United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT
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 in Limine
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
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).
Applicable Rules of Evidence
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.
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).
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).
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).
“Gunmen, ” “Snipers, ” and
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, ...