Govt opposes evid of acquittals

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BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys ethan.knight@usdoj.gov geoffrey.barrow@usdoj.gov craig.gabriel@usdoj.gov 1000 SW Third Ave., Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Attorneys for United States of America

UNITED STATES DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA

3:16-CR-00051-BR

v.

JASON PATRICK, DUANE LEO EHMER DYLAN ANDERSON SEAN ANDERSON SANDRA LYNN ANDERSON DARRYL WILLIAM THORN, and JAKE RYAN,

GOVERNMENT’S RESPONSE TO DEFENDANTS’ MOTION IN LIMINE: EVIDENCE OF ACQUITTALS (#1676)

Defendants.

The United States of America, by Billy J. Williams, United States Attorney for the District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, Assistant United States Attorneys, hereby responds to defendants’ Motion In Limine: Evidence

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of Acquittals (ECF No. 1676) and the supporting Memorandum (ECF No. 1677), filed by defendant Patrick on behalf of all February 2017 trial defendants.

I.

Government’s Position Defendants seek an Order from this Court taking judicial notice of the acquittals of

co-defendants in this case and ordering the parties not to introduce evidence regarding the acquittals at trial.

The government opposes defendants’ request.

While the acquittals are the

type of fact that the Court may take judicial notice of under Fed. R. Evid. 201, they would be otherwise inadmissible under Fed. R. Evid. 401 and 403.

Alternately, the government

requests—allowing for the very real possibility that the jury may learn of the acquittals during trial—that the jury be separately instructed regarding the acquittals.

II.

Legal Argument Defendants argue that the Court should take judicial notice of the acquittals because to

fail to do so “invites confusion and juror speculation.” (Defs.’ Mem. 4.)

Defendants’

argument is predicated on a single, faulty premise: that the rules of evidence permit the admission of such information.

A.

They do not. Defendants’ Motion should be denied.

Evidence of the Acquittals Is Irrelevant Under Federal Rule of Evidence 401

Federal Rule of Evidence 401 governs the admissibility of relevant evidence.

Evidence

is relevant if it is evidence tending to make a fact or consequence more probable or less probable.

Defendants argue that the evidence is relevant because it “has at least some tendency to make the existence of the conspiracy itself, and these defendants’ participation in it, less probable.”

(Defs.’ Mem. 3.) Evidence of a prior, related acquittal is irrelevant in a subsequent prosecution absent an issue surrounding double jeopardy or collateral estoppel.

United States v. Tirrell, 120

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F.3d 670, 677-78 (7th Cir. 1997); United States v. Kerley, 643 F.2d 299, 300-01 (5th Cir. 1981).

If the sole purpose for admitting the fact of the acquittals is to avoid speculation about the outcome of the case, then the Court’s standard instructions regarding the jury’s duty to deliberate and its role in evaluating the evidence addresses this concern and avoids the impermissible inference that evidence of the acquittals would undoubtedly create.

As the court explained in

Kerley, a prior state acquittal was not proof that a defendant was innocent of the related federal charge.

The jurors in this case will be instructed to make a decision based on the evidence in

this case, and not from in the prior trial.

The acquittals should play no role in their analysis

under Fed. R. Evid. 401.

B.

Even if the Acquittals Are Relevant, They Are Prejudicial Under Federal Rule of Evidence 403

Federal Rule of Evidence 403 permits the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice.

Evidence of the

prior acquittals is wildly prejudicial. Defendants suggest that excluding evidence of the acquittals will invite more prejudice because of the cumulative effect that the absence of such evidence would have on the jury’s ability to evaluate co-conspirator statements and evidence.

(Defs.’ Mem. 3-4.)

Defendants’ arguments belie common sense. The jury will be separately

instructed about how to evaluate co-conspirator statements and the evidence. acquittals is not necessary for them to follow these instructions.

Evidence of the

Additionally, defendants

would undoubtedly oppose the admission of convictions if the outcome of the trial had been different, yet the arguments are the same.

Evidence of the acquittals should be excluded under

Fed. R. Evid. 403.

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Alternatively, if the Court rules that the acquittals are admissible, the government requests that the Court take judicial notice of the nine guilty pleas tendered in the underlying case by defendants’ co-conspirators.

All of defendants’ arguments regarding the admissibility

of the acquittals apply equally to evidence of the guilty pleas: The guilty pleas also have “at least some tendency to make the existence of the conspiracy itself, and these defendants’ participation in it” more probable.

C.

If Evidence of the Acquittals Is Presented to the Jury, the Government Requests That the Jurors Be Instructed Regarding the Nature of Such Evidence

Notwithstanding a contrary ruling by this Court, the government recognizes that evidence of the acquittals might be presented to the jury during trial. If that occurs, the government requests that the Court instruct the jury as follows: CONSIDERATION OF PRIOR ACQUITTALS You have heard testimony that individuals identified as co-conspirators of the defendants were acquitted in another trial arising out of circumstances similar to those in this case. You should not consider this information in any way in reaching your verdict.

You must decide the case

before you based solely on the evidence you have heard in this trial, and not based upon the outcome of any prior judicial proceeding.

III.

Conclusion The Court should deny defendants’ Motion to for judicial notice of the acquittals.

The

evidence is irrelevant under Fed. R. Evid. 401, and to the extent it is at all relevant, its probative value is outweighed by the clear prejudice that would be invited by its introduction. /// Government’s Response to Defendants’ Motion In Limine: Evidence of Acquittals (#1676)

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Alternately, if the jury is exposed to any evidence of the acquittals during trial, the government requests that the jury being instructed in the manner set forth above.

Dated this 17th day of January 2017.

Respectfully submitted, BILLY J. WILLIAMS United States Attorney

s/ Ethan D. Knight ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys

Government’s Response to Defendants’ Motion In Limine: Evidence of Acquittals (#1676)

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