USA v. Fuhrer et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
GLEN BALDWIN, a/k/a “Glen Dog”
Defendant.
Case No. 3:19-cr-00026-TMB-SAO-3
ORDER ON DEFENDANT BALDWIN’S
MOTION TO EXCLUDE EVIDENCE OF
OTHER CRIMES, WRONGS, OR ACTS
(DKT. 804)
I. 	INTRODUCTION
Before the Court is Defendant Glen Baldwin’s Motion to Exclude Evidence of Other
Crimes, Wrongs, or Acts Pursuant to Federal Rule of Evidence (“Rule”) 404(b) at Docket 804 (the
“Motion”).1 Specifically, Baldwin asks the Court “to exclude any evidence regarding Baldwin’s
contact with Florida law enforcement, as well as any mention of his tattoos.”2 The Government
opposes the Motion.3 For the following reasons, the Court GRANTS in part and DENIES in
part the Motion.
II. 	BACKGROUND
Baldwin along with co-defendants Filthy Fuhrer, Roy Naughton, Colter O’Dell, and Craig
King4 are alleged members or associates of the 1488s, a purported criminal enterprise.5 The
1 Dkt. 804 (Motion).
2 Id. at 2.
3 Dkt. 953 (Opposition).
4 This list includes only the defendants who will be tried beginning on March 14, 2022.
5 Dkt 558 (First Superseding Indictment).
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Defendants are charged by Superseding Indictment with Racketeering Conspiracy (Count 1);
Violent Crimes in Aid of Racketeering (“VICAR”) Conspiracy (Count 2); Kidnapping Conspiracy
(Counts 3, 7, and 10); Kidnapping Resulting in Death (Count 4); VICAR Murder (Count 5);
Kidnapping (Counts 8 and 11); and VICAR Assault (Counts 9, 10, and 12).6 Fuhrer and Naughton
are charged in all counts. O’Dell, Baldwin, and King are charged in Counts 1–5 only: Racketeering
Conspiracy, VICAR Conspiracy, and counts relating to the alleged kidnap, assault, and murder of
Michael Staton on August 3, 2017.7 Trial on these charges is set to begin on March 14, 2022.
Relevant here, the Government alleges Baldwin “fled the State of Alaska following the
[August 2017] murder of Michael Staton.”8 Eight months later, Baldwin was arrested in Seminole
County, Florida, related to a “violent disturbance.”9 “The arresting officers found small amounts
of marijuana, cocaine, and drug paraphernalia inside [Baldwin’s] car”10 and “observed blood and
saliva on the passenger side door and the front console.”11 According to the Government, during
the arrest, “Baldwin repeatedly refused to identify himself to police . . . before eventually giving
them his name.”12 Then upon arrival at the jail, Baldwin reportedly “refused to cooperate with a
LiveScan of his fingerprints” for intake and processing purposes.13 “During the arrest, officers
6 Id.
7 Id.
8 Dkt. 953 at 2.
9 Dkt. 804 at 6.
10 Dkt. 953 at 2.
11 Dkt. 804 at 7.
12 Dkt. 953 at 2.
13 Id.
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observed several swastika tattoos on Baldwin’s body and the number ‘88’ tattooed on his left
shoulder.”14 The officers photographed Baldwin’s tattoos.15 Ultimately, “Baldwin was convicted
of Resisting an Officer Without Violence and Possession of Drug Paraphernalia and was placed
on 12 months of probation.”16
In September 2020, the Government sent the Defendants notice of its intent to use
“[e]vidence of Glen Baldwin’s contact with Florida law enforcement in 2018, including
photographs of his tattoos but not including a description of the reason for that contact.”17
Now, Baldwin moves “to exclude any evidence regarding [his] contact with Florida law
enforcement, as well as any mention of his tattoos.”18 The Government objects to the Motion and
asserts that it “intends to introduce only two aspects of this incident: (1) During a contact with law
enforcement officers in Florida on April 1, 2018, Baldwin refused to identify himself to police or
provide his fingerprints, and (2) Baldwin’s tattoos and statement about the 88s.”19 The
Government represents that it does not intend to “offer any evidence regarding the reason for the
