Case 2:16-cr-00046-GMN-PAL Document 1406 Filed 01/25/17 Page 1 of 9

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TODD M. LEVENTHAL, ESQ.

Leventhal and Associates, PLLC
Nevada Bar No. 8543
California Bar No. 223577
626 South Third Street
Las Vegas, Nevada 89101
(702) 472-8686
Leventhalandassociates@gmail.com
Attorney for O. Scott Drexler

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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Case No.: 2:16cr00046GMNPAL

UNITED STATES OF AMERICA,

MR. DREXLERS RESPONSE TO THE

GOVERNMENTS MOTION IN LIMINE
(ECF No. 1390)

Plaintiff,
vs.
O. SCOTT DREXLER,

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Defendant.

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I. SUMMARY

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Defendant O. Scott Drexler, by and through his attorney of record, Todd M. Leventhal,

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Eric Parker, by and through his attorney of record, Jess R. Marchese, and Steven Stewart, by and

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through his attorney, Richard Tanasi, files this response to the governments motion in limine,

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which seeks to preclude evidence regarding (1) the Malheur prosecution, (2) perceived

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government misconduct, (3) statement from third parties, and (4) general legal argument.

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Mr. Drexler, Mr, Parker and Mr, Stewart do not necessarily oppose the governments

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motion with regard to the Malheur prosecution. Nor does Mr. Drexler, Mr. Parker and Mr.

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Stewart intend to introduce improper legal argument or hearsay statements. The defendants and

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their attorneys intend to abide by the Federal Rules of Evidence and only admit relevant
testimony and evidence.
Nonetheless, Mr. Drexler, Mr. Parker and Mr. Stewart oppose the governments motion
on two bases. First, the motion fails to identify the specific evidence and statements that it

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Case 2:16-cr-00046-GMN-PAL Document 1406 Filed 01/25/17 Page 2 of 9

should allegedly be excluded. Without these statements, neither the defendants nor the court can

analyze and contextualize the evidence and apply the relevant Federal Rule of Evidence.

For instance, the government seeks a general order excluding hearsay statements by

Senator Reid, Governor Sandoval, and unidentified third parties. But the government does not

identify the content of the statements or state when they were allegedly made. Consequently, the

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defendants cannot even assess if the statement is hearsay or whether an exception to the rule
against hearsay applies.
Second, some of the statements that the governments motion refers to are plainly
relevant and admissible. For instance, the government seeks to exclude evidence that the
government mistreated Mr. Bundys cattle or overreached as a land management arm of the
Federal government. This is relevant because it pertains to the underlying subject matter of the
prosecution. (Indeed, one must wonder how the government would explain their case to the jury
without referencing a dispute over cattle). And, this evidence is admissible because the alleged
mistreatment of the cattle and perceived government misconduct shows these three defendants
state of mind for traveling to Bunkerville.
Therefore, Mr. Drexler, Mr. Parker and Mr. Stewart ask the court to deny the

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governments motion in limine. If the government wishes to exclude additional statements or

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evidence, it should be granted leave to renew its objections at trial once the statements are

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identified.

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II. LEGAL STANDARD

A motion in limine is a procedural device to obtain a preliminary ruling on the

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admissibility of evidence. Blacks Law Dictionary defines it as [a] pretrial request that certain

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inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion

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when it believes that mere mention of the evidence during trial would be highly prejudicial and

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could not be remedied by an instruction to disregard. Blacks Law Dictionary 1109 (9th ed.
2009). Although the Federal Rules of Evidence do not explicitly authorize a motion in limine,
the Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant

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to their authority to manage trials. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing

Fed. R. Evid. 103(c) (providing that trial should be conducted so as to prevent inadmissible

evidence from being suggested to the jury by any means)).

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A motion in limine is a request for the courts guidance concerning an evidentiary

question. See Wilson v. Williams, 182 F.3d 562, 570 (7th Cir. 1999). Judges have broad
discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d
663, 664 (7th Cir. 2002). However, a motion in limine should not be used to resolve factual
disputes or weigh evidence. See C&E Servs., Inc., v. Ashland, Inc., 539 F. Supp. 2d 316, 323
(D.D.C. 2008). To exclude evidence on a motion in limine the evidence must be inadmissible
on all potential grounds. Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio
2004). Unless evidence meets this high standard, evidentiary rulings should be deferred until
trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper
context. Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993).
This is because although rulings on motions in limine may save time, costs, effort and

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preparation, a court is almost always better situated during the actual trial to assess the value and

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utility of evidence. Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1219 (D. Kan. 2007).

