USA v. Shanholtzer

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MATTHEW WILSON MOI,
a/k/a “Matt Matt”
Defendant.
Case No. 3:19-cr-00112-TMB-SAO-2
ORDER ON DEFENDANT MOI’S
MOTIONS IN LIMINE
(DKT. 546)
I. 	INTRODUCTION
The matter comes before the Court on Defendant Matthew Wilson Moi’s Motions In
Limine (the “Motion”).1 The Government opposes the Motion.2 Oral argument was not requested,
and the Court finds the matter suitable for disposition without oral argument. For the following
reasons, Moi’s Motion at Docket 546 is GRANTED in part and DENIED in part.
II. 	BACKGROUND
The parties initially filed three motions in limine, upon which the Court has already ruled.3
Based on the Court’s initial order, Moi now asks that the Court (1) preclude audio recordings of
an alleged plot to kill Myrick Elliott in September 2019 under Rule 403 and 404; (2) admit Kyle
Dwiggins’s prior convictions for theft under Rule 609; (3) admit Jordan Shanholtzer’s prior
1 Dkt. 546 (Motion).
2 Dkt. 548 (Opposition).
3 Dkt. 460 (Government’s Motions in Limine); Dkt. 463 (Moi’s Motion in Limine); Dkt. 494
(Moi’s Second Motion in Limine); Dkt. 543 (Order re Motions in Limine).
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 1 of 12

convictions for distribution, assault, and misconduct involving controlled substances under Rule
609; and (4) exclude evidence of a plot to kill CS-1 under Rule 403.
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”4 and may be used to request evidence be either excluded or admitted
before trial.5 Motions in limine are appropriate when the “mere mention of evidence during trial
would be highly prejudicial.”6 “[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.”7
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.8 Otherwise, “evidentiary
rulings should be deferred until trial so that questions of foundation, relevancy and potential
prejudice may be resolved in proper context.”9
4 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., Inc. v. Microsoft Corp., No. CV-01-658-TUC-
RCJ, 2009 WL 2971755, at *1 (D. Ariz. Aug. 19, 2009).
5 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).
6 Barnard, 2011 WL 221710, at *1 (quoting Black’s Law Dictionary 1109 (9th ed. 2009));
Research Corp., 2009 WL 2971755, at *1 (similar).
7 Ohler v. United States, 529 U.S. 753, 758, n.3 (2000).
8 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).
9 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).
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 2 of 12

B. Rules 403 and 404
As a general rule, Federal Rule of Evidence (“Rule”) 404(b)(1) provides that evidence of
a person’s prior crimes, wrongs, or acts are inadmissible “to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the character.”10 “The rule
is designed to avoid a danger that the jury will punish the defendant for offenses other than those
charged.”11 However, because such evidence may be highly relevant, Rule 404(b)(2) provides that
evidence of a person’s prior crimes, wrongs, or acts “may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.”12 To introduce evidence under Rule 404(b), the Government must 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) … the act is similar to the
offense charged (similarity).13
But even under this circumstance, “[t]he use of such evidence must be narrowly circumscribed and
limited.”14
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
10 Fed. R. Evid. 404(b)(1); see also United States v. Charley, 1 F.4th 637, 645 (9th Cir. 2021).
11 Charley, 1 F.4th at 647.
12 Fed. R. Evid. 404(b)(2).
13 Charley, 1 F.4th at 647.
14 Id. (quoting United States v. Bailleaux, 685 F.2d 1105, 1109 (9th Cir. 1982)).
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 3 of 12

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”15
C. Rule 609
Separately, Rule 609 “provides that the credibility of a witness may be attacked during
cross-examination by establishing that he has been convicted of a crime.”16 Two factors dictate
the standard the Court applies to determine whether to permit the use of a prior conviction for
impeachment purposes: (1) the age and nature of the conviction, and (2) whether the witness is the
defendant.17 Where a party seeks to impeach a defendant with a prior conviction punishable by
death or imprisonment for more than one year, the conviction must be admitted “if the probative
value of the evidence outweighs its prejudicial effect to that defendant.”18 But where the witness
is not the defendant, use of the prior conviction for impeachment is subject to Rule 403.19 The
parties may use any crime involving a “dishonest act or false statement” to impeach a witness.20
The Ninth Circuit provides “five factors that a district court should consider in balancing the
probative value of evidence of a defendant’s prior convictions against that evidence’s prejudicial
effect . . .
(1) the impeachment value of the prior crime; (2) the point in time of the
conviction and the witness’s subsequent history; (3) the similarity between the
15 Fed. R. Evid. 403; see also United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005).
16 United States v. McClintock, 748 F.2d 1278, 1288 (9th Cir. 1984).
17 Fed. R. Evid. 609.
18 Fed. R. Evid. 609(a)(1).
19 Id.
20 Fed. R. Evid. 609(a)(2).
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 4 of 12

