USA v. Kane et al
Order on Motion in Limine
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
ROBERT F. KANE, and
SECURITY AVIATION, INC.,
ORDER FROM CHAMBERS
Motions at dockets
208, 209, 225, and 241]
I. MOTIONS ADDRESSED IN THIS ORDER
At docket 208, defendant Security Aviation, Inc. (“Security)” moves for an order
prohibiting the introduction of evidence showing the registration of firearms by Mark
Avery or any other person. At docket 209, defendant Robert F. Kane (“Kane”) moves
for an order excluding introduction of certain prior “bad acts.” At docket 225, defendant
Kane moves for exclusion of what he deems to be irrelevant financial information and
evidence of possession of firearms. Security filed a similar motion at docket 241
seeking to preclude financial information and evidence regarding the possession of
firearms. At docket 264 plaintiff United States has opposed all of the motions, save the
motion at docket 209 which it concedes is “well taken.”1
Doc. 264, p. 3.
II. PERTINENT PRINCIPLES
Speaking generally, the court must apply the law of evidence to resolve the
pending motions. While not all pertinent to every motion, there are three related
evidentiary principles that will be considered in this order. The first two are the subject
of Rules 403 and 404(b)of the Federal Rules of Evidence. Rule 403 reads as follows:
Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of
Rule 404(b) provides the following in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . .
The third principle is that within the framework created by the Federal Rule of Evidence,
a prosecutor has the right to prove the government’s case as he or she sees fit even if a
defendant is prepared to stipulate to certain facts. As the Supreme Court explained in
Old Chief v. United States:2
In sum, the accepted rule that the prosecution is entitled to prove its
case free from any defendant’s option to stipulate the evidence
away rests on good sense. A syllogism is not a story, and a naked
proposition in a courtroom may be no match for the robust evidence
that would be used to prove it.
The majority of the Court in Old Chief found that the accepted rule did not control the
outcome in the case before it. The majority held that a defendant being prosecuted for
being a felon in possession of a firearm could force the prosecutor to stipulate to the
existence of a prior unspecified crime for which he could have been sentenced to serve
more than a year in prison, thereby eliminating presentation of evidence showing of
what the prior crime consisted. Nevertheless, it is clear that the Court did not abrogate
519 U.S. 187, 189 (1997).
the accepted rule; it remains viable in other circumstances subject, of course, to proper
application of Rules 403 and 404(b).
III. MOTION AT DOCKET 208
Mark Avery is the owner of Security Aviation, Inc. He has registered firearms
with the appropriate federal agency, including fully automatic machine guns. An
element of each of the crimes charged against Security which plaintiff must prove is that
Security knew the rocket launchers it purchased were destructive devices. In other
words, the United States must prove that Security had knowledge of the characteristics
of the rocket launchers which would require them to be registered. The United States
wishes to introduce evidence of Avery’s registration of other weapons to support the
inference that he (and by attribution Security) knew the rocket launchers were a type of
device that needed to be registered.
The evidence that Avery had registered machine guns would support an
inference that he was knowledgeable about what sorts of weapons must be registered,
and so it is relevant. Security, which is prepared to stipulate that the rocket launchers
were not registered, contends that the probative value of the evidence is substantially
outweighed by the danger of the unfairly prejudicial effect it would have on the jury.
Security relies on the Rule 403 analysis in Old Chief.
There are significant differences between the factual situation at bar and that in
Old Chief. To begin with, in Old Chief the stipulation was directed at the same element
of the crime which the United States sought to prove through the introduction of
evidence–that defendant had been convicted of a felony. Here, the stipulation offered is
not congruent with the element the United States seeks to prove: Security will stipulate
that the rocket launchers were not registered, but what the United States is seeking to
prove is that Security had knowledge that the rocket launchers were the kind of weapon
that had to be registered. Second, the evidence the United States would show here is
legal conduct by Avery–registration of firearms as required by law, while in Old Chief the
evidence offered by the United States was evidence that the defendant had committed
a crime, specifically an assault resulting in serious bodily injury.3
The precise issue before this court is whether the probative value of the
registration of firearms by Avery is substantially outweighed by the danger of unfair
prejudice to Security. The answer is no. The evidence goes to an element of the crime.
This renders its probative value relatively high.4 Significantly, the evidence goes to an
element which can only be proved by circumstantial evidence. This can only increase
its probative value. Furthermore, the potential for prejudice is relatively low. What
Avery did when he registered the machine guns was lawful. Alaskans generally are not
prejudiced against those who own firearms of any kind. Indeed, Alaska is a place
where the popular perception of expansive Second Amendment rights is very dear to a
sizable portion of the populace. Certainly, the prejudicial effect of the evidence does not
substantially outweigh its probative value. The motion at docket 208 will be denied.
IV. MOTION AT DOCKET 209
At docket 209, Security asks the court to exclude evidence that co-defendant
Kane engaged in several acts in Oregon in 2001 which amount to “bad acts” under
Rule 404(b). In responding to this motion, the United States concedes that it has merit.5
Accordingly, this motion will be granted.
