USA v. Wilmer et al

Filing 87

ORDER Reserving Ruling on 84 Amended Motion For Admission of Oversize Exhibit by Judge Christine M. Arguello on 3/22/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-02244-CMA-MJW
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD WILMER, and
ROCK WEISS,
Defendants.

ORDER RESERVING RULING ON DEFENDANT’S AMENDED MOTION FOR
ADMISSION OF OVERSIZE EXHIBIT

This matter is before the Court on Defendant Rock Weiss’s Amended Motion For
Admission of Oversize Exhibit. (Doc. # 84.) In his motion, Defendant seeks to have
admitted into evidence a video recording of a demonstration, to be conducted in the
presence of Plaintiff and Plaintiff’s expert, purporting to show that the hazardous
materials at issue in this case were useful products at the time of their transfer to former
co-Defendant Richard Wilmer. (Id.) In response, Plaintiff argues that there is no
evidence that the materials to be used in Weiss’s demonstration are comparable (i.e., the
same type, age, and condition) to the chemicals at issue in this case. (Doc. # 85.)
Thus, Plaintiff argues that this demonstration is irrelevant to whether the hazardous
materials transferred to Wilmer were useful materials or waste and is, therefore, likely to

confuse the issues before the Court. (Id.) In addition, Plaintiff argues that this
demonstration is “highly prejudicial.” (Id.)
At trial, Defendant is expected to provide testimony that the chemicals in his
proposed demonstration are comparable to those contained in the trailer. At such time,
Plaintiff will have the opportunity to question Weiss about the nature of the chemicals and
to present evidence challenging the claim that the chemicals are comparable. Indeed,
Plaintiff intends to have its own expert witness present during Weiss’s demonstration for
this very purpose. (Doc. # 82 at 2.) Because the issue of whether the chemicals at
issue were useful or waste is material to the disposition of this case, the Court may allow
Defendant to admit the video demonstration into evidence after judging his credibility and
weighing any countervailing arguments and evidence presented by Plaintiff.
The Court is cognizant of Plaintiff’s concerns regarding unfair prejudice and
confusion; however in the context of a bench trial, the need to exclude evidence for these
reasons is greatly lessened. See United States v. Kienlen, 349 F. App'x 349, 351 (10th
Cir. 2009)(unpublished) (“For a bench trial, we are confident that the district court can
hear relevant evidence, weigh its probative value and reject any improper
inferences”)(citing Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.
1981)).
For these reasons, the Court reserves ruling on Defendant’s demonstrative
exhibit, subject to Weiss laying a proper foundation and establishing its authenticity
through testimony at trial.
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Accordingly, it is ORDERED that the Court RESERVES RULING on Defendant’s
Amended Motion For Admission of Oversize Exhibit (Doc. # 84).
DATED: March

22

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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