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NOT FOR PUBLICATION F ILED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.

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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)

Appendix C

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Case 3:22-cr-00084-SI Document 191 Filed 06/26/23 Page 3 of 37

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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Case 3:22-cr-00084-SI Document 191 Filed 06/26/23 Page 4 of 37

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)

Appendix C

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Case 3:22-cr-00084-SI Document 191 Filed 06/26/23 Page 28 of 37

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.

PAGE 28 — OPINION AND ORDER (OTHER ACTS EVIDENCE)

Appendix C

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Case 3:22-cr-00084-SI Document 191 Filed 06/26/23 Page 29 of 37

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.

PAGE 29 — OPINION AND ORDER (OTHER ACTS EVIDENCE)

Appendix C

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Case 3:22-cr-00084-SI Documenti91_ Filed 06/26/23 Page 30 of 37

“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

PAGE 30 — OPINION AND ORDER (OTHER ACTS EVIDENCE)

Appendix C

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Case 3:22-cr-00084-S|_ Document191_ Filed 06/26/23 Page 31 of 37

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.

PAGE 31 —- OPINION AND ORDER (OTHER ACTS EVIDENCE)

Appendix C

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Case 3:22-cr-00084-SI Document 191 Filed 06/26/23 Page 32 of 37

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.

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