V. MOTIONS AT DOCKETS 225 AND 241
In his motion at docket 225, Kane asks the court to exclude evidence tending to
show that Kane’s position at Security was such that he had authority to make hiring and
firing decisions; evidence that Kane told John Berens that he (Kane) “has more money
Old Chief, 519 U.S. 176.
United States v. Gonazlez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) explains: “The
probative value of evidence against a defendant is low where the evidence does not go to an
element of the charge.” By necessary implication where the evidence does go to an element of
the charge it is of relatively high probative value.
Doc. 264, p. 3.
than God;” evidence that his home and his vehicle were provided by a company related
to Security; evidence regarding Kane’s compensation; and evidence regarding firearms
possessed by others but as to which Kane had access. At docket 241, Security joins in
Kane’s motion and further asserts its own arguments for the exclusion of much of the
The principal argument defendants make regarding Kane’s authority to hire and
fire Security’s personnel is that Security will stipulate to that fact rendering it
unnecessary for the United States to present evidence whose purpose is to establish
that actions taken by Kane in connection with the rocket launchers may be attributed to
Security. Once again, it is asserted that Old Chief should guide this court’s Rule 403
analysis. Once again, that argument fails. The distinctions between Old Chief and the
issue at hand are even more striking than they were in the context of the motion at
docket 208. Indeed, Old Chief is most pertinent in the present context for its description
of the rationale for the accepted rule which allows the prosecutor to present a full story
to the jury, not merely edited snippets.6
The Rule 403 analysis here is straightforward and clearly favors the United
States’ position. The evidence plaintiff would introduce is probative with respect to
something that must be proved. It is critical to the government’s case to establish
Security’s criminal responsibility for Kane’s actions. The danger of unfair prejudice is
minimal. After all, the evidence will address the scope of Kane’s authority at
Security–hardly the sort of issue that would be likely to generate unfair prejudice. The
danger of unfair prejudice does not substantially outweigh the probative value of the
The probative value of evidence showing the financial arrangements between
Kane and Security (as well as its owner Avery and the related companies) also bears on
Kane’s authority to bind Security. This sort of evidence is also necessary for the
presentation of the overall picture of circumstances in which the allegedly criminal
conduct took place. The jury needs to hear enough evidence to have an understanding
See the discussion of Old Chief in the text addressing the motion at docket 208.
of the relationship between Kane, Security, and other persons whose actions bear on
the jury’s resolution of the charges. There is probative value in establishing the context
in which defendants conducted their daily affairs. To exclude this sort of evidence
would simply invite the jury to speculate about the relationships and perhaps fill voids in
the evidence with that speculation. On the other hand, there is nothing unfairly
prejudicial about evidence which shows an employee was being paid, even paid very
well, by an his employer. Moreover, it is not uncommon for an employer to provide a
car or to underwrite the cost of housing an employee. Even if Kane received more
financial assistance than might ordinarily be the case, that signals no more than that he
was a very valuable employee, or that he had a very comfy berth with a generous or
perhaps foolishly inattentive employer. Once again, the danger of unfair prejudice does
not substantially outweigh the probative value of the evidence in dispute. Admission is
therefore proper under Rule 403.
Kane, but not Security, also seeks exclusion of all the evidence discussed above
pursuant to Rules 401 and 404(b). Exclusion under Rule 401 would require the court to
find that the evidence is not relevant. As demonstrated above, the evidence is relevant.
The argument for exclusion under Rule 401 is frivolous.
Kane asserts that the above evidence must be kept out under Rule 404(b)
because it is “propensity” evidence. Kane is correct to note that Rule 404(b) is intended
to foreclose the presentation of evidence for the purpose of showing that a defendant’s
character is such that if he does a thing once, he will do it again. The attempt to
shoehorn evidence of Kane’s authority at Security and his financial arrangements with
his employer into a Rule 404(b) analysis is misguided. None of the evidence would
show a propensity to commit any of the crimes charged. The evidence merely tends to
show the working relationship between Kane and Security. The attempt to invoke
Rule 404(b) with respect to the evidence discussed above is also frivolous.
The request to exclude certain evidence pertaining to possession of firearms will
now be considered. The firearms evidence which the United States hopes to present is
summarized in its trial brief, and it is extensive.7 If admitted, it would show that Kane
was familiar with firearms, often carried such weapons, and stored legal “but significant
heavy weapons” at Avery and Associates, Mark Avery’s law firm, and kept some
firearms in his offices and at his home. The evidence would show that Avery permitted
Dennis Hopper, who holds a Class III federal firearms license, to keep a small armory
on the premises of Avery and Associates. It would also show that Kane had a key
which he used to access the armory, and when asked about the amount of weaponry
Kane said “people here in Anchorage are going on a mission.” The evidence would
show the presence of weapons at various locations at Avery and Associates, including
legally registered machine guns. What the evidence would not show is that Kane had
registered any firearms.