contact or Baldwin’s subsequent convictions.”20
14 Id.
15 Id.
16 Id. at 3.
17 Dkt. 804 at 12.
18 Id. at 2.
19 Dkt. 953 at 3.
20 Id.
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III. 	LEGAL STANDARD
A. 	Motions in Limine
“A motion in limine is a procedural device to obtain an early and preliminary ruling on the
admissibility of evidence”21 and may be used to request evidence be either excluded or admitted
before trial.22 Motions in limine are appropriate when the “mere mention of evidence during trial
would be highly prejudicial.”23 “[I]n limine rulings are not binding on the trial judge, and the judge
may always change his mind during the course of a trial.”24
A party seeking to exclude evidence through a motion in limine must satisfy a “high
standard” 	and 	show 	the evidence is 	inadmissible on 	all 	potential 	grounds.25 Otherwise,
“evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in proper context.”26
21 Barnard v. Las Vegas Metro. Police Dep’t, No. 2:03-cv-01524-RCJ-LRL, 2011 WL 221710,
at *1 (D. Nev. Jan. 21. 2011); Research Corp. Techs. v. Microsoft Corp., No. CV-01-658-TUC-
RCJ, 2009 WL 2971755, at *1 (D. Ariz. Aug. 19, 2009).
22 See Fed. R. Evid. 103; United States v. Williams, 939 F.2d 721, 723 (9th Cir. 1991) (affirming
district court’s ruling in limine that prosecution could admit impeachment evidence under Fed. R.
Evid. 609).
23 Barnard, 2011 WL 221710, at *1 (quoting Black’s Law Dictionary 1109 (9th ed. 2009));
Research Corp., 2009 WL 2971755, at *1.
24 Ohler v. United States, 529 U.S. 753, 758, n.3 (2000).
25 Barnard, 2011 WL 221710, at *1 (citations omitted); BNSF, 2010 WL 4534406, at *1 (citations
omitted); Research Corp., 2009 WL 2971755, at *1 (citations omitted).
26 Barnard, 2011 WL 221710, at *1 (citations omitted); BNSF, 2010 WL 4534406, at *1 (citations
omitted); Research Corp., 2009 WL 2971755, at *1 (citations omitted).
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B. 	Federal Rule of Evidence 404(b)
Under Rule 404(b)(1), evidence of a defendant’s prior conviction, wrong, or act is
inadmissible “to prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.”27 “This prohibition reflects the ‘underlying premise of our
criminal justice system, that the defendant must be tried for what he did, not for who he is.’”28
Rule 404(b) “is inapplicable, however, where the evidence the government seeks to
introduce is directly related to, or inextricably intertwined with, the crime charged in the
indictment.”29 Courts have found evidence is “inextricably intertwined” with the crime charged
“and therefore need not meet the requirements of Rule 404(b)” where (1) the evidence “constitutes
a part of the transaction that serves as the basis for the criminal charge” or (2) the evidence is
necessary for “the prosecutor to offer a coherent and comprehensible story regarding the
commission of the crime.”30 This exception may include a defendant’s refusal to identify himself.
Generally, evidence of a defendant’s refusal to identify himself is not offered as “evidence of a
remote and distinct ‘bad act,’ introduced to allow the jury to draw the improper inference that [the
defendant] was a liar,” but is instead “probative of [the defendant’s] consciousness that his conduct
was illegal.”31
27 Fed. R. Evid. 404(b)(1).
28 United States v. Verduzco, 373 F.3d 1022, 1026 (9th Cir. 2004).
29 United States v. Lillard, 354 F.3d 850, 854 (9th Cir. 2003) (citing Williams, 989 F.2d at 1070).
30 United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012‒13 (9th Cir. 1995).
31 United States v. Ramirez-Jiminez, 967 F.2d 1321, 1327–28 (9th Cir. 1992) (citing United States
v. Perkins, 937 F.2d 1397, 1401–1402 (9th Cir.1991)).
