Petition for Writ of Certiorari — Tony Daniel Klein, Petitioner v. United States
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Case: 23-3022, 06/23/2025, DktEntry: 64.1, Page 1 of 6
NOT FOR PUBLICATION F ILED
UNITED STATES COURT OF APPEALS JUN 23 2025
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 23-3022
D.C. No.
Plaintiff - Appellee, 3:22-cr-00084-SI-1
V.
MEMORANDUM’
TONY DANIEL KLEIN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted June 10, 2025
Portland, Oregon
Before: TALLMAN, OWENS, and VANDYKE, Circuit Judges.
Tony Daniel Klein appeals from his jury conviction for willfully depriving
inmates of their constitutional right to be free from cruel and unusual punishment
under color of law, see 18 U.S.C. § 242, and committing perjury, see 18 U.S.C.
§ 1623. As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appendix A
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1. The district court did not abuse its discretion in excluding a non-witness’s
out-of-court statements that she planned to falsify allegations against Klein. Under
Federal Rule of Evidence (“FRE”) 403, the statements, which did not implicate
any victims whose allegations formed the basis for Klein’s charges, had low
probative value in showing a false allegation scheme by the victims. And any
probative value was “substantially outweighed” by the risk of “unfair prejudice,
confusing the issues, [and] misleading the jury.” Fed. R. Evid. 403.
Nor did this exclusion violate Klein’s constitutional right to present a
defense. This right is “subject to reasonable restrictions” such as “exclud[ing] or
limit[ing] evidence” to avoid “undue prejudice, confusion of the issues, or
misleading the jury.” Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005).
The district court’s ruling was not “arbitrary or disproportionate.” Jd. Moreover,
the defense separately made jurors aware that some inmates had discussed
falsifying allegations. Evidence that this particular non-witness was involved
“would not have added substantially to the knowledge the jury gained.” United
States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992).
For the same reason, any error was harmless beyond a reasonable doubt. See
United States v. Haischer, 780 F.3d 1277, 1281 (9th Cir. 2015).
2. Nor did the district court abuse its discretion in excluding direct
examination testimony that prison staff did not see Klein act inappropriately and
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thought he was “always professional.” Under FRE 404(a) and 405(a), Klein could
not offer that evidence to prove he acted in conformity with his character and thus
did not commit the acts alleged. As to Klein’s purportedly “non-character”
purposes, see Fed. R. Evid. 404(b)(2), the testimony had low probative value in
showing that he lacked a plan, intent, or opportunity to commit the assaults. Given
the risk that such testimony would raise a prohibited character inference, the
district court correctly concluded that under FRE 403, any minimal value was
significantly outweighed by the danger of misleading and confusing the jury.
Moreover, any error was harmless. As the defense introduced substantial
evidence to show the assaults could not have occurred undetected as the victims
testified, “it is more probable than not that the error did not materially affect the
verdict.” United States v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015) (citation
omitted).
Klein makes no constitutional argument as to the exclusion of this evidence
and thus has waived any such argument. See United States ex rel. Kelly v. Serco,
Inc., 846 F.3d 325, 335 (9th Cir. 2017).
3. The district court also acted within its “wide latitude . . . to impose
reasonable limits on... cross examination.” Gibbs v. Covello, 996 F.3d 596, 603
(9th Cir. 2021) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). The
court prohibited or restricted cross-examination as to three areas of inquiry—
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victims’ cooperation with law enforcement, pending charges, and court-ordered
supervision—unless a witness admitted she expected to receive a benefit in
exchange for her testimony. In reviewing these rulings for abuse of discretion, we
consider “(1) whether the district court excluded relevant evidence; (2) whether
‘there were other legitimate interests outweighing the defendant’s interest in
presenting the evidence’; and (3) whether the jury had ‘sufficient information to
assess the credibility of [each] witness.’” United States v. Nickle, 816 F.3d 1230,
1235 (9th Cir. 2016) (citation omitted) (alteration in original).
a. First, the district court acted within its discretion in limiting crossexamination as to two victims’ status as government informants in other cases.
The court reasonably assessed that whether these victims received a benefit for
testifying in Klein’s case was the key impeachment question. See United States v.
Larson, 495 F.3d 1094, 1106-07 (9th Cir. 2007). Given that the cooperation
involved a different subject matter, law enforcement agencies, and jurisdictions
from Klein’s case, a countervailing interest in avoiding juror confusion also
supported the district court’s ruling. Further, as the defense asked these victims
about their civil settlements of similar allegations and about whether they had
solicited aid from the FBI before testifying, the jury had sufficient information to
assess their credibility.
b. Nor did the court abuse its discretion in similarly limiting cross-
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examination as to pending charges. The court allowed the defense to crossexamine victims about the jurisdiction and classification of any such charges.
