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United States v. Bundy

United States District Court, D. Nevada

February 7, 2017

CLIVEN D. BUNDY et al., Defendants.



         Pending before the Court is the Omnibus Motion in Limine (ECF No. 1332) filed by Defendants Steven A. Stewart, Eric J. Parker, and O. Scott Drexler (“Defendants”) to exclude various references and images during trial. Co-defendants Ricky R. Lovelien and Melvin D. Bundy filed Motions for Joinder. (ECF Nos. 1340, 1414). The Government timely filed a Response. (ECF No. 1479). For the reasons stated below, the Court GRANTS in part and DENIES in part Defendants' Motion.


         A. Motion in Limine

         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 (“FRE”) 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 (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 [FRE] 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 FRE 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). To exclude evidence on a motion in limine, the evidence must be “clearly inadmissible on all potential grounds.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004).

         B. Applicable Rules of Evidence

         “Irrelevant evidence is not admissible.” Fed.R.Evid. 402. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401; Velazquez v. City of Long Beach, 793 F.3d 1010, 1028 (9th Cir. 2015).

         FRE 403 requires the Court to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993); see Fed. R. Evid. 403. “[P]rejudice alone is insufficient; unfair prejudice is required.” United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir. 1990) (citing United States v. Bailleaux, 685 F.2d 1105, 1111 & n. 2 (9th Cir. 1982)). Unfair prejudice “appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.” Id. (internal quotation marks and citation omitted).

         As to FRE 404(b), evidence of prior crimes, acts, or wrongs is not admissible to prove the character of an accused in order to show action in conformity with that character. Arambula-Ruiz, 987 F.2d at 602; Fed.R.Evid. 404(b)(1). However, this evidence can be admitted under FRE 404(b) if the evidence is used to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b)(2). In order to be properly admitted under FRE 404(b), evidence must satisfy four requirements: “(1) it must prove a material element of the offense for which the defendant is now charged; (2) in certain cases [where knowledge or intent are at issue], the prior conduct must be similar to the charged conduct; (3) proof of the prior conduct must be based upon sufficient evidence; and (4) the prior conduct must not be too remote in time.” United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993).


         Defendants seek to preclude the following references to: (1) Defendants as “gunmen” and “snipers, ” or their “lawful firearms” as “assault rifles;” (2) any “guns, ammunition and gear seized after April 12, 2014[, ] that was not present on April 12, 2014;” (3) Jerad and Amanda Miller; (4) Defendants' membership or affiliation with the “III%ers” or “militia;” and (5) “domestic terrorism.” Defendants also seek to exclude images of them holding firearms or “affiliating with other III%ers or militia men at locations other than Bunkerville, Nevada.” Defendants request these exclusions under FRE 401, 402, 403, and 404(b).

         A. “Gunmen, ” “Snipers, ” and “Assault Rifles”

         Defendants assert that “using the word ‘gunmen' inaccurately and prejudicially misleads the jury into believing [Defendants] . . . are something much more than they really are.” (MIL 4:27-5:1). Specifically, Defendants are concerned that the term will suggest, contrary to the evidence, that Defendants “were professional killers, or noted for their speed or skill in handling a gun.” (Id. 4:21). They similarly object to the descriptor terms “sniper” and “assault rifles” as an “inflammatory word[s].” (Id. 5:7-9, 6:4-6). Defendants also fear that these terms “improperly suggest[ Defendants] have an inadmissible history of bad acts, ” indicating the “prejudicial notion” that Defendants “are some sort of professionally trained assassins who have carried out strategic military missions in the past.” (Id. 8:8 - 8:24). Specifically, ...

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