Case 2:16-cr-00046-GMN-PAL Document 1335 Filed 01/18/17 Page 1 of 16

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

RICHARD E. TANASI, ESQ.

Nevada Bar No. 9699
TANASI LAW OFFICES
601 S. Seventh St., 2nd Floor
Las Vegas, NV 89101
Telephone: (702) 906-2411
Facsimile: (866) 299-5274
Email: rtanasi@tanasilaw.com
Attorney for Defendant
STEVEN STEWART

DISTRICT COURT

CLARK COUNTY, NEVADA

10 UNITED STATES OF AMERICA,

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Plaintiff,

Case No.:

2:16-cr-00046-GMN-PAL

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v.

14 STEVEN STEWART, et al
Defendants.

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Certification: This Motion is timely filed.

DEFENDANT STEWART, PARKER AND DREXLERS OMNIBUS MOTION IN
LIMINE

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COMES NOW, Defendant, STEVEN STEWART, by and through his attorney,

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RICHARD E. TANASI, ESQ. of TANASI LAW OFFICES, ERIC PARKER, by and through

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his attorney, JESS MARCHESE, ESQ., and SCOTT DREXLER, ESQ., by and through his

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attorney, TODD LEVENTHAL, ESQ., and respectfully move this Honorable Court moves for

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an Order precluding reference, argument, and the evidence listed herein.

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Memorandum of Points and Authorities is submitted in support of this request.

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The attached

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MEMORANDUM OF POINTS AND AUTHORITES

I.

PROCEDURAL HISTORY AND FACTS

Mr. Stewart and 18 co-defendants are charged in a 16-count superseding indictment that

includes four forfeiture allegations. [Doc. 27]. The charges stem from an alleged standoff with

law enforcement agents near Bunkerville, Nevada in April 2014. Id. This case is set for trial, on

February 6, 2016, for the Tier 3 defendants. Mr. Stewart and Mr. Parker have been placed in

Tier 3.

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Mr. Parker and Stewart are residents of the state of Idaho. On April 11, 2014, the men

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and their friend O. Scott Drexler drove down from Idaho in Mr. Parkers truck to protest actions

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by the government that they viewed as offensive such as setting up First Amendment zones,

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beating up women and using excessive force against civilian protestors.

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The trios involvement was rather basic. They were in Bunkerville, Nevada for a period

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of less than twenty-four hours where they camped overnight and travelled to the northbound

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bridge on the I-15 interstate above the Toquop Wash in reaction to hearing that the people in the

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wash needed help. They went in a random, unknown truck from the campground to the

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northbound bridge at around 11:30AM on April 12, 2014.

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This bridge is situated above a wash/basin where the standoff took place and is 100 yards or so

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east of a second bridge and directly above where most of the standoff took place. Eric was on

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the eastern bridge with his Scott and Steven and to his knowledge did not speak with any other

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co-defendants other than Stewart and Drexler the entire time he was present.

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During the point when the parties were waiting for the cattle to be released, tensions

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increased due to the BLM not releasing the cattle and the wash protestors attempting to move

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forward towards a gate the BLM had erected under the southbound bridge. At this juncture,

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Eric was still on the bridge with Stewart and Drexler. As the protestors moved towards the

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BLM agents, announcements were made by the BLM that they were authorized to use gas and

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lethal force should the crowd keep converging forward. While this was transpiring, a stranger

handed Eric binoculars and pointed out snipers that were on a ridge in the distance.

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rifle in the general direction of the southbound bridge approximately 100 yards away. Mr.

Drexler is also alleged to have taken a similar position about 20 yards to the right of Mr. Parker.

Mr. Stewart, although armed, did not aim his weapon at any time and is alleged to have been a

lookout or spotter for Parker and/or Drexler.

At some time thereafter, the cattle were presumably released, the tension died down, and

the three men left the area. The trio then packed their belongings up and left to go back home to

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At this point, Eric laid down on his stomach between two jersey barriers holding his

Idaho and never returned to Nevada until their arrests.

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II.

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LEGAL ARGUMENT

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A.

Any Relevance to Calling Mr. Stewart, Mr. Parker or Mr. Drexler Gunmen is
Outweighed by the Danger of Unfair Prejudice Inherent to the Definition of
Gunmen and the Way it Misleads the Jury.
Fed. Rules Evid. R. 402 states, [e]vidence which is not relevant is not admissible. Fed.

