Professional Documents
Culture Documents
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DANIEL G. BOGDEN
United States Attorney
District of Nevada
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
NADIA J. AHMED
Assistant United States Attorneys
ERIN M. CREEGAN
Special Assistant United States Attorney
501 Las Vegas Blvd. South, Suite 1100
Las Vegas, Nevada 89101
(702) 388-6336
steven.myhre@usdoj.gov
nicholas.dickinson@usdoj.gov
nadia.ahmed@usdoj.gov
erin.creegan@usdoj.gov
Attorneys for the United States
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Plaintiff,
v.
ERIC J. PARKER,
O. SCOTT DREXLER,
RICHARD R. LOVELIEN,
STEVEN A. STEWART,
TODD C. ENGEL, and
GREGORY P. BURLESON,
2:16-CR-00046-GMN-PAL
GOVERNMENTS
MOTION
IN
LIMINE
TO
PRECLUDE
REFERENCES
TO
EXTRAJUDICIAL
STATEMENTS,
AGENCY ACTIONS OR OTHER
PROCEEDINGS
Defendants.
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INTRODUCTION
Lovelien, Stewart, Engel, Burleson, and thirteen others. The indictment charged
them with Conspiracy to Commit an Offense Against the United States, 18 U.S.C.
371; Conspiracy to Impede or Injure a Federal Officer, 18 U.S.C. 372; Use and
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participation in these acts. While it is within the defendants rights to test the
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governments evidence in a trial, and to present any and all legally supported
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defenses that they may have, the government has reason to believe that the
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defendants will seek to divert the jurys attention to matters collateral to this case
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in the hope that it can place the federal government, and more specifically the
Bureau of Land Management (BLM) and its officers, on trial, in the hope of
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illegitimate.
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LEGAL STANDARD
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A.
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It is well established that motions in limine are a proper tool for triggering
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the trial courts power to review and exclude evidence and argument from trial. See,
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e.g., United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008)
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evidence of duress); United States v. Mohamed, 457 F. App'x 635, 636 (9th Cir. 2011)
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evidence regarding duress and necessity); United States v. Cramer, 532 F. App'x
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789, 791 (9th Cir. 2013) (affirming district courts grant of governments motion in
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is proper to exclude both the irrelevant evidence and any argument pertaining to it.
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See United States v. Sapse, Case 13-10592, Doc. 79 (9th Cir. Jan. 7, 2016)
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(Appellant failed to establish the connection between the FDAs politics and the
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issues in the case. Therefore, the district court properly excluded this evidence as
being irrelevant.) (citing United States v. Vallejo, 237 F.3d 1008, 1015-17 (9th Cir.
2001)); United States v. Scarmazzo, 554 F.Supp.2d 1102, 1107 (E.D. Cal.2008)
defendants wanted to argue to the jury that they had a good faith belief and relied
on the advice of counsel that is was lawful to sell medical marijuana because the
offense was a general intent crime and was therefore not relevant).
B.
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Evidence is relevant only if it has any tendency to make the existence of an element
slightly more [or less] probable than it would be without the evidence. Jackson v.
Virginia, 443 U.S. 307, 320 (1979). In other words, only evidence that is relevant to
the elements of the charge against defendant, or to a legal defense, is admissible at
trial. See Fed. R. Evid. 402. Although a defendant is entitled to confront witnesses
and to present a defense, he has no right to present irrelevant evidence. See Wood
v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992). The Court has discretion to
determine which issues are relevant to the proceedings. See id.
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Defenses that are not legally cognizable are always properly excluded as
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irrelevant. See United States v. Southers, 583 F.2d 1302, 1305 (5th Cir. 1978)
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(evidence of eventual repayment of misapplied funds does not negate the requisite
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intent); United States v. Harris, 313 Fed. Appx. 969, at *1 (9th Cir. 2009) vacated
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on other grounds, Harris v. United States, 130 S.Ct. 3542 (2010) (in public
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corruption case, evidence of city councils motivation for rescinding public contracts
Urfer, 287 F.3d 663, 665 (7th Cir. 2002) (in prosecution for willful damage to federal
government property, district court properly refused to allow defendants to turn the
C.
excluded under Rule 403 of the Federal Rules of Evidence. That rule provides, in its
pertinent part:
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Fed. R. Evid. 403; see also United States v. Sarno, 73 F.3d 1470, 1488-89 (9th Cir.
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1995) (exclusion of evidence relating to proof of fact that was not element of charge
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not abuse of discretion where such evidence might well have (as the district court
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here concluded) induced confusion in the minds of the jury and distracted them from
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D.
