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United States v. Bundy

United States District Court, D. Nevada

October 24, 2017

CLIVEN D. BUNDY et al., Defendants.


          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion in Limine, (ECF No. 2513), filed by Defendants Eric Parker (“Parker”) and O. Scott Drexler (“Drexler”) (collectively “Defendants”) to exclude irrelevant and prejudicial evidence. Co-defendant Cliven D. Bundy filed a Motion for Joinder. (ECF No. 2546).[1] The Government filed a Response. (ECF No. 2654).[2] For the reasons discussed below, the Court DENIES Defendant's Motion.

         I. BACKGROUND

         On 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).

         In the instant Motion, Defendants seek to exclude evidence that they are affiliated with Idaho III%, and their involvement in Sugar Pine Mine: Operation Gold Rush (“Sugar Pine”) and White Hope Mine: Operation Big Sky (“White Hope”) (collectively the “operations”). (Def. Mot. 3:9, ECF No. 2513). The Sugar Pine incident occurred in April 2015, in Oregon, where Defendants traveled to a mining site on BLM-administered land, “conducted armed patrols[, ] and presented as a show of force in order to prevent federal officers from entering the property and taking any regulatory efforts with respect to the mine.” (Resp. 3:9-11, ECF No. 2654). The White Hope incident occurred in August 2015, at a mining site in Montana administered by the United States Forest Service, where Defendants allegedly participated in similar show of force actions. (Resp. 3:12-20).

         During the retrial of Defendants that commenced on July 10, 2017, the Court admitted this evidence over Defendants' objection. (See Order, ECF No. 2137) (holding that the evidence of Defendants participation in the Idaho III% and their involvement in the operations are inextricably intertwined with the charged conspiracy under 18 U.S.C. § 372). At the conclusion of the retrial, the jury returned no verdict for Parker and Drexler on Count Five: assault on a federal officer and Count Six: use and carry of a firearm in relation to a crime of violence. (See Jury Verdict, ECF No. 2290). The jury also returned no verdict for Parker on Count Eight: threatening a federal officer and Count Nine: use and carry of a firearm in relation to a crime of violence. (Id.). Both Defendants were acquitted on the remaining counts, including Counts One and Two related to the conspiracy charges. (See Judgment of Acquittal, ECF Nos. 2293, 2294). Trial on the remaining counts is set to commence on October 30, 2017.


         A. Motion in Limine

         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 (“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 proof.”).

         “Although 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).

         B. Applicable Rules of Evidence

         “Irrelevant 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. 2015).

         FRE 403 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).

         As to FRE 404(b), evidence of crimes, wrongs, or other acts is not admissible to prove the character of an accused in order to show action in conformity with that character. Arambula-Ruiz, 987 F.2d at 602; Fed.R.Evid. 404(b)(1). However, this evidence can be admitted under FRE 404(b) if the evidence is used to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b)(2). In order to be properly admitted under FRE 404(b), evidence must satisfy four requirements: “(1) it must prove a material element of the offense for which the defendant is now charged; (2) in certain cases [where knowledge or intent are at issue], the prior conduct must be similar to the charged conduct; ...

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