Rules Evid. R. 401 defines relevant evidence as evidence having any tendency to make the

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existence of any fact that is of consequence to the determination of the action more probable or

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less probable than it would be without the evidence.

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Even if the court finds that the evidence meets this test, it must conduct and assess the
probative value of the evidence against the preclusive factors of Fed. Rules Evid. R. 403. See
Old Chief v. United States, 519 U.S. 172, 192 (1997) (there is now question that prior-act

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evidence is subject to Fed. Rules Evid. R. 403 balancing for relative probative value and for

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prejudicial risk of misuse as propensity evidence); Mayans, 17 F.3d at 1181; Bradley, 5 F.3d at

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1319-20. Rule 403 states evidence otherwise admissible may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by consideration of undue delay, waste of time, or needless presentation
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of cumulative evidence. Fed. R. Evid. R. 403. The burden is on the government, as the

proffering party, to show that the evidence is relevant to an issue in the case and that its

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probative value is not substantially outweighed by the danger of unfair prejudice to the
defendant. United States v Conners, 825 F.2d 1384, 1390 (9th Cir. 14 1987).

Under Ninth Circuit precedent,[w]here the evidence if of very slight (if any) probative

value . . . even a modest likelihood of unfair prejudice or a small risk of misleading the jury

will justify excluding that evidence. United States v. Espinoza-Baza, F.2d , 2011 WL

3332518, at *4 (9th Cir. Aug. 4, 2011) (quoting United States v. Hitt, 981 F.2d 422, 424 (9th

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Cir. 1992)); see also Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1432 (9th Cir. 1991)

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(Given the tenuous link between the proffered evidence and the dispositive issues, the district

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court could reasonably find that the proffered evidence had little probative value) (citation and

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internal quotation marks omitted).

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Here, the Superseding Indictment [Doc. 27] uses the word gunmen to support the

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governments theory. Merriam-Webster defines a gunman as (1) a man armed with a gun;

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especially: a professional killer and (2) a man noted for speed or skill in handling a gun. See,

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Ex. A, https://www.merriam-webster.com/dictionary/gunman.

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suggests Mr. Stewart and Mr. Parker were nothing more than lawful amateur gun owners

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carrying weapons at a protest. No one was shot. No professional/specialized speed or skill in

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gun handling was exhibited by Mr. Stewart, Mr. Parker or Mr. Drexler. There is no evidence to

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suggest that they were professional killers, or noted for their speed or skill in handling a gun. In

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fact, Defense Expert Arthur Alphin (firearm expert/LTC, U.S. Army (RET.) a.k.a an actual

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gunman) accurately notes: The defendants were not fully trained, nor fully ready, for armed

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conflict. Though they knew how to hold a firearm, and presumably knew the rudiments of how

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to shoot; they were in no way to be considered combat ready soldiers. See, Ex. B., Mr.

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Alphins Report and C.V.

In this case, the evidences

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As a result, using the word gunmen inaccurately and prejudicially misleads the jury

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into believing Mr. Stewart (whos not even alleged to have pointed a gun), Mr. Parker and Mr.
Drexler (who were prone position in response to BLM gunmen pointing guns at them) are
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something much more than they really are. Therefore, the misleading and prejudicial effect in

any reference to Mr. Stewart, Mr. Parker, or Mr. Drexler as gunmen must be precluded under

Fed. Rules Evid. R. 403 as substantially outweighing any probative value in this case.

B.

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Las Vegas, Nevada 89101
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Any Relevance in Calling Mr. Stewart, Mr. Parker, or Mr. Drexler Snipers is
Outweighed by the Danger of Unfair Prejudice Inherent to the Definition of
Sniper and the Way it Misleads the Jury.
Similar to the inflammatory use of the word gunmen, the Superseding Indictment

[Doc. 27] uses the word sniper to support the governments theory. This inflammatory word
is purposely employed by the government to make Mr. Stewart and Mr. Parker look like
something they are not. Defense Expert, Arthur Alphin, opines the following in relevant part
regarding the word sniper:
It is also obvious that the defendants were not snipers. The word sniper is a term
referring to a particularly dangerous feared, and hated type of soldier. The sniper
was normally a stay behind or was detached from his unit. He was equipped with
weapons and equipment to acquire and effectively fire upon a human target at
ranges beyond the normal. He remained concealed, ie. very heavily camouflaged
and in a position where he could not be seen, nor could the muzzle flash of his
rifle be seen. When the sniper did fire, he hit and killed his human target, with
the victim's fellow soldiers, gathered around their now dead comrade, having no
idea of where the shot came from. This activity literally paralyzed units with
fear. The concealment is a key and critically important aspect of the sniper, and
is part of what gives the sniper his fearsome reputation, and gives the word
sniper its horrible connotation. That is a sniper. The defendants most certainly
were not.
See, Ex. B, p. 11-12.

