United States District Court, D. Nevada
M. Navarro, Chief Judge.
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). The Government filed a
Response. (ECF No. 2654). 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.
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).
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
Motion in Limine
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
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).
Applicable Rules of Evidence
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.
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).
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; ...