follows:\
\
              Now, at this point, "I\'ll run it downstairs" I\'m\
admitting only for what was in the state of mind of that\
younger woman when she said that, what was in her mind at\
that point, with that limiting instruction in mind.\
'

var WPFootnote14 = ' Before Detective Blair took the stand, the court had advised\
counsel that it would "give a limiting instruction as to [P\'s]\
state of mind." The following exchange then took place:\
\
              DEFENSE COUNSEL: What is the limiting instruction the\
Court is planning to give? I do object to it, and I want\
the record to reflect clearly that that should not be\
admissible against Mr. Diaz.\
              COURT: Yes, your objection is clear, and you should\
probably object again just to make sure it\'s clear for\
the record. But I\'ll give a limiting instruction:\
"You\'re only to consider it as to what her intent is and\
her plan was."\
              DEFENSE COUNSEL: I will object.\
\
During Blair\'s testimony about his conversation with the two girls,\
counsel objected repeatedly to "this entire line of questioning"\
and asked if the attorneys could "come up just so I can make sure\
that the record is clear about my objection on this." The court\
denied the request, stating "No. You\'ve made it." After Blair\
testified to the "I\'ll run it downstairs" statement, the court gave\
the instruction described in footnote 13. \
'

var WPFootnote15 = ' Diaz, inter alia, reiterates his claim that the statement\
should have been excluded as irrelevant.\
'

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