Jury Nullification
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When a defendant asks the jury to render a verdict based on something other
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than the evidence of guilt or innocence in the case, that defendant is seeking jury
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instructed by the court. Merced v. McGrath, No. C-03-1904 CRB, 2004 WL 302347,
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at *6 (N.D. Cal. Feb. 10, 2004), affd, 426 F.3d 1076 (quoting United States v.
encourage jury nullification, the court has a duty to forestall or prevent juror
Cir.1997). See also United States v. Young, 470 U.S. 1, 710 (1985) (holding that
the district court has a duty to prevent improper arguments to the jury, including
those designed to divert the jury from its duty to decide the case on the evidence);
United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (A trial judge . . .
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may block defense attorneys attempts to serenade a jury with the siren song of
nullification.); Zal v. Steppe, 968 F.2d 924, 930 (9th Cir. 1992) (Trott, concurring)
([N]either a defendant nor his attorney has a right to present to a jury evidence
that is irrelevant to a legal defense to, or an element of, the crime charged. Verdicts
must be based on the law and the evidence, not on jury nullification as urged by
either litigant.); United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983)
([D]efense counsel may not argue jury nullification during closing argument.);
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Mar. 31, 2014) (Defendant was not entitled to question the jury as to the validity
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of federal law, and he was not entitled to present arguments in favor of jury
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nullification.).
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In United States v. Komisaruk, 885 F.2d 490 (9th Cir. 1980), the defendant
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Force computer. Id. at 491. On appeal, she argued that the district court erred in
granting the government's motions in limine to preclude her from introducing her
political, religious, or moral beliefs at trial. Id. at 492. In particular, she argued
that she was entitled to introduce evidence of her anti-nuclear war views, her belief
that the Air Force computer was illegal under international law, and that she was
otherwise morally and legally justified in her actions. Id. at 492-93. The district
court held that her personal disagreement with national defense policies could not
be used to establish a legal justification for violating federal law nor as a negative
defense to the government's proof of the elements of the charged crime, (Id. at 492),
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in Iraq. 548 F.3d 882, 885 (9th Cir. 2008). See also United States v. Ogle, 613 F.2d
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233, 241 (10th Cir. 1979) (holding that the district judge properly curtailed the
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defendants erroneous line of questioning, a Fourth of July speech based not upon
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our law or upon our system of government); United States v. Bryant, 5 F.3d 474,
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476 (10th Cir. 1993) (Trial court properly prohibited defense counsel from inquiring
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into basis for federal, rather than state, prosecution.); United States v. Trevino, 491
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F.2d 74, 77 (5th Cir. 1974) (Thornberry, J., concurring in part and dissenting in
uncharged thefts is precisely the kind of evidence which has no place before the
jury.).
Likewise, in Zal, the court affirmed contempt orders against defense counsel
arising from improper questions he asked witnesses that used words linked to
excluded defenses. 968 F.2d at 92531 (9th Cir. 1992). The court ordered Zal not to
use fifty words taken from Zals previous attempts to attack the morality of
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700, 2001 WL 498430, at *16 (5th Cir. 2001). Mentioning facts about immunized or
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uncharged witnesses was an attempt to serenade [the] jury with the siren song of
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nullification. Id. (citing Sepulveda, 15 F.3d at 1190)). See also United States v.
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House, No. 14-CR-10, 2015 WL 1058019, at *2 (N.D. Ill. Mar. 6, 2015) (The Court
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also grants the Government's motion to the extent it asks the Court to bar defense
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selective prosecution.) (citing United States v. Goulding, 26 F.3d 656, 667 (7th Cir.
1994)).
ARGUMENT
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A.
Malheur Case
Not one of the defendants in the first trial was charged in United States v.
Ammon Bundy in the District of Oregon. Nonetheless, the defendants may try to
introduce references to the case, most likely to highlight that most of the defendants
charged in the first Oregon trial were acquitted (the jury hung as to one count
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against Ryan Bundy). This argument invites the jury to make a determination
based on something other than whether the evidence in this case is sufficient to
convict or not. It is therefore improper.
In United States v. Kerley, 643 F.2d 299 (5th Cir. 1981), the court wrote that
... evidence of a prior acquittal is not relevant because it does not prove innocence
but rather merely indicates that the prior proceeding failed to meet its burden of
proving beyond a reasonable doubt at least one element of the crime. Fed.R.Evid.
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401. But evidence of a prior acquittal is not relevant because it does not prove
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innocence but rather merely indicates that the prior proceeding failed to meet its
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burden of proving beyond a reasonable doubt at least one element of the crime.
