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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Jesse Ventura, a/k/a James G. Janos, an individual, Plaintiff, vs. Taya Kyle, as Executor of the Estate of Chris Kyle, Defendant.

Civil No. 12-cv-0472 RHK/JJK

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION IN LIMINE TO EXCLUDE CERTAIN EVIDENCE NOT PROPERLY ADMISSIBLE WITH REGARD TO CHRIS KYLES CHARACTER

Introduction This Court previously denied Plaintiffs motion to compel discovery. 1 Plaintiffs Memorandum in support of that motion theorized that Chris Kyle regularly told tall tales intended to make himself look like a hero and that he was telling such a tall tale when he described his 2006 encounter with Jesse Ventura at McPs during the Michael Monsoor wake. 2 The Court should prohibit Plaintiff from examining witnesses or offering exhibits regarding such tall tales because Plaintiffs theory relies upon inadmissible hearsay and constitutes improper character evidence.

ECF #214, denying ECF #190 (Motion to Compel and for Sanctions filed by Jesse Ventura). ECF #192 at 8. Plaintiffs examples included supposed accounts involving looters in New Orleans in the wake of Hurricane Katrina and would-be robbers at a Texas convenience store. Id. at 8-9.
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Argument I. Magazine Articles Recounting Alleged Tall Tales are Inadmissible Hearsay. Ventura earlier memorandum constructed his tall tales theory from two magazine articles published after Chris Kyles murder: 3 Michael J. Mooney, The Legend of Chris Kyle, D Magazine, April 2013; 4 and Nicholas Schmidle, In the Crosshairs, New Yorker, June 3, 2013. 5 Neither article bears the weight that Plaintiffs Memorandum assigned to them or the weight that he might attempt to assign to the articles at trial. Mooneys article begins with a description of a story about Chris Kyle on a cold January morning in 2010 being approached by two armed men while at a gas station somewhere along Highway 67 who demanded that he turn over the keys to his truck, and that Chris Kyle shot and killed both men, and waited for police to arrive. Mooneys article appears to derive the account from a brief description of the incident in a 2012 book by fellow SEAL Marcus Luttrell and mentions in various forums deep in the corners of the internet. Mooneys article states I asked him about that story during an interview in his office last year and that Chris didnt want to get into

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ECF #192 at 8-10.

ECF #193 at Ex. 7 (marked as Dep. Ex. 173); available at http://www.dmagazine.com/Home/D_Magazine/2013/April/The_Legend_of_Chris_Kyle _02.aspx. Plaintiff did not introduce the article into the record. It is available at http://www.newyorker.com/reporting/2013/06/03/130603fa_fact_schmidle.
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specifics about the gas station shooting, but I left that day believing it had happened. At the end of the long article (which discusses many other things), Mooney wrote: During the interview in which he discussed the gas station incident, he didnt say where it happened. A lot of people will believe that, because there are no public documents or witnesses to corroborate his story, Kyle must have been lying. But why would he lie? He was already one of the most decorated veterans of the Iraq war. Tales of his heroism on the battlefield were already lore in every branch of the armed forces. Mooneys article does not specify what, if any, details of the gas station incident Kyle described to Mooney. Taya Kyle does not believe that Chris discussed the incident at all with Mooney. 6 Mooneys article (but not Schmidles article) also tells this story, which can be summarized as: Kyle had been invited to a luxury suite at a University of Texas football game and brought along a heartbroken buddy of his, a Dallas police officer who had recently caught his girlfriend making out with another guy. Kyle recognized a former UT football star in the suite as the guy who had kissed his friends girlfriend, and applied man law giving the football player a sleeper hold that caus[ed] the man to lose control of his bowels as he passed out. Mooneys article does not state his source for this story. At her deposition, Taya Kyle testified that she heard something like that story from a friend (who was a Dallas police officer); despite argumentative questioning from Venturas counsel, she saw no similarities between that story and the story of Kyles encounter with Ventura. 7

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Taya Kyle Tr. (ECF #229-1) at 130:12-31:23, 138:1-139:7. Taya Kyle Tr. at 154:24-171:23.
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Schmidles article describes the gas station story, based largely on Mooneys article and continuing: Like Mooney, I also heard many of Kyles friends and associates tell this story. Details varied, but the ending was the same. This article states that there is cause to be skeptical about the gas station incident, recounting denials by some law enforcement officials. It then states that these denials do not automatically disprove the story, of course. Schmidles article does not contain any assertion that he heard about the gas station story from Chris Kyle. Schmidles article (but not Mooneys article) recounts a story Chris Kyle supposedly told to a group of people hanging out in a hotel suite in San Diego, about travelling to New Orleans with another sniper in the days after Hurricane Katrina, setting up atop the Superdome, and shooting armed residents who were contributing to the chaos. Schmidles article attributes this to [t]hree people [who] shared with me varied recollections of that evening. The article contains no assertion that Schmidle heard the story from Chris Kyle, that Chris Kyle spoke about the story to any other news reporter or in any public setting, or that Chris Kyle intended the story to become widely known. The magazine articles cannot be offered as proof of whether the gas station shooting or Hurricane Katrina incidents did or did not happen, or whether Chris Kyle did or did not speak publicly about either incident, or whether Chris Kyle intended the stories to make himself look good. They are inadmissible hearsay. Nooner v. Norris, 594 F.3d 592, 603 (8th Cir. 2010).

