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United States v. Bundy

United States District Court, D. Nevada

February 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CLIVEN D. BUNDY et al., Defendants.

          ORDER

          Gloria M. Navarro, United States District Court Chief Judge

         Pending before the Court is the Government's Motion for Protective Order regarding Undercover Employee (ECF No. 1440), along with a sealed declaration (ECF No. 1441). Defendants Steven A. Stewart, Eric J. Parker, and O. Scott Drexler (“Defendants”) filed a Response (ECF No.1451), and co-defendants Ricky R. Lovelien, Gregory P. Burleson, and Melvin D. Bundy filed Motions for Joinder (ECF Nos. 1452, 1458, 1461). The Government filed a Reply. (ECF No. 1481).[1]

         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 (“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).

         II. DISCUSSION

         The Government intends to call an Undercover Employee (“UCE”) to testify in its casein-chief. It seeks a Protective Order to protect the UCE:

1. The UCE may testify at trial using an undercover pseudonym without publically disclosing his true identity, specifically, the government requests that the UCE testify as “Charles Johnson, ” his cover identity;
2. The defense shall be prohibited from asking any questions seeking personal identifying information (to include name, contact information, or date or place of birth) from the UCE;
3. The defense shall be prohibited from asking any questions about other investigations in which the UCE may be involved, including any ongoing investigations;
4. No public disclosure of any audio recording, or similar reproduction of the voices or visual images of the UCE while testifying, shall be permitted;
5. The UCE shall be permitted to use a non-public entrance/exit to the courthouse and the courtroom (outside the presence of the jury); and
6. All non-official recording devices shall be prohibited from being in the courtroom in which the UCE testifies, including personal cellular phones.

(Gov't Mot. 10:1-16). The Government asserts that “[i]f the UCE's name and image become public, he will no longer be able to function as a UCE.” (Id. 13:19-20). Additionally, the Government is concerned that “given [this witness'] unique role as the lone testifying FBI UCE, the UCE may become a particular target for the defendants' supporters.” (Id. 13:21-22). The Government contends that the UCE's personal information is “not relevant to the charges” and “public ...


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