Thus, the court’s instructions did not violate “the right to let the jury know that [a]
witness is still facing pending criminal charges.” Camitsch v. Risley, 705 F.2d
351, 354 (9th Cir. 1983). It was reasonable to require any further inquiry to be
tethered to an expected benefit. See Michelson v. United States, 335 U.S. 469, 482
(9th Cir. 1948) (“Arrest without more does not, in law any more than in reason,
impeach the integrity or impair the credibility of a witness.”).
c. The same result obtains as to supervision status. Such status was relevant.
See Davis v. Alaska, 415 U.S. 308, 311, 316-18 (1974); Camitsch, 705 F.2d at 354.
But given the extensive questioning as to the victims’ civil settlements, any
attempts to solicit aid in exchange for testifying, convictions for crimes involving
dishonesty, and drug use at the time of trial, the jury had enough information to
assess credibility. There was no abuse of discretion.
4. The district court’s denial of any continuance past the fourteen months it
had already granted also fell within its “broad discretion.” United States v. Walter-
Eze, 869 F.3d 891, 907 (9th Cir. 2017) (quoting Morris v. Slappy, 461 U.S. 1, 11
(1983)). The sixteen months between indictment and trial was enough time to
prepare a defense. Klein had ample opportunity to develop his theory of the case
at trial, and it is speculative whether the information he sought to obtain during a
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continuance would have significantly aided him. He thus fails to meet his burden
of showing prejudice. See United States v. Wilkes, 662 F.3d 524, 543 (9th Cir.
2011).
AFFIRMED.
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UNITED STATES COURT OF APPEALS F | L = D
FOR THE NINTH CIRCUIT AUG 29 2025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Vv.
TONY DANIEL KLEIN,
Defendant - Appellant.
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
No. 23-3022
D.C. No.
3:22-cr-00084-SI-1
District of Oregon,
Portland
ORDER
Before: TALLMAN, OWENS, and VANDYKE, Circuit Judges.
The panel has voted to deny the petition for panel rehearing. Judges Owens
and VanDyke voted to deny the petition for rehearing en banc, and Judge Tallman
so recommends.
The full court has been advised of the suggestion for rehearing en banc, and
no judge has requested a vote on whether to rehear the matter en banc. Fed. R.
App. P. 40.
The petition for panel rehearing and the petition for rehearing en banc are
therefore DENIED.
Appendix B
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(Afternoon session; open court; jury not present:)
THE COURT: All right. We are here without the jury.
May I ask that the back doors be closed please.
I think the right way to proceed is with a 104
hearing, letting the defense elicit the substance of the
testimony they want to bring out, a brief opportunity for cross
by the Government, and then we will discuss admissibility.
| Does anybody have other proposals for how to proceed?
All right. The defense may proceed. You may call
your witness.
MS. THIBEAULT: Judge, the defense would call
Deborah Beaver or Deborah Rhinehart.
Ms. Beaver, is your current last name Beaver or
Rhinehart?
| THE WITNESS: My current name is Beaver.
MS. THIBEAULT: Okay. So we would call Ms. Beaver to
the stand.
THE COURT: This is a 104 hearing without the
presence of the jury.
Mary, would you swear in the witness.
| (The witness was duly sworn.)
| THE CLERK: Would you please state your name for the
| record, spelling your last.
| THE WITNESS: My name is Deborah Lynn Beaver.
B-E-A-V-E-R.
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Q
}s
Q
A
D. Beaver - Examination
EXAMINATION
BY MS. THIBEAULT:
Good afternoon, Ms. Beaver.
Can you tell us where you are right now?
Yes. At the Deborah K. Johnson Rehabilitation Center in
Nashville, Tennessee.
Are you finishing a prison sentence there?
Yes. I am finishing my sentence. I made parole, and I'm
getting ready to go home.
Q
A
Q
A
Q
A
; Q
What crime are you there for right now?
I am here for drinking and driving and theft of a motor
vehicle, which was returned.
Okay. Were you ever at Coffee Creek
Correctional Facility?
Yes, ma'am, I was.
When were you at Coffee Creek Correctional Facility?
In the year of 2014 until 2019.
What were the convictions that brought you to
Coffee Creek. Do you remember?
A Yes. It was drinking-related as well; DUIs and motor
vehicle.
1Q Was there also an aggravated theft charge that brought you
there?
| a Yes. An aggravated theft, yes.
Q Ms. Beaver, did you know -- when you were at Coffee Creek,
|
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D. Beaver - Examination
did you ever have a chance to interact with Tony Daniel Klein?
A Yes. Several times; multiple times.
Q How did you come into contact with Mr. Klein?
A When I was there, about three years into my sentence, I
got really sick, and they first thought it was pneumonia. My
doctor there, Ms. Mendoza -- she's a health care provider
actually. She diagnosed me with pneumonia. When I was
diagnosed, I kept getting sicker. They put me on antibiotics.