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United States v. Gambino, 818 F. Supp. 536, 539 (E.D.N.Y.1993) (quoting United
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States v. Kerley, 643 F.2d 299 (5th Cir.1981)); Gentile v. Cnty. of Suffolk, 926 F.2d
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142, 161 (2d Cir.1991) ([A] judgment of acquittal does not necessarily mean that
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the defendant is innocent; it means only that the government has not met its burden
of proof beyond a reasonable doubt. (citing Viserto, 596 F.2d at 53637)); United
States v. Jones, 808 F.2d 561, 567 (7th Cir. 1986) (Here, the acquittal shows only
Argument with regard to the Malheur case is even less relevant as it deals
with a completely separate course of conduct, rather than a prior acquittal on the
same conduct.
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United States v. Williams, 784 F.3d 798, 803 (D.C. Cir. 2015). Therefore, the
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B.
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The defendants have made arguments that they perceived the government
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to be in the wrong for impounding Cliven Bundys cattle and that they felt their
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actions in Bunkerville were justified. They have in part based that argument on the
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claim the government killed some of Cliven Bundys cattle, or that the government
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operation in this case. Lawmakers have also opined that federal law enforcement
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officers appear to be excessively equipped for law enforcement duties; that they
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appear militaristic and overbearing; and that they Whatever the personal or
political opinions and beliefs on these matters, arguments that the agency is or is
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not excessively equipped or acting militaristically is not relevant to any issue in the
case, provides no excuse or justification for any of the charged offenses and invites
To permit nullification in cases where a defendant has a good reason for his
conduct when motive is not an element of the crime allows jurors to use their
innocence. Reasons, good or bad, are of course relevant to sentencing, but they are
not accepted by courts as a basis for verdicts. United States v. Rosenthal, 266 F.
Supp. 2d 1068, 1075 (N.D. Cal. 2003), revd on other grounds, 454 F.3d 943 (9th Cir.
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2006). Because the defendants motives for violating federal law are not relevant,
any such evidence should be excluded.
C.
while testifying at a current trial or hearing, made to provide the truth of the matter
asserted. Further, Federal Rule of Evidence 602 provides that: A witness may
testify to a matter only if evidence is introduced sufficient to support a finding that
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the witness has personal knowledge of the matter. It is not appropriate for the
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else they think the jury might respect, showing directly or indirectly either that the
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third party approves of the defendants actions in some way. Whether a public
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official approved or did not approve of the defendants conduct in this case is simply
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not relevant to the question of whether sufficient evidence exists to prove the crimes
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lacks any personal knowledge about the facts of the case has a high likelihood of
D.
Legal Argument
The defendants claimed views on the validity of federal laws are immaterial
to any admissible defense. See United States v. Benabe, 654 F.3d 753, 767 (7th Cir.
2011) (citing cases)); United States v. Moore, 627 F.2d 830, 833 (7th Cir. 1980)
(Good faith disagreements with the law or good faith beliefs that it is
unconstitutional are not defenses.). A defendants belief that the law should not
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apply to him or that the law itself is invalid or unconstitutional provide no such
defense. United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 1993) (district court
did not err in advising the jury that a disagreement with or a protest to the tax
laws was not a defense); United States v. Hairston, 819 F.2d 971, 973 (10th Cir.
1987) ([G]ood faith belief that [the laws] are unconstitutional provides no defense).
Arguments regarding the validity of federal law are consistently rejected in
multiple contexts. For example, contentions that one does not have to pay taxes
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because the code is unconstitutional or invalid are not permissible good faith claims
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and need not be heard by the jury. Cheek v. United States, 498 U.S. 192, 206 (1991)
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(holding a defendant's views about the validity of the tax statutes are irrelevant to
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the issue of willfulness and need not be heard by the jury). Such contentions do
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not arise from innocent mistakes caused by the complexity of the Internal Revenue
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Code. Rather, they reveal full knowledge of the provisions at issue and a studied
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conclusion, however wrong, that those provisions are invalid and unenforceable.
Cheek, 498 U.S. at 205. Likewise, not paying taxes because you do not like how the
money is spent or because you do not like various government policies are not valid
defenses to a tax crime. See United States v. Smith, 618 F.2d 280, 282 (5th Cir.
1980); United States v. Pilcher, 672 F.2d 875, 877 (11th Cir. 1982); cf. United States
v. Lee, 455 U.S. 252, 260 (1982) ([t]he tax system could not function if
denominations were allowed to challenge the tax systems because tax payments
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CONCLUSION
requests that the Court grant its Motion in Limine and enter an order precluding
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
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//s//
______________________________
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
NADIA J. AHMED
Assistant United States Attorneys
ERIN M. CREEGAN
Special Assistant United States Attorney
Attorneys for the United States
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CERTIFICATE OF SERVICE
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OTHER PROCEEDINGS was served upon counsel of record, via Electronic Case
Filing (ECF).
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