United States v. Shirley (214 F. Supp. 3d 1124, 2016)

MEMORANDUM OPINION AND ORDER

James 0. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Maynard Shirley’s Objections to United States’ Exhibit List [Doc. 82], filed September 20, 2016 (Doc. 96)(“Exhibit Objections”); and (ii) Defendant Maynard Shirley’s Motion in Limine Regarding Possession of Knives and an Axe, filed September 26, 2016 (Doc. 116)(“Motion in Limine”). The Court held a hearing on September 29, 2016. The primary issues are (i) whether Plaintiff United States of America may introduce evidence of Defendant Maynard Shirley’s ownership and prior possession of certain knives; and (ii) whether the United States may introduce evidence of Maynard Shirley’s ownership and possession of an axe. The Court concludes that evidence of the knives is inadmissible, because the evidence’s probative value is substantially, outweighed by its risk of unfair prejudice — the United States concedes that the evidence does not include the actual knife that Maynard Shirley allegedly used in the stabbing. The Court holds that evidence of the axe, however, is admissible, because it does not pose the same risk — the United States contends that Maynard Shirley actually used the axe to destroy his white BMW. The Court will therefore sustain the Exhibit Objections in part and overrule them in part, and grant the Motion in Limine in part and deny it in part.

FACTUAL BACKGROUND

The Court takes its facts primarily from the Amended Criminal Complaint, filed March 25, 2015 (Doc. 4)(“Amended Complaint”). The Court also draws from the Transcript of Preliminary/Detention Hearing held on March 30, 2015, filed May 6, 2015 (Doc. 36) (“Preliminary Hearing Tr.”), and the United States’ Motion In Limine to Admit Evidence [sic] Res Ges-tae Evidence Not Charged in the Indictment Pursuant to Federal Rules of Evidence 401, 403, 404(B), filed August 29, 2016 (Doc. 77)(“Res Gestae Motion”). The Court relies on these factual accounts for background purposes only, as Maynard Shirley is presumed innocent until proven guilty at trial. This presumption of innocence, which is always important, is especially important here, as Maynard Shirley has asserted an alibi defense. See Defendant Maynard Shirley’s Notice of Alibi, filed June 14, 2016 (Doc. 72).

The Court’s discussion of the facts proceeds as follows. First, the Court will discuss the circumstances and witness accounts of the killing that occurred in the early morning of March 21, 2015. Second, the Court will discuss the search for Maynard Shirley and his two brothers in the aftermath of the killing. Third, the Court will discuss the circumstances of Maynard Shirley’s arrest on March 25, 2015.

1. Background.

Before the offense date of March 21, 2015, Maynard Shirley’s brother, Elijah Shirley, and Elijah’s girlfriend, Valerie Jim, had been in a relationship for ten years. See Amended Complaint ¶ 8, at 3-4. Because of relationship difficulties, however, V. Jim left E. Shirley about a week before the incident and began an intimate relationship with Brandon BlueEyes, with whom E. Shirley had been close friends for years. See Amended Complaint ¶¶ 7 and 8, at 3-4. V. Jim did not tell E. Shirley that she intended to move in with Brandon BlueEyes. See Amended Complaint ¶ 11, at 5. According to V. Jim’s mother, Cornelia Jim, V. Jim left E. Shirley “because he hit and choked her and [ ] she did not want to go back to him, as she was afraid of him.” Amended Complaint ¶ 11, at 5-6.

Early in the morning of March 21, 2015, E. Shirley sent multiple text messages to C. Jim inquiring about V. Jim’s location. See Amended Complaint ¶ 11, at 5. C. Jim initially ignored these messages, but at 1:43 a.m. she responded that V. Jim was living with Brandon BlueEyes in Fruit-land, New Mexico, within the exterior boundaries of the Navajo Nation Indian Reservation, and that E. Shirley “needed to leave Valerie alone and let her move on with her life .... ” Amended Complaint ¶ 11, at 5. E. Shirley told C. Jim that Brandon BlueEyes was his friend and that he was going to “kick [Brandon BlueEyes’] ass.” Amended Complaint ¶ 11, at 5.

2. The Homicide on March 21, 2015.

Within an hour of speaking with C. Jim, E. Shirley and his brothers Maynard Shirley and Michael Shirley — all enrolled members of the Navajo Nation, See Complaint ¶ 18, at 11-12 — drove to the BlueEyes’ trailer home in Fruitland. See Amended Complaint ¶ 2, at 1. Upon arriving, the brothers forcibly entered the home while the BlueEyes family and V. Jim slept. See Amended Complaint ¶ 8, at 3. The brothers proceeded directly to B.BlueEyes’ bedroom down the hall. See Amended Complaint ¶ 8, at 3. Upon hearing the noise and intrusion, Brandon BlueEyes stepped out of his bedroom and into the hallway, where the Shirley brothers immediately began stabbing him. See Amended Complaint ¶ 8, at 3. V. Jim followed and observed E. Shirley holding an unknown object in his hand, which he appeared to use to stab Brandon BlueEyes. See Amended Complaint ¶ 8, at 3.

Upon hearing the commotion, Brandon BlueEyes’ father, Perry BlueEyes, woke up and stepped into the hallway, where he saw E. Shirley and Brandon BlueEyes fighting in the living room. See Amended Complaint ¶ 10, at 4. As Perry BlueEyes proceeded down the hallway to assist his son, one of the Shirley brothers emerged and stabbed Perry BlueEyes with a banana-shaped knife. See Amended Complaint ¶ 10, at 4; Preliminary Hearing Tr. at 14:23-24 (Cahoon). See also Preliminary Hearing Tr. at 13:7-14 (Cahoon)(stating that Perry BlueEyes was “almost immediately ... attacked and stabbed multiple times.”). The stabbing persisted until V. Jim interceded and told the attacker to leave. See Amended Complaint ¶ 10, at 4. By that point, Perry BlueEyes was seriously injured and could not assist Brandon BlueEyes. See Amended Complaint ¶ 9, at 4.

Janet BlueEyes and Lakisha BlueEyes — Brandon BlueEyes’ mother and sister, respectively — were sleeping in a bedroom on the opposite side of the residence when the Shirley brothers broke in to the house on March 21, 2015. See Amended Complaint ¶ 12, at 6. When J. BlueEyes heard the commotion, she exited the bedroom and saw Maynard Shirley stabbing Brandon BlueEyes in the living room with a banana-shaped knife. See Amended Complaint ¶ 12, at 6; Preliminary Hearing Tr. at 15:24-25, 16:1 (Ca-hoon). As she approached, Maynard Shirley disengaged from stabbing Brandon BlueEyes and began threatening J. BlueEyes with the knife. See Amended Complaint ¶ 12, at 6. L. BlueEyes followed J. BlueEyes and observed Maynard Shirley threatening her mother with a banana-shaped knife. See Amended Complaint ¶ 13, at 7. When J. BlueEyes saw L. BlueEyes, she directed her to call 911. See Amended Complaint ¶ 13, at 7.

