Case 2:16-cr-00046-GMN-PAL Document 1436 Filed 01/27/17 Page 1 of 7

1 JESS R. MARCHESE, ESQ.

Nevada Bar No. 8175
2 MARCHESE LAW OFFICES
3 601 S. Las Vegas Blvd.
Las Vegas, NV 89101
4 (702) 385-5377 Fax (702) 474-4210
marcheselaw@msn.com
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Attorney for Defendant ERIC PARKER
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UNITED STATES DISTRICT COURT
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9 DISTRICT OF NEVADA
10 THE UNITED STATES OF AMERICA,
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Case No.: 2:16-cr046-GMN-PAL
12 Plaintiff,
13 DEFENDANTS MOTION IN LIMINE TO
-vs- PRECLUDE INTRODUCTION OF
14 PHOTOGRAPHS DEPICTING DEFENDANTS
ERIC J. PARKER. ET. AL., PRONE WITH WEAPONS
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Defendant.
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DEFENDANTS MOTION IN LIMINE
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19 COMES NOW the defendant, ERIC PARKER, by and through his attorney of record, JESS
20 R. MARCHESE, ESQ., and STEVEN STEWART, by and through his attorney of record,
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RICHARD TANASI, ESQ., O. SCOTT DREXLER, by and through his attorney of record, TODD
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23 LEVANTHAL, ESQ., hereby file this motion in limine to preclude all photographs of Defendants

24 prone with weapons.

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DATED this 27TH day of January, 2017.
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/S/ _____________
27 JESS R. MARCHESE, ESQ.
28 Nevada Bar No. 8175
Attorney for Defendant PARKER
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 Case 2:16-cr-00046-GMN-PAL Document 1436 Filed 01/27/17 Page 2 of 7

1 STATEMENT OF FACTS
2 Defendants Eric Parker, O. Scott Drexler, and Steven Stewart are the subjects of a 16 count
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indictment in which they are named in eleven of the counts. The case derives from a standoff between
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5 a group of protestors and the Bureau of Land Management (BLM) in Bunkerville, Nevada on April

6 12, 2014.
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The trio are residents of the state of Idaho. On April 11, 2014, the three men drove down from
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their home state in Mr. Parkers truck to protest actions by the government that they viewed as
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10 offensive such as setting up First Amendment zones, beating up women and using excessive force
11 against civilian protestors.
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The trios involvement was rather basic. They were in Bunkerville, Nevada for a period of less
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14 than twenty-four hours where they camped overnight and travelled to the northbound bridge on the I-

15 15 interstate above the Toquop Wash in reaction to hearing that the people in the wash needed help.
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They went in a random, unknown truck (the owner was later learned to be co-defendant Ricky
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Lovelein) from the campground to the northbound bridge at around 11:30AM on April 12, 2014. This
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19 bridge is situated above a wash/basin where the standoff took place and is 100 yards or so east of a

20 second bridge and directly above where most of the standoff took place (See exhibits). Directly under
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this bridge was where the BLM erected a gate that separated them from the protestors. The greater
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majority of the federal agents were 20 yards or more behind this gate.
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24 During the point when the parties were waiting for the cattle to be released, tensions increased
25 due to the BLM not releasing the cattle and the wash protestors attempting to move forward towards a
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gate the BLM had erected under the southbound bridge. At this juncture, Eric was still on the bridge
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28 with Stewart and Drexler. As the protestors moved towards the BLM agents, Eric believed that he

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 Case 2:16-cr-00046-GMN-PAL Document 1436 Filed 01/27/17 Page 3 of 7

1 heard that the BLM were authorized to use gas and lethal force should the crowd continue to
2 converge. While this was transpiring, a stranger handed Eric binoculars and pointed out snipers that
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were on a ridge in the distance.
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5 At this point, Eric laid down on his stomach between two jersey barriers holding his

6 Rifle between a 1.5 inch gap in the general direction of the southbound bridge approximately 100
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yards away. Mr. Drexler also took a similar position about 20 yards to the right of Mr. Parker. Mr.
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Stewart, although armed, did not aim his weapon or go prone at any time and is alleged to have been a
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10 lookout or spotter for Parker and/or Drexler. Ordinary citizens captured photos of Parker and Drexler
11 and published the photos which went viral and can still be readily found on the internet.
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While Eric and Scott were in laying down behind the jersey barriers the BLM agents were
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14 unable to see the two from their various vantage point as none of the alleged victims were to the side

15 or behind the two. It wasnt until the photographs of the two men in the prone position went viral, that
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any of the federal agencies realized the positions that Eric and Scott were in. Likewise, federal law
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enforcement did not specifically identify Mr. Stewart until the same pictures went viral.
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19 Based on the discovery and the governments exhibit list, it is believed the government intends

20 to offer pictures of Parker and Drexler in a prone position, along with Stewart standing, on the
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northbound I-15 bridge pointing their firearms. This motion follows.
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ARGUMENT
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24 Mr. Drexler, Mr. Parker and Mr. Stewart seek to prevent the United States from entering
25 any photographs depicting them aiming their rifles at any persons and because none of these persons
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(and consequently, none of the witnesses) were aware of the defendants doing so. If one is unaware of
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1 being in a position of harm, that person cannot be the victim of assault, threats, obstruction, extortion,
2 impeding or the alleged brandishing of a firearm in furtherance thereof.
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The situation wherein a defendant was charged with assault and the victim was
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5 unaware of the assault was addressed by the 9th circuit in United States v Acosta- Sierra 690 F. 3d

