United States v. Veneno

80 F.4th 1180

UNITED STATES of America, Plaintiff - Appellee, v. Quentin VENENO, Jr., Defendant - Appellant.

No. 21-2101

United States Court of Appeals, Tenth Circuit

FILED September 12, 2023

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-03984-KWR-1)

Alan S. Mouritsen, Parsons Behle & Latimer, Salt Lake City, Utah, for Defendant-Appellant Quentin Veneno, Jr.

Emil J. Kiehne, Assistant United States Attorney, Albuquerque, New Mexico (Alexander M.M. Uballez, United States Attorney, with him on the brief) for Plaintiff-Appellee United States of America

Before CARSON, EBEL, and ROSSMAN, Circuit Judges.

CARSON, Circuit Judge.

The COVID-19 pandemic caused an unprecedented disruption to jury trials. The district courts faced the arduous task of conducting jury trials amid a pandemic while keeping jurors, court staff, and the public safe from transmission of the virus. Protecting the public's safety conflicts with a defendant's constitutional right to have an open trial. But that right is not absolute.

In this case, the district court conducted two hours of voir dire in a courtroom closed to the public and broadcasted live over an audio feed. After Defendant Quentin Veneno, Jr. objected, the district court concluded that the dangers of the COVID-19 pandemic justified its closure of the courtroom, but also provided a video feed for the rest of trial. Although Defendant objected to the initial audio-only feed after the initial two hours of voir dire, he never requested that the district court restart jury selection or moved for a mistrial.

Defendant also challenges Congress's constitutional authority to criminalize the conduct of Indians on tribal land, whether a previous conviction can be a predicate offense for 18 U.S.C. § 117(a)(1) convictions, and whether admission of other-act evidence met the rigors of Federal Rule of Evidence 404(b). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Defendant Quentin Veneno, Jr. lived with his then-girlfriend—both enrolled members of the Jicarilla Apache Nation—on the Jicarilla Apache Nation reservation. One morning, his girlfriend woke up and decided to check her phone to see the time. Defendant walked into the room, asked who she was talking to, accused her of talking to other men, and knocked the phone out of her hand. Defendant then hit her several times with his closed fist. Defendant's girlfriend slipped by him, ran down a hallway, jumped out of a kitchen window, and escaped to a neighbor's house. That neighbor called law enforcement.

Defendant reconciled with his girlfriend. Two months later, however, he became jealous and kicked his girlfriend's upper body and arm several times with shoes on his feet. She fled and hid for a few hours in the hills behind her house. When she returned home, Defendant's girlfriend explained her absence, but he did not believe she was hiding. Rather, Defendant accused her of being with another man. She took him to her hiding place. His response: "Should I just kill you now?"

Five days after that incident, Defendant again attacked his former girlfriend in another morning fit of jealous rage. Defendant hit the phone out of her hand, accused her of talking with other men, grabbed her by the hair, threw her on the floor, and kicked her while wearing shoes. Defendant then dragged her outside the bedroom, down a hallway and out the kitchen door. He continued to kick her and grabbed her either by her hair or arms and slammed her head into the cement outside. After the attack, Defendant's girlfriend tried to take ibuprofen. She went to pour some milk. Defendant was behind her, grabbed the milk, dumped the entire gallon on her head, and said "Here's your [f-ing] milk." Despite seeing her in extreme pain, Defendant prevented her from seeking care.

Two days after the last assault, Defendant's girlfriend sought medical attention in Defendant's absence. She stayed in the hospital for five days, suffering from a collapsed lung and nine broken ribs. Medical professionals gave her an epidural to control her pain.

A federal grand jury charged Defendant with two counts of domestic assault by a habitual offender in Indian Country under 18 U.S.C. §§ 117(a)(1), 1153—one count for each of Defendant's jealous rages. A federal grand jury also charged Defendant with assaulting his girlfriend in Indian Country resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6), 1153.