During the commotion, one of the Shirley brothers exited the trailer to retrieve a flare gun, returned, and shot at Perry BlueEyes between his legs as Perry BlueEyes lay on the floor. See Amended Complaint ¶ 12, at 6. The three Shirley brothers then left. See Amended Complaint ¶ 12, at 6. J. BlueEyes recalls that, in the subsequent confusion, V. Jim was on the ground, holding Brandon BlueEyes in her arms and crying, and repeatedly saying that “Maynard was the one who stabbed and killed [Brandon BlueEyes].” Amended Complaint ¶ 12, at 7.

At 2:44 a.m., 911 dispatchers received a call from L. BlueEyes advising that her brother, Brandon BlueEyes, and father, Perry BlueEyes, had been stabbed in their trailer home. See Amended Complaint ¶ 2, at 1. L. BlueEyes advised that there was a lot of blood and that the Shirley brothers had departed the scene. See Amended Complaint ¶ 2, at 1. Navajo Nation Police Officers Kurtis Halkani and Jo Donna Salt were promptly dispatched to the scene at 2:50 a.m. See Amended Complaint ¶ 3, at 1-2. Shortly thereafter, at 3:06 a.m., a relative of Brandon BlueEyes and Perry BlueEyes contacted the Shiprock Police Department and “reported that someone had broken into said residence, beat up [Brandon BlueEyes], and that [Brandon BlueEyes] was not breathing.” Amended Complaint ¶ 4, at 2.

Halkani arrived on scene at approximately 3:09 a.m., followed shortly thereafter by Salt, who took position outside the residence to provide security. See Amended Complaint ¶ 5, at 2. Upon observing a blood-like substance on the deck area leading into the home and on the front door, Halkani entered the residence and found Brandon BlueEyes lying on the ground, soaked in blood. See Amended Complaint ¶ 5, at 2; Preliminary Hearing Tr. at' 8:17-21 (Cahoon). V. Jim was on the ground embracing Brandon BlueEyes, crying and distraught. See Amended Complaint ¶ 5, at 2. According to Halkani, Brandon BlueEyes had no pulse and had a large stab wound on his left upper chest area. See Amended Complaint ¶ 5, at 2; Preliminary Hearing Tr. at 9:1-4 (Cahoon). Halka-ni also observed Perry BlueEyes nearby, bent over on the couch in the living room, with multiple stab wounds and covered in blood. See Amended Complaint ¶ 5, at 2; Preliminary Hearing Tr. at 9:8-10 (Ca-hoon). Blood appeared to be on the floor and walls of the hallway leading back to two bedrooms. See Amended Complaint ¶ 5, at 2.

V. Jim informed Halkani that she used to be in a relationship with E. Shirley, that all three brothers live in Kirtland, New Mexico, and that they drive a white BMW. See Amended Complaint ¶ 7, at 3. See also Preliminary Hearing Tr. at 26:14-15 (Ca-hoon)(stating that Maynard Shirley owns the BMW). V. Jim added that she had been in a relationship with Brandon BlueEyes for one month, see Amended Complaint ¶ 7, at 3, that she had recently lived with the Shirleys in Kirtland, and that E. Shirley was “tough” and a “bully.” Amended Complaint ¶ 8, at 4. She also relayed that Maynard Shirley had been in prison for a long time and that “she is scared of him.” Amended Complaint ¶ 8, at 4.

At 3:38 a.m., Perry BlueEyes was rushed to San Juan Regional Medical Center for injuries he sustained while trying to protect Brandon BlueEyes. See Amended Complaint ¶ 9, at 3. As of March 25, 2015, Perry BlueEyes was still being treated for a collapsed lung and multiple stab wounds. See Amended Complaint ¶ 9, at. 4. In an interview at the hospital a couple days after the incident, Perry BlueEyes, who is about five feet, eight inches tall, described his attacker as being as “just a tad bit smaller than him” and said that he was stabbed with a banana-shaped knife. Preliminary Hearing Tr. at 14:18-24 (Cahoon).

3. The Search for the Shirley Brothers.

Later in the day on March 21, 2015, Special Agent Cary S. Cahoon of the United States Department of Justice, Federal Bureau of Investigation, and Criminal Investigator Jefferson Joe of the Navajo Department of Criminal Investigations, commenced an effort to locate Maynard, Elijah, and Michael Shirley. See Amended Complaint ¶ 14, at 8. Cahoon and Joe met with the Shirley brothers’ mother, Althea Shirley, who said that the Shirley brothers were at their home in Kirtland and that she had just come from there. See Amended Complaint ¶ 14, at 8; Preliminary Hearing Tr. at 27:4-10 (Ca-hoon). Cahoon and Joe instructed A. Shirley to go to the brothers’ home and relay that Cahoon and Joe needed to speak with them about the incident that occurred early that morning. See Amended Complaint ¶ 14, at 8. When A. Shirley arrived, however, she discovered that Maynard Shirley and his fiancée, Amelia Williams, had “completely cleaned out their room of their belongings and had left the house.” Amended Complaint ¶ 14, at 8. E. Shirley was not there either; only Michael Shirley remained. See Amended Complaint ¶ 14, at 8.

As it happened, E. Shirley and Maynard Shirley had relocated to their grandmother’s home and “sheep camp” thirty minutes outside of Farmington, New Mexico, on the Navajo Indian Reservation. See Res Gestae Motion at 8; Amended Complaint ¶ 15, at 9; Preliminary Hearing Tr. at 85:19 (Cahoon). In their absence, A. Shirley urged Michael to call and set up a time to meet with Cahoon and discuss the incident. See Amended Complaint ¶ 14, at 8. Michael Shirley consented, and a meeting was set for 3:00 p.m. that day at the Criminal Investigations office in Shiprock, New Mexico. See Amended Complaint ¶ 14, at 8. On the telephone, Michael Shirley indicated that he would call ahead of the appointment to confirm that he could make it; however, Cahoon never received such confirmation, despite numerous attempts to contact Michael Shirley by phone. See Amended Complaint ¶ 14, at 8. Cahoon was likewise unable to reach Michael Shirley the following day, March 22, 2015. See Amended Complaint ¶ 14, at 9.

