The opinion of the court was delivered by: 10 Winter, Circuit Judge:
Before: WINTER, CHIN, and DRONEY, Circuit Judges.
14 Interlocutory appeal from pre-trial orders of the United
15 States District Court for the District of Vermont (William K.
16 Sessions, III, Judge) excluding evidence that the government
17 sought to offer in the punishment phase of a capital case. We
18 affirm in part and vacate in part.
11 The government appeals from Judge Sessions's in limine 12 ruling excluding certain evidence from the penalty phase of a 13 death penalty case. After obtaining an indictment against 14 Michael Jacques for the kidnapping, rape, and murder of a 15 12-year-old girl, the government filed a Notice of Intent to Seek 16 the Death Penalty ("Notice"). Included in the Notice, as 17 required by the Federal Death Penalty Act, 18 U.S.C. § 3591, et 18 seq., were allegations of aggravating factors the government 19 proposed to put before the jury in the penalty phase that would 20 follow a conviction. These factors included allegations of six 21 prior rapes and an attempt to obstruct justice by influencing 22 the testimony of a juvenile witness/victim.
23 In pre-trial orders, Judge Sessions struck allegations of 24 three of the prior rapes from the Notice under 18 U.S.C. § 25 3593(c) and suppressed evidence of the attempt to obstruct 26 justice as having been obtained in violation of the Sixth 27 Amendment. The government appealed. 28 We affirm the exclusion of evidence of two of the alleged 29 prior rapes, remand the third for reconsideration but leave the 1 outcome to the district court's discretion, and vacate the 2 exclusion of evidence of the attempted obstruction of justice.
3 We address each issue in turn. 4 a) Prior Rapes 5 1) Relevant Facts 6 In the Notice, the government alleged several prior rapes by 7 Jacques. The alleged victims included four juveniles and two 8 adults, whom we refer to as J1-J4 and A1-A2, respectively. The 9 district court ruled that evidence of the rape of J1 was 10 admissible during the penalty phase. Briefly stated here, and 11 more fully discussed infra, defendant's sexual contacts with J1 12 occurred over several years and were in part contemporaneous with 13 the kidnapping/rape/murder in the present matter which is alleged 14 to have occurred in 2008. Moreover, defendant is alleged to have 15 used J1 to lure the murdered 12-year old to her encounter with 16 Jacques.
17 The court also allowed the admission of evidence of the rape 18 of A2 in the penalty phase. This crime occurred in 1992 and 19 resulted in a kidnapping and rape conviction. A1 has died, and 20 the government no longer seeks to introduce evidence with regard 21 to her.
22 The court excluded evidence concerning J2, J3, and J4, and 23 the government has appealed. We turn now to these rulings. 24 In January 1985, J2, a younger relative of Jacques, sought 25 an abortion, which came to the attention of law enforcement 1 authorities. J2 told the Vermont State Police that she was 2 pregnant as a result of being raped by Jacques, who was then 18. 3 Jacques admitted that he had "experimented" with J2 and was 4 arraigned on various charges; however, the case was dismissed 5 after the family decided not to pursue the case. 6 Jacques is accused of raping J3 around the same time. She 7 was a young girl who spent the night at Jacques's residence with 8 a younger sibling. J3 never reported this incident to the police 9 because she feared that they would not believe her. 10 Finally, Jacques is alleged in 1987 to have raped J4, 11 another young girl, who was a friend of one of Jacques's younger 12 siblings. The rape is alleged to have occurred after Jacques 13 provided alcohol to ...