past crime and the charged crime; (4) the importance of defendant’s testimony;
and (5) the centrality of defendant’s credibility.21
Courts also consider how much time has elapsed before permitting a party to use a prior
criminal conviction to impeach a witness.22 Where “more than ten years have passed since the
witness’s conviction or release from confinement for it, whichever is later,” evidence of a witness’s
conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.23
Finally, “absent exceptional circumstances, evidence of a prior conviction admitted for
impeachment purposes may not include collateral details and circumstances attendant upon the
conviction.”24 “Generally, ‘only the prior conviction, its general nature, and punishment of felony
range [are] fair game for testing the defendant’s credibility.’”25
IV. 	DISCUSSION
A. 	Motion to exclude audio recordings of an alleged plot to kill Myrick Elliot
Moi previously sought the exclusion of evidence related to an alleged plan to retaliate
against Myrick Elliott for stealing drugs.26 In his initial motion, Moi identified law enforcement
21 United States v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000) (citing United States v. Browne, 829
F.2d 760, 762–63 (9th Cir. 1987)).
22 Fed. R. Evid. 609(b).
23 Id.
24 United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009) (quoting United States v.
Sine, 493 F.3d 1021, 1036 n. 14 (9th Cir. 2007)) (internal quotations removed).
25 Id. (quoting United States v. Albers, 93 F.3d 1469, 1480 (10th Cir. 1996)).
26 Dkt. 494.
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 5 of 12

interviews and grand jury testimony related to an alleged plan to kill Elliott.27 Moi argued that
evidence 	of 	a 	plan 	to 	kill 	Elliott 	should 	be 	excluded 	in 	part 	because 	“the 	recorded,
contemporaneous conversations” revealed “it is far from definite that [] a plan [to murder Elliott]
was ever made.”28 In his earlier motion, Moi also asserted that “neither Shanholtzer, nor the caller
alleged to be Moi, threaten[ed] Elliot explicitly or discuss[ed] harming anyone in response to the
disappearance of the heroin.”29 Now Moi argues the “recordings are precisely the evidence that
Mr. Moi sought to preclude,” because the recordings “invite[] the improper and prejudicial
findings the Court sought to avoid.”30
The Government contests Moi’s characterization of the recordings and argues that the
Court should permit the introduction of the recordings during the trial. The Government argues
that the recordings alone do not show that Moi intended to kill Elliott, but instead Moi’s
“knowledge of and involvement in the narcotics distribution enterprise.”31
The parties agree that at least some portion of the recordings may be admissible. Moi
asserts that “evidence from the recordings other than the alleged plot against Elliott may be
admissible, subject to proper foundation and a showing of relevance.”32 But neither party has
identified specific portions of the recordings that it is asking the Court to preclude, and without
additional context, the Court does not find the audio recordings disclosed by the Government alone
27 Id. at 5.
28 Id. at 6.
29 Id.
30 Dkt. 546 at 2.
31 Dkt. 548 at 4.
32 Dkt. 546 at 3.
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 6 of 12

reveal a plot to kill Elliott. For these reasons, the Court DENIES Moi’s request to exclude the
audio recordings of a purported plot to kill Elliott. If Moi wishes to prohibit the Government from
introducing specific portions of the audio tapes, he may move again identifying those portions
which he believes are unfairly prejudicial.
B. 	Motion to admit Kyle Dwiggins’s prior convictions under Fed. R. Evid. 609
In the Order on the Government’s first motions in limine, the Court granted the
Government’s request to preclude Moi from introducing Dwiggins’s prior theft convictions, which
fell outside of the 10-year window in Rule 609.33 The Court reasoned that Moi had not shown “that
the probative value” of either theft conviction “substantially outweighs its prejudicial effect,” as is
required by Rule 609(b).34 Moi argues he has now made that showing and asks to use both
convictions for impeachment purposes.35
Moi begins by arguing the theft convictions are probative of “Dwiggins’s credibility,
despite their age.”36 Moi asserts that although theft crimes do not “technically involve[e] a
dishonest act or false statement,” they reflect “the sort of conduct that would cause a person to
question the credibility” of a witness.37 Moi argues Dwiggins’s credibility is central to the
Government’s case because “Dwiggins will be one of [the Government’s] principal cooperating
witnesses”38 and, in light of the serious charges Moi faces, “[t]he jury should have complete
33 Dkt. 543 at 17.
34 Id. at 16–17.
35 Dkt. 546 at 4.
36 Id. at 5.
37 Id.
38 Id.
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 7 of 12