On March 23, 2015, A. Shirley, Michael Shirley, and other relatives traveled to the grandmother’s house to urge Maynard Shirley and E. Shirley to surrender themselves to law enforcement. See Res Gestae Motion at 8; Amended Complaint ¶ 14, at 9. Elijah agreed to turn himself in, but Michael Shirley and Maynard Shirley elected to remain at the house, see Res Gestae Motion at 8, stating that “they refused to meet with law enforcement,” Amended Complaint ¶ 15, at 9. See Preliminary Hearing Tr. at 32:3 (Cahoon)(stating that E. Shirley turned himself in). According to the relatives who were present, the Shirley brothers stated that “law enforcement could come and try to get them if they wanted.” Amended Complaint ¶ 15, at 9. Maynard Shirley and Michael Shirley then began yelling at and getting angry with the relatives, causing them to leave the property out of “fear for their safety and the potential something bad could happen if law enforcement came and tried to arrest Michael and Maynard.” Amended Complaint ¶ 15, at 9.

E. Shirley was subsequently taken to the station at 4:00 pm. on March 23, 2015, where he “acted as if it was the first time he heard about the incident involving [Brandon BlueEyes].” Amended Complaint ¶ 15, at 9. After some questioning, E. Shirley invoked his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and requested an attorney. See Amended Complaint ¶ 15, at 9.

After E. Shirley left, Maynard Shirley, Michael Shirley, A. Williams, and other witnesses went to the “wash” by the grandmother’s house where they had concealed Maynard Shirley’s white BMW. See Res Gestae Motion at 8; Amended Complaint ¶ 15, at 9. Together, they removed their belongings from the vehicle. See Res Gestae Motion at 8. Maynard Shirley and Michael Shirley then proceeded to wipe the vehicle down “to remove any latent prints[.]” Res Gestae Motion at 8. Finally, they “damaged the interior of the vehicle, broke out windows, and [ ] set the car on fire.” Res Gestae Motion at 8.

The following day, March 24, 2015, family members advised Joe that Michael Shirley and Maynard Shirley had burned the white BMW at their grandmother’s house. See Amended Complaint ¶ 16, at 10. Law enforcement subsequently went to the property and found the burned BMW, yet Michael Shirley and Maynard Shirley were nowhere to be found. See Amended Complaint ¶ 16, at 10.

4. Maynard Shirley’s Arrest.

On March 25, 2015, the Honorable B. Paul Briones, United States Magistrate Judge for the District of New Mexico, issued a warrant for Maynard Shirley’s arrest. See Arrest Warrant for Maynard Shirley at 1, filed March 25, 2015 (Doc. 2). That day, the Federal Bureau of Investigation received word that Maynard Shirley and A. Williams had travelled to Aztec, New Mexico, where they were staying at a cousin’s trailer home. See Preliminary Hearing Tr. at 37:2-5 (Mott, Cahoon). Acting on this information, law enforcement agents/officers surrounded the residence. See Preliminary Hearing Tr. at 37:12-21 (Cahoon). After repeated knocks and unsuccessful attempts to make oral contact with either Maynard Shirley or A. Williams, the officials entered the residence with a key that the cousin provided. See Preliminary Hearing Tr. at 37:19-21 (Cahoon).

Inside, the officials found A. Williams in one of the trailer’s bathrooms. See Preliminary Hearing Tr. at 37:21-24 (Cahoon). The officials inquired about Maynard Shirley’s whereabouts, but A. Williams said that she did not know. See Preliminary Hearing Tr. at 37:24-25 (Cahoon). A. Williams was then detained while the officials cleared the rest of the residence. See Preliminary Hearing Tr. at 38:1 (Cahoon). As the officers cleared the back bedroom, they discovered Maynard Shirley concealed between a mattress and box spring of a bed in the room. See Preliminary Hearing Tr. at 38:2-4 (Cahoon). Maynard was armed with a knife. See Preliminary Hearing Tr. at 38:4 (Cahoon). In Cahoon’s opinion, the knife looked like a hunting knife, not a banana knife as the witnesses to Brandon BlueEyes’ killing described that weapon. See Preliminary Hearing Tr. at 39:1-3 (Mott, Cahoon). Maynard Shirley was then taken into custody. See Record of Arrest of Maynard Shirley at 1, entered March 27, 2015 (Doc. 8)( [text-only-entry]).

Subsequent to Maynard Shirley’s and A. Williams’ arrest, law enforcement “obtained a warrant to search bágs belonging to Mr. Shirley and his fiancée that we[re] found inside the home where they were arrested.” Motion in Limine at 2. Among these belongings were “several knives, including pocketknives and a Gerber knife, as well as an axe.” Motion in Limine at 2.

PROCEDURAL BACKGROUND

The United States commenced this action on March 25, 2015. See Criminal Complaint at 1, filed March 25, 2015 (Doc. l)(“Complaint”). In the Complaint, the United States recited the foregoing facts, described the Shirley brothers’ physical characteristics according to government databases, and argued that the Shirley brothers matched the descriptions provided by the witnesses who were present at the BlueEyes residence during the stabbing of Brandon BlueEyes and Perry BlueEyes. See Complaint ¶ 17, at 11. Based on these allegations, the United States concluded that there was probable cause to charge E. Shirley, Maynard Shirley, and Michael Shirley with murder, aiding and abetting, and assault. See Complaint ¶ 18, at 11-12.

The following evening, on March 26, 2015, Michael Shirley was arrested in Farmington. See Preliminary Hearing Tr. at 40:13-18 (Cahoon). At that point, all three Shirley brothers were in custody— E. Shirley had surrendered on March 23, 2015, see Amended Complaint ¶ 15, at 9, and Maynard Shirley had been arrested on March 25, 2015, See Preliminary Hearing Tr. at 39:11-20 (Mott, Cahoon).

On April 14, 2015, a Grand Jury indicted E. Shirley, Maynard Shirley, and Michael Shirley on three counts: (i) unlawfully killing Brandon BlueEyes — with a knife— with malice aforethought in violation of 18 U.S.C. §§ 1153, 111, and 18 U.S.C. § 2; (ii) assaulting Perry BlueEyes and causing serious bodily injury in violation of 18 U.S.C. §§ 1153, 113(a)(6), and 18 U.S.C. § 2; and (iii) assaulting Perry BlueEyes with a dangerous weapon — a knife — with intent to inflict bodily harm in violation of 18 U.S.C. §§ 1153,113(a)(3), and 18 U.S.C. § 2. See Indictment at 1-2, filed April 14, 2015 (Doc. 25). On February 25, 2016, the Court set trial for October 17, 2016. See Order to Continue at 2, filed February 25, 2016 (Doc. 66).

On September 21, 2016, in proceedings before the Honorable William P. Lynch, United States Magistrate Judge for the District of New Mexico, Michael Shirley entered a guilty plea as to all three counts charged in the indictment. See Clerk’s Minutes for Plea Hearing held on 9/21/2016 at 1, entered September 23, 2016 (Doc. 109). E. Shirley likewise pled guilty in the same proceedings. See Clerk’s Minutes for Plea Hearing held on 9/21/2016 at 1. entered September 23, 2016 (Doc. 110). Maynard Shirley is now the sole Defendant who will proceed to trial on October 17, 2016.

