United States District Court, N.D. California
ORDER RE MOTIONS IN LIMINE
CHHABRIA United States District Judge
Motions in Limine
discussed below, the Court will, in an abundance of caution,
give Seltenrich one final opportunity to articulate the basis
for an insanity defense. (Dkt. No. 96.) In the event the
Court does not deviate from its prior ruling on this issue,
the motion to exclude information contained in his prison
medical file will be granted, with the understanding that
evidence of prior positive drug tests may be admitted if
Seltenrich opens the door.
motion to exclude evidence relating to Seltenrich's 2008
bank robbery is denied under Rule 404(b). (Dkt. No. 100.) The
identity of the robber is a key question in this case.
Evidence of similarities between the note that Seltenrich
handed the bank teller during his 2008 robbery, and the note
used in connection with the 2015 robbery, is probative of the
identity of the person who committed the 2015 robbery. The
evidence is sufficient to show that Seltenrich authored the
2008 note, because the note was recovered in connection with
a bank robbery that Seltenrich admitted to committing. The
2008 act is not too remote in time. United States v.
Smith, 282 F.3d 758, 769 (9th Cir. 2002). And the
language used in the 2008 note is sufficiently distinctive to
make it helpful in identifying the robber. See United
States v. Luna, 21 F.3d 874, 878-79 (9th Cir. 1994);
see, e.g., United States v. Johnson, 820
F.2d 1065, 1069-70 (9th Cir. 1987). While there is some risk
that the jury might use this evidence for propensity
purposes, the risk of unfair prejudice does not substantially
outweigh the probative value of the evidence. The Court will
give a limiting instruction to the jury on the proper use of
Regarding Seltenrich's motion to allow him to present an
insanity defense, the Court will, in an abundance of caution,
give him one more opportunity to attempt to articulate the
basis for the defense (and the basis for his request for CJA
funds). (Dkt. No. 101.)
Motions in Limine
motion to admit the note used in Seltenrich's 2008 bank
robbery, and evidence that he handed this note to the bank
teller, is granted for the reasons stated above with respect
to Seltenrich's second motion in limine.
motion to admit lay witness testimony regarding the identity
of the person in the bank surveillance video is granted. The
proffered witnesses appear to have sufficient familiarity
with the defendant's appearance at the time the robbery
in this case occurred to make their testimony helpful to the
jury. United States v. Beck, 418 F.3d 1008, 1015
(9th Cir. 2005).
motion to admit facts regarding Seltenrich's supervised
release and the reentry center is granted. This evidence is
not substantially more prejudicial than probative, because
these facts are relevant to establishing the identity of the
robber and to provide the context of the crime to the jury.
to the government's fourth motion in limine, Seltenrich
will not be prohibited from referring to himself in the first
person during opening statement, closing argument, and
examinations. But the jury will be instructed that his
statements, arguments, and questions are not evidence.
Seltenrich will be expected to comply with procedural and
substantive rules of court, and is subject to the same good
faith limitations imposed on lawyers. If Seltenrich does not
make a good faith effort to comply with these rules, his
right to represent himself will be revoked.
motion to preclude the defendant from making references to
his sentence, punishment, or jury nullification is granted.
the defendant testifies, he will be required to testify in a
question-and-answer format, with his advisory counsel asking
the questions. Seltenrich may provide advisory counsel with a
list of questions in advance of his testimony.
the defendant testifies, and assuming he contests the
identity of the robber, his 2008 bank robbery conviction will
be admissible to impeach his credibility under Rule
609(a)(1)(B). If the defendant contests the identity of the
robber, his credibility will be central to the case. Although
a risk of prejudice arises from the similarity of his 2008
conviction to the charged offense, the probative value of the
conviction for assessing Seltenrich's credibility
outweighs the prejudicial effect. See United States v.
Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995).
1985 bank robbery conviction will not be admitted, however,
because it is too remote in time. In any event, admitting the
2008 conviction makes the ...