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As a result, using the word sniper inaccurately and prejudicially misleads the jury into

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believing Mr. Stewart (whos not even alleged to have pointed a gun), Mr. Parker and Mr.

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Drexler (who were in prone position is in response to BLM gunmen pointing guns at them) are

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something much more than they really are. Therefore, the misleading and prejudicial effect in

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any reference to Mr. Stewart, Mr. Parker and Mr. Drexler as snipers must be precluded under

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Fed. Rules Evid. R. 403 as substantially outweighing any probative value in this case.

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Similar to the improper use of the words gunmen and sniper, the Superseding
Indictment [Doc. 27] uses the phrase assault rifle to support the governments theory. This
inflammatory term is purposely employed by the government to make Mr. Stewart, Mr. Parker

and Mr. Drexler look like something they are not. Defense Expert, Arthur Alphin, opines the

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601 S. Seventh St., 2nd Floor
Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

Any Relevance in Calling Mr. Stewart, Mr. Parker, or Mr. Drexlers Lawful
Firearms Assault Rifles is Outweighed by the Danger of Unfair Prejudice
Inherent to the Definition of Sniper and the Way it Misleads the Jury.

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C.

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following, in relevant part, regarding the term assault rifle:

There is a very specific definition of an "assault rifle" which descends
from "HutierTactics" or German Storm Tactics of 1918 Consequently, the
correct definition of assault rifle means a firearm, designed to be fired from the
shoulder of a human, chambered for a mid-power cartridge (a cartridge which
deliberately sacrifices power, in exchange for lower recoil), feeding from a
detachable box magazine (such magazine concepts dating from the 1890's) and
having a selective fire capability. Selective fire specifically means that the
shooter can opt to fire either fully automatic or semi-automatic (termed selfloader in British English). It is the selective fire capability, the capability to fire
either fully automatic or semi- automatic, which is key and critical to the design
and concept of an assault rifle
See, Ex. B, p. 3-5.
Mr. Alphin describes how Mr. Stewart and Mr. Parker did not posses an assault rifle
as follows:
The sights on Mr. Parker's Saiga rifle, and on Mr. Stewart's Hi Point
carbine were still in the original factory positions. Not only had Mr. Parker and
Mr. Stewart not zeroed their firearms; but the special tools for the zero
procedure, such as the plunger-turn screw used for zeroing the front sight, were
not present.
The confiscated firearms were not well maintained, were not in full
readiness condition, and could not place effective direct fires to distances much
further than a Peyton Manning or Aaron Rodgers football pass, some 60 yards or
so. Part of the reason for this was that Misters Parker and Stewart did not zero
their firearms. But the inability to place long range direct fires was also due to
the nature of the rifles and cartridge.
Mr. Stewart's Hi Point Carbine, Model 995TS, was chambered for the
9mm Luger or 9xl 9mm Parabellum cartridge. This cartridge dates from 1902
and it is a pistol cartridge, not a rifle cartridge. It launches a 115 grain bullet at
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1,400 feet per second from the carbine. Given the loopy trajectory (path of the
bullet) resulting from this pedestrian velocity, a hit on a man sized target, even if
Mr. Stewart had zeroed his carbine, at ranges beyond 100 yards is simply not
reasonable.
Further, Hi Point carbines, and all similar carbines based on a pistol
design (which are called "camp carbines") have the detachable box magazine
placed within the grip. This gives them a very distinct, and very unique,
silhouette. Mr. Stewart is shown in the photographs holding his carbine in front
of himself at what is known as the "high port" position. Thus the carbine was
plainly visible above the concrete barrier. Any one observing with binoculars
could have, and should have, know that this was a camp carbine and did not pose
any particular threat at the long distances (over 150 yards) involved. Further the
high port position has the muzzle pointing up in the air and the butt of the
firearm is nowhere near the shoulder nor in any kind of firing position. In fact,
the high port is part of the "inspection arms" procedure wherein the shooter is
showing the other person that the firearm is unloaded and is not a threat.
Mr. Parker's Saiga rifle is a Russian made, semi-automatic only, variation
of the Soviet AK-47, a firearm specifically designed to give up accuracy.
Comrade Kaleshnikov created it with very sloppy tolerances between the moving
parts; thereby giving the AK and its variants very high reliability under harsh and
cold conditions. At short distances, 20 to 30 yards, such as inside the Bataclan
Nightclub in Paris, France, the AK-47 is deadly. In open terrain, it is much more
problematic.
Mr. Parker's Saiga rifle is chambered for the .223 Remington cartridge.
This is the civilian version of the 5.56x45mm NATO cartridge, the cartridge
used by the Army and Marines in the M-16A2 rifle and the M-4 carbine. The
ammunition confiscated with the rifle was the civilian ammunition. It would
launch a 55 grain projectile at about 2800 fps from the short barrel of the Saiga.
If the sights were properly zeroed, this would give the firearm a battlesight range
of about 200 yards. Battlesight being the range at which the shooter can aim at
the chest of a human target and score a hit (assuming all the other variables were
correctly compensate for).
However, the many variables significantly, far and above the fact that the
rifle was not zeroed, cloud the issue. For one issue, wind drift is a major problem
for the shooter, and the .223 is notorious for instability in the wind. At 100 yards,
a .223 bullet can blow more than 2 feet to the side from a mild cross wind. The
reports indicate that the wind was very strong on 12 April, 2014, and this would
have had a very serious effect upon any such bullet that was fired.

