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ORDER GRANTING IN PART AND

DENYING IN PART BINDER’S MOTIONS

IN LIMINE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, 

Plaintiff,

v.

RICHARD ALLEN FABEL, 

RODNEY ROLLNESS, 

JOSHUA BINDER, and 

RICKY JENKS, and

PAUL FOSTER.

Defendants.

Case No. CR06-041L

ORDER GRANTING IN PART AND

DENYING IN PART BINDER’S

MOTIONS IN LIMINE

I. INTRODUCTION

This matter comes before the Court on defendant Binder’s “Motions in Limine” (Dkt.

#414). Binder seeks an order precluding the Government from introducing evidence related to a

number of acts committed by himself, Rollness and the enterprise. Binder’s arguments for

exclusion are based on Federal Rules of Evidence 403 and 404(b). For the reasons discussed

below, Binder’s motion is granted in part and denied in part.

II. DISCUSSION

In order to prove the RICO charges in this case, the Government must prove, beyond a

reasonable doubt, the existence of an enterprise. To meet this burden, the Government may

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ORDER GRANTING IN PART AND

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present evidence of the “structure, common purpose, and continuity of the charged enterprise.” 

United States v. Salerno, 108 F.3d 730, 739 (7th Cir. 1997). Evidence to establish the existence

and nature of the enterprise is not barred by Rule 404(b)’s prohibition of “other crimes”

evidence. Id.

Even if evidence is not barred by Rule 404(b), it still must still pass muster under Rule

403. Federal Rule of Evidence 403 states that otherwise relevant evidence “may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” The Court has “discretion to admit evidence that

sheds light on disputed issues of fact at trial if the court balances the probative value of such

evidence against its prejudicial effect.” United States v. Taylor, 239 F.3d 994, 999 (9th Cir.

2001).

A. Possession of Amphetamine 

The Government has indicated that it does not intend to introduce evidence of Binder’s

possession of amphetamine in April 2000. Defendant’s motion in limine to exclude such

evidence is granted.

B. Possession of a Firearm & Knife During Traffic Stop in 2000

Binder seeks to exclude evidence of his possession of a firearm and knife during a traffic

stop on September 9, 2000 (at which Jenks also was stopped) because it is inadmissible “bad

character” evidence under Federal Rule of Evidence 404(b). The Court disagrees. Courts

permit “the Government to use uncharged criminal acts in a RICO prosecution to prove the

nature of an enterprise and the defendant’s participation in it.” Salerno, 108 F.3d 730 at 739. 

Binder’s possession of a firearm and knife is relevant to establishing the nature of the enterprise

and Jenks and Binder’s participation in the enterprise. The prejudicial effect of the evidence is

outweighed by its probative value. Defendant’s motion in limine to exclude such evidence is

denied.

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ORDER GRANTING IN PART AND

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C. Burglary and Threats Against Neighbor

The Government has indicated that it does not intend to introduce evidence of Binder’s

burglary and threats against his neighbor in December 2005. Defendant’s motion in limine to

exclude such evidence is granted.

D. Arrest for Driving on Suspended License and Possession of Illegal Weapon in 2002

For reasons similar to those described in Section II(B), the Court denies Binder’s motion

in limine to exclude evidence of his possession of an illegal knife during a November 26, 2002

traffic stop. 

E. Extortion of T.C.

The Court takes a similar position on evidence related to Binder’s extortion of T.C. while

Binder was a member of the Hells Angels in 2002. Evidence of extortion attempts is relevant in

establishing the purposes and objectives of the enterprise, as well as Binder’s participation in the

enterprise. Defendant’s motion in limine to exclude such evidence is denied.

F. Assault of African-Americans with a Ball Peen Hammer

Binder seeks to exclude evidence of alleged assaults of African-Americans with a ball

peen hammer. Evidence related to Binder’s violent use of ball peen hammers is relevant to

counts 12 and 14 because it may help to establish M.K.’s knowledge of Binder’s prior violent

acts at the time he was allegedly assaulted. As the Ninth Circuit explained, “[i]n cases of

extortion based upon fear of violence the facts of fear, actual or anticipated, and of its

reasonableness, are vital factors.” Carbo v. United States, 314 F.2d 718, 740 (9th Cir. 1963).