I had a blood clot and was sent directly to the medical from my
unit officer, Mary Ward. And that's when I met Nurse Klein.
THE COURT: Let me interrupt. This is Judge Simon.
Ms. Thibeault, if Ms. Beaver testifies, you can bring
out all the background you want. Let's get right to the
evidentiary issues in dispute.
MS. THIBEAULT: Sure.
BY MS. THIBEAULT:
Q Ms. Beaver, at your time in Coffee Creek, did you interact
with a woman named Shelly Hart?
Yes.
Q Did you ever have any particular interaction with
Shelly Hart that stands out in your mind?
—$__—__—_—
| a Yes.
Q Can you tell us about that.
il
A Well, after I got diagnosed with my lung, I was put -- I
———
went to medium over toward where the hospital is. Shelly Hart
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D. Beaver - Examination
was over there at that facility. We were out in the day room,
and we were talking. This is where I knew of the incident on
what was being accused on Mr. Klein.
Q What did you hear Shelly Hart say?
A That he had touched her inappropriately, and they were
going to sue him for money, just the same as the other girl,
Kameron.
Q What did Kameron Baszler tell you?
A Kameron is the first one I had an interaction with; Shelly
Hart was the second. Kameron, they put in my room. When I got
released from the hospital, probably after 22 days being in the
hospital, they put me in the infirmary. They placed
Kameron Baszler in my room. She was proceeding to talk to me
about the incident about Mr. Klein, and she told me that he had
blowed his nose on a Kleenex, and they got the Kleenex out of
the garbage. And she rubbed it on a pair of underwear and
mailed it out in a manila envelope.
Q Did she tell you why she did that?
A Yeah. They were going to sue for sexual harassment and
get money out of this -- a monetary thing -- yes -- and asked
me did I want to participate.
Q Was it just Kameron Baszler who recruited you, or was it
Shelly Hart?
A They didn't recruit me. I reported it. Yes, both girls
did this. Shelly Hart and Kameron Baszler, yes.
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D. Beaver - Examination
Q What did Shelly -- do you recall the substance of what
Shelly Hart asked you?
A I didn't hear you. The last part, I didn't hear.
Q Sure. The technology is always challenging. Do you
recall specifically what Shelly Hart asked you?
A Yes. She asked me would I be willing to go forward and
say that he touched me inappropriately, and I said, "Absolutely
not." We got into it. And they removed Kameron from my room.
I reported it immediately to another nurse.
Q Who did you report that to?
A Nurse Gina.
Q Is Gina's last name Melise?
A Yes. Gina Melise.
Q Just one second, Deborah.
Did Shelly Hart indicate to you that she was making
up those accusations for money?
A They told me that there was going to be a lot of money in
this; that they had done this before to an officer that work at
the physical plant; that this would work, and they would get a
lot of money. This is what was told to me -- and several other
girls in the day room. I told them yesterday about it. This
is when I spoke with Shelly Hart.
Q Okay.
A Then they had to separate us, because I stuck up for
Mr. Klein, because this is a lie anyways.
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D. Beaver - Examination
Q Just one second, Deborah.
Did they say they were making up these accusations,
Ms. Beaver?
A They said that he would not -- actually, Shelly said --
Shelly Hart said to me -- and several other girls -- that they
were trying to get a phone and some things from the outside
brought in, and he said, "Absolutely not"; that he would not do
nothing like that. They said they were going to do this to him
to get him fired and get money from the State. This is exactly
what was told to me.
MS. THIBEAULT: Those are the only questions I have
for you right now, Ms. Beaver.
THE COURT: This is Judge Simon. I am going to allow
the Government to ask you a few questions, Ms. Beaver, if they
want to.
The Government may proceed.
MR. BRUCE: Thank you, Your Honor.
EXAMINATION
BY MR. BRUCE:
Q Good afternoon, Ms. Beaver. My name is Gavin Bruce. I am
an attorney for the Government.
You and I haven't spoke before. Thanks for the time
to chat with us today. I have got a few follow-up questions
| cor you.
There -- I am the bald one.
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D. Beaver - Examination
THE COURT: Let's get right to it, Mr. Bruce.
MR. BRUCE: Thank you.
BY MR. BRUCE:
Q Ms. Beaver, you were talking about who told you what, and
you used "they" a lot; like "they" told you. So when you were
in the infirmary, you were speaking with Kameron Baszler; is
that right?
A Kameron Baszler was placed in my room. I was there first,
and they put her in my room. And yes, she was having a
conference with me.
Q And Kameron Baszler was the one who asked you to get
involved with this, right?
A Excuse me?
Q Kameron Baszler was the one who told you about the tissue,
right?