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601 S. Seventh St., 2nd Floor

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See, Ex. B, p. 5-7.

By contrast, the only parties equipped with assault rifles were the federal agents. Id.

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at p. 4.

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As a result, using the word assault rifle inaccurately and prejudicially misleads the

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

and Mr. Drexler (whos prone position is in response to BLM gunmen pointing guns them) are
something much more than they really are. Therefore, the misleading and prejudicial effect in
any reference to Mr. Stewart, Mr. Parker, and Mr. Drexler as carrying assault rifles must be
precluded under Fed. Rules Evid. R. 403 as substantially outweighing any probative value to the
government in this case.

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The Use of the Words Gunmen, Sniper and Assault Rifles Must be Excluded,
Because it Improperly Suggests Mr. Stewart, Mr. Parker, and Mr. Drexler Have an
Inadmissible History of Bad Acts Under Fed. Rules Evid. R. 404(b).

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Fed. Rules Evid. R. 404(b) states the following:

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(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a persons character in order to show that on a
particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident. On request by a defendant in a criminal case, the prosecutor
must:
(A) provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial; and
(B) do so before trialor during trial if the court, for good cause,
excuses lack of pretrial notice.

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jury into believing Mr. Stewart (whos not even alleged to have pointed a gun) and Mr. Parker

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D.

Fed Rules Evid R 404.

Here, as noted above, the words gunmen, snipers, and assault rifles carries with
them the prejudicial notion that Mr. Stewart, Mr. Drexler, and Mr. Parker are some sort of
professionally trained assassins who have carried out strategic military missions in the past.
However, as noted above, the evidence says the opposite. As a result, by using the words
gunmen, snipers, and assault rifles, the government is either suggesting to the jury (1)
Mr. Stewart, Mr. Drexler, and Mr. Parker may have committed prior bad acts as
gunmen/snipers with assault rifles in the past or that (2) they have actually committed prior
bad acts. However, Fed. Rules Evid. R. 403(b)(2), precludes prior bad acts in criminal cases
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without the government providing notice it plans to proffer bad acts for another purpose. No

such notice has been provided, and even if it had been, the governments only genuine purpose

would be to demonstrate Mr. Stewart, Mr. Drexler, and Mr. Parker acted as trained

snipers/gunmen in this case just like they had in the past. Therefore, based upon the foregoing,

the words gunmen, snipers, and assault rifles must be precluded under Fed. Rules Evid.

R. 403(b).

E.

