Case 2:16-cr-00046-GMN-PAL Document 1227 Filed 01/03/17 Page 1 of 10

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JESS R. MARCHESE, ESQ.

Nevada Bar No. 8175
MARCHESE LAW OFFICES
601 S. Las Vegas Blvd.
Las Vegas, NV 89101
(702) 385-5377 Fax (702) 474-4210
marcheselaw@msn.com
Attorney for Defendant ERIC PARKER

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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THE UNITED STATES OF AMERICA,

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Case No.: 2:16-cr046-GMN-PAL

Plaintiff,
-vs-

DEFENDANTS MOTION IN LIMINE

ERIC J. PARKER. ET. AL.,

Defendant.

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DEFENDANTS MOTION IN LIMINE

COMES NOW the defendant, ERIC PARKER, by and through his attorney of record, JESS
R. MARCHESE, ESQ., and on behalf of STEVEN STEWART and his attorney of record,
RICHARD TANASI, ESQ., hereby file this motion in limine to preclude all statements of alleged

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co-conspirators sought to be introduced at trial.

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DATED this 3RD day of January, 2017.

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/S/ Jess R. Marchese___
JESS R. MARCHESE, ESQ.
Nevada Bar No. 8175
Attorney for Defendant

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Case 2:16-cr-00046-GMN-PAL Document 1227 Filed 01/03/17 Page 2 of 10

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STATEMENT OF FACTS
Mr. Eric Parker and Steven Stewart are the subjects of a 16 count indictment in which they are

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named in eleven of the counts. The case derives from a standoff between a group of protestors and the
Bureau of Land Management (BLM) in Bunkerville, Nevada on April 12, 2014.

Mr. Parker and Stewart are residents of the state of Idaho. On April 11, 2014, the men and

their friend O. Scott Drexler drove down from Idaho in Mr. Parkers truck to protest actions by the

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government that they viewed as offensive such as setting up First Amendment zones, beating up
women and using excessive force against civilian protestors.
The trios involvement was rather basic. They were in Bunkerville, Nevada for a period of less
than twenty-four hours where they camped overnight and travelled to the northbound bridge on the I-

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15 interstate above the Toquop Wash in reaction to hearing that the people in the wash needed help.

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They went in a random, unknown truck from the campground to the northbound bridge at around

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11:30AM on April 12, 2014. This bridge is situated above a wash/basin where the standoff took place

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and is 100 yards or so east of a second bridge and directly above where most of the standoff took

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place. Eric was on the eastern bridge with his Scott and Steven and to his knowledge did not speak

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with any other co-defendants other than Stewart and Drexler the entire time he was present.

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During the point when the parties were waiting for the cattle to be released, tensions increased

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due to the BLM not releasing the cattle and the wash protestors attempting to move forward towards a

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gate the BLM had erected under the southbound bridge. At this juncture, Eric was still on the bridge

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with Stewart and Drexler. As the protestors moved towards the BLM agents, announcements were

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made by the BLM that they were authorized to use gas and lethal force should the crowd keep

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Case 2:16-cr-00046-GMN-PAL Document 1227 Filed 01/03/17 Page 3 of 10

converging forward. While this was transpiring, a stranger handed Eric binoculars and pointed out

snipers that were on a ridge in the distance.

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At this point, Eric laid down on his stomach between two jersey barriers holding his

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rifle in the general direction of the southbound bridge approximately 100 yards away. Mr. Drexler is

also alleged to have taken a similar position about 20 yards to the right of Mr. Parker. Mr. Stewart,

although armed, did not aim his weapon at any time and is alleged to have been a lookout or spotter

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for Parker and/or Drexler.

At some time thereafter, the cattle were released, the tension died down, and the three men left

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the area. The trio then packed their belongings up and left to go back home to Idaho and never
returned to Nevada until their arrests.

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ARGUMENT

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In this case, Parker and Stewart seek a motion in limine precluding the government from using
ALL statements of so called co-conspirators that were made after the trio left to go back to Idaho. The

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basis of their motion is threefold. First, once the three left Nevada, they had effectively withdrawn

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from the conspiracy (if there ever was one) and had thus ended any alleged conspiracy by removing

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themselves from it by driving hundreds of miles away from the conspiracys purpose(s), and never

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stepping foot back in Nevada under their own volition. Second, any statements made by the co-

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defendants were not made during and in furtherance of the conspiracy as the conspiracy. Lastly, any

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of the offered statements are more prejudicial than probative and will fail the balancing test mandated

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by the Federal Rules of Evidence.

