United States District Court, D. Nevada
M. Navarro, United States District Court Chief Judge
before the Court is the Motion in Limine (ECF No. 1439) filed
by Defendants Steven A. Stewart, Eric J. Parker, and O. Scott
Drexler (“Defendants”) to exclude evidence
produced on January 25, 2017. Co-defendants Gregory P.
Burleson and Ricky R. Lovelien filed Motions for Joinder.
(ECF Nos. 1446, 1453). The Government timely filed a
Response. (ECF No. 1515).
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).
assert that “on November 11, 2016, the Honorable Judge
Leen ordered all Fed. R. Cr. P 16(a) discovery and
Jenks/Giglio materials be produced no later than
January 6, 2017. See, Doc. 1017, p.7-8.” (Mot.
in Limine (“MIL”) 2:4-7, ECF No. 1439).
Nonetheless, Defendants explain, “On January 25, 2017,
afoul of these orders, the government produced 240 pages of
discovery (GB20327 to GB20567) along with videos in folders
marked 1B432 to 1B438, containing a total of 5.85 gigabytes
of discovery.” (Id. 2:7-11). As such,
Defendants seek to preclude the introduction at trial of all
Response, the Government states:
On January 19, 2017, counsel for defendant Stewart sent an
e-mail to government counsel requesting additional discovery,
including a “1B” video file that was listed on
the production index but that he had not received with this
production. Government counsel responded the same day that
this 1B - 1B432 - had been inadvertently excluded, would be
provided within the week and that it was also publicly
available to the defendant.
Resp. 2:9-15, ECF No. 1515). The Government explains that it
then produced the file on January 25, 2017. (Id.
2:15-17). The Government acknowledges that this file was not
the only discovery produced on January 25, 2017, but it
asserts that everything provided was either: “1)
documents previously provided in discovery; 2) documents
requested by the defendant; 3) documents obtained by the
government after the January 6 disclosure deadline pursuant
to the ongoing investigation; or 4) documents equally
available to the defendant.” (Id. 2:18-21).
Therefore, the Government argues that Defendants' Motion
is “belied by the record.” (Id.
Government's thorough Response details each item produced
and why it was not in bad faith, mainly for the four reasons
listed above. (Id. 4:17-8:11). The Government
explains that only three of the fifty or so items produced
were not previously provided to Defendants. One of these
three items was “produced . . . out of an abundance of
caution, ” but the Government does not intend to
introduce it nor does it believe the item is useful to
Defendants. (Id. 8:2-5). The second and third are
email authentication letters that the Government produced
under FRE 902. The Government argues that “providing
the documents two weeks in advance of trial and three weeks
before any evidence will be submitted constitutes
‘reasonable notice' under [FRE 902(11)].”
(Id. 8:11-14). Overall, the Government contends that
its “January 25, 2017, production was provided in good
faith, complies with its discovery obligations, and was
responsive to defendants' own request for
documents.” (Id. 9:6-9).
Rule of Criminal Procedure 16 allows the district court to
“order [a violating party] to permit the discovery or
inspection, grant a continuance, or prohibit the party from
introducing evidence not disclosed, or it may enter such
other order as it deems just under the circumstances.”
Fed. R. Crim. P. 16(d)(2). “Exclusion is an appropriate
remedy for a discovery rule violation only where ‘the
omission was willful and motivated by a desire to
obtain a tactical advantage.'” United States v.
Finley, 301 F.3d 1000, 1018 (9th Cir. 2002) (quoting
Taylor v. Illinois, 484 U.S. 400, 415 (1988)
(upholding trial court's exclusion of witness where
defendant deliberately failed to identify witness prior to
trial) (emphasis added)); see also United States v.
Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (holding
district court erred in excluding testimony of forensic
pathologist because no willful or blatant discovery violation
the Government has sufficiently demonstrated that it was
neither “willful” nor “motivated by a
desire to obtain a tactical advantage” in its
production of evidence on January 25, 2017. See
Finley, 301 F.3d at 1018. Certainly, an inadvertent
exclusion of evidence that was timely disclosed and that is
provided promptly upon notice cannot be considered bad faith.
As to the productions under FRE 902,  the Court finds that two
weeks before trial constitutes “reasonable
notice.” See, e.g., United States v.
Daniels, 723 F.3d 562, 581 (5th Cir. 2013) (invoking the
“general proposition that five days' notice is
sufficient under Rule 902(11)”). Additionally, the
Government correctly notes that the parties maintain a
continuing duty to promptly disclose newly discovered
“additional evidence or material.” Fed. R. Crim.
P. 16(c). Accordingly, the Court finds that no exclusion of
the evidence is required here, and Defendants' Motion is