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If evidence falls within the scope of Rule 404(b), it “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.”32 To introduce evidence under Rule 404(b),
The Government carries the burden to prove that the proposed evidence satisfies
four requirements:
(1) the evidence tends to prove a material point (materiality); (2) the other act is not
too remote in time (recency); (3) the evidence is sufficient to support a finding that
defendant committed the other act (sufficiency); and (4) [in certain cases,] the act
is similar to the offense charged (similarity).33
If the Court finds these requirements are met, it must then determine, under Rule 403,
whether the “probative value [of the evidence] 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.”34
C. Relevancy and Prejudice
Relevant evidence is that which “has any tendency to make a fact more or less probable
than it would be without the evidence[] 	and . . . the fact is of consequence in determining the
action.”35 Relevant evidence is admissible unless the United States Constitution, a federal statute,
the 	rules 	of 	evidence, 	or 	the 	Supreme 	Court 	provide 	otherwise; 	irrelevant 	evidence 	is
inadmissible.36 However, relevant evidence may still be excluded under Rule 403 “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
32 Fed. R. Evid. 404(b)(2).
33 United States v. Charley, 1 F.4th 637, 647 (9th Cir. 2021).
34 Fed. R. Evid. 403; see also United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005).
35 Fed. R. Evid. 401.
36 Fed. R. Evid. 402.
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confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”37
IV. 	DISCUSSION
Because the Government seeks to introduce only two categories of evidence stemming
from Baldwin’s arrest in Florida, the Court considers whether the following categories of evidence
are admissible: (1) Baldwin’s refusal to identify himself to police or provide his fingerprints and
(2) photographs of Baldwin’s tattoos and statement about the 1488s.
A. 	Baldwin’s efforts to conceal his identity during a Florida traffic stop
The Court finds that the Government has not shown that Baldwin’s contact with Florida
law enforcement “came in the course of the conduct with which he was charged” here.38 Baldwin
argues that his “contact with Florida law enforcement should be excluded because it is wholly
unrelated to any material issue in this case, and it is in no way similar to the instant charges faced
by the defendant.”39 He further argues that his interaction with Florida law enforcement has no
bearing on this case because the events “post-dated the events that led to the charges in this case
by more than seven months” and the subsequent act is not similar to the charges Baldwin faces
here.40 The Government disagrees and asserts that Baldwin’s refusal to give his name to the police
and cooperate with a fingerprinting procedure “are admissible as evidence of his consciousness of
37 Fed. R. Evid. 403.
38 Ramirez-Jiminez, 967 F.2d at 1327.
39 Dkt. 804 at 3.
40 Id. at 2.
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guilt.”41 The Government further argues that the risk of prejudice to Baldwin is low because
Baldwin ultimately identified himself for law enforcement.42
In the Ninth Circuit, providing a false name or refusing to provide fingerprints to arresting
officers may fall outside the scope of Rule 404(b) evidence as evidence of consciousness of guilt.43
To support this proposition, the Government cites a series of cases, including United States v.
Ramirez-Jiminez.44 The court in Ramirez-Jiminez held that false “statements to the officers came
in the course of the conduct with which [the defendant] was charged, and were probative of [the
defendant’s] consciousness that his conduct was illegal.”45 But “[C]ourts have cautioned that
evidence . . . to prove consciousness of guilt for one specific crime is particularly problematic in
circumstances like these where a defendant is wanted for another infraction.”46
It is not clear that Baldwin’s refusal to provide his name or fingerprints to Florida law
enforcement is probative of his guilt for crimes he allegedly committed in Alaska. Baldwin was
arrested in Florida in 2018, but the Government did not charge him in Alaska until 2019. Apart
from the Government’s allegation that Baldwin fled Alaska following Staton’s death, the
Government has not presented facts that it was in pursuit of Baldwin at the time of his Florida
arrest or that Baldwin had reason to believe the Government was pursuing him. Separately, the
41 Dkt. 953 at 3.
42 Id. at 4–5.
43 Id. at 4 (citing Ramirez-Jiminez, 967 F.2d at 1327–28).
44 967 F.2d 1321.