With Maynard Shirley’s trial now set, the United States seeks to introduce exhibits. See United States’ Exhibit List, filed September 6, 2016 (Doc. 92)(“United States’ Exhibit List”). Maynard Shirley initially objected to a variety of items depicted in these exhibits. See Exhibit Objections at 1-3. At the hearing, however, the parties indicated that they had resolved most of their disagreements and that the primary remaining dispute is whether the Court should admit evidence — both viva voce and physical evidence, as well as photographs — about certain knives and an axe. See Transcript of Hearing at 13:11-19 (taken September 29, 2016)(“Exhibit Hearing Tr.”). Specifically, Maynard Shirley maintains his objection to the admission of pocketknives, a Bear Gryllis [sic] Gerber Knife and Bear Gryllis [sic] Gerber Axe, as well as photographs of the same. See Exhibit Objections at 2 (raising objections to Exhibits 120-121, 155-156, and 165-166); Id. at 3 (objecting to Exhibits 160-184); Notice of Objections to Proposed Government Evidence Related to Knives Seized from Belongings of Maynard Shirley and Amelia Williams at 1, filed October 12, 2016 (Doc. 134)(“Photograph Objections”)(objecting to Exhibits 121, 155-157, 164-165, 179, and 182). See generally Motion in Limine (objecting to all evidence of the knives and axe). Maynard Shirley also objects to “evidence that [he] was holding a knife at the time of his arrest.” Defendant Maynard Shirley’s Response to United States’ Motion In Limine to Admit [ ] Res Gestae Evidence Not Charged in the Indictment Prusant [sic] to Federal Rules of Evidence 401, 403, 404(B) [Doc. 77] at 1, filed September 6, 2016 (Doc. 87)(“Res Gestae Motion Response”). The Court will discuss the parties’ arguments in support of their respective positions as set forth in a variety of pleadings filed since late-August 2016.

1. United States’ Res Gestae Motion.

On August 29, 2016, the United States moved to admit “evidence of conduct other than that charged in the indictment ... as res gestae.” Res Gestae Motion at 1. Relevant here, the United States seeks to admit evidence that Maynard Shirley “armed himself with a knife and concealed himself ... between a box spring and mattress” when he was arrested on March 25, 2015. Res Gestae Motion at 2. See Id. (stating that the knife appeared to be a hunting knife). This evidence is admissible, the United States argues, because it is “intrinsic to the crime charged.” Res Gestae Motion at 10 (citations omitted). In particular, the United States contends that “[t]he circumstances leading up to a Defendant’s arrest are ‘inextricably intertwined with proper evidence’ ” and should therefore be admissible at trial. Res Gestae Motion at 10 (quoting United States v. McVeigh, 153 F.3d 1166, at 1203 (10th Cir. 1998)). Further, the United States argues that the evidence is offered for a “proper purpose” under rule 404(b) of the Federal Rules of Evidence. Res Gestae Motion at 13. Namely, the United States contends that “Maynard’s concealment of his person, while armed with a knife is admissible to show consciousness of guilt.” Res Gestae Motion at 16. According to the United States, this purpose does not rely on an improper propensity inference. See Res Gestae Motion at 16.

2. Maynard Shirley’s Res Gestae Motion Response.

On September 6, 2016, Maynard Shirley submitted a response to the United States’ Res Gestae Motion. See Res Gestae Motion Response at 1. Maynard Shirley primarily objects to the admission of “evidence that [he] was holding a knife at the time of his arrest.” Res Gestae Motion Response at 1. He argues that the proffered evidence is “simply not relevant to any fact in issue in this case,” because there is “no allegation that the knife ... was even remotely connected to the crimes with which he is charged.” Res Gestae Motion Response at 4. He further argues that, even if the evidence is “intrinsic” under rule 404(b), “any arguable probative value that evidence may have is substantially outweighed by the danger of unfair prejudice.” Res Gestae Motion Response at 4.

3. United States’ Exhibit List.

The United States filed its list of anticipated exhibits on September 6, 2016. See United States’ Exhibit List at 1. This 192-item list includes physical evidence, as well as photographs, of a Bear Gryllis Gerber Knife and Bear Gryllis Gerber Axe. See United States’ Exhibit List Nos. 120-121, 155-157,164-166,179, and 182. The United States later amended this list to add six additional items unrelated to the present discussion. See United States’ Amended Exhibit List Nos. 193-198, filed September 28, 2016 (Doc. 123).

4. United States’ Res Gestae Motion Reply.

On September 20, 2016, the United States submitted its reply to Maynard Shirley’s Res Gestae Motion Response. See United States Reply to Defendant Maynard Shirley’s Response to United States’ Motion to Admit Res Gestae Evidence at 1, filed September 20, 2016 (Doc. 95) (“Res Gestae Motion Reply”). With respect to Maynard Shirley’s objection to evidence of the knife, -the United States concedes that it “does not allege that there is direct evidence that the knife Defendant held while he concealed himself from law enforcement was the knife used to kill [Brandon BlueEyes] and seriously injury [sic] [Perry BlueEyes].” Res Gestae Motion Reply at 4. Instead, the United States contends that Maynard Shirley’s “possession of multiple knives is admissible ... as circumstantial evidence as to access to and ability to produce knives for use during the offense .... ” Res Gestae Motion Reply at 4.Moreover, the United States argues that Maynard Shirley’s “possession of a knife during flight, and while he actively concealed himself from law enforcement is relevant to his consciousness of guilt.” Res Gestae Motion Reply at 5. As in its original Motion, the United States contends that this line of analysis “does not elicit impermissible propensity evidence, but rather admission by conduct during and in relation to the offense for which he is charged.” Res Gestae Motion Reply at 4.

5. Maynard Shirley’s Exhibit Objections.

On September 20, 2016, Maynard Shirley filed his objections to the United States’ Exhibit List. See Exhibit Objections at 1. Maynard Shirley primarily objects to Exhibits 120-121, 155-156, and 165-166, which “include a ‘Bear Gryllis Gerber Ax (Physical)’ and ‘Bear Gryllis Gerber Knife (Physical),’ as well as photographs of the same.” Exhibit Objections at 2. Maynard Shirley posits that these exhibits are “irrelevant” and that “[irrelevant evidence is not admissible” pursuant to rule 402 of the Federal Rules of Evidence. Exhibit Objections at 2. He also argues that, under rule 403 of the Federal Rules of Evidence, “whatever minimal probative value the evidence may have is substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury.” Exhibit Objections at 2.