Any Reference to Guns, Ammunition and Gear Seized After April 12, 2014 That
Was Not Present on April 12, 2014 Must be Precluded as Having no Probative
Value Under Fed. Rules Evid. R. 401 & 402.

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Fed. Rules Evid. R. 402 states, [e]vidence which is not relevant is not admissible. Fed.

601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
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Rules Evid. R. 401 defines relevant evidence as evidence having any tendency to make the

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existence of any fact that is of consequence to the determination of the action more probable or

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less probable than it would be without the evidence.

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Here, much of the firearm-related evidence seized by law enforcement from Mr. Stewart
and Mr. Parker after the April 12, 2014 protest was not present, on April 12, 2014. Specifically,
the evidence demonstrates the following was not present with Mr. Parker, on April 12, 2014,
according to Defense Expert, Art Alphin:
Mr. Parker

0006 through 0018, and identified on the FBI Log of evidence (hereinafter Log) as

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1B330 does not appear any where in the photographs of the 12 April 2014

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Specifically, the Smith & Wesson rifle depicted in FBI photographs (hereinafter FBI)

There are two handguns depicted in FBI 002 through 005, Log 1B327; and in FBI 0037
through 0041, Log 1B346; but only one handgun is visible on Mr. Parker in the incident
photos.

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in FBI 0043, 0044, and 0073, Log 1B3 31; does not appear in any incident photo.

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The plastic ammunition "can" (styled after a US GI .50 caliber ammunition can) shown

The RPT brand ammunition in .223 Remington caliber, contained in the plastic "can"
(FBI 0044, 0045, and 0046) were in boxes which were in virgin condition. They do not

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appear in any incident photo. Further, their condition clearly shows that these boxes

were not carried or placed in ammunition pouches, or other pouches on load bearing

equipment, because the corners of the boxes would have been broomed over.

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Further, the FBI 0052 through 0072 photographs show the cartridges from these boxes

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do not have any of the marks which would have been made if they had been loaded into

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a magazine. Incident photos clearly show Mr. Parker with only two magazines in his

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load bearing equipment and no pouches. Therefore, these RPT cartridges and their boxes

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were not at the incident scene.

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The box of Fiocchi ammunition in .223 Remington caliber (FBI 0047 through 0051, in

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the plastic "can") is likewise virgin and was not carried in a pouch. The cartridges in this

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box do not show any of the marks, which would have been made if they had been loaded

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into a magazine. Incident photos clearly show Mr. Parker with only two magazines in

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his load bearing equipment and no pouches. Therefore, these Fiocchi cartridges and their

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box were not at the incident scene.

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The steel US GI .50 caliber ammunition can seized from Mr. Parker (FBI 0093 through
0096, Log 1B332) does not appear in any incident photo. Much of the ammunition
within the can is in calibers (.38 Special, 9mm Luger, and .45 ACP, FBI 0103 through
FBI0112) which do not fit in any of the firearms shown in Mr. Parker's possession in the
incident photos. The small amount of ammunition in the can which does fit Mr. Parker's

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handgun (a Beretta in .40 S&W caliber) shown in FBI 100, 101, and 102; is clearly

virgin and the ammunition was never loaded into a magazine. Therefore this

ammunition was not present at the incident. Lastly, the receipt in this can, from

WalMart, shows that some of the ammunition in this can was purchased on 20 February,

2016; well after the 12 April, 2014 incident.

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Beretta handgun (FBI 0122 and 0123, Log 1B336) were not all at the incident scene.

The incident photos clearly show that Mr. Parker only had one magazine in his rifle,with

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Mr. Parker's magazines for his Saiga rifle (FBI 0114 to 0120, Log 1B335) and for his

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two extras in his load bearing equipment vest; and one magazine in his handgun, with no

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extras visible. Further, his rifle magazines in the incident photographs did not have

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retractor tabs ( appendages on the floor plate of the magazine, which facilitate pulling

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the magazine up and out of an ammunition pouch, for insertion into a rifle) yet two of

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the magazines in FBI O 114 did have such tabs. Therefore these particular two

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magazines were not at the incident scene.

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2014 incident is visible (and it is in the handgun), it can be concluded that the magazine

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and rounds of ammunition shown in FBI 0075 through 0091, Log 1B328, were, minus

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the inside the waistband holster, the only handgun items which Mr. Parker had at the

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incident.

