United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
the Court is Defendant Brendan Julio Vallin's motion in
limine. (ECF No. 28.) The Court has reviewed the
government's response (ECF No. 29) and Vallin's reply
(ECF No. 32.)
seeks to exclude evidence relating to his (1) parole status,
(2) purported gang affiliation, and (3) prior contacts with
police. (ECF No. 28 at 3.) In the alternative, Vallin
requests a pretrial hearing under Fed.R.Evid. 104 to
determine whether such evidence is admissible. (Id.
at 4-7.) The government responds that it will not seek to
introduce evidence relating to the first two categories as
part of its case-in-chief. (ECF No. 29 at 1-2.) Accordingly,
Vallin's motion as to the first two categories will be
denied as moot. The Court will address the main evidence that
is in dispute-evidence relating to Vallin's prior
contacts with police-which apparently consists of contact
with Officer Michael Harding of the Reno Police Department.
is indicted on one count of felon in possession of a firearm
under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF
No. 3 at 1.) The indictment arises from the following facts:
Officer Harding was driving down Gentry Way in Reno on July
3, 2017, around 9:30 p.m., when he saw a man he believed to
be Vallin. (ECF No. 28 at 2.) Officer Harding and another
officer pursued the man and saw the man drop a handgun.
(Id.) Vallin was later arrested based on the
assumption that he was the man who dropped the handgun.
(See id.) One of the primary questions of fact for
the jury likely will be whether the man who dropped the
firearm was in fact Vallin.
motion in limine is a procedural mechanism to limit in
advance testimony or evidence in a particular area.”
United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009). It is a preliminary motion that is entirely
within the discretion of the Court. See Luce v. United
States, 469 U.S. 38, 41-42 (1984). In limine rulings are
provisional. Such “rulings are not binding on the trial
judge [who] may always change his mind during the course of a
trial.” Ohler v. United States, 529 U.S. 753,
758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting
that in limine rulings are always subject to change,
especially if the evidence unfolds in an unanticipated
argues that Officer Harding's testimony identifying
Vallin as the man who dropped the firearm is inadmissible
under Fed.R.Evid. 401, 402, and 403. (ECF No. 28 at 1, 4.)
The relevance objection is tenuous at best. Vallin argues
that Officer Harding's testimony about prior contacts
with him is not relevant to any elements of the offense.
(Id. at 4.) While this may be true, Officer
Harding's identification of Vallin as the person who
possessed the firearm in question is probative. Without that
testimony, there seems to be nothing connecting Vallin to the
Vallin's objection under Rule 403, Vallin essentially
argues that because the extent of Officer Harding's prior
contacts with Vallin is not clear from the police report, any
probative value is substantially outweighed by a danger of
unfair prejudice. (ECF No. 32 at 5.) Vallin also contends
that prior contacts with police imply past wrongdoing and
amount to inadmissible character evidence under Rule 404(a).
(ECF No. 28 at 4.)
opinion identification testimony by law enforcement “is
not to be encouraged, and should be used only if no other
adequate identification testimony is available to the
prosecution.” United States v. Butcher, 557
F.2d 666, 670 (9th Cir. 1977). The rule favors admissibility
in this case-there is no contention that other adequate
identification evidence (e.g., surveillance camera or
photographs) is available here.
the rule announced in Butcher arose out of two
concerns, one of which is absent here. The first concern was
that law enforcement testimony was superfluous because
surveillance photographs were part of the evidence in
Butcher-the jury did not need law enforcement
testimony to determine the identity of the defendant. See
Id. at 669. Here, Officer Harding's testimony is not
superfluous because it seems to be the only basis for
asserting that Vallin is the man he saw drop the gun.
second concern was that law enforcement testimony, even if
relevant, could be substantially outweighed by the danger of
unfair prejudice under Fed.R.Evid. 403. Id. Here,
that concern is present but does not preclude admissibility.
The probative value of Officer Harding's identification
testimony is high because it likely is the only evidence that
will link Vallin and the man who dropped the gun. Officer
Harding's report states that he “know[s] Vallin
from multiple previous contacts with him while working in the
Regional Gang Unit.” (ECF No. 29-1 at 4.) While the
report does not identify the frequency or extent of previous
contacts, the lack of such information does not affect
admissibility. The extent and frequency of the contacts
instead go to the weight of Officer Harding's testimony.
The danger of unfair prejudice is also fairly high because
Officer Harding's prior contacts with Defendant occurred
during Officer Harding's time on the Regional Gang Unit.
To mitigate the danger of unfair prejudice to Vallin and to
address Vallin's Rule 404(a) objection, the Court will
preclude Officer Harding from offering testimony relating to
(1) the particular unit-Regional Gang Unit-that he worked on
when he encountered Vallin and (2) the circumstances of those
encounters. Officer Harding may testify as to the number,
frequency, and duration of his previous interactions with
Vallin that enabled him to identify Vallin as the man who
dropped the firearm on July 3, 2017.