Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 1 of 7 7 RENE L. VALLADARES Federal Public Defender Nevada State Bar No. 11479 BRENDA WEKSLER Assistant Federal Public Defender Nevada State Bar No. 8124 RYAN NORWOOD Assistant Federal Public Defender 411 E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577/Phone (702) 388-6261/Fax Brenda_Weksler@fd.org 8 Attorney for Ryan W. Payne 1 2 3 4 5 6 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 UNITED STATES OF AMERICA, Plaintiff, 13 14 15 16 v. Case No. 2:16-cr-046-GMN-PAL MOTION IN LIMINE REGARDING AGENT SEYLER’S TESTIMONY RYAN W. PAYNE, Defendant. 17 18 Certification: This Motion is timely filed. 19 NOW COMES the defendant, Ryan Payne, by and through his counsel of record, Brenda 20 Weksler and Ryan Norwood, Assistant Federal Public Defenders, and respectfully files this 21 Motion in Limine Regarding Agent Seyler’s Testimony. This motion is based on the Points 22 and Authorities attached hereto. 23 24 25 26 Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 2 of 7 1 2 3 4 5 6 7 8 9 DATED this 19th day of September, 2017. RENE L. VALLADARES Federal Public Defender By: /s/ Brenda Weksler BRENDA WEKSLER Assistant Federal Public Defender Attorney for Ryan W. Payne By: /s/ Ryan Norwood RYAN NORWOOD Assistant Federal Public Defender Attorney for Ryan W. Payne 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 3 of 7 MEMORANDUM OF POINTS AND AUTHORITES 1 2 Agent Mark Seyler is expected to be a witness in the Government’s case. He was tasked 3 with investigating Ryan Payne, among other defendants. There are several statements he has 4 made before the grand jury and during past trials that constitutes wither impermissible Federal 5 Rules of Evidence (FRE) 404(b) evidence, irrelevant evidence under FRE 401 or evidence that 6 is more prejudicial than probative under FRE 403. 7 “Evidence may not be admitted at trial unless it is relevant, as defined by Rule 401 of 8 the Federal Rules of Evidence.” United States v. Vallejo, 237 F.3d 1008, 1015 (9th Cir. 2001). 9 Evidence is relevant if it “has any tendency to make a fact more or less probable than it would 10 be without the evidence” and “the fact is of consequence in determining the action.” Fed. R. 11 Evid. 401. “The particular facts of the case determine the relevancy of a piece of evidence.” 12 Vallejo, 237 F.3d at 1015. 13 Evidence should not be admitted when its probative value is substantially outweighed 14 by unfair prejudice. Fed. R. Evid. 403. When the evidence does not serve to prove an element 15 of the charge, the probative value of such evidence is low. United States v. Gonzalez-Flores, 16 418 F.3d 1093, 1098 (9th Cir. 2005). “Where the evidence is of very slight (if any) probative 17 value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair 18 prejudice or a small risk of misleading the jury.” United States v. Wiggan, 700 F.3d 1204, 1213 19 (9th Cir. 2012). 20 “[U]nfair prejudice refers to the capacity of some concededly relevant evidence to lure 21 the factfinder into declaring guilt on a ground different from proof specific to the offense 22 charged.” Gonzalez-Flores, 418 F.3d at 1098 (internal quotation marks omitted). “In other 23 words, unfairly prejudicial evidence is that having an undue tendency to suggest decision on an 24 improper basis, commonly, though not necessarily, an emotional one.” Id. (internal quotation 25 marks omitted); see also United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) 26 (“Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an 3 Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 4 of 7 1 emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward 2 the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” 3 (emphasis and internal quotation marks omitted)). 4 I. AGENT SEYLER’S ASSIGNMENT TO DOMESTIC TERRORISM MATTERS, MILITIAS, RYAN PAYNE INVESTIGATION AND “BOLOS” 5 6 Agent Seyler has testified both before the grand jury and during the second trial that he 7 primarily investigated cases relating to domestic terrorism and militias. In addition, he has 8 testified that he has been investigating Ryan Payne for almost a year prior to the events of April 9 12, 2014. Lastly, evidence has been presented intimating that “BOLOs” (Be on the Lookout 10 for) may have been out for Ryan Payne. This evidence is not relevant, and if relevant, more 11 prejudicial than it is probative. 