6 1111. In that case, the defendant threw a rock at a United States border patrol agent. The agent was
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unaware that the defendant threw the rock at him until he heard it hit a gate. Despite the lack of
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awareness of the part of the officer that the rock was thrown towards him, the defendant was charged
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10 with assault on the officer.
11 The Court summarized its general perspective on assault with the following:
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In contrast, for a criminal assault based on causing the apprehension of
13 imminent bodily injury, the common law requires awareness of the threat. See
14 generally LaFave, 2 Substantive Criminal Law 16.3(b), at 569 (It is not enough, of
course, to intend to scare the other without succeeding; if the other fails to notice the
15 threatened battery, the threatener, not having succeeded in his plan, cannot be held
guilty of assault.); Prosser & Keeton, Torts 10 at 44 (Since the interest involved is
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the mental one of apprehension of contact, it should follow that the plaintiff must be
17 aware of the threat of contact, and that it is not an assault to aim a gun at one who is
unaware of it Restatement Second of Torts 26 cmt. A (1965)(The gist of the liability
18 is the other's knowledge that the actor is attempting to commit a battery upon him.);
19 see, e.g., State v. Barry, 45 Mont. 598, 124 P. 775, 777 (1912) (finding no assault
where the defendant leveled a rifle at a prosecutor who did not see the defendant until
20 after the defendant had been rendered harmless, because it would seem impossible for
21 any reasonable man in [the prosecutor's] position to affirm that he was then in fear for
his safety.
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In this matter, the jury instruction submitted by the United States describes assault
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24 as follows: a reasonable apprehension of immediate bodily harm is determined with reference to a
25 reasonable person aware of the circumstances known to the victim, not with reference to all
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circumstances, including circumstances unknown to the victim.
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1 Awareness or knowledge is required on the part of the victim for assault to be applicable:1 the
2 victim must have been aware that he/she was in a position of harm. Because none of alleged victims
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identified by the United States were aware of the positioning, posturing, or placement of the three
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5 defendants indicated in the pictures attached to this motion; there could not have been an assault

6 committed by the defendants. Quite simply the defendants did not commit assault according to the
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elements of that crime as identified in the jury instruction filed by the United States. Any photographs
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identifying the defendants pointing rifles or aiming rifles from a prone position are consequently
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10 irrelevant for the purpose of establishing assault because nobody could have been aware of it.
11 Therefore the victims could not, by definition, have been in reasonable apprehension of fear.
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Admitting the photographs will not just be erroneous, however: admitting them will also be
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14 prejudicial.

15 2. Admitting the photographs will be more prejudicial than probative

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Federal Rule of Evidence 403 states that the court may exclude relevant evidence if its
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probative value is substantially outweighed by a danger of one or more of the following: unfair
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19 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

20 presenting cumulative evidence. Here, any of the attached photographs identifying the defendants
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pointing their weapons (or even simply brandishing their weapons) will be unfairly prejudicial
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because these photographs are irrelevant. More specifically and pedantically: because the elements of
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24 assault, for example, (as defined by the United States in it jury instruction) are not fulfilled by the
25 activities of the defendants; and because the United States cannot legitimately rely on the photographs
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to establish assault, there is no reason for the United States to seek admission of these photographs.
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By logical extention, this authority applies to all alleged counts.
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1 The only potential purpose the government might have is to provoke the jury into fearing the
2 defendants or to attempt to impress upon the jury that the defendants are militant and potentially
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violent persons. This is an improper and impermissible use of these photographs.
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5 In fact, admitting these photographs will confuse the jury and unduly prejudice the defendants

6 in defiance of the articulated restrictions specifically identified in FRE 403. Admitting the
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photographs will result in exposing the defendants to unnecessary and prejudicial inferences on the
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part of the jury, e.g. that the defendants are guilty of a crime that could not legally commit based upon
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10 the facts of the case. Regardless of the type or nature of the inference that the jury makes or might
11 make, the opportunity to provoke such an inference on the part of the United States in unfair and
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prejudicial.
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15 CONCLUSION
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The photographs attached are irrelevant for the purpose of establishing the crimes for which
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the defendants are charged by the United States. Consequently, those photographs should not be
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19 admitted because they can only accomplish unfair and prejudicial effects on the defendants.

20 DATED this 27th day of January, 2017.

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__/s/___________
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JESS R. MARCHESE, ESQ.
24 Nevada Bar No. 8175
Attorney for Defendant PARKER
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1 CERTIFICATE OF SERVICE
2 I HEREBY CERTIFY that on the 27th day of January, 2017 the undersigned served the
3 foregoing DEFENDANTS MOTION IN LIMINE TO PRECLUDE INTRODUCTION OF
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PHOTOGRAPHS DEPICTING DEFENDANTS PRONE WITH WEAPONS on all counsel of
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6 record herein by causing a true copy thereof to be filed with the Clerk of Court using the CM/ECF

7 system, which was served via electronic transmission by the Clerk of Court pursuant to local order.
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10 /s/ ______________________________
Employee of Marchese Law Offices
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