United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is the Motion in Limine, (ECF No. 1715),
filed by Defendant Ryan W. Payne (“Defendant”) to
preclude three Court Orders entered on November 3, 1998, July
9, 2013, and October 8, 2013 (the “Court
Orders”). Co-defendants Ammon E. Bundy and Micah L.
McGuire filed Motions for Joinder. (ECF Nos. 1722, 1762). The
Government timely filed a Response, (ECF No.
1788). For the reasons discussed below, the Court
DENIES Defendant's Motion.
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 three Court
Orders entered between 1998 and 2013 finding that
co-defendant Cliven Bundy had been grazing cattle on federal
government without authorization and ordering him to remove
his cattle from the land. (See Def. Mot. 4:2-5, ECF
No. 1715), (see also Court Orders, Ex. A-C to Def.
Mot., ECF No. 1715-1). Defendant claims these Court Orders
are inadmissible under Federal Rules of Evidence
(“FRE”) 401, 403, 802, and 805. (Id.
4:10-11). The Court will address each argument in turn.
FRE Rules 802 and 805
Defendant argues that “the court orders from the
underlying civil litigation are out-of-court statements that
the government presumably intends to introduce for the truth
of the matter asserted.” (Id. 5:11-12).
Further, Defendant claims that the Court Orders
“contain numerous double-hearsay statements that do not
fall into any of the hearsay exceptions.” (Id.
6:2-3). The Government responds that the Court Orders are not
hearsay because they “set out legally operative facts
that form the basis for several counts in the
Indictment.” (Resp. 6:12- 13). Further, the Government
avers that “legally operative words, such as a court
order” are excluded from the definition of hearsay.
(Id. 9:1-3). To the extent that the Court Orders
contain hearsay, the Government claims that they fall within
an exception under FRE 803(15). (Id. 6:14-15).
Specifically, the Government claims that the Court Orders
“‘affect an interest in property[, ]' . . .
the ‘statements' in the Court Orders are relevant
to the issues lying at the heart of the present case[, ] . .
. [and] the government has never acted in a manner
inconsistent with the Court Orders.” (Id.
[FRE] define hearsay as ‘a statement that: (1) the
declarant does not make while testifying at the current trial
or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted in the statement.'”
United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th
Cir. 2012) (quoting Fed.R.Evid. 801(c)). Hearsay statements
are not admissible at trial unless they “fit within an
exception to the rule against hearsay.” Id.
(citing Fed.R.Evid. 802, 805). Hearsay within hearsay is
admissible only if “each link in the hearsay chain
conforms to a separate hearsay exception.” Padilla
v. Terhune, 309 F.3d 614, 621 (9th Cir. 2002) (citing
Fed.R.Evid. 805). “A prior judgment is therefore
hearsay to the extent that it is offered to prove the truth
of the matters asserted in the judgment. A prior judgment is
not hearsay, however, to the extent that it is offered as
legally operative verbal conduct that determined the rights
and duties of the parties.” United States v.
Boulware, 384 F.3d 794, 806 (9th Cir. 2004).
the Court finds that the Court Orders are being offered to
show that Defendants conspired to obstruct justice and
interfere with officials' authorized actions.
(See Resp. 9:23- 10:3). Specifically, the Government
is offering the Court Orders to prove that BLM was acting
pursuant to the Court's lawful authorization and to
explain the BLM's course of conduct. For example, the
Court Orders demonstrate why officials chose to pursue
impoundment, why the BLM believed law enforcement
participation was necessary, and how state and local
officials came to be involved. (Id. 13:12-17).
Moreover, Defendant provides four statements from the Court
Orders that he alleges are double hearsay because they
reference statements made by the BLM, the Clark County
Sheriff, and the Government in its capacity as the Plaintiff
in the civil case. (See Def. Mot. 6:3-18). In order
for these statements to qualify as double hearsay, they must
be offered to prove the truth of the matter asserted. See
Orm Hieng, 679 F.3d at 1141. However, as the Government
has shown, these statements are not being offered for the
truth of the matter asserted, but rather, they are offered as
legally operative verbal conduct that determined the rights
and duties of the parties. See Boulware, 384 F.3d at
806. Accordingly, the Court holds that the Court Orders are
not hearsay or double hearsay.
FRE Rules 401 and 403
claims that the Court Orders and their contents are
“irrelevant and unduly prejudicial.” (Def. Mot.
7:10). Specifically, Defendant seeks to exclude “the
factual background and legal analysis” of the three
Court Orders because they “have no bearing on whether
Defendants conspired to impede enforcement of those orders
during the time period charged in the indictment, i.e., from
March 2014 through the date of the superseding
indictment.” (Id. 10:17-20). Moreover,
Defendant claims that “the jury need know only that a
court order exists; it need not know how or why that order
was entered.” (Id. 11:9-10). Defendant argues
that the only portions of the Court Orders relevant to his
guilt or innocence are the conclusions that establish ...