United States District Court, D. Maine
ORDER ON MOTION IN LIMINE REGARDING PRIOR POSSESSION
AND USE OF .30-30 RIFLE
A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE
Lemieux stands charged of possession of a firearm by a
prohibited person between December 14, 2016 and December 20,
2016. The Government moves in limine seeking to admit
evidence that Mr. Lemieux possessed a firearm at times
outside the time period charged in the indictment. The Court
denies the motion based on Rule 403.
Lemieux is charged in a two-count indictment alleging the
unlawful possession of seven firearms and 784 rounds of
ammunition between on about December 14, 2016 and on about
December 20, 2016. Indictment (ECF No. 2). Among the
firearms found at Mr. Lemieux's residence during a search
on December 14, 2016 was a .30-30 rifle. Gov't's
Mot. in Lim. to Admit Evid. that the Def. Possessed and Used
the .30-30 Rifle Prior to December 14, 2016 at 1 (ECF
No. 45) (Gov't's Mot.). In 2013, 2014, and
2016, Mr. Lemieux obtained licenses from the state of Maine
to harvest deer with a firearm, specifically a .30-30 rifle.
Id. Attach. 1 Deer Tagging Records. In
addition, Mr. Lemieux's business website has a number of
photographs under the heading “These are few [sic]
photos of me deer hunting on horseback on my property in
Fairfield, Maine.” Gov't's Mot. at
1-2; id. Attach. 2 Webpage and Photographs from
Mainehorsedrawnservices.com. The page also has a link to
a video, taken at the same time as some of the photographs,
showing Mr. Lemieux firing what appears to be a .30-30 rifle
and then dragging an antlerless deer from the woods with a
black horse. Gov't's Mot. at 2; id.
Attach. 3 Screenshot of Video. Mr. Lemieux reported
the harvest of a doe in 2016. Gov't's Mot.
Government seeks to admit the deer tagging records from 2013,
2014, and 2016 in which Mr. Lemieux admits to use of a .30-30
rifle, the photographs of Mr. Lemieux engaging in this or
similar activity that were found in his home and posted on
his business website, and the video of Mr. Lemieux firing a
.30-30 rifle. Gov't's Mot. at 1. The
Government argues that this evidence is direct evidence of
guilt, or, if the rifle is not the same .30-30 rifle
recovered from Mr. Lemieux's residence, is admissible for
a proper purpose under Federal Rule of Evidence 404(b).
Id. at 2-7. In response, Mr. Lemieux states that he
does not dispute possession on the dates alleged in the
indictment, but he objects to the admission of such prior
possession evidence under Federal Rules of Evidence 404(b)
and 403 as cumulative and marginally relevant. Def.'s
Resp. to Gov't's Mot. in Lim. Re: Fed.R.Evid. 404(b)
Evid. (ECF No. 52) (Def.'s Opp'n).
is relevant if it has “any tendency to make a fact more
or less probable than it would be without the evidence”
and “the fact is of consequence in determining the
action.” Fed.R.Evid. 401. Relevant evidence is
generally admissible, unless an exclusion applies.
Fed.R.Evid. 402. One such exclusion is for evidence of a
prior bad act when such evidence is introduced for the sole
purpose of proving a defendant had a propensity to commit a
crime. Fed.R.Evid. 404(b)(1); see also United States v.
Doe, 741 F.3d 217, 229 (1st Cir. 2013). Evidence of
prior bad acts may be admissible if it has special relevance
apart from showing propensity to commit a crime. Fed.R.Evid.
404(b)(2); Doe, 741 F.3d at 229. However, even
relevant evidence may be excluded “if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
Court assumes for purposes of this order that evidence of the
possession and use of a .30-30 rifle outside the dates
alleged in the indictment could be admissible as either
direct evidence or for a proper purpose under Rule 404(b).
United States v. Ford, 839 F.3d 94, 109 (1st Cir.
2016) (describing the “two-part test” in
evaluating admissibility under Rule 404); Doe, 741
F.3d at 229. This conclusion, however, does not end the
discussion. The Court must still determine whether the
“probative value is substantially outweighed by the
danger of unfair prejudice.” Ford, 893 F.3d at
the Court determines that the probative value of such
evidence would be substantially outweighed by the danger of
unfair prejudice under Rule 403. First, in his response, Mr.
Lemieux admits he possessed the firearms on the dates alleged
in the indictment, which reduces the probative value of the
prior possession evidence. See Def.'s Opp'n
at 1; Ford, 839 F.3d at 109. Second, it is not
entirely clear whether the .30-30 rifle in the deer tagging
records, photographs, and video is the same .30-30 rifle
charged in the indictment, and some of the evidence, in
particular two of the deer tagging records, are dated two or
three years before the dates charged in the indictment,
further reducing the probative value of such evidence. Third,
the Government already plans to introduce substantial
evidence of Mr. Lemieux's possession of the .30-30 rifle,
including Mr. Lemieux's own statements of possession,
photographs of the .30-30 rifle at Mr. Lemieux's
residence at the time of the search and seizure, an ATF
Seized Asset Claim Form submitted by Mr. Lemieux, and the
.30-30 rifle itself, which was taken from Mr. Lemieux's
residence during the search on December 14, 2016.
Gov't's Second Am. Trial Ex. List (ECF No.
49). Given the Government's breadth of possession
evidence for the dates charged in the indictment and Mr.
Lemieux's apparent decision not to contest possession
during that period, any additional evidence of prior
possession is needlessly cumulative. Fourth, the potential
prejudice of the evidence includes obligating Mr. Lemieux not
only to defend his actions based on the dates charged in the
indictment but also to respond to events that precede the
dates in the indictment; the risk being that the jury will
view the Rule 404(b) evidence as evidence of propensity or
character, despite the Court's instruction to the
contrary, and, as the evidence includes the killing and
hauling of a doe, the infusion of pro- and anti-hunting
elements into the case. Ford, 839 F.3d at 110
(“[I]n view of the negligible probative value of the
evidence, it is not clear the district court's limiting
instructions were sufficient to curb its prejudicial
ruling assumes that Mr. Lemieux maintains his current posture
of not contesting possession of a firearm during the dates
alleged in the indictment. If he changes tactics or takes the
stand and denies possession, the Court may be required to
revisit this ruling.
the Court DENIES the Government's Motion in Limine to
Admit Evidence That the Defendant Possessed and Used the