6. United States’ (Second) Res Gestae Motion Reply.

On September 26, 2016, the United States renewed its Res Gestae Motion and submitted additional arguments in reply to Maynard Shirley’s Res Gestae Motion Response. See United States Reply to Defendant Maynard Shirley’s Response to United States’ Motion to Admit Res Gestae Evidence at 1, filed September 26, 2016 (Doc. 120)(“Second Res Gestae Motion Reply”). The United States now argues that Maynard Shirley’s possession of knives and use of a knife at the time of his arrest is relevant as circumstantial evidence of his “intent to commit the charged offenses .... ” Second Res Gestae Motion Reply at 3. In the United States’ view, this evidence illustrates Maynard Shirley’s “access to, familiarity with, and use of knives,” and demonstrates his “conscious effort to dispose of [his] machete like knife used to commit and aid in committing the offenses committed on March 21, 2015.” Second Res Gestae Motion Reply at 4. Moreover, the United States contends that this evidence is “relevant to the disputed issues of [Maynard Shirley’s] participation in the charged offenses and his efforts to aid and abet others.” Second Res Gestae Motion Reply at 5. In short, the United States argues that the evidence is “admissible to show Defendant’s association with the crimes and his access to a variety of weapons.” Second Res Gestae Motion Reply at 6.

The United States also advances its earlier contention that evidence that Maynard Shirley held a knife when he was arrested is admissible as “circumstantial evidence of Defendant’s intent and consciousness of guilt.” Second Res Gestae Motion Reply at 7.The United States argues that evidence of Maynard Shirley’s multiple knives is admissible as “circumstantial evidence as to access to and ability to produce knives for use during the offense.” Second Res Gestae Motion Reply at 7. The United States reasons that “sharp objects” were used in the offenses, and that Maynard Shirley’s possession of knives, including the one he clutched at the time of his arrest, “are relevant to the determination of the use of a dangerous weapon during the offenses, to the efforts taken by law enforcement during the course of the investigation, and in relation to the allegations of aiding and abetting.” Second Res Gestae Motion Reply at 7.

Finally, the United States argues that “flight, escape, and other ‘admissions by conduct’ are probative ’as circumstantial evidence of guilt .... ” Second Res Gestae Motion Reply at 7 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)). The United States argues that Maynard Shirley’s “possession of a knife during flight, and while he actively concealed himself from law enforcement is relevant to show his consciousness of guilt.” Second Res Gestae Motion Reply at 7-8.

7. Maynard Shirley’s Motion in Li-mine.

On September 26, 2016, Maynard Shirley filed a motion in limine to exclude from trial “evidence of his ownership and prior possession of knives, and his ownership and possession of an ax.” Motion in Limine at 1. He also moves the Court “to order the United States to instruct its "witnesses not to refer to these matters during their testimony.” Motion in Limine at 1. His principal objection is that “[t]here is no evidence that any of these knives or the axe were used to commit the offenses charged.” Motion in Limine at 2. As a result, he argues, the Court should exclude evidence of the knives and axe, because they are “irrelevant” and “unfairly prejudicial.” Motion in Limine at 4, 7.

a. Maynard Shirley’s Objection to Evidence of the Knives.

Maynard Shirley begins by highlighting that the United States “concedes that it has no evidence” that any of the knives it seeks to introduce were used to commit the alleged offense on March 21, 2015. Motion in Limine at 5. Maynard Shirley argues that “none of the knives match the description of a knife witnesses saw at the scene, and [it] is undisputed that [he] did not use or threaten to use the knife found in his possession at the time of the arrest.” Motion in Limine at 5. As a result, he argues that evidence of his “possession of, or access to, knives unconnected to the charged offenses ... is inadmissible under Rules 402, 403 and 404 of the Federal Rule's of Evidence.” Motion in Limine at 5.

Turning first to relevancy under rule 402, Maynard Shirley notes that “[i]rrele-vant evidence is not admissible at trial.” Motion in Limine at 2 (internal quotation marks omitted). Thus, he argues, evidence that he “owned or possessed knives that were never used in the commission of the charged offenses is simply not relevant and must be excluded.” Motion in Limine at 5 (citing United States v. Linares, 367 F.3d 941, 952 (D.C. Cir. 2004)).

With respect to rule 404, Maynard Shirley notes that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith.” Motion in Limine at 3. Consequently, he argues, the United States’ only purposes for offering evidence of the knives — in his view, “to prove that Mr. Shirley is the kind of person who owns knives or that he has a violent disposition” — are “impermissible purposes.” Motion in Limine at 6 (citing United States v. Thomas, 321 F.3d 627 (7th Cir. 2003)).

Finally, Maynard Shirley argues that, under rule 403, any probative value of evidence that he held a knife at the time of his arrest is “substantially outweighed by the danger of unfair prejudice.” Motion in Limine at 6. He contends that, “[although evidence of flight is generally admissible to show consciousness of guilt, such evidence is ‘only marginally probative as to the ultimate issue.’ ” Motion in Limine at 6 (quoting United States v. Johnson, 535 F.3d 892, 895 (8th Cir. 2008)(citation omitted)). Thus, in his reading of relevant case law, courts “must assess the possible probative value in each case” and scrutinize the confidence with which a chain of inferences can be made from a defendant’s behavior to consciousness of guilt. Motion in Limine at 6 (quoting United States v. Johnson, 535 F.3d at 895)(citation and internal quotation marks omitted)). Here, Maynard Shirley argues, the evidence that he was holding a knife when he was arrested “is less than marginally probative, particularly given there is no evidence that Mr. Shirley used or threatened to use the knife against the officers.” Motion in Limine at 6. He contends that, given that there is no such evidence, “the Court should have little confidence that a proper inference may be drawn from the possession of the knife .... ” Motion in Limine at 6-7.

b. Maynard Shirley’s Objection to Evidence of the Axe.

With respect to the axe, Maynard Shirley contends that “[t]here is zero evidence that an axe was used diming the attacks underlying the charges against [him].” Motion in Limine at 7. Maynard Shirley argues that, instead, the United States is seeking to introduce evidence that he used the axe in the destruction of the BMW “as evidence of consciousness of guilt.” Motion in Limine at 7. Thus, as noted above with respect to the knives, he argues that “evidence related to ‘consciousness of guilt’ is ‘only marginally probative as to the ultimate issue’ of whether the defendant committed the crimes with which he is charged.” Motion in Limine at 7 (quoting United States v. Johnson, 535 F.3d at 895). Maynard Shirley argues that, given this principle, as well as “the lack of evidence tying the axe to the destruction of the car, ... whatever probative value the axe may have to this collateral issue is substantially outweighed by the very real dangers of unfair prejudice, confusing the issues, and misleading the jury.” Motion in Limine at 7 (citing Fed. R. Evid. 403). Finally, he argues that there is an “unacceptable risk that the jury will improperly infer that possession of the axe makes it more likely that he possessed one of the knives” used in the charged offense or that “the axe was used to commit the charged offenses.” Motion in Limine at 8. He argues that, in light of all these reasons, the Court should exclude evidence of the axe from trial. Motion in Limine at 8.