45 Id.
46 United States v. Labbad, No. EDCR 03-00039(A)-RT, 2013 WL 12387558, at *4 (C.D. Cal.
Mar. 18, 2013) (using evidence of flight to prove consciousness of guilt) (citing United States v.
Foutz, 540 F.2d 733, 740 (4th Cir. 1976)).
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Court notes that Baldwin’s refusal to identify himself in Florida appears probative of guilt for the
crimes he allegedly committed in Florida. According to the arrest report, Baldwin’s contact with
Florida law enforcement stemmed from separate “violent” criminal activities.47 Even if the charges
Baldwin pleaded guilty to were relatively minor compared to the charges he now faces in Alaska,
it is not apparent that Baldwin’s refusal to identify himself in Florida was due to a concern that he
would be apprehended for Staton’s death in Alaska.
Finally, the Court finds that Baldwin’s unwillingness to identify himself is consistent with
the alleged tenets of the 1488s, and not probative of guilt for separate crimes. The Government
alleges that members of the 1488s criminal enterprise took affirmative steps “to avoid law
enforcement detection” and “were forbidden from cooperating with law enforcement.”48 Given
these allegations, it also seems reasonable that Baldwin may have refused to identify himself to
law enforcement because of his attitude toward law enforcement generally.
As the court in United States v. Wagner49 found, here “[t]he chain of inferences between a
defendant’s refusal to be examined and his guilt of the underlying crime is, at best, much too
attenuated and speculative to support a ‘consciousness of guilt’ instruction,” or inference.50 The
47 Dkt. 804 at 7.
48 Dkt. 558 at 9.
49 834 F.2d 1474 (9th Cir. 1987).
50 Id. at 1485. Contrary to the Government’s suggestion, Wagner does not stand for the broad
proposition that a defendant’s refusal to provide fingerprints is probative of their consciousness of
guilt for an unrelated crime committed well before the defendant’s arrest. Wagner involved a
defendant’s refusal to submit to a mental examination. Id. at 1484. While the Ninth Circuit
mentioned that a defendant’s refusal to provide fingerprints is related to the defendants “guilt or
innocence of the underlying crime,” the issue was not squarely before the court. Id. (emphasis
added). In fact, the Ninth Circuit concluded that the defendant’s refusal to submit to a mental
examination was improper to support a consciousness of guilt instruction because of the
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Government has not identified a permitted use under Rule 404(b) by which the Court could admit
evidence from Baldwin’s Florida arrest. For these reasons, the Court GRANTS Baldwin’s Motion
and denies the Government’s request to use evidence of Baldwin’s refusal to provide law
enforcement his name and fingerprints as evidence of his consciousness of guilt for the crimes
alleged here.
B. 	Baldwin’s Tattoos
Baldwin also argues primarily that his tattoos “are totally irrelevant to the material issues
in this trial” and alternatively that “even if some remote relevance exists, it is clearly outweighed
by unfair prejudice.”51 According to the April 2018 Seminole County Arrest Report, Baldwin has
at least nine tattoos, including one “8‘Swastika’8”; one swastika; two “kill rats”; and two “fuck
cops.”52
The Government asserts that photographs of Baldwin’s white supremacist and gang-related
tattoos are admissible as “prima facie evidence of the charged offense (without resort to Rule
404(b)) because they demonstrate the existence of the 1488s enterprise and Baldwin’s affiliation
with it.” The Government further argues that Baldwin’s tattoos are directly relevant to prove
motive.53
As a threshold matter, the Court agrees with the Government that photographs of Baldwin’s
tattoos are relevant because they are direct evidence of Baldwin’s membership in the 1488s and of
“attenuated and speculative” chain of inferences such a finding would require. Id. If anything, the
Ninth Circuit’s reasoning in Wagner instructs the Court to reject the Government’s argument here.
