FILED
NOT FOR PUBLICATION MAR 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30167
Plaintiff - Appellant, D.C. No. 2:09-cr-00088-FVS-1
v.
MEMORANDUM *
KARL F. THOMPSON, Jr.,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted February 7, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
We consider the government’s interlocutory appeal of the district court’s
pretrial exclusion of evidence. We have jurisdiction under 18 U.S.C. § 3731, and
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review a district court’s pretrial exclusion of evidence for abuse of
discretion. United States v. Bonds, 608 F.3d 495, 498 (9th Cir. 2010). “[P]retrial
in limine evidentiary rulings are to be accorded the same deference on appeal as
rulings made during trial.” United States v. Layton, 767 F.2d 549, 555 (9th Cir.
1985). We do not reverse an evidentiary ruling under an abuse of discretion
standard unless we are “‘convinced firmly that the reviewed decision lies beyond
the pale of reasonable justification under the circumstances.’” Boyd v. City and
Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009) (quoting Harman v.
Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000)).
Here, the district court properly concluded that evidence of Otto Zehm’s
innocent conduct was relevant under Boyd, 576 F.3d at 944 (“[W]here what the
officer perceived just prior to the use of force is in dispute, evidence that may
support one version of events over another is relevant and admissible.”). The
district court, however, exercised its discretion under Fed. R. Evid. 403 to exclude
this evidence because the potential for prejudice to Officer Thompson substantially
outweighed the probative value of the evidence. In so ruling, the court noted the
sympathetic nature of this evidence and expressed concern that a limiting
instruction would not be effective in keeping the jury focused on the elements of
the alleged offense. Although the district court’s reasoning for its Rule 403 ruling
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gives us pause, we cannot say that it is “illogical, implausible, or without support
in inferences that may be drawn from the record.” See United States v. Hinkson,
585 F.3d 1247, 1263 (9th Cir. 2009) (en banc) (adopting an abuse of discretion test
for denial of motions for a new trial). Indeed, “[t]he record reflects that the court
conscientiously weighed the probative value against the prejudicial effect for each
piece of evidence, which is a showing sufficient for affirmance.” Boyd, 576 F.3d
at 949.
In affirming the district court’s ruling, we are mindful of the government’s
representation at oral argument that the excluded evidence is not essential to its
ability to prove its case beyond a reasonable doubt. Further, we take note of the
district court’s statement that, if warranted by the evidence at trial, it would
reconsider its ruling. The court’s willingness to revisit the issue is significant
because the court issued its ruling pretrial, without the benefit of the witnesses’
actual testimony.
AFFIRMED
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