United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court.
before the Court is the Motion in Limine (ECF No. 171) filed
by Defendant Richard Carl Brown (“Defendant”) to
exclude evidence. The Government filed a Response (ECF No.
173), and Defendant filed a Reply (ECF No. 176).
March 20, 2012, a federal grand jury sitting in the District
of Nevada returned an Indictment charging Defendant with four
counts: (1) Count One, Advertising Child Pornography, in
violation of 18 U.S.C. § 2251(d)(1)(A); (2) Count Two,
Transporting Child Pornography, in violation of 18 U.S.C.
§ 2252A(a)(1), (b); (3) Count Three, Receipt of Child
Pornography, in violation of 18 U.S.C. § 2252A(a)(2),
(b); and (4) Count Four, Possession of Child Pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). (Indictment,
ECF No. 1). Defendant proceeded to a five-day jury trial.
(See ECF No. 87). At the jury trial, a Henderson
Police Department detective testified that a search of
Defendant's residence uncovered, inter alia, a
1.5-terabyte external hard drive containing both
“normal” and “hidden” folders. (Mot.
in Lim. 2:17-3:1, ECF No. 171). The normal folders included
such things as Defendant's family photos and the death
certificate of Defendant's father. (Id. 9:3-5).
The hidden folders were only viewable to users who change the
default settings of the hard drive, and they contained child
pornography, along with videos depicting Defendant
masturbating and copulating with adult women. (Id.
2:23-3:2). The detective also testified that the files were
“[h]ighly organized, with each photo, video, and
document titled according to a consistent naming convention
and placed in specific subfolders.” (Id.
3:3-5) (internal quotation marks omitted). The jury returned
a guilty verdict on all four counts. (Jury Verdict at 2, ECF
No. 91). However, the Ninth Circuit vacated the convictions
on appeal and remanded the case for a new trial upon finding
that Defendant had been denied the right to discharge
retained counsel and the right to counsel of his choice.
See United States v. Brown, 785 F.3d 1337, 1352 (9th
Cir. 2015). Defendant is currently set for a new jury trial
on June 19, 2018. (ECF No. 188).
instant Motion in Limine, Defendant urges the Court to
exclude certain evidence that the Government admitted during
the original trial: (1) evidence of Defendant's alleged
Obsessive Compulsive Disorder (“OCD”); (2) videos
depicting Defendant masturbating; (3) statements made by
Defendant indicating his attraction to minors; and (4)
testimony regarding incest literature authored by Melinda
Race (“Race”) that was saved on Defendant's
computer. (Mot. in Lim. 8:15-14:16, ECF No. 171).
Motions 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 (“Rule” or
“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 (1987) (“We have traditionally required
that these matters [regarding admissibility determinations
that hinge on preliminary factual questions] be established
by a preponderance of proof.”).
the Federal Rules of Evidence 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 Federal Rule
of Evidence 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); 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 manner).
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. “The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403.
Rule 404(b), evidence of a defendant's prior conviction,
wrong, or other act is inadmissible to prove the
defendant's character or propensity to commit the charged
offenses. United States v. Vo, 413 F.3d 1010, 1017
(9th Cir. 2005). However, evidence of a prior act is
admissible for non-propensity purposes, “such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Fed.R.Evid. 404(b). Rule 404(b) evidence is
admissible if it satisfies a four-part test. United
States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.
1998). The proponent of the 404(b) evidence must show that
the evidence “(1) proves a material element of the
offense for which the defendant is now charged, (2) if
admitted to prove intent, is similar to the offense charged,
(3) is based on sufficient evidence, and (4) is not too
remote in time.” Ramirez-Robles, 386 F.3d at
1242. If the four-part test is satisfied, the evidence is
admissible unless “its probative value is substantially
outweighed by a danger of . . . unfair prejudice.”
Fed.R.Evid. 403; United States v. Blitz, 151 F.3d
1002, 1008 (9th Cir. 1998) (observing that when evidence
“satisfies the four-part test, the district court
should admit the evidence unless its prejudicial impact
substantially outweighs its probative value”) (internal
quotation marks omitted).
406 governs the admissibility of habit evidence.
“Evidence of a person's habit . . . may be admitted
to prove that on a particular occasion the person or
organization acted in accordance with the habit or routine
practice.” Fed.R.Evid. 406. “In deciding whether
certain conduct constitutes habit, courts consider three
factors: (1) the degree to which the conduct is reflexive or
semi-automatic as opposed to volitional; (2) the specificity
or particularity of the conduct; and (3) the regularity or
numerosity of the examples of the conduct.” United
States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001),
overruled on other grounds by United States v.
Lopez, 484 F.3d 1186 (9th Cir. 2007). “The burden
of establishing that certain conduct qualifies as evidence of
habit falls on the party wishing to introduce the
evidence.” Id. at 799.