United States District Court, D. Alaska
ORDER RE MOTIONS IN LIMINE
SHARON L. GLEASON, District Judge.
Before the Court are three motions in limine. At Docket 93 is Defendant James Slade's Motion in Limine to Exclude Evidence of Mr. Slade's Prior Uncharged Business Activities. At Docket 94 is Mr. Slade's Motion in Limine to Exclude Statements of Unavailable Codefendants and Alleged Co-Conspirators. At Docket 109 is the Government's Motion in Limine to Exclude Evidence of an Absence of Environmental Harm, Jury Nullification, and Ignorance of the Law. The motions have been fully briefed. Oral argument was not requested and is not necessary to the Court's decisions. Mr. Slade is charged with four counts of permit violations under the Clean Water Act, a related conspiracy count, and one count of submitting a false report under the Clean Water Act. A jury trial is scheduled to begin on September 21, 2015.
I. Mr. Slade's Motion at Docket 93 Mr. Slade seeks to preclude the Government from introducing evidence pertaining to Mr. Slade's prior mining activity at the Liberty Creek Mine in Washington State from approximately 2004 to 2008. Mr. Slade asserts that
[a]n individual with knowledge of the Liberty Creek Mine provided agents with information in an audio recorded interview about a permit violation citation that the individual (not Mr. Slade) received and blamed that violation on Mr. Slade's activities. The individual explained that he and Mr. Slade were adverse parties in litigation, speculated about Mr. Slade's business dealings, and insinuated that Mr. Slade mishandled funds.
Mr. Slade indicates that he is unaware of the specific facts the Government intends to introduce, but asserts that "evidence pertaining to Liberty Creek Mine" is irrelevant. And even if relevant, Mr. Slade maintains that (a) to the extent the Government contends the evidence is admissible under an exception to Evidence Rule 404(b)(2), Mr. Slade should be provided an opportunity to respond, and (b) even if the evidence the Government intends to introduce falls within an exception to Rule 404(b)(2), it should be excluded under Rule 403 because "its probative value would be substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and wasting time" because Mr. Slade's activities in Washington predate those at issue in this case and because "at least some of the government's information comes from a person who was involved in a civil lawsuit against Mr. Slade."
The Government responds that it "intends to introduce evidence of Mr. Slade's prior experience owning and operating alluvial mining companies, and of the specialized mining system he developed, and which XSP [XS Platinum, Inc.] later hired him to implement at the Platinum Creek Mine in Alaska." The Government contends that this evidence is "inextricably intertwined with the government's case." But the Government also indicates that it "does not intend to introduce evidence of permit violations or business disputes with past partners." As such, the Government maintains that it "does not seek to introduce prior criminal acts, or even bad acts, but rather only the evidence necessary to tell a clear and coherent story of the defendant's developing the AuVert system, using it and discovering its shortcomings with Liberty, being recruited at XSP to implement the system, and knowingly re-implementing it incompletely at Platinum Creek Mine."
The Government also asserts that to the extent the Court finds the evidence is not inextricably intertwined with the charges against Mr. Slade, it is "nonetheless admissible to show [Mr. Slade's] knowledge, absence of mistake and lack of accident regarding the mining operations at the Platinum Creek Mine and the discharges of turbid wastewater into the Squirrel/Platinum Creek and Salmon River." The Government asserts that
The defendant's intimate knowledge of alluvial mining, his development of the mining system being implemented at XSP, and his understanding of the business side of running an alluvial mining company are all direct evidence of his knowledge of the problems at Platinum Creek Mine, and the absence of any mistake or accident with respect to the discharges from Platinum Creek Mine. Evidence of the prior mining operation is critical to demonstrating the defendant's familiarity with and knowledge of the mining system at issue here, and his resulting knowledge that, as implemented at Platinum Creek, that system would result in illegal discharges.
With respect to Evidence Rule 403, the Government emphasizes that it does not intend to introduce evidence of permit violation citations or allegations that Mr. Slade mishandled funds in its case in chief. The Government contends that the evidence it does intend to introduce, of Mr. Slade's mining experience and mining system, is not unfairly prejudicial and "is highly probative of his knowledge of both the fact that discharges were occurring at Platinum Creek, and that the mine was governed by a regulatory regime that would make those discharges illegal." And the Government asserts that evidence of Mr. Slade's prior mining experience "is also essential to explaining why he was hired at XSP."
The Ninth Circuit has held intrinsic evidence "includes evidence that is necessary to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.'" Such evidence "includes circumstantial evidence explaining the general nature of a defendant's business activity and providing a context in which the transactions at issue took place." In United States v. Anderson , the defendant argued that the Government's copyright infringement case was complete without the evidence of other similar copyright violations. But the Ninth Circuit held that the evidence "help[ed] explain Anderson's business operations, including his manufacturing process." The Ninth Circuit reasoned that "the larger and more sophisticated [Anderson's] operation was, the more likely it was that he knew what he was doing was illegal."
Here, the Court finds that the evidence the Government seeks to present in connection with Mr. Slade's work at Liberty Creek Mine provides context for the activities at issue in this case, including Mr. Slade's mining company experience, his development and use of the mining system used at XSP, and the significance of some of his alleged actions at XSP. Accordingly, it is admissible intrinsic evidence. Moreover, the Court finds that the evidence is not unfairly prejudicial under Rule 403. However, the Court will grant the Defendant's motion to exclude evidence as to any prior permit violations and as to Mr. Slade's prior business disputes, unless and until the Court orders otherwise on motion of the Government made outside of the presence of the jury.
II. Mr. Slade's Motion at Docket 94
Mr. Slade asks the Court to exclude any out of court statements made by his codefendants or any alleged co-conspirators who do not testify at trial. "In particular, the defense is aware of an audio recorded interview of Mr. [James] Staeheli by federal agents and interviews of and a factual proffer made by Mr. [Robert] Pate in connection with his guilty plea. The defense also understands that the government interviewed Richard Webber...." Mr. Slade bases this motion on the Confrontation Clause of the U.S. Constitution and U.S. Supreme Court precedent that he reads to prohibit the introduction of statements by a non-testifying co-defendant that ...