A Yes. Yes, sir.
Q And it was Kameron Baszler who asked you to get involved
in making an allegation against Tony Klein, right?
A Yes. Both girls did. They are friends. Kameron and
Shelly Hart are friends. Yes, they did. I'm just going to
answer "yes" or "no." Yes, they did.
Q I want to make sure who said what. So when you
initially -- in your previous interview, you said that it was
Kameron Baszler. Then when you got moved to the medical unit,
that's when Shelly Hart moved into medium. That's when you met
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D. Beaver - Examination
Shelly Hart. When you were in the infirmary, it was just
Kameron Baszler telling you these things?
A In my room, yes. When we got released from the infirmary,
we moved to C pod. That's when I met Shelly, yes.
Q And you said that Shelly said she was touched
inappropriately by Tony Klein?
A Yes.
Q And she said she was going -- so she was going to file a
lawsuit because she was touched inappropriately?
A Yes, sir
Q Did she -- and you had talked about a conversation you
overheard about -- between Kameron Baszler and Shelly at a
table.
Do you remember that?
THE COURT: In the day room.
BY MR. BRUCE:
Q In the day room.
Ms. Beaver, you had told the FBI about a conversation
that you overheard between Kameron Baszler and Shelly Hart at a
table in the day room. Do you recall that?
A I told the officer? Is that what you are saying?
Q When the FBI spoke to you --
A I'm sorry, sir. I can barely hear you at the end.
THE COURT: Find another microphone.
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D. Beaver - Examination
BY MR. BRUCE:
Q Can you hear me now, Ms. Beaver?
A Yes.
Q So you heard -- you spoke with the FBI and told them about
a conversation that you heard between Shelly Hart and
Kameron Baszler at a table in the day room. Do you remember
that?
A Yes.
Q And you heard Shelly Hart say that she was in on it?
A I heard both girls say that they are going to do this to
Mr. Klein for monetary gain; that he would not do what they
asked. I spent almost five years with these girls. Yes, sir.
This is what I told both sides. I didn't know I was talking to
a federal government attorney, but I do know that I spoke with
Eric Hiser and another lady named Cameron, yes -- on the video,
yes.
Q There, you said you heard her say she was in on it. Did
you hear what she said -- what she was in on? What that meant?
A Yes, sir. That they were going to file PREA on Mr. Klein
for inappropriate behavior of touching them -- inappropriately
sexual --
THE COURT: I think I've heard enough.
THE WITNESS: And that they were going to get money
for this and did I want to help do this, because I'm a patient
of his.
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D. Beaver - Further
THE COURT: Understood.
Mary, is there a way we can put Ms. Beaver on hold or
mute so we can have a discussion?
MS. THIBEAULT: Can I ask a clarifying question?
THE COURT: Yes.
FURTHER EXAMINATION
BY MS. THIBEAULT:
Q Ms. Beaver, this is Amanda Thibeault.
Ms. Beaver, did Shelly Hart ever indicate to you that
the allegations she was making against Mr. Klein were made up?
A Yes.
MS. THIBEAULT: That's all I have.
THE COURT: All right.
Ms. Beaver, this is Judge Simon. I am going to see
if we can go offline for a moment. I need to discuss some
legal issues with the lawyers. Then when we come back, we will
bring in the jury. We will introduce you and ask you to take
an oath again, even though we just did that. I'm now going to
have it done in front of the jury.
Do you understand?
THE WITNESS: Yes, sir.
THE COURT: Also, most likely, I'm going to ask that
you keep very distinct and separate what Shelly Hart said and
what Kameron Baszler said.
THE WITNESS: Okay.
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THE COURT: I'm not going to allow answers that would
simply be "they said." If you know what Shelly Hart said, I'1l
let you talk about that. I may or may not let you talk about
what Kameron said. I need to talk to the lawyers about that
first.
Do you understand what I'm saying?
THE WITNESS: Yes, sir.
THE COURT: Thank you very much, Ms. Beaver.
(Pause. )
THE CLERK: Ms. Beaver, they will have to un-mute
your audio.
THE WITNESS: Just a minute.
Judge Simon, I wrote down what you said, sir, and I
will do my best to follow it.
THE COURT: Thank you. I will talk with the lawyers
and see what the limitations are.
THE WITNESS: My counselor is right here.
THE COURT: Ms. Beaver, can you hear me now? Can you
hear me?
(No response.)
THE COURT: All right. Counsel, argument. I have
read 260. If the Government filed anything, I didn't read it.
So you can make your argument, but I have read the defendant's
Docket 260 from this morning.
MR. BRUCE: Thank you, Your Honor. I believe our
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position, Your Honor, is that the testimony regarding
Kameron Baszler as a non-testifying witness in this case should
be excluded. I believe that her testimony, as the Court
outlined specific to what Shelly Hart may or may not have said
regarding her plans and intentions on what to do, that that
testimony could come in and that that should be the delineation
here.
