United States District Court, D. Nevada
M. Navarro, United States District Court Chief Judge
before the Court are the Motions in Limine, (ECF Nos. 2565,
2571, 2601), filed by Defendant Cliven Bundy
(“Defendant”) to exclude irrelevant evidence,
prejudicial hearsay evidence, and testimony from
co-defendants or discussion of co-defendant's pleas. The
Government timely filed a Consolidated Response. (ECF No.
2670). For the reasons discussed below, the Court
DENIES Defendant's Motions.
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.
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).
Motion in Limine (ECF No. 2565)
seeks to preclude evidence that: (1) discusses statements of
a racial nature, including Defendant's statements made
after April 12, 2014, regarding welfare, race relations, and
social policy; (2) Jerad and Amanda Miller are connected to
Defendant; (3) Defendant's cattle disrupted or damaged
sacred native American sites, desert tortoises or other
wildlife; (4) Ryan Bundy participated in a May 10, 2014, ATV
demonstration; (5) Michael Flynn (“Flynn”) stated
in a video that the event on April 12, 2014, was illegal; (6)
government agents' were afraid. (Def. Mot. 11:8-15, ECF
No. 2565). The Court will address each of these categories of
evidence in turn.
Remarks on Welfare, Race Relations and Social Policy
argues that his statements and any discussion of “his
race relations, or the word ‘Negro' or its
derivatives should be excluded in all respects from
trial.” (Id. 3:11-14). Defendant claims these
statements are “(1) totally irrelevant to the case, (2)
unfairly prejudicial, and (3) would be confusing and
misleading to the jury.” (Id. 3:14-16).
Government responds that this evidence is not part of their
case-in-chief. (Gov't. Resp. 5:11-13, ECF No. 2670).
However, the Government avers that this evidence could become
relevant if it is used for impeachment purposes or under the
theory of “invited error” ...