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In limine rulings are provisional. Such rulings are not binding on the trial judge [who]

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may always change his mind during the course of a trial. Ohler v. United States, 529 U.S. 753,

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758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to

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change, especially if the evidence unfolds in an unanticipated manner). Denial of a motion in

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limine does not necessarily mean that all evidence contemplated by the motion will be admitted

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to trial. Denial merely means that without the context of trial, the court is unable to determine

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whether the evidence in question should be excluded. Ind. Ins. Co., 326 F. Supp. 2d at 846.

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III. ARGUMENTS
The governments motion in limine seeks to preclude evidence regarding (1) the Malheur
prosecution, (2) perceived government misconduct, (3) statement from third parties, and (4)
general legal argument. Mr. Drexler responds to each request below.

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A.

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Evidence regarding the Malheur prosecution may be preliminarily excluded.

Mr. Drexler objects to excluding evidence regarding the Malheur prosecution. However,

the courts ruling at this stage should only be preliminary in nature. In the event that it becomes
necessary to refer to the Malheur prosecution to provide context to explain relevant and

admissible evidence, Mr. Drexler asks the court to allow the defendants to refer to the Malheur

prosecution. See Ohler, 529 U.S. at 758 n.3 (stating that in limine rulings are provisional in

nature and may be reconsidering in the course of trial).

Further, the Government argues that mentioning the Oregon case would confuse the jury

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as to the case at bar. Given that ill perceived logic, the Government then should be precluded

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from discussing Cliven Bundys 20 year fight with the Federal government and subsequent two

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Federal court rulings against him. As the government states in their motion, the, facts and

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circumstances, of a prior case and its disposition has no relevance to the case at hand.

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B.

The governments request to exclude perceived government misconduct is

improper for several reasons.
Next, the government seeks to exclude evidence regarding perceived government

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misconduct. This request is improper for several reasons.

First, the government fails to identify what specific evidence it seeks to exclude.
Without identifying the evidence, Mr. Drexler is unable to apply the applicable Federal Rules of
Evidence and argue why the evidence would be admissible. Additionally, because the

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government failed to identify specific evidence the court cannot conclude that it is inadmissible
on all potential grounds. See Ind. Ins. Co., 326 F. Supp. 2d at 846.
Second, some evidence regarding perceived government misconduct is relevant and
admissible because it explains why the defendants were protesting in Bunkerville. Were the
court to exclude all evidence regarding perceived government misconduct, the parties would

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be unable to explain necessary background information like (1) why the defendants traveled

from Idaho to Bunkerville, (2) why the BLM was armed and collecting cattle in Bunkerville, and

(3) why there was a protest in Bunkerville in the first place.

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For brief example, on April 10, 2015, Eric Parker posted a message that appeared on
Steven Stewarts Facebook that Cliven Bundys son had to rip out taser studs See,

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Facebook Posts collectively attached hereto as Ex. A. Steven also posted articles about Cliven

Bundy, on April 10, 2014. Id. Likewise, on April 10, 2014, Steven Stewart posted an article

entitled Bundy Ranch Update: Militia to Arrive with Force, Protestors Tasered, Feds Just Want

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to Frack. Mr. Stewart posted this question regarding the article: Did you know this was going

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on? Also on April 10, 2014, Steven Stewart posted this on Facebook: "Summary Lots of things

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happening at the Bundy Ranch: - Federal agents have been tasering protestors - Militia in

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Nevada have promised to arrive and take the land back for the Bundy family, using FORCE - It

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has come to light that the real reason for the siege is...Did you know that this was going on? Id.

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On April 11, 2014, Steven Stewart posted a picture of the First Amendment Area, on

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Facebook and voiced his frustration. See, attached. On April 23, 2014, Steven Stewart posted a

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picture of Agent Roop on Facebook. Id. Mr. Stewart voices his concern over Margaret Houstons

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take-down in calling for Agent Roop to lose his job! Id.

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In sum as to the relevance this government misconduct has in this case, when Mr. Stewart
was arrested, he tearfully told law enforcement: Everybody had the same role.everybody that

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was down there had the same roleeverybody saw those people being attacked and came to say
stopyou knowwhy are people being attacked?1
Third, evidence regarding perceived government misconduct is relevant and
admissible with regard to the defendants because it provides state-of-mind evidence. Under
Federal Rule of Evidence 401, evidence is relevant if it has any tendency to make a fact more or

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less probable than it would be without the evidence; and the fact is of consequence in

determining the action. And, under Rule 803(3), a hearsay statement is admissible if it shows

the declarants then-existing state of mind (such as motive, intent, or plan).