8. United States’ Response to Maynard Shirley’s Exhibit Objections.

The United States responded to Maynard Shirley’s Exhibit Objections on September 28, 2016. See United States’ Response to Defendant’s Objections to Exhibits and Motion to Amend the United States Exhibit List at 1, filed September 28, 2016 (Doc. 122)(“Exhibit Objections Response”). With respect to Exhibit 120 (“Bear Gryllis Gerber Ax (Physical)”) and Exhibit 121 (“Bear Gryllis Gerber Knife (Physical)”) the United States argues that the Exhibits “are relevant, admissible, and present no unfair prejudice or danger of confusing the issues or misleading the jury.” Exhibit Objections Response at 2. The United States explains that its theory is that the Shirley brothers “sought to destroy all evidence associated with their crimes, including the objects used to inflict the injuries upon both Brandon and Perry BlueEyes.” Exhibit Objections Response at 2. To that end, the United States intends to demonstrate that the FBI forensically tested the Gerber Knife and Axe, but that the testing did not yield “evidence ... associating the Defendant with the charged offenses.” Exhibit Objections Response at 2. The United States elaborates upon its theories regarding both Exhibits as follows.

First, in terms of the Bear Gryllis Knife (Exhibit 121), the United States alleges that it “is the knife Maynard Shirley armed himself with and held to his chest when he concealed himself from law enforcement” between the mattress and box spring on the day of his arrest, March 25, 2015. Exhibit Objections Response at B. The United States contends that the knife is evidence of Maynard Shirley’s “consciousness of guilt and continued flight from law enforcement.” Exhibit Objections Response at 3.

Second, the United States alleges that the Bear Gryllis Axe (Exhibit 120) was found among Maynard Shirley’s possessions and that it is relevant to his “participation in the destruction of evidence, specifically the burning to Maynard Shirley’s BMW .... ” Exhibit Objections Response at 2. The United States intends to demonstrate that Maynard Shirley and Michael Shirley used the Axe to “gain access to the gas tank in the [BMW] ” and that, as a result, “the back seat of the BMW, near the gas tank, was observed to have a square portion cut out.” Exhibit Objections Response at 2. This “destruction of the vehicle associated with the offenses for which [Maynard Shirley] is charged,” the United States contends, “is admissible as evidence of his consciousness of guilt.” Exhibit Objections Response at 2-3.

Turning to the photographs in Exhibits 165 (“Close up of Bear Gryllis Ax with Cordage in bags”) and 166 (“Bear Gryllis Ax with Scale”), the United States alleges that they depict items located in Maynard Shirley’s and A. Williams’ personal belongings. See Exhibit Objections Response at 4. The United States argues that the photographs are relevant and posits four theories for their admissibility: (i) first, “to demonstrate steps taken by law enforcement in the course of' the investigation, including explanations as to why particular items were examined further and sent for forensic testing,” Exhibit Objections Response at 4; (ü) second, “to corroborate testimony that Elijah Shirley, Maynard Shirley, and A. Williams] were together, in flight, and concealing themselves from law enforcement at the [Shirley grandmothers’ home] and sheep camp,” Exhibit Objections Response at 4; (iii) third, “to provide evidence of items removed from the BMW by the Defendant and A. W[il-liams], prior to [] Maynard and Michael Shirley incinerating the vehicle,” Exhibit Objections Response at 4; and (iv) finally, “to provide evidence of items used to burn the vehicle, such as lighter fluid, lighters, and the ax and items used to remove latent prints,” Exhibit Objections Response at 4.

The United States does not explicitly address Maynard Shirley’s objections to Exhibit 155 (“Bear Gryllis Gerber Knife & Cordage with which Maynard Shirley was armed”) and Exhibit 156 (“Bear Gryllis Gerber Knife and Scale”). See Exhibit Objections Response at 1-4. Because exhibit 155 and Exhibit 156 depict the same evidence as Exhibits 120-121 and Exhibits 165-166, however, the United States’ arguments regarding Exhibits 120-121 and Exhibits 165-166 at least implicitly answer Maynard Shirley’s objections to Exhibit 155 and Exhibit 156.

9. The Hearing.

The Court held a hearing on the admissibility of the disputed evidence on September 29, 2016. See Exhibit Hearing Tr. at 1:1. At the hearing, the parties largely stuck to the arguments in their briefs. Maynard Shirley opened by outlining four likely categories of evidence related to the knife and axe: (i) testimony as to Maynard Shirley’s past possession of knives; (ii) knives found in bags belonging to Maynard Shirley and A. Williams; (iii) the Bear Gryllis Gerber Knife that the United States alleges Maynard Shirley was holding at the time of his arrest; and (iv) the Bear Gryllis Gerber Axe, which was discovered in Maynard Shirley’s possession. See Exhibit Hearing Tr. at 15:6-21 (Duncan).

Turning first to the knives, Maynard Shirley argued that the evidence in categories (i) and (ii) has “no relevance to any of the charges in this case.” Exhibit Hearing Tr. at 16:1-5 (Duncan). Rather, Maynard Shirley argued, the knives are “simply being offered to show that [Maynard Shirley is] the kind of person who possesses knives and this is clearly inadmissible under rule 404(b). It’s classic propensity evidence.” Exhibit'Hearing Tr. at 16:7-10 (Duncan). Maynard Shirley contended that, in any event, the knives have “high prejudicial value.” Exhibit Hearing Tr. at 16:24-25 (Duncan). Maynard Shirley explained that the jury will draw an improper inference from the knives, namely, that “Mr. Shirley is the kind of guy who has knives so that means that he must have been the guy that had the knife that was used for injury and killing the victims in this case.” Exhibit Hearing Tr. at 17:5-10 (Duncan). Maynard Shirley reasoned that this inference is improper because the proffered knives “do not ... match the description of the knife eyewitnesses claimed were used to stab Brandon and Perry BlueEyes.” Exhibit Hearing Tr. at 18:11-19 (Duncan). Indeed, Maynard Shirley argued, “everyone ... has knives which we use for different purposes,” Exhibit Hearing Tr. at 20:12-14 (Duncan); but, according to Maynard Shirley, the mere “fact that he has knives doesn’t really make it any more or less likely that he possessed a knife or was the person who [committed the charged offense],” Exhibit Hearing Tr. at 20:9-12 (Duncan).