12 In this case, the fact that Agent Seyler was routinely tasked with “domestic terrorism” 13 investigations, does not make it more likely than not that any of the events in question took 14 place. Likewise, the fact that he routinely investigates “militia” matters does not make it more 15 likely than not that the defendants are guilty of the crimes charged. Lastly, the fact that he has 16 been investigating Ryan Payne since 2013, does not have any tendency of advancing the 17 government’s proof in this case. In fact, the effect this information will have on the jury is that 18 of believing that this is a domestic terrorism case involving militias, which explained why 19 Agent Seyler would be assigned to the case. Likewise, the jury would believe that Ryan Payne 20 is a dangerous individual, which would explain the need for a “BOLO,” who was on the 21 government’s radar even before the events of April 12, 2014. 22 For the reasons explained above, this information does not advance proof of the 23 government’s case at all. Instead, it would provide the jury unfairly prejudicial information and 24 allow for decisions to be made on an improper, emotional basis. 25 26 4 Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 5 of 7 1 2 3 II. OTHER SUGGESTED MISSIONS LINKED TO OMA During Agent Seyler’s grand jury testimony, he explains that there were two prior events OMA considered getting involved in. 4 The first issue discussed within OMA involved a teenager in West Virginia who had 5 been arrested while wearing a T-shirt with a political message on it. Agent Seyler interpreted 6 the messages surrounding that news article as a plea to mobilize, arrest and remove officials 7 that were associated with that teenager’s arrest. 8 9 The second one involves helping a radio blog show host conduct arrests of some officials deemed to be acting unconstitutionally. 10 A similar issue came up during the first trial involving the Montana State Defense 11 Force’s planned activities and their relation to Ricky Lovelien. Mr. Shawn Perez (Ricky 12 Lovelien’s attorney) asked Agent Seyler a question, outside the presence of the jury, regarding 13 the involvement of the Montana State Defense Force in certain activities. In response, Agent 14 Seyler explained that “MTDF had allegedly made representations that they were willing to use 15 force to drive federal agents out of a certain county.” Trial 1 Transcript pp. 43-50. The Court 16 agreed with the government that the issue was not relevant to the charges. 17 The statements involved in this motion are similar in nature to the ones deemed 18 irrelevant in previous trials. For the same reasons that statement was not presented to the jury, 19 neither should the statements involving OMA. 20 21 22 CONCLUSION The evidence outlined above should not be presented to the jury through Agent Seyler, or any other witness, as it is not relevant, or if relevant more prejudicial than it is probative. 23 24 25 26 5 Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 6 of 7 1 2 3 4 5 6 7 8 9 DATED this 19th day of September, 2017. Respectfully submitted, RENE L. VALLADARES Federal Public Defender By: /s/ Brenda Weksler BRENDA WEKSLER Assistant Federal Public Defender Attorney for Ryan W. Payne. By: /s/ Ryan Norwood RYAN NORWOOD Assistant Federal Public Defender Attorney for Ryan W. Payne 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6 Case 2:16-cr-00046-GMN-PAL Document 2475 Filed 09/19/17 Page 7 of 7 CERTIFICATE OF ELECTRONIC SERVICE 1 2 The undersigned hereby certifies that she is an employee of the Federal Public Defender 3 for the District of Nevada and is a person of such age and discretion as to be competent to serve 4 papers. 5 That on September 19, 2017, she served an electronic copy of the above and foregoing 6 MOTION IN LIMINE REGARDING AGENT SEYLER’S TESTIMONY by electronic 7 service (ECF) to the person named below: 8 9 10 11 12 13 14 15 16 STEVEN W. MYHRE Acting United States Attorney ERIN M. CREEGAN Assistant United States Attorney NADIA JANJUA AHMEN Assistant United States Attorney DAN SCHIESS Assistant United States Attorney 501 Las Vegas Blvd. South Suite 1100 Las Vegas, NV 89101 /s/ Lauren Conklin Employee of the Federal Public Defender 17 18 19 20 21 22 23 24 25 26 7