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Here, the defendants repeatedly assert that they traveled to Bunkerville because they

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thought that the government was basically stealing peoples personal property, killing cows, and

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limiting free speech by erecting a makeshift first amendment corral in the middle of the desert is

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relevant to several elements of the charged offences. Their state of mind is relevant to the first

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element of 18 U.S.C. 1952 (Interstate Travel in Aid of Extortion), which requires the

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government to prove beyond a reasonable doubt that the defendants traveled in interstate with

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the intent to commit extortion. See JURY INSTRUCTIONS COMMITTEE OF THE NINTH CIRCUIT, A
MANUAL ON JURY TRIAL PROCEDURES, INSTRUCTION 8.144 (2016).
The fact that the defendants traveled to Bunkerville to protest perceived government
misconduct is also relevant to the elements of the obstruction charge, which requires the
government to prove that the defendant knew of or had a reasonably founded belief that [a]

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proceeding was pending. United States v. Price, 951 F.2d 1028, 1030-31 (9th Cir. 1991);

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Mr. Stewarts recorded statement (at the 1 minute 45 second mark, Bates 1D140) can be

produced to this Honorable Court upon request.

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United States v. Sprecher, 783 F. Supp. 133, 163 (S.D.N.Y. 1992). Here, the evidence shows

that the defendants were unaware of any pending proceeding or litigation involving Bundys

cattle. The evidence only show that they traveled to Bunkerville because the defendants thought

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that the government was stealing and killing cattle. This was blatantly clear through the plethora
of media outlets that had public footage of these events.

Fourth, evidence regarding perceived government misconduct is relevant and

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admissible with regard to the defendants because it supports a valid defense. The Supreme Court

and Ninth Circuit have held that self-defense may be asserted against a charge of assault on a

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federal officer. See United States v. Feola, 420 U.S. 671, 684 (1975); United States v. Span, 970

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F.2d 573 (9th Cir. 1992); see also See JURY INSTRUCTIONS COMMITTEE OF THE NINTH CIRCUIT,

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A MANUAL ON JURY TRIAL PROCEDURES, 6.8, 8.5 (2016). Here, the defendants believed that they

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were defending themselves and unarmed target protesters in the wash against a heavily armed

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federal officers who were basically stealing peoples personal property and killing their cattle.

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Evidence regarding perceived government misconduct is directly relevant to this defense.

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C.

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Statements by government Officials like Senator Reid and Governor Sandoval may
be preliminarily excluded.
Next, the government seeks to exclude unidentified statements by third parties. The

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defendants are assuming that the government is referring to statements by Senator Reid and

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Governor Sandoval. But, the government does not identify the speaker, the context, or the

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statement. As a result, Mr. Drexler is unable to substantively oppose the motion. He only

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requests that he be able to introduce such statements at trial if it appears that the course of the
trial has rendered the statements relevant and admissible.
//
//

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D.

Unidentified legal arguments should be excluded.

Finally, the government seeks to preclude the parties from introducing legal arguments.

Butonce againthe government fails to specify what legal arguments it wants to exclude. As
a general matter, Mr. Drexler will follow the Federal Rules of Evidence and only seek to admit
evidence that is relevant and admissible. Additionally, the defendants do not intend to argue, for

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instance, that the land in Bunkerville does not belong to the federal government or that the court
lacks jurisdiction over them.
However, certain legal issues may become relevant for the limited purpose of showing
the defendants state of mind. Mr. Drexler does not anticipate introducing legal arguments as

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state of mind evidence. But it is foreseeable that Mr. Drexlers unique beliefs about the

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constitution may come into play as a witness testifies. Therefore, if the government opens the

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door, Mr. Drexler requests that the court permit the defendants to introduce evidence regarding

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their beliefs about the law.

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RESPECTFULLY SUBMITTED

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This 25th day of January, 2017

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__________/S/___________

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TODD M. LEVENTHAL, ESQ

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Case 2:16-cr-00046-GMN-PAL Document 1406 Filed 01/25/17 Page 9 of 9

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CERTIFICATE OF SERVICE
When all Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that on _____________, 2017, I electronically filed the foregoing with the Clerk
of the Court for the United States District Court by using the appellate CM/ECF system. I further
certify that all participants in the case are registered CM/ECF users and that service will be

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accomplished by the appellate CM/ECF system.

/s/ Todd M. Leventhal
Signature

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