THE COURT: Anything further from defendant?
MS. THIBEAULT: I made my record in writing. I
intend to rely on our briefs. Unless you have any questions,
we think it is all admissible for the reasons I wrote about.
That's all I have to add, unless you have questions.
THE COURT: Here is my ruling. I'm ruling that this
witness, Ms. Beaver, may be asked about things that were said
in her presence or that she heard that were said by Shelly
Hart, because Shelly Hart was a witness in this case. She is
not an indictment victim, but she was a witness in this case.
I'm also ruling that Ms. Beaver may not disclose to the jury
anything said by Kameron Baszler. Ms. Baszler did not testify
in this case. Therefore, I'm ruling that's irrelevant. If not
irrelevant, it's inadmissible under 403, because whether or not
Kameron Baszler wanted to or intended to make false charges
against Mr. Klein is either now irrelevant or substantially
outweighed by the risk of confusing the jury, misleading the
jury, and unfair prejudice, because Kameron Baszler's
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credibility is not at issue. Nobody is saying that
Kameron Baszler has accused Mr. Klein of doing anything. I
will not allow the witness to talk about what she heard about
Kameron Baszler. I will allow her to talk about what she heard
from Shelly Hart.
That's my ruling.
THE COURT: Ms. Beaver, can you hear me?
THE CLERK: Ms. Beaver, can you hear me now?
THE WITNESS: Yes.
THE COURT: Ms. Beaver, this is Judge Simon.
THE WITNESS: Yes, sir.
THE COURT: Here is my ruling: I am going to bring
in the jury in a few minutes and let you answer questions,
first from Mr. Klein's counsel and then from the Government.
They can ask you about anything that you heard Shelly Hart say.
Shelly Hart was a witness in this trial already. I'm not going
to allow them to ask you, and I'm not going to allow you to
present testimony about what Kameron Baszler said, because
Kameron Baszler was not a witness in this trial.
Do you understand my instructions?
THE WITNESS: Yes, sir.
THE COURT: Very good. Let's bring in the jury.
MR. BRUCE: Your Honor, one last point. We would
request -- it looks like Ms. Beaver is looking at notes or
maybe taking notes.
Appendix C
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Case 3:22-cr-00084-S! Document 191 Filed 06/26/23 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA, Case No. 3:22-cr-84-SI
Vv. OPINION AND ORDER ADDRESSING
OTHER ACTS EVIDENCE
TONY DANIEL KLEIN,
(SEALED PENDING TRIAL OR
Defendant. OTHER RESOLUTION)
Natalie K. Wight, United States Attorney, Gavin W. Bruce and Hannah Horsley, Assistant
United States Attorneys, UNITED STATES ATTORNEY’S OFFICE, 405 East 8th Avenue, Suite 2400,
Eugene, OR 97401; and Cameron A. Bell, Trial Attorney, UNITED STATES DEPARTMENT OF
JUSTICE, Civil Rights Division, 950 Pennsylvania Avenue, NW, Washington, DC 20530.
Of Attorneys for United States of America.
Matthew G. McHenry, LEVINE & MCHENRY LLC, 1050 SW Sixth Avenue, Suite 1414, Portland,
OR 97204; and Amanda A. Thibeault, ALVAREZ THIBEAULT LLC, 330 NE Lincoln Street,
Suite 200, Hillsboro, OR 97124. Of Attorneys for Defendant Tony Daniel Klein.
Michael H. Simon, District Judge.
On March 9, 2022, a federal grand jury indicted Defendant Tony Klein, charging him
with 21 counts of deprivation of rights under color of law, in violation of 18 U.S.C. § 242, and
four counts of making false declarations in a proceeding before or ancillary to a court of the
United States, in violation of 18 U.S.C. § 1623. ECF 1. As alleged in the indictment, Defendant
was employed as a corrections nurse with the Coffee Creek Correctional Facility (CCCF), the
PAGE 1 —- OPINION AND ORDER (OTHER ACTS EVIDENCE)
Appendix C
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Case 3:22-cr-00084-SI Document191_ Filed 06/26/23 Page 2 of 37
only women’s prison in the state of Oregon. In the first 21 counts, the indictment alleges that on
various occasions in 2016 and 2017, Defendant, while acting under color of law and without a
legitimate penological or medical purpose, engaged in various sexual acts with 12 female
inmates,! who were incarcerated at CCCF. The indictment further alleges that these acts were
done by Defendant without the consent of the female inmates and Defendant’s conduct willfully
deprived these inmates of their right not to be subjected to cruel and unusual punishment, a right
secured and protected by the Constitution and laws of the United States. The indictment also
alleges that Defendant’s conduct resulted in bodily injury to these female inmates and included
aggravated sexual abuse. In the final four counts, the indictment alleges that on November 20,
2019, Defendant, having taken an oath to testify truthfully at a deposition ancillary to a civil
lawsuit then pending in the United States District Court for the District of Oregon, knowingly
made false and material declarations.
