DEFENDANTS’ RESPONSE TO GOVERNMENT’S OPPOSITION (ECF#2654) TO
DEFENDANT’S MOTION IN LIMINE (ECF#2513)
COMES NOW, Defendant, ERIC PARKER, by and through his attorney, JESS R. MARCHESE, ESQ. of MARCHESE LAW OFFICES and O. SCOTT DREXLER, ESQ., by and through his attorney, TODD LEVENTHAL, ESQ., and respectfully move this Honorable Court for an Order precluding the reference, argument, and the evidence listed herein. The attached Memorandum of Points and Authorities is submitted in support of this request.
DATED this 17th day of October, 2017.
MEMORANDUM OF POINTS AND AUTHORITES
I.
LEGAL ARGUMENT
A. The Items Listed in the Government’s Notice are not Inextricably Intertwined with the Subject of the Indictment
The Government argues that the evidence of Parker and Drexler being in the Idaho III% and attending protests at the Sugar Pine Mine and White Pine Mine must be admitted because the evidence is inextricably intertwined with the remaining counts. In making their argument, they argue that the fact that both defendants were acquitted of the conspiracy counts at the last trial has no meaning as to whether the evidence is admissible. In their opposition, as if they are unaware of the results from the last trial, they make the factually and legally incorrect assertion that “conspiracies existed” and that “defendants Parker and Drexler joined them.” (See Page 8, Lines 22-24)
Further, on Page 8, Line 6 of the Government’s opposition they cite this court’s original order which stated that “these incidents and Defendants’ membership as III%ers are inextricably intertwined with the conspiracy.” The Court clearly relied upon the conspiracy counts in finding that there was a nexus between the evidence and the overall purpose of the conspiracy. Now, since the conspiracy counts are no longer part of the indictment against these defendants, it follows that the same logic regarding the proffered evidence cannot be extended to the instant scenario.
Even if the evidence was somehow related to the threat or the assault, the Government makes no effort to make the proper legal analysis regarding inextricably intertwined acts. Evidence of “other acts” is not subject to Rule 404(b) analysis if it is “inextricably intertwined” with the charged offense. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir.1995). This exception applies when (1) “particular acts of the defendant are part of a single criminal transaction,” or when (2) “‘other act’ evidence ․ is necessary [to admit] in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” Id. at 1012-13.
In this case, neither of the two theories are met. In reference to the subsequent acts of the defendants being part of the single criminal transaction, there is no evidence of a single criminal transaction whatsoever now that the defendants were acquitted of conspiracy. Further, as evidenced by the first trial when the case was easily presented without any evidence of the Idaho 3% or the two mining protests, the prosecutors can easily offer a coherent and comprehensible story regarding the commission of the crime without this admitting this evidence. Simply put, it should be excluded from the trial.
B. The Proffered Evidence is Inadmissible Under 404B as evidence of Motive, Intent, Knowledge, or Absence of Mistake.
The Government performs 404b no analysis other than to make the conclusory statement that the evidence is admissible under these theories because they say so. They argue that there is no basis for the defendants’ argument that post bad acts are inadmissible. Parker agrees that the rule mentions “other acts.” However, the Government offers literally no analysis as to how these other acts are admissible under their proffered theories. There is no analysis completed because there is not one case that supports their 404b exceptions. To argue what happened two years later somehow motivated the defendants to do what they did 2 years earlier completely illogical. The same logic follows suit with the other exceptions as well.
II.
CONCLUSION
WHEREFORE, based on the foregoing argument and authorities, Defendants respectfully pray that this Honorable Court issue an order granting the aforementioned requested relief.
DATED this 17th day of October, 2017.
