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United States v. Lovelien

United States District Court, D. Nevada

February 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD LOVELIEN, TODD ENGEL, GREGORY BURLESON, ERIC PARKER, O. SCOTT DREXLER, and STEVEN STEWART, et al., Defendants.

          ORDER

          Gloria M Navarro, Chief Judge United States District Judge

         Pending before the Court is the Motion in Limine (“MIL”), (ECF No. 1390), filed by the Government to preclude reference or evidence regarding certain statements and subject matter. Defendants O. Scott Drexler (“Drexler”), Eric J. Parker, and Steven A. Stewart (collectively “Defendants”) filed a joint Response, (ECF No. 1406). Motions for Joinder were filed by Defendants Richard Lovelien, (ECF No. 1408), and Gregory Burleson, (ECF No. 1447). For the reasons discussed below, the Court GRANTS in part and DENIES in part the Government's Motion.

         I. LEGAL STANDARD

         In general, “[t]he court must decide any preliminary question about whether . . . evidence is admissible.” Fed.R.Evid. 104(a). In order to satisfy the burden of proof for Federal Rule of Evidence 104(a), a party must show that the requirements for admissibility are met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (“We have traditionally required that these matters [regarding admissibility determinations that hinge on preliminary factual questions] be established by a preponderance of proof.”).

         “Although the [Federal Rules of Evidence] do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)). In limine rulings “are not binding on the trial judge, and the judge may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); see also Luce, 469 U.S. at 41 (noting that in limine rulings are always “subject to change, ” especially if the evidence unfolds in an unanticipated manner).

         II. DISCUSSION

         The Government seeks to preclude the following categories of statements:

• References to the occupation of the Malheur National Wildlife Refuge, the subsequent trial, United States v. Ammon Bundy et al, or the result in that trial.
• References to supposed mistreatment of cattle during the impoundment operation or agency, or officer, misconduct in this or other impoundment operations or investigations.
• Arguments or opinions that the federal government, its officers and agents or its agencies are improperly and excessively armed, use military tactics, act outside their authority or have engaged in the use of excessive force in other venues or at other times.
• Hearsay statements or opinions regarding the BLM, the impoundment operation, or the events of April 12, including opinions and statements of elected or appointed government officials (such as Nevada Governor Sandoval, U.S. Senators Orrin Hatch, Harry Reid, U.S. Congressman-Elect Ruben Kikuen, Nevada Assemblywoman Michelle Fiore).
• Legal arguments or opinions that the federal government does not, or should not, own public lands, that the federal government does not, or should not own the Gold Butte range, or that Gold Butte Range has now been designated a National Monument by the President of the United States.
• Legal arguments or opinions that law enforcement officers within the Department of Interior are not constitutional, that “natural law” or other authority permits the use of force against law enforcement officers in defense of property or individual rights, or that the U.S. District Court for the District of Nevada is illegitimate.

(MIL 3:7-4:7, ECF No. 1390). In their briefing, the parties condense these statements into four categories: (1) references to the Oregon case; (2) perceived government misconduct; (3) ...


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