United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion in Limine, (ECF No. 1488),
filed by Defendant Cliven Bundy (“Defendant”) to
preclude all interviews and statements obtained by undercover
government agents posing as “Longbow Productions”
(the “Longbow evidence”) from trial.
Co-defendants Ryan W. Payne, David H. Bundy, Jason D. Woods,
and Ammon E. Bundy filed Motions for Joinder. (ECF Nos. 1553,
1569, 1589, 1642). The Government timely filed a Response.
(ECF No. 1591). For the reasons discussed below, the Court
DENIES Defendant's Motion.
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging nineteen
defendants with sixteen counts related to a confrontation on
April 12, 2014, with Bureau of Land Management
(“BLM”) Officers in Bunkerville, Nevada. (ECF No.
27). Defendant's trial, the third trial in this case, is
set to begin on October 10, 2017. (See ECF No.
instant motion, Defendant seeks to exclude his Longbow
interview taken by undercover FBI Agent Charles Johnson who
posed as a documentarian subsequent to the April 2014
incident. Prior to the first trial in this case, co-defendant
Gregory P. Burleson (“Burleson”) filed a Motion
to Suppress his Longbow interview, asserting similar
arguments, such as involuntariness due to intoxication.
(Burleson Mot. to Suppress, ECF Nos. 876). Magistrate Judge
Peggy A. Leen rejected this arguments and recommended denial
of this motions without an evidentiary hearing. (R. & R.
on Burleson Mot. to Suppress 6:19-27, ECF No. 1277). The
Court accepted and adopted Judge Leen's Report and
Recommendation in full, denying Burleson's Motion to
Suppress and finding that “Defendant's statements
made to Longbow Productions were voluntary.” (Order
adopting R. & R. 4:17, ECF No. 1521).
first trial, Agent Johnson testified on behalf of the
Government and portions of Burleson and co-defendants Eric
Parker and O. Scott Drexler's interviews were shown to
the jury. (See ECF Nos. 1750, 1754). Agent Johnson
did not testify during the second trial. Agent Johnson's
name appears on the Government's current witness list for
the upcoming third trial (Gov't Witness List 2:18-19, ECF
No. 2583), and his name is also listed under the
Government's proposed exhibits 220 and 222 (Gov't Ex.
List at 21, ECF No. 2584).
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 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 proof.”).
the [Federal Rules of Evidence] 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
instant Motion, Defendant seeks to exclude the Longbow
evidence from trial. Defendant argues that “the use of
government-coerced, staged, theatrical, rehearsed statements
adjusted or framed for inculpatory effect violates the due
process clause, the right-to-counsel clause, the
self-incrimination clause, the fair trial clause, the First
Amendment and the Federal Rules of
Evidence.” (Def. Mot. 4:24-26, ECF No. 1488).
Defendant claims there was “outrageous government
conduct” when the government “deliberately
delayed the filing of any criminal accusation solely so that
it could engage in an expensive law-enforcement charade and
drum up incriminating testimony where none existed
otherwise.” (Id. 5:13, 6:12-15). Further,
Defendant asserts that “[D]efendants were paid, were
plied with alcohol, were influenced and incentivized to make
falsely incriminating statements.” (Id.
4:9-10). Consequently, Defendant moves for a global
evidentiary hearing “to examine the scope and scale of
the Longbow enterprise and show that all Longbow interviews
must be held inadmissible in this case.” (Id.
Government first responds that Defendant's motion in
limine is actually a motion to suppress, which should have
been filed as a pretrial motion under Rule 12(b)(3)(C),
making Defendant's motion untimely and without good
cause. (Gov't Resp. 3:4-4:2, ECF No. 1591). The
Government then argues in the alternative that
Defendant's argument fails because “he does not
advance any argument or evidence that his own statements were
involuntary.” (Resp. 4:6-7). The Government argues the
statements should not be suppressed based on
self-incrimination or right-to-counsel grounds because
Defendant “was not, and makes no allegation that he
was, in custody. Therefore, Bundy did not have a Sixth
Amendment right to counsel nor was he entitled to
Miranda warnings related to his statements to
undercover agents.” (Id. 5:2-5). Additionally,
the Government asserts that an evidentiary hearing on a
motion to suppress is inappropriate because Defendant does
not allege he was subject to physical intimidation or
threats. (Id. 5:6-7).
replies that his motion is a motion in limine because it is
“necessarily temporary and subject to revisitation
during trial” and “[m]otions in limine may also
encompass a broader array of evidentiary issues.” (Def.
Reply 2:15-24, ECF No. 1614). Additionally, Defendant cites
Luce v. United States, 469 U.S. 38, 40 (1984), for
the proposition that “the term [motion in limine] in a
broad sense to refer to any motion . . . to exclude
anticipated prejudicial evidence before the evidence is
actually offered.” (Id. 2:11-14).
the Court finds that this issue should have been raised in a
Federal Rule of Criminal Procedure 12(b)(3)(C) motion to
suppress, as co-defendant Burleson did. (See
Burleson Mot. Suppress, ECF Nos. 876); (R. & R. on
Burleson Mot. to Suppress, ECF No. 1277); (Order adopting R.
& R., ECF No. 1521). The purpose for motions in limine is
to determine whether evidence is admissible pursuant to the
Federal Rules of Evidence. See Fed. R. Evid. 104(a).
Defendant's motion is not seeking to exclude the Longbow
evidence based on an assertion regarding irrelevance, undue
prejudice substantially outweighing probative value, or any
other evidentiary cause. Rather, Defendant's argument
centers upon the allegations of constitutional violations
stemming from the evidence, specifically that Defendant's
Sixth Amendment right-to-counsel was violated, Defendant made
the statements involuntarily, and the Government's
conduct was outrageous.See United States v. Barnes,
No. 3:09-CR-00001-TMB, 2014 WL 1347080, at *2 (D. Alaska Mar.
7, 2014) (“The hallmark of a motion to suppress is an
allegation that the government procured the subject evidence
in violation of the Constitution.”) see also United
States v. Guttenberg, 2007 WL 4115810, at *5 n.1
(S.D.N.Y. Nov. 14, 2007) (“Because [Defendant] does not
assert that the evidence he challenges was obtained
illegally, nor does he assert a constitutional violation, his
Motion is more appropriately viewed as a Motion In
Limine.”). Defendant's reliance on Luce is
inapposite. Luce specifically dealt with an
evidentiary ruling regarding a prior conviction. 469
U.S. at 40. Further, Defendant provides no good ...