Prior to trial, the government notified Defendant of its intent to present evidence of prior bad acts. The two counts of domestic assault by a habitual offender contain a prior-conviction element. The government listed three prior assault convictions as predicates: two battery convictions against a household member in the Jicarilla Apache tribal courts and one federal conviction of domestic assault by a habitual offender in Indian Country. The government also requested to introduce evidence that Defendant had assaulted his then-girlfriend shortly before both charged assaults. Defendant opposed admission of the evidence and filed a motion in limine. The district court granted Defendant's motion in limine.

As trial loomed, the government and Defendant weighed the prospect of Defendant stipulating to the prior convictions. The government argued that a potential stipulation would qualify those offenses as predicate offenses under the habitual-offender statute. Defense counsel stated that he was not sure his client would allow him to stipulate. The district court told him that if Defendant did not stipulate, the absence of a stipulation would allow the government to go into prior bad acts. Defense counsel replied, "We would rather not do that, so we'll defer and we'll stipulate to that."

The government also sought to introduce evidence under Federal Rule of Evidence 404(b) that Defendant physically assaulted his then-girlfriend a few days before the second charged assault. The district court agreed with the government that the evidence could come in at trial. It reasoned that the evidence was admissible to prove that his victim had suffered "great bodily harm"—a statutory element of Defendant's charged crime—as well as to demonstrate motive and lack of mistake. After balancing, the district court held that the probative value of the evidence outweighed any prejudice associated with these prior events.

Defendant's trial was the first trial the District of New Mexico held during the COVID-19 pandemic. The District of New Mexico issued an administrative order, 20-MC-4-17, which noted the guidance issued by the Centers for Disease Control and Prevention and the New Mexico Department of Health. The order limited entry to the courthouse to those persons having official court business. The District of New Mexico also developed a "Plan for Resumption of Jury Trials in DNM During the Pandemic," which detailed the procedures that the district court judges were to employ. The plan allowed members of the public and media to attend trial through an audio feed from the court's website. It also read, "Video streaming is being explored by the Court's Information Services Innovations team." And at the pretrial conference, the district court informed the parties that it spent months coming up with a detailed protocol about how it would handle the trial to make sure that all the parties, all of the witnesses, all of the jurors, everyone involved, was safe.

As to the courtroom, the district court's plan only permitted twenty to twenty-five prospective jurors to be in the courtroom at once. So, to comply, the district court planned for two "waves" of venire members—one in the morning and one in the afternoon. Before jury selection, the courtroom deputy sent the parties an internet link from the district court's website that would allow members of the public to listen to the proceedings via an audio feed. Defendant did not object to the administrative order, the plan, or the link to the proceedings.

The first morning of trial, the district court began selecting a jury with the first wave of prospective jurors. At the end of the morning session, the government questioned the constitutionality of providing only an audio feed. The district court agreed to put the administrative order in the record. It also said, "when we talk about a public trial, we're talking about usually we are able to allow members of the public to come in and observe the trial, and because we've had to reconfigure the entire courtroom based on this pandemic and concerns for the safety of everyone, we cannot."

When asked whether he had comment, Defendant's attorney stated that he assumed that the court was providing both an audio and a video feed of the trial. The district court then told counsel that the court did not have the capability of a video feed. Defendant then objected to an audio-only feed. The court recessed for two hours. During the two-hour recess, the district court set up a video feed and stated that, going forward, the public could listen and watch over a video feed.

After returning to the record, Defendant formally objected to the lack of video. In response, the district court first noted that they had discussed the streaming situation several times before trial and that the video issue arose after the parties had already completed the first wave of jury selection. The district court then turned to the merits of Defendant's objection and concluded the trial was not totally closed to the public because of the audio feed, which the public could access through the district court's public website. In the alternative, the district court also concluded that even if it totally closed the courtroom, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), permitted a total closure.

A total closure requires an overriding public interest that is likely to be prejudiced if the court does not close the proceedings. Waller, 467 U.S. at 48, 104 S.Ct. 2210. And the ...