information about those witnesses in assessing their credibility.”39 Moi adds that the older
convictions will undercut any argument that “Dwiggins has been reformed.”40 Next, Moi asserts
the theft convictions are not prejudicial. Moi argues the Government “can’t establish any
prejudice . . . when Dwiggins will already be impeached based on similar conduct and will admit
to much worse on the stand.”41 Finally, Moi notes that “[a]ny danger of unfair prejudice could
easily be cured by the Court’s use of the standard, pattern impeachment instruction.”42
The Government makes two arguments in opposition. First, the Government argues the
theft convictions are not probative of Dwiggins’s credibility because, under Ninth Circuit caselaw,
theft is not probative of dishonesty.43 Second, the Government argues Moi does not need to
introduce these theft convictions to establish Dwiggins has a criminal history. The Court has held,
and the parties agree, that Dwiggins’s more recent Scheme to Defraud conviction is admissible for
impeachment purposes.44 Thus, according to the Government, the jury will not be “under the
mistaken impression that [Dwiggins] has led an entirely law-abiding life.”45
The Court agrees with Moi that the probative value of Dwiggins’s theft convictions
substantial outweighs their prejudicial effect because the risk of prejudice to the Government’s
case is uniquely low, Dwiggins’s credibility is central to this case, Dwiggins’s criminal history
39 Id.
40 Id.
41 Id.
42 Id. at 6.
43 Dkt. 548 at 7 (citing United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977)).
44 Dkt. 543 at 17.
45 Dkt. 548 at 7.
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 8 of 12

speaks at least to some extent to his truthfulness, and Moi has a constitutional right to put on his
best defense. Although the Government is correct that theft crimes do not per se involve dishonesty
or false statement within the meaning of Rule 609(a)(2), the Ninth Circuit has held that prior
convictions for robbery can be “probative of veracity.”46 In addition, as the Government apparently
concedes, the prejudicial effect of these theft convictions is particularly low here. Even without
hearing evidence of these convictions, the jury will hear that Dwiggins has been involved in
criminal activity and has a criminal history. Thus, even the marginal probative value of the theft
convictions substantially outweighs the risk of prejudice to the Government. The Court concludes
Moi must have the opportunity to present his best defense against a key Government witness under
these circumstances and thus GRANTS Moi’s request to introduce evidence of Kyle Dwiggins’s
prior theft convictions.
C. 	Motion to admit Jordan Shanholtzer’s prior convictions for assault, distribution of a
controlled substance, and misconduct involving a controlled substance
Moi also seeks to introduce three of Shanholtzer’s prior criminal convictions for
impeachment 	purposes. 	Those 	convictions 	are 	(1) 3AN-05-10414, 	Misconduct 	Involving
Controlled Substances in the Fourth Degree, State of Alaska, conviction date of January 5, 2007;
(2) 3:07-cr-00090-JWS, Drug Distribution, United States District Court, District of Alaska,
conviction date of December 18, 2008; and (3) 3AN-07-461, Assault in the Third Degree, State of
Alaska, conviction date of April 10, 2009.47 Although the Government initially opposed their
46 United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995) (“quoting United States v.
Givens, 767 F.2d 574, 580 (9th Cir. 1985)).
47 Dkt. 546 at 6. Moi “does not contest the Court’s ruling” at Docket 543 that Shanholtzer’s
remaining two convictions, 3AN-07-5025 and 3AN-16-2065, are inadmissible. Id. at n.2.
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 9 of 12