With respect to category (iii), Maynard Shirley argued that evidence that Maynard Shirley was holding a knife when he was arrested “doesn’t really go for consciousness of guilt.” Exhibit Hearing Tr. at 21:16-19 (Duncan). Maynard Shirley conceded that evidence that he was hiding may tend to establish consciousness of guilt; however, according to Maynard Shirley, “the clutching a knife doesn’t add anything.” Exhibit Hearing Tr. at 21:16-19 (Duncan). Maynard Shirley stated that, in particular, “there is no evidence that Mr. Shirley waived the knife at the officers or threatened to use the knife. He was just holding the knife.” Exhibit Hearing Tr. at 21:19-21 (Duncan). Thus, in Maynard Shirley’s view, “it adds almost no[thing to] this marginal issue of consciousness of guilt,” but “it’s hugely prejudicial and suggests violence to the jury.” Exhibit Hearing Tr. at 21:21-24 (Duncan)(brackets added). Maynard Shirley concluded that, given this lack of probative value, “the prejudicial effect of that evidence outweighs any proper purpose or usefulness to the Government’s case.” Exhibit Hearing Tr. at 22:5-7 (Duncan).

In response, the United States conceded that it is “not alleging that those are the particular weapons that were used in this case.” Exhibit Hearing Tr. at 23:19-21 (Ta-pia-Brito). In fact, the United States stated that its “belief [is] that the weapons used in this case were actually disposed of.” Exhibit Hearing Tr. at 23:21-23 (Ta-pia-Brito). The United States argued, however, that the knives are relevant to the “thoroughness of the investigation and to addressing the steps taken during the investigation .... ” Exhibit Hearing Tr. at 23:23-24:1-3 (Tapia-Brito). Additionally, the United States argued, evidence that Maynard Shirley was clutching a knife at the time he was arrested is “evidence of flight and consciousness of guilt .... ” Exhibit Hearing Tr. at 26:8-10 (Tapia-Brito).

Having heard arguments from both sides, the Court indicated that it was inclined to bar the admission of evidence in category (i) — testimony as to Maynard Shirley’s past possession of knives — and in category (ii) — knives discovered in bags belonging to Maynard Shirley and A. Williams. See Exhibit Hearing Tr. at 34:8-9 (Court). The Court explained that, unlike the banana-shaped knife allegedly used in the charged offense, the United States’ exhibits amount to “a rather random collection of knives.” Exhibit Hearing Tr. at 34:8-9 (Court). The Court concluded that it agreed with Maynard Shirley that the evidence was unfairly prejudicial. See Exhibit Hearing Tr. at 35:1 (Court). The Court acknowledged, however, that some photographs in category (ii) also depict evidence other than knives that is relevant to the United States’ case, such as incendiary devices. Exhibit Hearing Tr. at 33:23-34:11 (Court). The Court indicated that it did not “want to prejudice the Government’s ability to get in [such] photographs,” and that it would be open to admitting the photographs for another purpose if the knives could be redacted or otherwise eliminated in some way. Exhibit Hearing Tr. at 34:10-23 (Court).

In response, the United States expressed concern that, without evidence of the knives, it would not be able to adequately demonstrate the thoroughness of its investigation. See Exhibit Hearing Tr. at 44:16-45:8 (Tapia-Brito). The United States noted that it has expert testimony, for example, that the knives were- forensically tested, and that neither latent prints nor DNA evidence were found linking the knives to the stabbings of Brandon and Perry BlueEyes. See Exhibit Hearing Tr. at 44:22-45:1 (Tapia-Brito). The United States explained that it was worried that a failure to discuss such evidence at trial may lead Maynard Shirley to later object that potentially exculpatory evidence was wrongly withheld from the jury. See Exhibit Hearing Tr. at 45:1-4 (Tapia-Brito). The Court indicated that it shared this concern, stating that it did not want the United States to suffer prejudice by Maynard Shirley “saying they didn’t do some incomplete investigation.” Exhibit Hearing Tr. at 43:1-10 (Court). The Court then extracted concessions from both parties with respect to this evidence. In exchange for the United States agreeing to evidence in categories (i) and (ii) being excluded from trial, Maynard Shirley agreed not to criticize the thoroughness of the United States’ investigation with respect to the knives, or later assert that the forensic testing’s exculpatory results should have been presented to the jury. See Exhibit Hearing Tr. at 45:9-16 (Duncan). The parties indicated that they would stipulate to such an agreement. See Exhibit Hearing Tr. at 45:20-46:8 (Duncan, Court, Tapia-Brito).

With respect to the evidence in category (in) — the Bear Gryllis Gerber Knife that Maynard Shirley allegedly held at the time of his arrest — the Court indicated that the United States has all the evidence it needs on flight and hiding, and that the knife is “prejudicial without any independent probative value .... ” Exhibit Hearing Tr. at 35:2-6 (Court). Thus, the Court concluded that it would “exclude evidence of the fact that [Maynard Shirley] was clutch[ing] a knife at the time he was arrested.” Exhibit Hearing Tr. at 35:6-8 (Court).

Turning to evidence in category (iv)— the Bear Gryllis Gerber Axe which was discovered in Maynard Shirley’s possession — Maynard Shirley argued that the United States will allege that the presence of the axe in Maynard Shirley’s belongings is relevant to prove that he used the axe to destroy the BMW’s backseat to access the gas tank and light it on fire. See Exhibit Hearing Tr. at 36:1-6 (Duncan). Maynard Shirley argued that there is no evidence, however, that “links the ax to the destruction of the car. No presence of incendiary materials [or] tool marks that match the destruction.” Exhibit Hearing Tr. at 36:6-9 (Duncan). In-response, the United States noted that it intends to call witnesses who will testify to Maynard Shirley’s use of the axe in the BMW’s destruction. Exhibit Hearing Tr. at 36:12-16 (Tapia-Brito). Moreover, the United States argued that accelerants were found surrounding the BMW, as well as “in A[.] Williams and Maynard Shirley’s possessions including lighters and other objects.” Exhibit Hearing Tr. at 37:7-11 (Tapia-Brito). The United States argued this evidence “goes to consciousness of guilt, it goes to flight. Their efforts to avoid law enforcement, and to destroy evidence.” Exhibit Hearing Tr. at 38:6-11 (Tapia-Brito). The United States conceded that it does not have a witness who will identify the Bear Gryllis Gerber Axe as the specific axe used to destroy the BMW; it argued, however, that “[t]here is no one else who has an ax associated with the case [and there is] no evidence of the[re] being axes laying around the area where this vehicle is burned.” Exhibit Hearing Tr. at 38:15-22 (Tapia-Brito). In rejoinder, Maynard Shirley argued that the Bear Gryllis Gerber Axe pictured in United States Exhibit 156 is “a pretty distinctive ax with the orange [B]ear [Gryllis] logo on the bottom” and that a witness would notice these features in watching the axe being used. Exhibit Hearing Tr. at 39:8-13 (Duncan). Consequently, Maynard Shirley argued, there is not “enough that links the ax to the destruction of the car in this case and the prejudicial value of that ax is apparent ....” Exhibit Hearing Tr. at 39:14-16 (Duncan).