On April 21, 2023, the Government filed a Notice of Intent to Introduce Intrinsic
Evidence or Alternatively to Introduce Other Acts Evidence Pursuant to Rules 413 and 404(b)
(Notice). ECF 87. In that Notice, the Government states that it plans to introduce evidence about
uncharged conduct relating to AVs1-12, also referred to as the “Indictment AVs.” The
Government also states that it plans to introduce evidence of uncharged sexual assaults and other
sexual misconduct relating to nine other inmates and former inmates of CCCF.” The Government
argues that evidence of this uncharged conduct is admissible on several alternative grounds
' These women are referred to as “AVs1-12,” which is how they were presented in the
indictment to preserve their confidentiality., For convenience, the Court may refer to AVs1-12
collectively as the “Indictment AVs.”
? These women are referred to as “AVs13-21” or “Witness AVs.” Collectively, AVs1-21
are referred to as “the AVs.”
PAGE 2 — OPINION AND ORDER (OTHER ACTS EVIDENCE)
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because it falls within one or more of the following categories: (1) intrinsic evidence relating to
the charged perjury counts; (2) evidence that is “inextricably intertwined” with the alleged sexual
misconduct charged in Counts 1 through 21; (3) evidence admissible through Rule 413 of the
Federal Rules of Evidence; and (4) evidence admissible under Rule 404(b).
Defendant does not object to evidence of the uncharged conduct relating to AVs1-12.7
Defendant, however, does object to admission of the uncharged conduct relating to AVs13-21,
arguing that a jury could not reasonably find the requisite conditional facts of Defendant’s
alleged sexual misconduct by a preponderance of the evidence. Defendant also objects to this
evidence as it applies to the perjury counts, arguing that the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice because the evidence is needlessly
cumulative.‘
In Defendant’s Motion in Limine No. 2, he moves to exclude evidence not presented to
the Grand Jury. In his Motion in Limine No. 5, Defendant moves to offer evidence of other acts
of Government witnesses under Rule 404(b). Defendant states that he intends to offer evidence
of pending criminal charges of AV2, AV8, AV11, and AV12. Defendant also asserts that he
intends to offer evidence of the AVs’ disciplinary record while incarcerated and other prison
grievances filed by an AV that is unrelated to Defendant. The Government objects to most of
Defendant’s motions. The Government also moves in its Motions in Limine Nos. 1-6 to exclude
certain evidence of an AV’s criminal record, sexual conduct, and disciplinary record, which are
3 Defendant states that he reserves the right to object in the event that additional
discovery received contradicts or undermines the Government’s theories of admissibility.
* Defendant also reiterates that he objects to all witnesses included in his motion to
exclude witnesses on the basis of the Government’s purported Brady violations. The Court
addresses Defendant’s motion based on Brady in a separate Opinion and Order.
PAGE 3 — OPINION AND ORDER (OTHER ACTS EVIDENCE)
Appendix C
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largely contested by Defendant. The Court addresses all motions relating to other acts evidence
in this Opinion and Order.
STANDARDS
A. Motions in Limine
A motion in limine, broadly defined, means “any motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v.
United States, 469 U.S. 38, 40, n.2 (1984); United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009) (stating that a motion in limine is a “procedural mechanism to limit in advance
testimony or evidence in a particular area”). As with other motions raised before trial, motions in
limine “are useful tools to resolve issues which would otherwise clutter up the trial.” City of
Pomona v. SOM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017) (quotation marks omitted);
see also Luce, 469 U.S. at 41 n.4 (explaining that a court may rule in limine “pursuant to the
district court’s inherent authority to manage the course of trials”). Further, “a ruling on a motion
in limine is essentially a preliminary opinion that falls entirely within the discretion of the district
court. The district court may change its ruling at trial because testimony may bring facts to the
district court’s attention that it did not anticipate at the time of its initial ruling.” Pomona, 866
F.3d at 1070.
In many instances, however, rulings “should be deferred until trial, so that questions of
foundation, relevancy, and potential prejudice may be resolved in proper context.” United States
v. Pac. Gas & Elec. Co., 178 F. Supp. 3d 927, 941 (N.D. Cal. 2016). To exclude evidence on a
motion in limine, “the evidence must be inadmissible on all potential grounds.” McConnell v.
