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United States v. Wollweber

United States District Court, D. New Mexico

July 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL WOLLWEBER, Defendant.

          MEMORANDUM OPINION AND ORDER

          JUDITH C. HERRERA UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the United States' Motion in Limine for Pre-Trial Determination of Indian Country Land Status [ECF No. 54]; the United States' Motion in Limine for Order of Pretrial Ruling of Admissibility [ECF No. 61]; and Defendant's Notice to Court of Joinder and or Withdrawal of Enumerated Motions Pursuant to the Court's April 9, 2019 Order (Doc. #152) (“Notice”) [ECF No. 158].

         I. EVIDENTIARY STANDARDS

         i. Rules 401 and 402

          Fed.R.Evid. 401 provides that evidence 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(a) and (b). “Irrelevant evidence is not admissible.” Fed.R.Evid. 402.

         ii. Rule 403

         Fed. R. Evid. 403 also permits a court to exclude relevant evidence “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.

         iii. Rules 801, 802 and 803

         Fed. R. Evid. 802 excludes statements that “(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Excepted from the rule against hearsay is “a record of an act, event, condition, opinion, or diagnosis if:”

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a ...

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