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Due to the fact that only one magazine for Mr. Parker's Beretta handgun at the 12 April,

There is a vest that is both load bearing and protective, that was seized from Mr. Parker
(FBI 0208 through 0211). However, this vest appears near virgin and was worn very

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little. Further, it has a distinct camouflage pattern which makes it unique and easily
discernible. Yet this vest is not visible in any incident photograph.

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See, Ex. B citing FBI Summary Spreadsheets, collectively attached hereto as Ex. C.

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probative value exists, the prejudice inherent to painting Mr. Stewart and Mr. Parker as violent
people, and risk that the jury will be mislead into believing Mr. Stewart and Mr. Parker were

more armed than they really were on April 12, 2014, substantially outweighs whatever slight

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with them on April 12, 2014 must be excluded as having no probative value. Even if a

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As a result, anything else seized from Mr. Stewart and Mr. Parker that was not present

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probative value it may have under Fed. Rules Evid. R. 403.

E.

Any Reference to The Millers Attending the Bundy Ranch Must be Precluded as
The Millers Carry no Probative Value and are Substantially Prejudical and
Misleading Under Fed. Rules Evid. R. 401, 402 & 403.

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On June 08, 2014, Jerad and Amanda Miller tragically shot and killed Las Vegas

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Metropolitan police officers. See, Various Miller-related news reports, collectively attached

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hereto as Ex. D.
Reportedly, Jered Miller was at the April 12, 2014 Bundy-Ranch protest. Id. He was

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interviewed by the media at the ranch protests and said: "I feel sorry for any federal agents that

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want to come in here and try to push us around."

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Bunkerville to the tragic murders in June 2014 of two local police officers and a bystander who

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Id. Other local news linked the events at

attempted to intervene by Jerad and Amanda Miller. Id.

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The Millers, and their horrific actions after the April 12, 2014 protest, have no place in

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this trial. There is zero probative value. Even if some probative value was attached to the

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Millers, the danger of unfair prejudice would substantially outweigh the same. Further, any

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statements they purportedly made would be inadmissible hearsay with no applicable exception.

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Fed. Rules Evid. R. 802.

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1
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A criminal defendants membership or affiliation with a suspect group is routinely

excluded at trial because the defendants affiliation with the group is (1) inherently prejudicial

and (2) risks confusing the defendants membership with his or her culpability. See United

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

The Court Should Exclude References to the III%ers and/or militia Because The
Terms are Inherently Prejudicial and Risk Confusing the Issues.

T ANASI L AW O FFICES

F.

States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009); Wilson v. City of Chicago, 6 F.3d 1233 (7th
Cir. 1993).

In this case, the government alleges that Mr. Drexler, Mr. Parker and Mr. Stewart

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affiliates with two groupsthe Idaho III%ers and a patriot militia. Both groups have been

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attacked in the local and national press and labeled domestic terrorists. For instance, five days
after Mr. Drexlers protest, the Las Vegas Review Journal ran an article entitled, Reid calls

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Bundy supporters domestic terrorists. Laura Myers, Reid calls Bundy supporters domestic

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terrorists,

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http://www.reviewjournal.com/politics/reid-calls-bundy-

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April

17,

2014,

LAS

VEGAS

REVIEW

JOURNAL,

available

at:

supporters-domestic-terrorists.

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The article quotes Senator Reid referring to the likes of Mr. Drexler and stating, [t]hose

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people who hold themselves out to be patriots are not. Theyre nothing more than domestic

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terrorists. Id. Senator Reids remarks made national news and were repeated by various news

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outlets throughout the country. See, e.g., Lucy McCalmont, Reid: Bundys domestic terrorists,

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April 18, 2014, POLITICO, available at: http://www.politico.com/story/2014/04/cliven-bundynevada-ranch-harry-reid-105811.

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Federal Rule of Evidence 403 states that [t]he court may exclude relevant evidence if

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its probative value is substantially outweighed by a danger of one or more of the following:

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unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
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needlessly presenting cumulative evidence. The Supreme Court has found that evidence of

gang membership is permissible to impeach a witness by showing his bias. United States v.