Wal-Mart Stores, Inc., 995 F. Supp. 2d 1164, 1167 (D. Nev. 2014). Thus, denial of a motion in
limine to exclude certain evidence does not mean that all evidence contemplated by the motion
PAGE 4 — OPINION AND ORDER (OTHER ACTS EVIDENCE)
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criminal offense punishable by imprisonment for more than one year, and that AV3 remains
incarcerated. Unless A V3 at trial opens the door to further inquiry, any further evidence is
excluded because its probative value is substantially outweighed by the danger of unfair
prejudice. See id.; see also Diggs v. Guynup, 2022 WL 3355959, at *1-2 (N.D.N.Y. 2022)
(“While Rule 609(a)(1) presumes that all felonies are at least somewhat probative of a witness’s
propensity to testify truthfully, acts of violence generally have limited probative value
concerning a witness’s credibility. .. . [T]he Court finds that the probative value of the fact that
Plaintiff was convicted of three felonies in 2004 and sentenced to a term of twenty-five years to
life is admissible and the probative value of that evidence is not substantially outweighed by
Rule 403 concerns, but that the probative value of the names of the convictions is substantially
outweighed by the danger of unfair prejudice.”).
4. MIL 4—Arrests and Criminal Charges
The Government moves to exclude evidence of the AVs’ prior arrests that did not result
in criminal charges and pending criminal charges. Because Rule 609 only governs evidence of
convictions, this evidence is governed by Rule 608. See Arriaga v. Logix Fed. Credit
Union, 2022 WL 3097432, at *2 (C.D. Cal. Apr. 22, 2022) (“Because there is no evidence before
the Court of a conviction for the January 2021 child pornography charges, Federal Rule of
Evidence 608 rather than Rule 609 applies.”). This rule provides:
Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a
witness’s conduct in order to attack or support the witness’s
character for truthfulness. But the court may, on crossexamination, allow them to be inquired into if they are probative of
the character for truthfulness or untruthfulness of . . . the witness.
Fed. R. Evid. 608.
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The Government argues that an arrest is not probative of truthfulness, citing Michelson.
In Michelson, the Supreme Court concluded: “Arrest without more does not, in law any more
than in reason, impeach the integrity or impair the credibility of a witness. .. . Only a conviction,
therefore, may be inquired about to undermine the trustworthiness of a witness.” Michelson, 335
U.S. at 482. The Government proposes that the evidence about pending charges be limited only
to bias and whether the witness expects or hopes to benefit from their testimony. Defendant
moves to exclude the type and nature of the pending charges and other details as irrelevant to
truthfulness, cumulative to the fact of the witnesses’ felony convictions, and unfairly prejudicial.
Defendant agrees not to introduce evidence of arrests that did not result in charges that
occurred before the accusations were raised against Defendant, but argues that criminal charges
that occurred after Defendant was accused are admissible as impeachment evidence. This also is
part of Defendant’s Motion in Limine No. 5. Defendant argues that this evidence is relevant for
impeachment because, for example, AV2 has sent correspondence to the prosecutors in this case
stating that if they do not get her released on her pending state charges then she will have
“trouble remembering” her testimony against Defendant. Defendant also argues that pending
criminal charges give those witnesses a motive to say whatever the Government wants, no matter
if the Government has promised them anything in return.
Defendant’s contention that pending charges necessarily gives a witness a motive to lie
regardless of whether the government has promised them any benefit and thus the information is
admissible does not overcome the limitations set forth in the Federal Rules of Evidence. It also
has been rejected by the Supreme Court in Michelson, which concluded that pending charges
generally are not probative of truthfulness. Further, the admission of extrinsic evidence under
Rule 404(b) for “motive” does not include evidence supporting a motive to lie in testimony.
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“Although Rule 404(b) does allow evidence of ‘other crimes, wrongs, or acts . . . as proof of
motive .. .,’ the word ‘motive’ as used in the rule does not refer to a motive to testify falsely.”
United States v. Farmer, 923 F.2d 1557, 1567 (11th Cir. 1991). A “witness’s motive to testify
falsely, however, is merely an aspect of credibility. The principles controlling the admission of
evidence of conduct probative of credibility are set forth in Rule 608.” United States v.
Sampol, 636 F.2d 621, 659 n.24 (D.C. Cir. 1980).
Under Rule 608, Defendant generally may not introduce extrinsic evidence relating to the
pending charges or prior arrests that did not result in a conviction. Defendant may inquire on
cross-examination about pending charges, but only as it relates to the witnesses’ character for
truthfulness or untruthfulness. Thus, AV2’s threat to have “trouble remembering” her testimony
in this case if the prosecution did not help with her pending charges in state court is probative of
her character for truthfulness. It may be asked about on cross-examination. The document,
however, is inadmissible extrinsic evidence. See 4 Weinstein’s Federal Evidence § 608.20[1]
(“Specific instances of a witness’s conduct, other than a conviction of a crime, that are offered to
attack or support a witness’s character for truthfulness may not be proved by extrinsic evidence.