The Court does not believe that this rationale extends to the inclusion of evidence related to the

race of the alleged victims of the assaults. The minimal probative value of such evidence is

outweighed by its substantial prejudicial effect. Defendant’s motion in limine to exclude such

evidence is therefore granted in part and denied in part.

G. Skinheads

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ORDER GRANTING IN PART AND

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For reasons similar to those described above, the Court grants defendant’s motion in

limine to exclude evidence related to Binder’s previous association with skinhead groups. Such

evidence is unduly prejudicial and of limited probative value.

H. Intimidation of Witness in 2000

Binder seeks to exclude evidence related to allegations that he intimidated a witness

during a King County assault trial in July 2003. Given the relevance of the allegations to the

Government’s effort to prove the nature of the enterprise and Binder’s participation in the

enterprise, Binder’s motion in limine to exclude evidence of witness intimidation is denied. 

That said, the question of how, and if, the Government will be able to prove the alleged

intimidation remains an open one.

I. Distribution of Methamphetamine to Pete Martin

The Court denies Binder’s motion in limine to exclude evidence of Binder’s distribution

of methamphetamine because it goes to prove the nature of the enterprise. The prejudicial

impact of the evidence does not outweigh its probative value.

J. Expert Testimony on “Filthy Few” Patch

Binder’s motion in limine to exclude expert testimony on the “Filthy Few” patch is

denied. The Court will consider this matter in connection with the defendants’ motion to

exclude expert testimony.

K. Lay Opinion Testimony on “Filthy Few” Patch

Binder’s motion to exclude lay opinion testimony related to the “Filthy Few” patch is

denied.

L. Drug Paraphernalia Found at Binder Residence 

The Government has indicated that it does not intend to introduce evidence of drug

paraphernalia at Binder’s residence. Defendant’s motion in limine to exclude such evidence is

granted.

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ORDER GRANTING IN PART AND

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M. Rollness Acts

Binder moves to exclude evidence related to a number of acts related to co-defendant

Rollness due to the danger of “spillover prejudice.” As is discussed in other orders by the Court,

including its January 30, 2007 Order Denying Motions to Sever (Dkt. #450), Binder’s concerns

of prejudice can be alleviated through proper limiting jury instructions. His motion in limine to

exclude such evidence is denied.

N. Enterprise Acts

1. The Killing of Tim Myers

Though the Court denies Binder’s motion in limine to exclude evidence related to the

murder of Tim Meyers, such evidence shall be presented consistent with the guidelines laid out

in the Court’s order on Fabel’s motions in limine. See Order Granting in Part and Denying in

Part Fabel’s Motions In Limine, p. 3.

2. Intimidation of Spokane County Prosecutor

Binder’s motion in limine to exclude evidence related to the intimidation of a Spokane

County prosecutor is granted for the same reasons described in the Court’s order on Fabel’s

motions in limine. See Id., pp. 3-4.

3. Fabel’s Solicitations to Kill George Wegers and Stacy Midkiff and to Burn

Down His Trailer

Binder’s motion in limine to exclude evidence related to Fabel’s alleged solicitations of

Hells Angels members to (1) kill George Wegers; (2) kill Stacy Midkiff; and (3) burn down his

trailer are denied. Such evidence is relevant to establishing the nature and organization of the

enterprise, including Fabel’s authority and position in the club.

4. Jenks’ Murder of Lonnie Taylor

The Court grants in part and denies in part Binder’s motion in limine to exclude evidence 

relating to the murder of Lonnie Taylor for the same reasons described in the Court’s order on

Jenks’ motions in limine. See Order Granting in Part and Denying in Part Jenks’ Motions in

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ORDER GRANTING IN PART AND

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Limine, pp. 4-5.

5. Magnesi Assaults in 2003 & 2005

The Court grants Binder’s motion in limine to exclude evidence related to the assaults

allegedly committed by Anthony Magnesi in January 2003 and August 2005.

6. Assault and Murder of Mongols in Laughlin

The Court grants Binder’s motion in limine to exclude evidence related to the assault and

murder of Mongols in Laughlin, Nevada.

III. CONCLUSION

For the foregoing reasons, defendant Binder’s motions in limine (Dkt. #414) are DENIED

IN PART and GRANTED IN PART.

 DATED this 16th day of February, 2007.

A

Robert S. Lasnik

United States District Judge

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