United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is the Motion in Limine, (ECF No. 2532),
filed by Defendant Ryan W. Payne (“Defendant”) to
prohibit argument tying Eric Parker (“Parker”)
and O. Scott Drexler (“Drexler”) to the
conspiracy count against Defendant. Co-defendants Ammon E.
Bundy and Cliven D. Bundy filed Motions for Joinder. (ECF
Nos. 2540, 2545). The Government timely filed a Response,
(ECF No. 2644), and Defendant filed a Reply, (ECF No. 2679).
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.
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 moves to prohibit the Government
from arguing that Parker or Drexler were involved in the
conspiracy charge against Defendant in Count One under Title
18 U.S.C. § 371 of the Superseding Indictment. (Def.
Mot. 3:8-10, ECF No. 2532); (see Superseding
Indictment, ECF No. 27). Defendant argues that “whether
Mr. Parker and Mr. Drexler joined a conspiracy with the
others charged in the superseding indictment, including Mr.
Payne, has already been resolved by the [Tier Three]
trial.” (Id. 3:20-22). Defendant claims that
as a result of the Tier Three trial, the criteria for issue
preclusion are met. (Id.). The Government responds
that Defendant “misunderstands or misrepresents
‘issue preclusion'” because “[t]here is
no preclusive effect of Parker [or] Drexler's acquittal
of conspiracy as to [Defendant] at all.” (Gov't.
Resp. 3:14, 4:7-8, ECF No. 2644). Defendant replies that
“non-mutual issue preclusion” applies, and the
Government should be prevented from “relitigating an
issue it previously litigated unsuccessfully against a
different party.” (Def. Reply 4:3-5, ECF No. 2679).
criminal prosecutions, as in civil litigation, the
issue-preclusion principle means that ‘when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the
same parties in any future lawsuit.'”
Bravo-Fernandez v. United States, 137 S.Ct. 352, 356
(2016) (quoting Ashe v. Swenson, 397 U.S. 436, 443
(1970)). That is, “the Double Jeopardy Clause precludes
the Government from relitigating any issue that was
necessarily decided by a jury's acquittal in a prior
trial.” Yeager v. United States, 557 U.S. 110,
119 (2009); Sivak v. Hardison, 658 F.3d 898, 918
(9th Cir. 2011). “The burden is ‘on the defendant
to demonstrate that the issue whose relitigation he seeks to
foreclose was actually decided in the first
proceeding.'” Schiro v. Farley, 510 U.S.
222, 233 (1994) (quoting Dowling v. United States,
493 U.S. 342, 350 (1990)).
collateral estoppel refers to use of collateral estoppel
[also known as issue preclusion] by a nonparty to a previous
action to preclude a party to that action from relitigating a
previously determined issue in a subsequent lawsuit against
the nonparty.” State of Idaho Potato Comm'n v.
G & T Terminal Packaging, Inc., 425 F.3d 708, 714
n.3 (9th Cir. 2005). “Defensive use of collateral
estoppel occurs when a defendant seeks to prevent a plaintiff
from relitigating an issue the plaintiff has previously
litigated unsuccessfully in another action against the same
or a different party.” United States v.
Mendoza, 464 U.S. 154, 159 n.4 (1984). “The
application of nonmutual estoppel in criminal cases is also
complicated by the existence of rules of evidence and
exclusion unique to our criminal law.” Standefer v.
United States, 447 U.S. 10, 23 (1980).
the Court entered a Judgment of Acquittal on Count One for
Parker and Drexler. (See ECF Nos. 2293, 2294).
Defendant, however, was not a party to the Tier Three trial
of Parker and Drexler. (See Severance Order, ECF No.
1098). Defendant is an alleged co-conspirator with Parker and
Drexler; he is not the same party from prior litigation.
Further, Defendant can be held liable for the acts of an
acquitted co-conspirator. See United States v. Ching Tang
Lo, 447 F.3d 1212, 1226 (9th Cir. 2006) (“It is
well established that a person may be convicted of conspiring
with a co-defendant even when the jury acquits that
co-defendant of conspiracy.”). Therefore,
Defendant's alleged involvement in the conspiracy is
still at issue. The Government will not be relitigating the
conspiracy charge against Parker and Drexler, but will be
arguing with regard to Defendant's liability for
conspiring with co-defendants who were acquitted. As such,
Defendant has not met his burden to demonstrate that the
issue whose relitigation he seeks to foreclose was actually
decided in the first proceeding.
the Court DENIES Defendant's Motion in Limine.