In his motion, Kane emphasizes the lack of relevance of the firearms evidence
and the potential it carries to unfairly prejudice the jury. This is an appropriate argument
under Rule 403, although curiously Kane does not cite the rule. In addition to making a
Rule 403 argument, Security contends that the evidence is really offered only to show
that Avery (Security’s owner) and Kane (who exercised executive level authority for
Security) each had a propensity to possess firearms, or as Security’s counsel wryly puts
it, they “like to possess devices that, to put it bluntly go ‘boom’ and that they must have
acted in conformity with that propensity in this case by [knowingly purchasing a
destructive device.]”8 Unless relevant to one of the factors mentioned in Rule 404(b),
such “propensity” evidence is not admissible. Security goes on to point out, with
respect to Rule 403, that for the weapons evidence to be fully understood and
assessed, much time would have to be devoted to exploring details about a very large
number of weapons located in many locations controlled by different persons and how
the circumstances in which they were possessed do, or do not, relate to Security or
Kane. What is more, some of this evidence would then invite introduction of still more
Doc. 216, pp. 7-9.
Doc. 241, p. 4.
evidence to flesh out the entire personal relationship between Avery, Hopper, Kane, and
others. All of this would delay the proceedings.
In its memorandum at docket 264, the United States scarcely bothers to address
the defense arguments, saying only: “However, the fact that Avery had registered
machine guns and an arsenal to which Kane had access, at the C Street headquarters
is circumstantial evidence going to sophisticated weapons knowledge.”9 In a previous
passage which may pertain to the weapons (although it appears in a section discussing
the financial connections between Security and Kane and Kane’s authority to bind
Security), the United States points out that evidence is admissible when offered to prove
“lack of mistake, knowledge, and the requisite mens rea for Counts 1, 2 and 4.”10
The court will exclude this evidence. First of all, it clearly is propensity evidence–
if the boys are nuts about powerful weapons, and they then get some jets to which it is
possible to attach powerful weapons–well, boys will be boys. Secondly, this evidence
does not tell a fact finder anything with respect to the possession of unregistered
destructive devices that would tend to establish “opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” It follows that (unlike the
evidence of Avery’s having registered firearms which would support an inference of
knowledge that the rocket launchers were subject to registration) the only relevance of
this weapons evidence is a forbidden one–past acts show a propensity to commit the
crimes charged. This evidence should be excluded under Rule 404(b).
Even if the weapons evidence at issue here could squeak by under Rule 404(b),
it would be inadmissible under Rule 403. Its probative value is not very great, yet by
painting a picture of “guns, guns, heavy guns everywhere” plaintiff might well incite
unfair prejudice against defendants in the minds of the jurors. A juror who respects the
broad scope of the Second Amendment widely subscribed in Alaska and who would not
be prejudiced against a person merely because that person possessed a large number
of firearms might well doubt the law abiding nature of people who possess vast
Doc. 264, p. 4.
quantities of essentially military weapons.11 In addition to the substantial danger of
unfair prejudice, a full airing of the facts surrounding the possession of firearms by
Avery, Hopper, and Kane, and the relationships between them with respect to firearms
risks undue delay in the trial, confusion of the issues, and misleading the jury. In this
instance those risks do substantially outweigh the probative value of the evidence. The
evidence is properly excluded under Rule 403.
Before leaving the weapons evidence issue, a comment on the reach of the
court’s decision is appropriate. Obviously, this order does not vitiate the earlier ruling
that the United States may present evidence that Mark Avery possessed registered
machine guns. What is a little less obvious, and so bears emphasis, is that this order
does not foreclose any testimony the government may be able to offer which shows
that Kane was aware of the fact that the machine guns Avery possessed were, or were
required to be, registered.
Finally, the court will address Kane’s comment that he has “more money than
god.” It appears that this is just one phrase used in a longer recorded conversation.
Kane spends little ink on explaining why this comment should be excluded, and the
United States does not directly address it in its response. Taken in isolation, the
statement appears neither probative (Kane’s wealth is not an issue), nor unfairly
prejudicial (that Kane thought of himself as wealthy is not intuitively likely to prejudice
jurors in our materialistic society). Without knowing the context of the remark and how it
fits into the overall conversation, it is not possible to assess whether the comment
should be excluded under Rule 403. If evidence which includes the comment will be
presented at trial, counsel for plaintiff shall alert the court at a break in the proceedings
and outside the presence of the jury that such evidence is soon to be offered, and the
court will consider any objection defendants may have at that time outside the jury’s
See the description of weapons in the United States’ trial brief. Doc. 216, p. 28
For the reasons given above, the motion at docket 208 is DENIED, the motion at
docket 209 is GRANTED and the motions at dockets 225 and 241 are GRANTED in
part and DENIED in part as explained in the text.
DATED this 14th day of May 2006 at Anchorage, Alaska.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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