United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2396

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Tony Hulstein, *

* [UNPUBLISHED]

Appellee. *

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Submitted: April 14, 2011

Filed: August 8, 2011

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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

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PER CURIAM.

Tony Hulstein wasindicted on one count of dealing firearms without a license,

in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) and four counts

of interstate travel to deal in firearms without a license, in violation of 18 U.S.C. §

924(n). Prior to trial, the Government submitted its exhibit list, which included 460

separate exhibits(Exhibits 1-461) that purportedly documented Hulstein’s extensive

dealings in firearms. Also in its exhibit list, the Government included a summary

exhibit (Exhibit 464) thatsummarized much of the information contained in Exhibits
1-461. Following two pretrial conferences, the district court entered an order

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excluding Exhibits 1-461 as needlessly cumulative in light of the fact that the

Government planned to introduce Exhibit 464 at trial. The Government appeals, and

we exercise our jurisdiction over the interlocutory appeal under 18 U.S.C. § 3731.

See United States v. Johnson, 228 F.3d 920, 923-24 (8th Cir. 2000).

As an initial matter, we must clarify the scope of the district court’s order. 

Although the Government argues that the district court’s order prohibits it from

presenting Exhibits 1-461 at trial, the order does not sweep this broadly. Rather, we

read the court’s order to exclude Exhibits 1-461 only if Exhibit 464 is also admitted

into evidence, in which case Exhibits 1-461 would likely be cumulative and of little

help to the jury. In the event that Exhibits 1-461 become material to an issue at trial,

however, the district court’s order would not prohibit their admission. For example, 2

the order states that if Hulstein objects to the admission of Exhibit 464 “on

foundation grounds or otherwise,” the district court “could allow all of the exhibits

summarized in Exhibit 464 if appropriate under the circumstances.” This conditional

language demonstrates that the district court’s order is not as absolute as the

Government believes. The district court simply gave no indication that it would

continue to exclude Exhibits 1-461 as cumulative should the Government choose not

to submit Exhibit 464 or should Exhibit 464 not be admitted. Were the court to do

so, the Supreme Court’s admonition that the Government be allowed “to prove its

case by evidence of its own choice” would likely be implicated. Old Chief v. United

States, 519 U.S. 172, 187-89 (1997). But we refuse to infer that the district court has

The Honorable Donald E. O’Brien, United States District Judge for the

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Northern District of Iowa.

Virtually any evidentiary ruling made by a district court in response to a

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motion in limine is subject to possible change depending on what actually happens

at trial. Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000).

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taken such an unusual and drastic step in the absence of any express indication that

it has done so. 

Reading the district court’s order in this manner, the court did not abuse its

discretion, United States v. Boesen, 541 F.3d 838, 848 (8th Cir. 2008) (standard of

review), in excluding Exhibits 1-461, see Fed. R. Evid. 403 (“Although relevant,

evidence may be excluded if its probative value is substantially outweighed . . . by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.”). The Government’s proffered reason for seeking admission for Exhibits

1-461 is that they provide detail about “the devotion of time, attention, and labor

[Hulstein] expended to the repetitive purchase and resale of firearms.” (Appellant’s

Br. 11.) But Exhibit 464 also provides significant detail regarding the transactions

documented in Exhibits 1-461, such as the date each weapon was purchased or sold;

the name, caliber, and model number of each weapon sold; the amount paid for each

weapon; and additional explanatory notes relating to each transaction. In light of the

depth of information contained in Exhibit 464, the district court did not abuse its

discretion in tentatively prohibiting the Government from presenting Exhibits 1-461

in addition to Exhibit 464.

Moreover, we note that although Rule 1006 of the Federal Rules of Evidence

specifically allows for the admission of summaries similar to Exhibit 464, we have

previously stated that this rule “appears to contemplate . . . that a summary will be

admitted instead of, not in addition to, the documents that it summarizes.” United

States v. Grajales-Montoya, 117 F.3d 356, 361 (8th Cir. 1997). We need not base our

decision on this principle, however, because we easily conclude that the district court

did not abuse its discretion in excluding Exhibits 1-461 as cumulative. If the

Government believes that Exhibits 1-461 are truly invaluable to its case, it remains

free to submit these exhibits in lieu of Exhibit 464. What it may not do, however,

under the district court’s order, is submit Exhibits 1-461 in addition to the summary

contained in Exhibit 464.

Accordingly, we affirm the order of the district court.

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