United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
before the Court is the Motion in Limine (“MIL”),
(ECF No. 1290), filed by Defendant Gregory P. Burleson
(“Burleson”), which seeks to preclude admission
of internet evidence. Pursuant to the Court's Minute
Order on January 13, 2017, Burleson filed under seal the
specific evidence he believes the Court should exclude as
irrelevant and overly prejudicial. (ECF No. 1304). The
Government filed both a Response, (ECF No. 1369), and
Supplemental Response, (ECF No. 1434). Burleson did not file
a Reply. For the reasons discussed below, the Court GRANTS in
part and DENIES in part Burleson's Motion.
motion in limine is a procedural device to obtain an early
and preliminary ruling on the admissibility of evidence.
Black's Law Dictionary defines it as “[a] pretrial
request that certain inadmissible evidence not be referred to
or offered at trial.” Black's Law Dictionary 1109
(9th ed. 2009). Typically, “a party makes this motion
when it believes that mere mention of the evidence during
trial would be highly prejudicial and could not be remedied
by an instruction to disregard.” Id. Although
the Federal Rules of Evidence do not explicitly authorize
motions in limine, the Supreme Court has held that trial
judges are authorized to rule on motions in limine pursuant
to their authority to manage trials. Luce v. United
States, 469 U.S. 38, 41 n.4 (1984).
settled law that in limine rulings are provisional and
“not binding on the trial judge [who] may always change
his mind during the course of a trial.” Ohler v.
United States, 529 U.S. 753, 758 n.3 (2000); accord
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). “Denial of a motion in
limine does not necessarily mean that all evidence
contemplated by the motion will be admitted to trial. Denial
merely means that without the context of trial, the court is
unable to determine whether the evidence in question should
be excluded.” Ind. Ins. Co. v. Gen. Elec. Co.,
326 F.Supp.2d 844, 846 (N.D. Ohio 2004).
have broad discretion when ruling on motions in limine.
See Jenkins v. Chrysler Motors Corp., 316 F.3d 663,
664 (7th Cir. 2002). However, a motion in limine should not
be used to resolve factual disputes or weigh evidence.
See C&E Servs., Inc., v. Ashland, Inc., 539
F.Supp.2d 316, 323 (D.D.C. 2008). To exclude evidence on a
motion in limine “the evidence must be inadmissible on
all potential grounds.” E.g., Ind. Ins.
Co. v. Gen. Elec. Co., 326 F.Supp.2d at 846.
“Unless evidence meets this high standard, evidentiary
rulings should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved
in proper context.” Hawthorne Partners v. AT&T
Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993).
This is because although rulings on motions in limine may
save “time, costs, effort and preparation, a court is
almost always better situated during the actual trial to
assess the value and utility of evidence.” Wilkins
v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D. Kan. 2007).
raises two arguments in his Motion: (1) the internet postings
exceed the scope of the search warrant; and (2) the internet
postings are irrelevant and overly prejudicial pursuant to
the Federal Rules of Evidence.
Scope of the Warrant
argues that the internet postings exceed the scope of the
search warrant authorizing seizure of such data. (MIL
4:13-15, ECF No. 1290). While styled as a motion in limine,
Burleson in effect seeks a motion to suppress the seized
evidence. See United States v. Hurd, 499 F.3d 963
(2007) (finding that suppression is the appropriate remedy
when arguing that evidence exceeds the scope of the
authorized search warrant). Parties may seek to suppress
evidence by filing a 12(b)(3) pretrial motion to suppress.
See Fed R. Crim. P. 12(b)(3)(C). If a party does not
meet the deadline for filing a motion under Rule 12(b)(3),
the motion is considered untimely. Id. at 12(c)(3).
the Court's Case Management Order required all Rule 12
motions to be filed no later than October 3, 2016. (Order,
ECF No. 321). While the Court may permit late-filed motions
upon an adequate showing of good cause, Burleson has failed
to provide any explanation as to why the motion was not
timely filed. See Fed R. Crim. P. 12(b)(3)(C).
Moreover, to the extent the Court does consider
Burleson's argument, Burleson has failed to provide any
sort of analysis as to what specific evidence allegedly goes
beyond the scope of the warrant. Accordingly, the Court
denies Burleson's request for suppression of evidence
outside the scope of the warrant.
Admissibility Under Federal Rules of Evidence
additionally argues for the Court's review of all
internet evidence to determine admissibility, claiming many
of the internet postings contain irrelevant and overly
prejudicial “racist, anti-Semetic, or homophobic
comments.” (See MIL 1:26-2:4). Specifically,
Burleson argues that the evidence is inadmissible pursuant to
FRE 402, 403, and 404(b). (Id. 1:15-16). Beyond
conclusory assertions, Burleson fails to provide any actual
analysis of the internet postings that allegedly fall short
of these evidentiary rules. Accordingly, the Court rejects
Burleson's request for a preliminary review of
all internet evidence. However, the Court does
consider for review the specific evidence filed under seal
pursuant to the Minute Order on January 13, 2017. (Exhibits,
ECF No. 1304). For purposes of this review, the Court adopts
the Government's notations as detailed in Exhibit A to
the Government's Supplemental Response, (ECF No. 1435).
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