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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, United States District Court Chief Judge

         Pending 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.

         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).


         A. Motion in Limine (ECF No. 2565)

         Defendant 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.

         1. Remarks on Welfare, Race Relations and Social Policy

         Defendant 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).

         The 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” ...

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