United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND RESERVING IN PART
DEFENDANT'S MOTIONS IN LIMINE
Robert S. Lasnik, United States District Judge
matter comes before the Court on the motions in limine of
defendant Bingham Fox (Dkt. # 112). Having reviewed the
parties' briefing and the remainder of the record, the
Court finds and rules as follows.
is charged with two counts grounded on the government's
allegations that he operated his fishing vessel, the F/V
Native Sun, without a functioning system to prevent oily
water from being pumped overboard. Specifically, defendant is
charged with one count of violating the Clean Water Act (CWA)
and one count of conspiring to violate the CWA and the Act to
Prevent Pollution from Ships.
outset, the Court addresses the government's contention
that defendant's motions in limine are untimely because
the Court did not explicitly extend the deadline for pretrial
motions when it continued defendant's trial date from
October 31, 2016 to March 20, 2017. See Dkt. # 73.
While it is true that the Court did not set a revised
pretrial motions deadline, defendant's motions present
evidentiary arguments that would otherwise be raised in the
middle of trial; accordingly, those arguments can hardly be
considered untimely when raised four weeks before trial
begins. In the interest of judicial economy, the Court will
address defendant's motions now.
Fox moves to exclude the following: (1) evidence relating to
former crew member Anthony Zavala's worker's
compensation claim; (2) evidence that a claim was made under
the F/V Native Sun's vessel pollution insurance
policy; (3) statements made by Bingham Fox when he was served
with a grand jury subpoena; (4) reference to Bingham
Fox's counsel producing documents in response to a grand
jury subpoena; (5) statements made by Randall Fox that
incriminate Bingham Fox; (6) any statement by Bingham Fox not
order addresses each of these motions in turn.
Evidence of Anthony Zavala's Worker's Compensation
seeks to exclude allegations that he denied employing
government witness Anthony Zavala in the context of a claim
for worker's compensation that Mr. Zavala allegedly
sought, as well as evidence that defendant did not carry
worker's compensation insurance for members of the
F/V Native Sun crew. Defendant contends that this is
character evidence and accordingly inadmissible under
Fed.R.Evid. 404(b). The government has provided notice of its
intent to introduce this evidence under Fed.R.Evid.
404(b)(2), as probative of “consciousness of
guilt.” Dkt. # 119 at 3-4. The Court agrees with
defendant that his failure to carry worker's compensation
insurance is more prejudicial than probative of any
“consciousness of guilt” relating to the alleged
oil-discharge violations and will exclude evidence of that
lack of insurance for that purpose. But evidence that
defendant denied employing Mr. Zavala after Mr. Zavala
allegedly reported oil discharge on the F/V Native
Sun may be admissible as probative of motive, knowledge,
consciousness of guilt, or concealment. The Court will
reserve ruling on the admissibility of such evidence until it
is presented in context.
first motion in limine is GRANTED in part and RESERVED in
Evidence Regarding Claims Under the F/V Native
Sun's Vessel Pollution Insurance Policy
seeks to exclude evidence relating to a claim that
defendant's counsel submitted on defendant's behalf
under the F/V Native Sun's vessel pollution
insurance policy. The government argues that the statements
made in this claim are admissible as statements by an agent
of the opposing party under Fed.R.Evid. 801(d)(2)(C) and (D).
Evidence that defendant's counsel sought an insurer's
contributions to the cost of this defense is more prejudicial
than probative of defendant's guilt. Moreover, the Court
agrees with defendant that introducing evidence of this claim
would require defendant's counsel to testify as a
witness. See Dkt. # 112 at 8 n.5. Accordingly, the
Court will exclude evidence regarding the vessel pollution
insurance claim filed by defendant's counsel.
second motion in limine is GRANTED.
Statements Made by Bingham Fox to Agent
seeks to exclude evidence of statements he made to Agent
Vanlandingham when Agent Vanlandingham came to
defendant's home to serve him with a grand jury subpoena.
Agent Vanlandingham has testified that defendant asked him,
“What did that bitch say now?”, and that Agent
Vanlandingham understood this to be in reference to
unsubstantiated sexual harassment allegations unrelated to
the oil-discharge investigation. The government argues that
this statement is admissible as a statement of the opposing
party under Fed.R.Evid. 801(d)(2)(A), and that it is
probative of defendant's guilt. The Court agrees with
defendant that this evidence is ...