Evidence is ‘extrinsic’ if offered through documents or other witnesses, rather than through
cross-examination of the witness himself or herself.” (footnote citations omitted)).
Charges, without a conviction, generally are not probative of truthfulness. See, e.g.,
Michelson, 335 U.S. at 482; see also Valenzuela v. Small, 836 F. App’x 507, 510 (9th Cir. 2020)
(contrasting California law that permits evidence of uncharged conduct, under which “the
evidence that Alcaraz was involved in, though not yet convicted of, an unrelated offense was at
best weakly probative of his credibility” with “the Federal Rules of Evidence [that] would not
permit such a use of such uncharged conduct because it is not ‘probative of the character for
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truthfulness or untruthfulness of the witness.””); U.S.A. v. Defendant(s), 2021 WL 1127163, at *6
(C.D. Cal. Mar. 24, 2021) (Typically, evidence of prior arrests is not probative of truthfulness
and thus may not be inquired into on cross examination.”). Pending charges may, however, be
relevant to bias, and therefore subject to cross-examination.
The fact that a witness has pending charges may be inquired about on cross-examination,
and Defendant may explore whether the witness expects or hopes to receive a benefit relating to
those charges from testifying in this trial. That, however, does not allow unfettered questioning
regarding pending charges, or demand the details about the type and nature of the charged
offense. The jurisdiction of the charges and whether the witness faces felony or misdemeanor
charges are sufficient for this purpose. Additional details about the pending charges are not
significantly probative of truthfulness or bias and generally inadmissible under Rule 608.
Additionally, any probative value is significantly outweighed by the danger of unfair prejudice
and inadmissible under Rule 403.!°
'0 Defendant argues that the documents would be admissible if the witness lies on crossexamination. Courts, including the Ninth Circuit, however, regularly conclude that extrinsic
evidence, whether documents or contradictory testimony, is not admissible under Rule 608 even
when a witness denies a fact on the stand that could be contradicted by the extrinsic evidence.
See 4 Weinstein’s Federal Evidence § 608.22[1] (explaining that on cross examination a witness
may be asked about specific instances of conduct relevant to veracity but that other than certain
convictions, “the cross-examiner may not introduce extrinsic evidence of such specific
instances” and “the examiner must take (or is bound by) the witness’s answer” (citing cases));
see also United States v. Chu, 5 F.3d 1244, 1249 (9th Cir. 1993) (affirming district court’s
exclusion under Rule 608 of contradictory extrinsic evidence to witness’s testimony and stating
that “[t]he district court has broad discretion over whether to admit extrinsic evidence to rebut a
witness’ direct testimony, particularly on a matter collateral to the case’). Defendant argues that
bias is never collateral and thus extrinsic evidence would be admissible, but the Court’s
discretion to exclude extrinsic evidence is not limited only to collateral issues and, absent
evidence of a benefit to a witness relating to the pending charges, Defendant would need to show
how the evidence relates to the witness’s bias.
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The exception to this ruling relates to AV12. She provided a false name and fictitious
identification to police when she was arrested, booked, and charged. This required the police to
issue an amended complaint one month later under her real name. This is factual information that
is highly probative of truthfulness and may be asked about during cross-examination, although
the records are generally inadmissible extrinsic evidence. The other pending charges, including
charges for forgery, are inadmissible because they are only charges with limited probative value.
But the fact that AV12 provided a fictitious identification and false name is a factual matter and
not simply a charged crime for which she is presumed innocent.
Because it is unclear what other evidence Defendant may seek to elicit relating to
pending charges, the Court reserves ruling on this motion. If Defendant wishes to inquire into
information other than described herein, Defendant will need to make an offer of proof or
otherwise first obtain leave of Court outside the presence of the jury.
5. MIL 5—Prison Disciplinary Records and Other Behavior in Custody
The Government moves to exclude the prison disciplinary records of the AVs as extrinsic
evidence precluded under Rule 608, improper hearsay, and prejudicial under Rule 403. The
Government also moves to limit inquiry on cross-examination about the contents of disciplinary
records to only information probative of the witness’s character for truthfulness. This motion
overlaps with part of Defendant’s Motion in Limine No. 5.
Defendant responds that the disciplinary records are relevant because they respond to the
Government’s theory of the case. Defendant argues that the Government intends to present the
theory that the AVs were afraid to report the alleged assaults for fear of disciplinary
repercussions. Defendant points to one of the Government’s expert witnesses, who the
Government offers to testify that incarcerated persons underreport abuse for fear of
repercussions. Defendant contends that the AVs’ disciplinary records show that they are not
PAGE 32 — OPINION AND ORDER (OTHER ACTS EVIDENCE)
Appendix C
Page 29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.