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United States v. Bundy

United States District Court, D. Nevada

October 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CLIVEN D. BUNDY et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge United States District Court

         Pending 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”).[1] 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).[2] For the reasons discussed below, the Court DENIES Defendant's Motion.

         I. LEGAL STANDARD

         In 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.”).

         “Although 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 unanticipated manner).

         II. DISCUSSION

         In the 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.

         a. FRE Rules 802 and 805

         First, 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. 11:14-12:7).

         “The [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).

         Here, 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.

         b. FRE Rules 401 and 403

         Defendant 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 ...


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