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Case 2:16-cr-00046-GMN-PAL Document 1227 Filed 01/03/17 Page 4 of 10

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1- By Leaving Nevada and Going Home to Idaho, the Defendants Effectively Withdrew From the
Alleged Conspiracy

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Once Parker and Stewart left Nevada and drove back to Idaho, they withdrew themselves from

the alleged conspiracy. As a result, any statements that were made after April 12, 2014 (the day

Stewart and Parker left) should be precluded at trial.

Ninth Circuit Model Jury Instruction 8.24 states that once a person becomes a member of a

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conspiracy, that person remains a member until that person withdraws from it. One may withdraw by

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doing acts which are inconsistent with the purpose of the conspiracy and by making reasonable efforts

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to tell the co-conspirators about those acts. You may consider any definite, positive step that shows

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that the conspirator is no longer a member of the conspiracy to be evidence of withdrawal. The

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instruction further states that the burden is on the defense to show the withdrawal.
To withdraw from a conspiracy a defendant must either disavow the unlawful goal of the
conspiracy, affirmatively act to defeat the purpose of the conspiracy, or take " 'definite, decisive, and

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positive' steps to show that the [defendant's] disassociation from the conspiracy is sufficient." United

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States v. Loya, 807 F.2d 1483, 1493 (9th Cir.1987) (quoting United States v. Smith, 623 F.2d 627,

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631 (9th Cir.1980)). The crime of conspiracy consists of two elements: the defendant's agreement to

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accomplish an illegal objective and an overt act on the part of some member of the conspiracy toward

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achieving that objective. Id. Withdrawal negates the element of agreement to the conspiracy's

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unlawful objective because it "marks [the] conspirator's disavowal or abandonment of the

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conspiratorial agreement." U.S. v. Lothian, 976 F.2d 1257, 1261 (C.A.9 (Cal.), 1992) (quoting United

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States v. Read, 658 F.2d 1225, 1232 (7th Cir.1981).

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In this case, the government alleges that the conspiracy took place up to and including the
date of the filing of the criminal complaint on February 11, 2016 (See Criminal Complaint, ECF 1).

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Although the government alleges these facts, they cannot show that Parker, Stewart, or Drexler did

anything to affirmatively continue on with any alleged conspiracies once they left and went home.

For instance, the government claims that other defendants remained in and around Bunkerville in

order to provide security to Cliven Bundy and his cattle. Further, the government alleges that Cliven

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Bundy and other co-conspirators organized security patrols and check points in order to deter officials

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from attempting to take his cattle again to auction them off for sale in order to satisfy Mr. Bundys

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debt for his unpaid grazing fees. Facts such as this are completely devoid when it comes to

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defendants Parker and Stewart which illustrates their complete withdrawal from the conspiracy. At no

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time prior to the trial or during the trial, will there ever be any evidence elicited that would support

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Parker and Stewarts involvement in such activity.

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Based upon these facts, Parker and Stewart withdrew from the conspiracy through the definitive,

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decisive, and positive step of driving home to Idaho. As a result, no statements made by co-

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conspirators after they left Nevada should be admitted against them at their trial.

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2- The Statements Do Not Meet the Necessary Elements of FRE 801

Even if the court finds that the defendants did not remove themselves from the conspiracy, the

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after the fact statements do not meet the necessary criteria to be admissible under FRE 801.
Federal Rule of Evidence 801(d) (2)(E) states that an opposing partys statement is admissible

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if it is offered against an opposing party and was made by the partys coconspirator during and in

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Case 2:16-cr-00046-GMN-PAL Document 1227 Filed 01/03/17 Page 6 of 10

furtherance of the conspiracy. Before a statement may be admitted, however, it must be shown: "(1)

that the declaration be in furtherance of the conspiracy; (2) that the declaration be made during the

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course of the conspiracy; and (3) that there is independent proof of the existence of the conspiracy and

of the connection of the declarant and the defendant with it." United States v. Perez, 658 F.2d 654,

658 (9th Cir.1981)

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What the government can offer under this exception are "statements made to keep a conspirator
abreast of a co-conspirator's activities, or to induce continued participation in a conspiracy, or to allay
the fears of a co-conspirator are in furtherance of a conspiracy." United States v. Layton, 720 F.2d

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548, 557 (9th Cir.1983), cert. denied, 465 U.S. 1069 (1984). But not all statements made by co-

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conspirators can be considered to have been made in furtherance of the conspiracy. "Mere

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conversation between conspirators" or "merely narrative declarations" are not admissible as

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declarations in furtherance of the conspiracy. United States v. James, 510 F.2d 546, 549 (5th Cir.

