United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge
February 2016, defendant Robert Evans Mahler was indicted on
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). On December 7, 2017,
defendant filed a set of four pretrial motions: a motion in
limine (doc. 88), a motion for recusal (doc. 90), a motion to
suppress (doc. 93), and a motion to dismiss for outrageous
government conduct (doc. 95). The parties appeared for oral
argument on those motions on January 16, 2018; at that
hearing, I denied the motion for recusal and continued the
hearing on the remaining motions to March 12, 2018. Following
an evidentiary hearing and additional oral argument, I orally
denied defendants' motions to suppress and dismiss. I
will elaborate on the reasons for that denial in a subsequent
opinion and order. This opinion and order addresses only
defendant's motion in limine.
parties reached the following agreements with respect to the
issues raised in the motion in limine. With respect to
"Internet Search-Article that Defendant Went to
Prison" (Section II.A.1 of defendant's memo in
support of the motion), defendant stipulates to the admission
of this witness statement so long as the Court offers a
limiting instruction that it is not offered for the truth of
the content of the articles but instead for its effect on the
listener, Connie Daggett. With respect to "Defendant
Wanted To Retrieve Firearms Stored at Mrs. Daggett's
Residence" (Section II.A.2), defendant withdrew his
objection, With respect to evidence that defendant is a
veteran or has anti-government beliefs (Section II.A.3), the
government stated that it does not intend to introduce any
evidence regarding military service or defendant's
political beliefs. With respect to "Witness
Speculation" (Section II.A.4), defendant stipulates to
admission of the evidence so long as it is offered for the
purpose of explaining Mrs. Daggett's motivation. With
respect to "Mrs. Daggett's Further Hearsay"
(Section II.A.7), defendant withdrew his objection based on
the government's promise not to introduce evidence of the
content of Mrs. Daggett's conversations with her
sister-in-law or Special Agent Adam Sully through Mrs.
Daggett's testimony. With respect to "Mrs.
Daggett's Impression of Defendant's Jokes And
Unrelated Activities" (Section II.A. 10), defendant
withdrew his objection after the government stated that it
would not introduce the challenged evidence. With respect to
the portions of the testimony of Curtis Allen, Jr., regarding
arguments or threats between defendant and Mr. Allen (Section
II.A.l5), the government stated that it does not intend to
rely on that evidence unless defendant introduces it in order
to impeach Mr. Allen's credibility.
parties further agreed to reserve a number of evidentiary
disputes for trial; whether defendant renews those objections
will depend on whether the government is able to lay a proper
foundation. That agreement applies to the following
objections: "Speculation As To Type of Firearm"
(Section II.A.6), "Speculation by Mr. Daggett"
(Section II.A.8), "Shooting Competitively" (Section
II.A.9), "Chase's Cashier's Check and J&G
Sales Receipt" (Section H.A.I 1, discussing
Defendant's Exhibits 101 and 102), "Defendant's
Alleged Handwritten Notes" (Section II.A. 12, discussing
Defendant's Exhibit 103), "Shooting with Kyle"
(Section II.A. 13), "Statement of Special Agent Adam
Sully" (Section II.A. 14), and Mr. Allen's testimony
about gun transactions with defendant (Section II.A. 15).
parties were unable to resolve two of defendant's
objections and requested a ruling on each. First, defendant
objected to the government's plan to introduce evidence
that he owned a gun shop and was a member of the NRA (Section
II.A.3). The motion in limine is denied as to those pieces of
evidence. I will allow their introduction as it goes to
defendant's knowledge. However, I instructed the
government to keep evidence on those points limited.
defendant objected to Connie and William Daggett's
testimony that defendant agreed to pay a rental fee to store
guns and ammunition on their property, but never made payment
(Section II.A.5). Defendant objected to admission of that
testimony, citing Oregon's statute of frauds. The statute
(1) In the following cases the agreement is void unless it,
or some note or memorandum thereof, expressing the
consideration, is in writing and subscribed by the party to
be charged, or by the lawfully authorized agent of the party;
evidence, therefore, of the agreement shall not be received
other than the writing, or secondary evidence of its contents
in cases prescribed by law:
(a) An agreement that by its terms is not to be performed
within a year from the making.
(e) An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of any interest
Or. Rev. Stat. §§ 41.580(1). Defendant contended
that permitting the jury to hear testimony about the
existence of the oral argument violates the statute's
directive that "evidence . . . of the agreement shall
not be received other than the writing[.]" Id.
a creative argument, but I am not persuaded. When deciding
the meaning of an Oregon statute, courts begin with text
and context. Brunnozi v. Cable Comm 'ens, Inc.,
851 F.3d 990, 998 (9th Cir. 2017). A statute's context
"includes other provisions of the same statute and other
related statutes, " Portland Gen. Elec. v. Bureau of
Labor & Indus., 859 P.2d 1143, 1146 (Or. 1993),
superseded on in part other grounds by Or. Rev.
Stat. § 174, 020. Although Oregon's statute of
frauds is located in the chapter of Oregon law devoted to
evidence, it is not grouped with the provisions on judicial
evidence generally; instead, it is located with laws
addressing proof of contracts specifically. See Or.
Rev. Stat. § 41.560 (making a grant or assignment of any
existing trust void unless it is in writing); id.
§ 41, 570 (providing that a contract by telegraph is a
contract in writing). That suggests that the rule relates to
evidence in lawsuits to enforce agreements rather than to
legal actions generally, The text of the statute further
supports this reading: the use of the word
"therefore" ties the evidentiary rule to the
principle that the oral agreement is unenforceable. Finally,
it seems plain that the Oregon legislature did not intend the
statute of frauds to hamstring prosecutors by making evidence
of any "off the books" agreement inadmissible in a
criminal case if the agreement had a duration of longer than
motion to exclude evidence of the storage agreement is
denied. That evidence goes to defendant's knowledge. The
government is to keep evidence on the agreement limited and
targeted to proof of defendant's knowledge,
Defendant's Motion in Limine ...