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

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Abel, 469 U.S. 45, 51-52 (1984). However, the Court must still apply a Rule 403 balancing to
determine if the probative value of the gang affiliation is substantially outweighed by a danger
of undue prejudice. See id. at 53.
Here, allowing the government to reference either the III%ers or the militia raises a
substantial risk of unfair prejudice because the groups have been dubbed domestic terrorists
by Senator Reid and the national press. The alleged affiliation with the III%ers and the militia is
analogous to a criminal defendants gang membership. The membership itself is not evidence of

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a crime and the affiliationwithout morepresents a substantial risk that they jury will convict

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because of the membership. See United States v. Baires-Reyes, Case No. 15-cr- 00122-EMC,

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2016 U.S. Dist. LEXIS 88310, at *24 (N.D. Cal. July 7, 2016) (Here, there would be
substantial risk of undue prejudice by introducing evidence of Baires-Reyess alleged gang

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affiliation; in addition to general prejudice against potential gang members, a jury may be more

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likely to believe that Baires-Reyes and Flores-Ayar committed the crime together even though

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the Government has not argued that the robbery was in any way related to gang activity.).

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presenting cumulative evidence.

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Allowing the government to reference either the III%ers or the militia also risk
confusing the issues because the government does not allege that all of the co-defendants are
members of the III%ers or the militia. See id. (There would also likely be confusion of the
issues, as whether Baires-Reyes and Cesar Ortiz are members of the same gang and the tenets of
the gang will need to be shown in order to prove the collateral issue of bias.).
In addition to exclusion under Rule 403, reference to either the III%ers or the militia
should be excluded under Rule 404(b). Gang affiliation evidence, without more, is commonly

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Case 2:16-cr-00046-GMN-PAL Document 1335 Filed 01/18/17 Page 15 of 16

barred because under Rule 404(b) it constitutes impermissible [e]vidence of other crimes,

wrongs or acts [introduced] to prove the character of a person in order to show action in

conformity therewith. United States v. Smith, Case No. 2:11-cr-58-JAD-CWH, 2014 U.S. Dist.

LEXIS 159877 (D. Nev. Nov. 12, 2014). Moreover, Mr. Drexlers alleged membership in the

III%ers and/or the militia is not even relevant. In the event a need arises to refer to either

organization, Mr. Drexler, Mr. Parker, and Mr. Stewart ask the court that they simply be

referred to as civic organizations or a club. See United States v. Carr, 2:13- cr-00250-JAD-

VCF, 2016 U.S. Dist. LEXIS 64822, at *1 (D. Nev. May 16, 2016) (excluding

use of the term gang in a motorcycle gang prosecution and permitting the parties to use the

601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

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word club).
G.

The Court Should Exclude References to Domestic Terrorism.

For the reasons stated above, the court should also exclude any reference to domestic

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terrorism. The term is inherently prejudicial, has little probative value, and the harm it will

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inflict on the jurors minds is substantially outweighed its prejudicial effect and confusion of the

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issues.
H.

The Court Should Exclude all Images of Mr. Drexler Holding a Gun or Affiliating
with Other III%ers or Militia Men at Locations Other Than Bunkerville, Nevada
on April 14, 2012.

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For the reasons stated above, the court should also exclude images of Mr. Drexler, Mr.

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Parker, and Mr. Stewart that allege to show them affiliating with the III%ers or a militia group.

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The images probative value is substantially outweighed by their prejudicial effect and risk
confusing the issues and portraying the defendants as if the were domestic terrorists.

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III.

CONCLUSION

WHEREFORE, based on the foregoing argument and authorities, Mr. Stewart, Mr.

Drexler, and Mr. Parker respectfully pray that this Honorable Court excluded the matters

referenced herein at prior to trial.

DATED this 17th day of January, 2017.

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/s/ Jess Marchese

JESS MARCHESE, ESQ.
Attorney for ERIC PARKER

/s/ Richard Tanasi

RICHARD TANASI, ESQ.
Attorney for STEVEN STEWART

601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

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/s/ Todd Leventhal

TODD LEVENTHAL, ESQ.
Attorney for SCOTT DREXLER

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 17th day of 2017, the undersigned served the foregoing
DEFENDANT STEWART, DREXLER AND PARKERS OMNIBUS MOTION IN
LIMINE on all counsel herein by causing a true copy thereof to be filed with the Clerk of Court
using the CM/ECF system, which was served via electronic transmission by the Clerk of Court
pursuant to local order.

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/ / SIGNED / /

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RICHARD E. TANASI, ESQ.

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