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Apart from the articles legal inadmissibility, and even if the articles had explicitly and unambiguously 8 attributed the gas-station-shooting and Katrina stories to something that Chris Kyle supposedly had said directly to the reporters instead of something the reporters gleaned from other sources Venturas reliance on the articles stands in stark contrast to his testimony at his own deposition: I can sure testify to that after 30 years of dealing with [reporters], that they can misquote you, they can take you out of context and many things can be printed that you cant attribute to actually saying or not saying. 9 II. Any Exhibits, Questioning, or Testimony about Tall Tales Would Lack Relevance and Would Constitute Inadmissible Character Evidence. Beyond the hearsay problems address in Point I, any questioning or testimony about these three incidents or others would amount to inadmissible character evidence. Because of its lack of relevance and its highly prejudicial and time-consuming nature, character evidence typically is not admissible in a civil case. See Fed. R. Evid. 404, Advisory Committee Notes to 1972 Proposed Rules, Note to Subdivision (a) (Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in In Southern Wine & Spirits of America, Inc. v. Division of Alcohol & Tobacco Control, 2013 U.S. App. LEXIS 19581, at *18-19 (8th Cir., Sept. 25, 2013), the Eighth Circuit rejected as inadmissible hearsay a news article that does not even purport to provide direct quotations from the representative of the opposing party.
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Ventura Tr. (ECF #114-15) at 272.

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the case shows actually happened.); Advisory Committee Notes to 2006 Amendments (The Rule has been amended to clarify that in a civil case evidence of a persons character is never admissible to prove that the person acted in conformity with the character trait. (emphasis added)). Despite the definitive language of the 2006 Advisory Committee Notes, character evidence has been permitted in civil cases where character is in issue that is, where character is an essential element of a claim. See Fed. R. Evid. 404, Advisory Committee Notes to 1972 Proposed Rules, Note to Subdivision (a) (providing examples such as chastity of victim where statute specifies that chastity is an element of the crime of seduction, or of competency of driver in an action for negligent entrustment of vehicle to incompetent driver). Character is an essential element of a claim only where it alters the rights and liabilities of the parties under the substantive law. Schafer v. Time, Inc., 142 F.3d 1361, 1371 (11th Cir. 1998) Libel cases do put character in issue but it is the character of the plaintiff, not of the defendant, that matters, because it is the plaintiffs reputation that is an essential element of a libel claim. See, e.g., Longbehn v. Schoenrock, No. A09-2141, 2010 WL 3000283, at *5-6 (Minn. App. Aug. 3, 2010) (the bad character of a plaintiff in a libel action may be shown in mitigation of damages by presenting evidence of the plaintiffs general reputation, and such evidence is not inadmissible hearsay) (unpublished), citing

