United States District Court, D. Nevada
M. Navarro, United States District Court Chief Judge
before the Court is the Motion in Limine (ECF No. 1436) filed
by Defendants Steven A. Stewart, Eric J. Parker, and O. Scott
Drexler ("Defendants") to exclude all photographs
of Defendants prone with weapons. Co-defendant Melvin D.
Bundy filed a Motion for Joinder. (ECF No. 1462). The
Government timely filed a Response. (ECF No. 1545).
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).
Motion in Limine, Defendants seek to exclude: “any
photographs depicting them aiming their rifles at any persons
. . . because none of these persons (and consequently, none
of the witnesses) were aware of the defendants doing
so.” (Mot. in Limine (“MIL”) 3:25-27, ECF
No. 1436). Defendants reference assault and appear to be
referring to Count Five of the Superseding Indictment,
Assault on a Federal Officer, in violation of 18 U.S.C.
§ 111(a)(1), (b) (the only assault charge listed in the
Superseding Indictment). Defendants explain that, as a matter of
law, “If one is unaware of being in a position of harm,
that person cannot be the victim of assault, threats,
obstruction, extortion, impeding or the alleged brandishing
of a firearm in furtherance thereof.” (Id.
3:26-4:3). “[T]hese photographs are irrelevant, ”
according to Defendants, “because the United States
cannot legitimately rely on the photographs to establish
assault.” (Id. 5:25-27). However, Defendants
assert that danger of unfair prejudice is high because the
photographs may “provoke the jury into fearing the
defendants or . . . impress upon the jury that the defendants
are militant and potentially violent persons.”
(Id. 6:1-4). As such, Defendants argue that the
photographs' low probative value is substantially
outweighed by the high unfair prejudice, and they should be
excluded under FRE 403.
Response, the Government asserts that it will provide
evidence at trial that “law enforcement officers were
aware of gunman on the bridge and that they had a reasonable
apprehension of immediate bodily harm.” (Gov't
Resp. 2:9-11, ECF No. 1545). Additionally, the Government
argues that even if the photographs were not relevant to
Count Five, they are relevant to other counts alleged in the
Superseding Indictment. (Id. 2:12-21). Lastly, the
Government contends that Defendants “can be found
guilty of Count Five under an aiding and abetting theory, and
is rather obvious that the photographs are relevant to show
that Parker acted with the intent to facilitate the crime of
assault on a federal officer.” (Id. 3:1-3).
Court finds that the photographs are not “clearly
inadmissible on all potential grounds.” See Ind.
Ins. Co., 326 F.Supp.2d at 846. Based on the
Government's proffer, the photographs are likely
relevant, as they have a tendency to make a fact of
consequence more or less likely. See Fed. R. Evid.
401. Defendants are correct that criminal assault based on
causing the apprehension of imminent bodily injury requires
that the victim is aware of the threat. United States v.
Acosta-Sierra, 690 F.3d 1111, 1121 (9th Cir. 2012).
However, here, it is not clear that the photographs are
determinative that the alleged victim officers were not aware
of Defendants' positions prone with weapons on the
bridge. Additionally, the Court agrees that the photographs
may be relevant to other charges, although the burden remains
on the Government to establish relevancy. Because of the
potentially high probative value, the Court is not persuaded
that the photographs should be excluded under FRE 403.
Accordingly, the Court denies Defendant's Motion in
Limine, and the photographs of Defendants prone with weapons
will not be excluded at this time.