IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Civil Action No. 11-cv-02244-CMA-MJW

UNITED STATES OF AMERICA,

Plaintiff,

v.

RICHARD WILMER, and 

ROCK WEISS,

Defendants.

ORDER RESERVING RULING ON DEFENDANT’S AMENDED MOTION FOR 

ADMISSION OF OVERSIZE EXHIBIT

This matter is before the Court on Defendant Rock Weiss’s Amended Motion For 

Admission of Oversize Exhibit. (Doc. # 84.) In his motion, Defendant seeks to have

admitted into evidence a video recording of a demonstration, to be conducted in the 

presence of Plaintiff and Plaintiff’s expert, purporting to show that the hazardous 

materials at issue in this case were useful products at the time of their transfer to former 

co-Defendant Richard Wilmer. (Id.) In response, Plaintiff argues that there is no 

evidence that the materials to be used in Weiss’s demonstration are comparable (i.e., the 

same type, age, and condition) to the chemicals at issue in this case. (Doc. # 85.) 

Thus, Plaintiff argues that this demonstration is irrelevant to whether the hazardous 

materials transferred to Wilmer were useful materials or waste and is, therefore, likely to 

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confuse the issues before the Court. (Id.) In addition, Plaintiff argues that this 

demonstration is “highly prejudicial.” (Id.) 

At trial, Defendant is expected to provide testimony that the chemicals in his 

proposed demonstration are comparable to those contained in the trailer. At such time, 

Plaintiff will have the opportunity to question Weiss about the nature of the chemicals and 

to present evidence challenging the claim that the chemicals are comparable. Indeed, 

Plaintiff intends to have its own expert witness present during Weiss’s demonstration for 

this very purpose. (Doc. # 82 at 2.) Because the issue of whether the chemicals at 

issue were useful or waste is material to the disposition of this case, the Court may allow 

Defendant to admit the video demonstration into evidence after judging his credibility and 

weighing any countervailing arguments and evidence presented by Plaintiff. 

The Court is cognizant of Plaintiff’s concerns regarding unfair prejudice and 

confusion; however in the context of a bench trial, the need to exclude evidence for these 

reasons is greatly lessened. See United States v. Kienlen, 349 F. App'x 349, 351 (10th 

Cir. 2009)(unpublished) (“For a bench trial, we are confident that the district court can 

hear relevant evidence, weigh its probative value and reject any improper 

inferences”)(citing Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.

1981)). 

For these reasons, the Court reserves ruling on Defendant’s demonstrative 

exhibit, subject to Weiss laying a proper foundation and establishing its authenticity 

through testimony at trial. 

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 Accordingly, it is ORDERED that the Court RESERVES RULING on Defendant’s

Amended Motion For Admission of Oversize Exhibit (Doc. # 84). 

DATED: March 22 , 2013

BY THE COURT:

_______________________________

CHRISTINE M. ARGUELLO

United States District Judge

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