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1975); United States v. Birnbaum, 337 F.2d 490, 495 (2d Cir. 1964); United States v. Goodman, 129

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F.2d 1009, 1013 (2d Cir. 1942). For declarations to be admissible under the co-conspirator exception,

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they must further the common objectives of the conspiracy. U.S. v. Eubanks, 591 F.2d 513 (C.A.9

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(Ariz.), 1979)

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In this case, statements made by alleged co-conspirators, particularly statements made several
months after the fact in interviews to federal agents and media outlets, were not made during and or in

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the furtherance of the conspiracy. For example, co-defendant Brian Cavalier gave an interview to a

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cable news documentary crew. These statements should be held to be inadmissible under James and

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Perez as he was simply giving a merely narrative declaration of what had allegedly transpired

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previously. Further, the infamous Long Bow Productions interviews should all be held inadmissible

against Parker and Stewart as these statements do nothing to further object the conspiracy whatsoever.

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In addition, all statements made by co-defendants after their arrests should also be held to be

inadmissible as the statements are not admissible under the FRE. An out-of-court declaration made

after arrest may not be used at trial against one of the declarant's partners in crime. Wong Sun vs.

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United States 371 U.S. 471, 490 (1963). While such a statement is 'admissible against the others
where it is in furtherance of the criminal undertaking, all such responsibility is at an end when the
conspiracy ends.' Fiswick v. United States, 329 U.S. 211, 216 (1946)("confession or admission by one

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co-conspirator after he has been apprehended is not in any sense a furtherance of the criminal
enterprise").
Based upon the aforementioned facts and law, defendants Parker and Stewart pray for an order

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precluding statements of alleged co-conspirators as the Government cannot show that the statements

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meet the necessary elements of FRE 801.

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3- Even if the court finds that Parker and Stewart did not withdraw from the conspiracy or the
statements are admissible under FRE 801, the statements are more prejudicial than probative
Even if the court finds that the two previous arguments lack merit, the government cannot
prevail as the statements at issue cannot pass muster under the Federal Rules of Evidence.

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Federal Rule of Evidence 403 states that 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

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needlessly presenting cumulative evidence.

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Here, any statement made by an alleged co-conspirator before Mr. Stewart or Mr. Parker

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came to Nevada or left for Idaho is unfairly prejudicial in that any statement prejudicially likens the

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Idaho defendants to the rest of the defendants in this case. However, even as the government has

indicated and the court has found, as Tier 3 defendants Parker and Stewart are the least culpable. (See

ECFs 971 and 1101). The statements and actions of the Tier 1 and Tier 2 defendants are far more

calculated, organized, aggressive, dangerous, and violent in nature than anything Eric and Steven are

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alleged to have done or said. For example, Defendant Ryan Bundy has said to the local sheriff on

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scene that if he could not stop the cattle at the border, he would take them by force at the sale barn;

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that they needed to go to the BLM compound and that a few of them may have bullets drilled

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through us . . . and then we will have to turn around and drill bullets through them. . . (See ECF 432)

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Another example would be the statements of Pete Santilli. He is alleged to have threatened violence

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to law enforcement officers and broadcast a call-to-arms to militia, specifically calling for people with

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guns to go to Nevada to kick out the feds on April 8; that he made numerous threats of force and

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violence against law enforcement officers and issuing at least three calls-to-arms to gunmen, calling

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for an armed confrontation with law enforcement officers on April 9; on April 11th he threatened the

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SAC of the Impoundment with force and violence and issued an ultimatum to him, telling him there

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was going to be a confrontation. (see ECF 324)

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As a result, the spillover prejudicing the juror by admitting the Tier 2 and Tier 1 co-defendant

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statements in this trial substantially outweighs any probative value of the same. Therefore, any

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statements made by alleged co-conspirators must be prohibited as more prejudicial than probative.

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CONCLUSION

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Based on the foregoing, defendants Parker and Stewart pray for an order granting their motion
in limine based upon the foregoing rationale.
DATED this 3RD day of January, 2017.

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/S/ Jess R. Marchese___

JESS R. MARCHESE, ESQ.
Nevada Bar No. 8175
Attorney for Defendant PARKER

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3rd day of January, 2017 the undersigned served the
foregoing DEFENDANTS MOTION IN LIMINE TO PRECLUDE ALL STATEMENTS OF

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ALLEGED CO-CONSPIRATORS on all counsel herein by causing a true copy thereof to be filed

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with the Clerk of Court using the CM/ECF system, which was served via electronic transmission by

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the Clerk of Court pursuant to local order.

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/s/ ______________________________
Employee of Marchese Law Offices

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