United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
before the Court is the Motion in Limine (“MIL”)
(ECF No. 2065) filed by Defendants Eric Parker, O. Scott
Drexler, Steven Stewart, and Ricky Lovelien (collectively,
“Defendants”). The Government filed a Response
(ECF No. 2106), and Defendants filed a Reply (ECF No.
were first tried on February 6, 2017, which ended in a
mistrial as to Defendants upon jury deadlock on April 24,
2017 (hereinafter referred to as “Trial 1”). (See
ECF No. 1887). Retrial began for Defendants on July 10, 2017.
(ECF No. 2142).
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, 175-76 (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 Fed.R.Evid. 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).
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).
seek to preclude their booking photographs depicting them in
“shackles, orange jump suits, and tattooed” for
lack of relevance and under FRE 403. (Defs. MIL 2:4- 3:7).
Defendants also assert that the shackles in particular are an
affront to the “dignity and decorum of [the] judicial
proceedings.” (Id. 3:15-17) (citing
Illinois v. Allen, 397 U.S. 337, 344
(1970)). Ultimately, Defendants contend that
“the tattooed pictures of the defendants in shackles
have no probative value . . . [because] [t]his is not an
identity case” and will cause the jury to
“improperly infer guilt.” (Id. 3:23-28).
Government responds that identity is at issue in the case,
and the booking photographs are relevant to establish
identity in the photographs and videos offered in the
Government's case-in-chief. (Gov't Resp. 3:5-16)
(citing United States v. Fernandez, 388 F.3d 1199,
1246 (9th Cir. 2004) for the proposition that “tattoos
of gang affiliation from booking photos relevant and not
prejudicial”). The Government offers to not show the
booking photographs if Defendants agree to stipulate that
they are the men depicted in the photographs and videos.
(Id. 3:17-20). Additionally, the Government states
its intention of showing Parker and Drexler's
III%er-related tattoos, along with Drexler's
“Bundy” tattoo, which it asserts are
“highly probative of intent and motive to commit the
crimes charged.” (Id. 3:21-4:1).
reply that they are unwilling to “stipulate that they
are the persons that appear in the photographs and videos in
the government's case-in-chief, [however, ] the
photographs speak for themselves.” (Defs. Reply 2:5-7,
ECF No. 2126). Defendants further assert that “[t]he
government does not need to present the tattooed booking
photos of the defendants to prove that they were on ...