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Minn. R. Ev. 803(21), and Lydiard v. Daily News Co., 110 Minn. 140, 145, 124 N.W. 985, 987 (1910). 10 Rule 404 also permits admission of evidence of a witnesss character under Rules 607, 608, and 609. These rules, however, narrowly circumscribe the type of evidence to testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Fed. R. Evid. 608(a). Except for a criminal conviction under Rule 609, extrinsic evidence such as the news reports Ventura relies on, as well as the testimony of the authors of those reports and/or their sources is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesses character for truthfulness. Fed. R. Evid. 608(b) (emphasis added); see also 33A Fed. Proc., L. Ed. 80:156 (2013) (Evidence is extrinsic and thus inadmissible ... where the evidence is introduced through the testimony of another witness ... [and where] the evidence is documentary proof not independently admissible.); United States v. Lopez, 979 F.2d 1024, 1033 (8th Cir. 1992) (evidence of conviction of a crime is extrinsic evidence under Rule 608(b), and cannot be used to impeach a witnesss credibility). Accord, Schafer, 142 F.3d at 1372 (Since the plaintiffs character is substantively at issue in a libel case under Georgia law, Rule 405(b) permits the admission of evidence regarding specific instances of the plaintiffs conduct on that issue.); Williams v. District Court, 866 P.2d 908, 911-12 (Colo. 1993) (Williams is seeking compensatory damages in excess of $1,000,000 and has alleged loss of reputation as one of his injuries. While damages are presumed, and need not be proven, in cases involving defamation per se, the jury must still consider any actual impairment to the plaintiffs reputation in determining the amount of damages. Moreover, a defendant in a defamation action may present any evidence which tends to mitigate damages. ... In this case, information concerning his past sexual history may lead to evidence of Williams reputation, and whether it has been harmed by the alleged actions of the defendants. (internal citations omitted)).
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Under some circumstances, Ventura might inquire about Chris Kyles general reputation for truthfulness. He cannot, however, use extrinsic evidence. And even if, for example, a trial witness first testifies about Chris Kyles reputation for truthfulness, Venturas cross-examination must be limited by the overriding protection of Rule 403. See Fed. R. Evid. 608(b), Advisory Committee Notes to 1972 Proposed Rules, Note to Subdivision (b). Evidence of prior acts is not admissible to prove the character of a person. Fed. R. Ev. 404(b); Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 380 (8th Cir. 2008). Even relevant evidence may be excluded 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. Ev. 403; United States v. Beck, 557 F.3d 619, 621 (8th Cir. 2009). Unfair prejudice [under Rule 403] means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Confusion of the issues warrants exclusion of relevant evidence if admission of the evidence would lead to litigation of collateral issues. Firemans Fund Ins. Co. v. Thien, 63 F.3d 754, 758 (8th Cir. 1995) (internal quotations omitted). Even when relevant to show a partys motive or intent, prior bad acts or lawsuits often invite the jury to base its decision upon sheer hostility toward a party or upon the impermissible inference that the party acted in conformity with its prior misdeeds. Porous Media Corp. v. Pall Corp., 173 F.3d 1109, 1117 (8th Cir. 1999). Venturas transparent intent in seeking information from Taya Kyle about the gas-station-shooting
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and Katrina stories was to disparage Chris Kyle in ways that Kyles death prevents Kyle himself from refuting. 11 Although Defendant disagrees with Venturas interpretations of the gas-station-shooting, football, and Katrina magazine accounts, Venturas underlying intent to inflame a jury and divert attention from the material issues in this case means that the prejudicial effect of the requested discovery would outweigh any legitimate probative value it may have. Cf. United States v. Fawbush, 900 F.2d 150, 151-52 (8th Cir. 1990). Inquiry into other incidents of a partys or witnesss behavior can be foreclosed where its probative value [is] substantially outweighed by the threat of undue delay or confusion of issues inherent in a drawn-out inquiry into the details of that persons history. United States v. Watson, 409 F.3d 458, 464 (D.C. Cir. 2005). A series of minitrials on such other incidents can cause undue delay, mislead and confuse the jury, and carry significant danger of unfair prejudice. Chemical Leaman Tank Lines v. Aetna Cas. & Sur. Co., 89 F.3d 976, 994 (3d Cir. 1996). Those factors are compounded here,

Venturas counsel asked Taya Kyle about the gas station shooting incident as recounted not only in Mooneys article, but also in a book by Marcus Luttrell. See Taya Kyle Tr. (ECF #229-1) at 135. Luttrells book, SERVICE: A NAVY SEAL AT WAR, was published on May 8, 2012. (See http://www.amazon.com/Service-Navy-SEAL-MarcusLuttrell/dp/0316185361/ref=sr_1_3?s=books&ie=UTF8&qid=1338863316&sr=1-3.) Its brief description of the gas-station incident was repeated by some others, including a blog by Mike McDaniel on June 4, 2012 (available at http://statelymcdanielmanor.wordpress.com/2012/06/04/the-universe-has-a-good-laugh/). Venturas counsel could have known about these descriptions before he deposed Chris Kyle on November 28, 2012. His inquiries would have been no more relevant or admissible if he had asked Chris Kyle about the incident, but at least Chris Kyle would have been able to present his own testimony on the issue, if he had so chosen.
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because Kyles death prevents him from providing a jury with his own, direct account of those other incidents in connection with those mini-trials. Conclusion The Court should prohibit Plaintiff from examining witnesses or offering exhibits regarding Chris Kyles tall tales, including but not limited to the gas-station-shooting, Katrina, and football stories. Dated: April 21, 2014 FAEGRE BAKER DANIELS LLP

By: /s/ John P. Borger John P. Borger, #9878 Leita Walker, #387095 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Telephone: (612) 766-7000 Fax: (612) 766-1600 john.borger@FaegreBD.com leita.walker@FaegreBD.com Attorneys for Defendant Taya Kyle, Executor of the Estate of Chris Kyle (deceased)

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