The Court indicated that it agreed with the United States, stating: “I think I’m going to allow the ax.” Exhibit Hearing Tr. at 39:24 (Court). The Court reasoned that the United States “has enough link.” Exhibit Hearing Tr. at 39:24-25 (Court). The Court stated that “once ... witnesses testify that they saw Mr. Shirley use an ax to destroy the BMW then I’m inclined to [admit] picturefs] of the ax.” Exhibit Hearing Tr. at 40:4-7 (Court). The Court explained that, unlike knives, “not everybody [h]as axes” and that Maynard Shirley’s objection to evidence of the axe goes to the weight of the evidence. Exhibit Hearing Tr. at 40:7-16 (Court).

10. Maynard Shirley’s Notice of Photograph Objections.

On October 12, 2016, Maynard Shirley submitted a notice identifying which particular photographs of knives he believes the Court should exclude in light of the Court’s rulings at the Exhibit Hearing. See Photograph Objections at 1. Maynard Shirley contends that the Court should exclude the following Exhibits: (i) Exhibit 121 (“Bear Gryllis Gerber Knife (physical)”); (ii) Exhibit 155 (“Bear Gryllis Gerber Knife & Cordage with which Maynard Shirley was armed”); (iii) Exhibit 156 (“Bear Gryllis Gerber Knife and scale”); (iv) Exhibit 157 (“Documents: Maynard Shirley’s Assault and Identity Theft Conviction”); (v) Exhibit 164 (“Items Found in Bags — close up”); (vi) Exhibit 165 (“Close up of Bear Gryllis Ax with Cordage in bags”); (vii) Exhibit 179 (“Items associated with William’s [sic] purse”); and (viii) Exhibit 182 (“Overview of contents of Sentry Safe”). Photograph Objections at 2.

11. United States’ Response to Maynard Shirley’s Photograph Objections.

On October 15, 2016, the United States submitted a response to Maynard Shirley’s Photograph Objections. See United States’ Response to Defendant’s Notice of Objections to Proposed Government Evidence Related to Knives Seized From Belongings of Maynard Shirley and Amelia Williams at 1, filed October 15, 2016 (Doc. 141)(“Photograph Objections Response”). In its response, the United States indicates that, based upon the Court’s rulings at the hearing, it agrees with Maynard Shirley that Exhibits 121, 155-157, 164-165, 179, and 182 — all of which depict knives — are inadmissible. See Photograph Objections Response at 1-2.

LAW REGARDING THE RELEVANCY OF EVIDENCE

“The rules of evidence contemplate the admission of relevant evidence, and the exclusion of irrelevant and potentially prejudicial evidence.” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1247 (D.N.M. 2009)(Browning, J.)(citing Fed. R. Evid. 401, 402, 403). “Relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” United States v. Gutierrez-Castro, 2011 WL 3503321, at *3, 2011 U.S. Dist. LEXIS 88440, at *3 (D.N.M. 2011)(Browning, J.)(citing Fed. R. Evid. 401)(“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”). “The standard for relevancy is particularly loose under rule 401, because ‘[a]ny more stringent requirement is unworkable and unrealistic.’” United States v. Ganadonegro, 854 F.Supp.2d 1088, 1127 (D.N.M. 2012)(Browning, J.) (quoting Fed. R. Evid. 401 advisory committee’s note). Irrelevant evidence, or that evidence which does not make a fact of consequence more or less probable, however, is inadmissible. See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”).

LAW REGARDING RULE 403

Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir. 1989). “[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].” United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991)). The United States Court of Appeals for the Tenth Circuit has reminded district courts that they should be “mindful” that “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010).

The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, See United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999), and the trial court’s discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir. 1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir. 1980). The Supreme Court of the United States has noted:

In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings .... This is particularly true with respéct to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)(quoting 1 Steven Alan Childress & Martha S. Davis, Fed. Standards of Review § 4.02, at 4-16 (3d ed. 1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)(“Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403 .... ”).

Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury’s attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). Evidence is not unfairly prejudicial merely because it damages a party’s case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991). Rather, “[t]o be unfairly prejudicial, the evidence must have ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” United States v. Caraway, 534 F.3d at 1301 (quoting Fed. R. Evid. 403 advisory committee note).

LAW REGARDING RULE 404(b)

Under rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. See Fed. R. Evid. 404(b). Rule 404(b) provides:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Fed. R. Evid. 404(b). “In other words, one cannot present evidence the relevance of which is based on the forbidden inference: the person did X in the past, therefore he probably has a propensity for doing X, and therefore he probably did X this time, too.” Wilson v. Jara, 2011 WL 6739166, at *5, 2011 U.S. Dist. LEXIS 147752, at *5 (D.N.M. 2011)(Browning, J.), aff'd on other grounds, 512 Fed.Appx. 841 (10th Cir. 2013)(unpublished). “The rule, however, has a number of ‘exceptions’ — purposes for which such evidence will be admissible.” Wilson v. Jara, 2011 WL 6739166, at *5, 2011 U.S. Dist. LEXIS 147752, at *5. Those purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Fed. R. Evid. 404(b). The Supreme Court has enunciated a four-part inquiry to determine whether evidence is admissible under rule 404(b). See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)(Rehnquist, J.). The Tenth Circuit has consistently applied that test:

To determine whether Rule 404(b) evidence was properly admitted we look to [a] four-part test ...: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed. R. Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.

United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000)(Ebel, J.)(citing United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999)(Porfilio, J.)). See United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002)(Holloway, J.); United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996)(Briscoe, J.)(citing Huddleston v. United States, 485 U.S. at 691-92, 108 S.Ct. 1496).

Rule 404(b)’s prohibition finds its source in the common-law protection of the criminal defendant from risking conviction on the basis of evidence of his character. See United States v. Lucas, 357 F.3d 599, 611 (6th Cir. 2004)(Boggs, J.). In United States v. Phillips, 599 F.2d 134 (6th Cir. 1979)(Merritt, J.), the United States Court of Appeals for the Sixth Circuit noted, in addressing rule 404(b)’s limitations and requirements, that the rule addresses two main policy concerns: (i) that the jury may convict a “bad man” who deserves to be punished, not because he is guilty of the crime charged, but because of his prior or subsequent misdeeds; and (ii) that the jury will infer that, because the accused committed other crimes, he probably committed the crime charged. United States v. Phillips, 599 F.2d at 136. “ ‘[Wjhen other-act evidence is admitted for a proper purpose and is relevant, it may be admissible even though it has ’the potential impermissible side effect of allowing the jury to infer criminal propensity.’ ” United States v. Moran, 503 F.3d 1135, 1145 (10th Cir. 2007)(Tacha, J.)(quot