51 Dkt. 804 at 2–3.
52 Id. at 6.
53 Dkt. 953 at 5.
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the elements of the charged enterprise offense. Thus, photographs of Baldwin’s tattoos that
demonstrate his affiliation with the 1488s are relevant to show his membership in the alleged
enterprise.54
The Court next finds that evidence of Baldwin’s tattoos falls outside the scope of Rule
404(b) because it is inextricably intertwined with the charged crimes. For example, Baldwin is
charged with VICAR offenses as an alleged member or associate of the 1488s.55 A VICAR
conviction requires proof of four elements: “(1) that the criminal organization exists; (2) that the
organization is a racketeering enterprise; (3) that the defendants committed a violent crime; and
(4) that they acted for the purpose of promoting their position in the racketeering enterprise.”56 It
follows that the Government must prove that the 1488s existed as a criminal enterprise and that
Baldwin was a member or associate of that enterprise. According to the Government, the 1488s
use tattoos “to identify themselves and demonstrate their affiliation.”57 The Court, therefore, finds
the evidence of membership in the 1488s goes directly to the charges and falls outside the scope
of Rule 404(b).
Finally, the Court does not find that the probative value of Baldwin’s tattoos is substantially
outweighed by the risk of unfair prejudice. The 1488s’ tattoos, or “patches,” displaying Nazi-
inspired symbols or animosity toward law enforcement are central to the Government’s case and
probative in several ways. The Government asserts “[t]he 1488s employed Nazi-derived symbols
54 United States v. Fernandez, 388 F.3d 1199, 1245–46 (9th Cir. 2004).
55 Dkt. 558.
56 United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995) (citing United States v. Vasquez-
Velasco, 15 F.3d 833, 842 (9th Cir. 1994)); United States v. Banks, 514 F.3d 959 (9th Cir. 2008).
57 Dkt. 558 at 3.
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to identify themselves and demonstrate their affiliation with the gang.”58 The Government also
alleges “violence against law enforcement was an accepted means of gaining standing within the
1488s.”59 According to the Government, the 1488s’ tattoos “were [also] status symbols and
currency within the gang.”60 The 1488s purportedly punished its members—including the alleged
victims in this case—by “depatching” or forcibly obliterating their gang tattoos.61 Photographs of
Baldwin’s tattoos related to the 1488s are probative of his membership in an enterprise.62 The
probative value of the photographs of Baldwin’s tattoos is not “clearly outweighed by the danger
of unfair prejudice” that the jury could discover Baldwin holds certain white supremacist or anti-
law enforcement beliefs or belongs to an unlawful organization.63 The Court therefore DENIES
Baldwin’s request to exclude the photographs of his tattoos.
///
//
/
58 Id. at 6 (quoting Dkt. 558 at 3).
59 Id. at 7 (quoting Dkt. 558 at 6).
60 Id.
61 Id.
62 See United States v. Ledbetter, 929 F.3d 338, 363 (6th Cir. 2019) (“Gang tattoos ‘may be highly
probative of an individual’s membership in a particular gang’ and thus are properly admissible ‘in
cases where the interrelationship between people is a central issue,’ such as where a RICO
conspiracy is alleged.”).
63 Dkt. 804.
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V. 	CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendant
Glen Baldwin’s Motion to Exclude Evidence of Other Crimes, Wrongs, or Acts Pursuant to Rule
404(b) at Docket 804.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 13th day of March, 2022.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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