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United States v. Bundy

United States District Court, D. Nevada

October 24, 2017

CLIVEN D. BUNDY et al., Defendants.


          Gloria Navrro Chief Judge

         Pending before the Court are the Motions in Limine, (ECF Nos. 2475, 2477), filed by Defendant Ryan W. Payne (“Defendant”) to exclude unfairly prejudicial testimony from trial, including testimony by Agent Seyler. Co-defendants Cliven D. Bundy, Eric J. Parker, and O. Scott Drexler filed Motions for Joinder. (ECF Nos. 2512, 2543, 2544, 2549). The Government timely filed a consolidated Response. (ECF No. 2611). Defendant filed a consolidated Reply. (ECF No. 2620). For the reasons discussed below, the Court GRANTS in part and DENIES in part 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).


         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 prior crimes, acts, or wrongs 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; (3) proof of the prior conduct must be based upon sufficient evidence; and (4) the prior conduct must not be too remote in time.” United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993).


         A. Motion in Limine to Exclude Agent Seyler's Testimony

         Defendant seeks to exclude several statements made by Agent Seyler (“Seyler”) that allegedly constitute either “impermissible [FRE] 404(b) evidence, irrelevant evidence under FRE 401 or evidence that is more prejudicial than probative under FRE 403.” (Def. Mot. 3:4-6, ECF No. 2475). Specifically, Defendant requests to exclude Seyler's testimony that: (1) he investigated cases relating to domestic terrorism and militias; (2) he had been investigating Defendant for almost a year prior to April 12, 2014; (3) Operation Mutual Aid (“OMA”) considered becoming involved in two prior events involving mobilizations against officers; and (4) Be on the Lookout For (“BOLOs”) had been issued on Defendant. (Id. 4:6-10, 5:2-3). Defendant argues that “[t]his evidence is not relevant” because it “does not advance proof of the government's case at all.” (Id. 4:10-11, 4:22-24). According to Defendant, such evidence would “provide the jury unfairly prejudicial information and allow for decisions to be made on an improper, emotional basis.” (Id.).

         The Government responds that “Seyler's familiarity with militia extremism provides context and credibility to steps that he undertook in his investigation of [Defendant].” (Resp. 5:6-7, ECF No. 2611). The Government argues that Seyler's investigation of Defendant before April 12, 2014, shows Defendant's motivation “to have a forcible confrontation with government agents and that Bundy Ranch provided that opportunity.” (Id. 5:10-11). Additionally, the Government avers that “Payne's other OMA missions show that his mission and motivation at Bundy Ranch was to seek a forcible confrontation with [the] government. [The missions] show that he had the intention to do the crimes charged in the indictment, particularly, to assault and threaten federal officers.” (Id. 5:19-23). The Court addresses the sufficiency of Defendant's arguments in turn.

         1) Testimony Concerning Prior Assignments and Investigations

         The Court finds that Seyler's testimony about his prior assignments-including statements regarding domestic terrorism, militias, and the length of his investigation of Defendant-provides foundation for his testimony. See Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). However, the Court maintains its prior Order that for an agent discussing his or her own background, training, and experience, references to “domestic terrorism” must be relevant, and the Government is cautioned to keep any such testimony brief and limited in order to minimize any prejudice. (See Order 7:21-25, ECF No. 1543). Therefore, the Court grants in part and denies in part Defendant's Motion by limiting the Government's use of the terminology “domestic terrorism” and “militias” to a foundational purpose.

         2) Testimony Concerning the Two OMA Missions

         The Court finds that the Government's use of Seyler's testimony concerning the two OMA missions is relevant to show Defendant's motivation to confront government agents, which is an acceptable purpose under FRE 404(b)(2). In particular, this evidence is permissible to prove assault of a federal officer, in violation of 18 U.S.C. § 111(a)(1) and (b), and threatening a federal law enforcement officer, in violation of 18 U.S.C. § 115(a)(1)(B). Furthermore, the Court finds this evidence similar to the conduct charged because the missions with the OMA directly concern Defendant's past conduct with law enforcement. The Court also finds that the proof of this prior conduct is based upon sufficient evidence and is not too remote in time. This testimony is not substantially outweighed by the danger of unfair prejudice because Seyler's testimony is more probative than prejudicial. Further, evidence that OMA considered becoming involved in other missions where individuals mobilized against officers does not rise to the level of unfair prejudice. See Skillman, 922 F.2d at 1374. The Court is not convinced that this evidence will influence the jury to base its decision on something other than the established propositions in the case. Id. Should Seyler testify about his investigation of Defendant, his testimony is relevant and probative of Defendant's motive. The Court therefore finds that the test under FRE 404(b) is satisfied and rejects Defendant's request to exclude Seyler's testimony about the OMA missions.

         3) Testimony ...

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