The United States, by and through the undersigned, respectfully moves in limine to preclude the defendants from 1) addressing in voir dire, opening statement, or closing argument, and/or 2) adducing or eliciting during direct or cross-examination, any information or argument that the defendants broadly characterize as “state of mind” evidence which, as shown below, amounts to nothing more than irrelevant personal opinions and beliefs about the BLM, BLM agents, and agent conduct. More specifically, the government seeks to preclude evidence, information, commentary, beliefs or opinions about the following:
• April 6, 2014, officer encounters with civilians during the arrest of Dave Bundy, including any testimony concerning, or video/audio depicting, that event;
• April 9, 2014, officer encounters with civilians during the convoy block, including any testimony concerning, or video/audio recordings depicting officer encounters with Ammon Bundy or Margaret Houston;
• Third-party/lay person testimony or opinion about the level of force displayed or used by law enforcement officers during impoundment operations, including operations on April 12, 2014;
• References to the opinion/public statement of Governor Brian Sandoval of April 8, 2014, and/or opinions registered by other political office holders or opinion leaders about BLM impoundment operations;
• References to First Amendment zones;
• References to Cliven Bundy’s grazing, water, or legacy rights on the public lands;
• References to infringements on First and Second Amendment rights; and
• References to punishment the defendants may face if convicted of the offenses.
As shown in the supporting Memorandum, comment and argument about such matters is nothing more, at bottom, than an improper attempt at jury nullification—that is, seeking to persuade jurors to acquit (or, hang) based upon political beliefs or values rather than upon the evidence. During Trial 1, defendants repeatedly made such nullification arguments and presented nullification opinions and beliefs; they did so primarily through defendant Parker’s testimony, but also through cross-examination of government witnesses and closing arguments, by improperly characterizing BLM conduct during impoundment operations as abusive or overreaching. While such characterizations are untrue to begin with, what is more important is that the imagined issue of federal “overreaching,” or violations of treasured rights, is flatly irrelevant to any element of the offenses charged or any possible defenses.
This Motion thus seeks to preclude irrelevant beliefs, opinions and comments about officer conduct during impoundment operations on April 6 and 9. There is no evidence that any of the officers either exceeded their authority or used excessive force. To adduce evidence of these events, whether on direct or cross-examination or in closing argument, unfairly prejudices the government by placing it in a position of having to prove a negative; that is, to explain or prove that the officers did not act unlawfully or otherwise supposedly overreach their authority.
In support of this Motion, the government submits the supporting Memorandum of Points and Authorities and reiterates all arguments from its previous motions in limine. See ECF Nos. 1390 and 1799.
Case 2:16-cr-00046-GMN-PAL Document 2064 Filed 06/15/17 Page 3 of