admission,48 it now agrees with Moi that the second and third convictions, which are both less than
10 years old within the meaning of Rule 609, are admissible under the Rule.49 Accordingly, the
Court GRANTS Moi’s request to introduce evidence of those convictions for impeachment
purposes and need only examine whether Shanholtzer’s 2007 conviction for Misconduct Involving
Controlled Substances is admissible.
Shanholtzer’s Misconduct Involving Controlled Substances conviction is over 10 years old
and, thus, evaluated under Rule 609(b).50 As discussed above, Rule 609(b)(1) provides that
“[e]vidence of the conviction is admissible only if . . . its probative value, supported by specific
facts and circumstances, substantially outweighs its prejudicial effect.”51
Moi argues the probative value of Shanholtzer’s Misconduct Involving Controlled
Substances substantially outweighs its prejudicial effect for two reasons. First, the conviction will
not prejudice the Government’s case because Shanholtzer will admit to dealing drugs in the
Government’s 	case-in-chief.52 	Second, 	the 	evidence 	is 	probative 	because, 	along 	with
Shanholtzer’s other felony convictions, it “may play a significant role in the jury’s evaluation of
Shanholtzer’s credibility,” which is “paramount” to the Government’s case.53 Moi notes “the Court
48 Dkt. 460 at 3 (Government’s Motions in Limine).
49 Dkt. 548 at 8 (“Because less than 10 years have elapsed from his “release from confinement”
for these felony offenses, Fed. R. Evid. 609(b), the court is required to admit them. Fed. R. Evid.
609(a)(1)(A).”).
50 Dkt. 546 at 6 (“This Court excluded Shanholtzer’s misconduct involving a controlled substance
conviction under Rule 609(b), concluding he was released from confinement more than 10 years
ago. Mr. Moi does not disagree, but that does not conclude the inquiry.”).
51 Fed. R. Evid. 609(b)(1).
52 Dkt. 546 at 6–8.
53 Id. at 8
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 10 of 12

can easily use the pattern instruction on impeachment to craft a limiting instruction to avoid unfair
prejudice.”54 In opposition, the Government argues only that Moi concedes the conviction is over
10 years old and “offers no analysis of any exceptional circumstances that would nevertheless
justify its admission.”55
The Court GRANTS Moi’s request to introduce evidence of Shanholtzer’s Misconduct
Involving a Controlled Substance conviction for impeachment purposes. Moi presents an argument
that the probative value of this conviction substantially outweighs the prejudicial effect. The
Government has not refuted that argument, instead stating that Moi offered “no analysis.” The
Court disagrees with the Government and, accordingly, will allow Moi to introduce evidence of
Shanholtzer’s Misconduct Involving a Controlled Substance conviction along with evidence of the
Drug Distribution and Assault convictions, which the Government agrees are admissible.
D. 	Motion to preclude evidence of payments to CS-1 and an alleged plot to kill CS-1
Moi previously moved the Court to exclude an alleged plot to kill CS-1.56 The Court denied
Moi’s motion as premature given the “conditional nature of the proposed evidence” and the low
risk of mistake.57 Moi now moves to exclude evidence of payments to CS-1 to ensure neither party
“opens the door” to admission of the plot against CS-1. Moi represents that he “will not cross-
examine any government witness about the payments or admit such evidence in his defense
case.”58 The Government maintains that provided Moi does not mention the payments made to
54 Id.
55 Dkt. 548 at 8.
56 See generally Dkt. 494.
57 Dkt. 543.
58 Dkt. 546 at 9.
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 11 of 12

CS-1, it has no need to offer any further explanation. Accordingly, the Court GRANTS Moi’s
motion to preclude evidence of payments to CS-1 and the alleged plot to kill him.
V. 	CONCLUSION
For the foregoing reasons, Defendant Moi’s Motions in Limine at Docket 546 is
GRANTED in part and DENIED in part as follows:
• 	The Court DENIES Moi’s request to preclude audio recordings of an alleged plot to
kill Myrick Elliott in September 2019 under Rule 403 and 404;
• 	The Court GRANTS Moi’s request to introduce Kyle Dwiggins’s prior convictions for
theft under Rule 609;
• 	The Court GRANTS Moi’s request to introduce Jordan Shanholtzer’s prior convictions
for distribution, assault, and misconduct involving controlled substances under Rule
609; and
• 	The Court GRANTS Moi’s request to exclude evidence of a plot to kill CS-1 under
Rule 403.
Moi’s inquiry into the prior convictions admitted in the Order is limited to introducing the
fact of each prior conviction, its general nature, and its classification as a felony.59
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 18th day of February, 2022.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
59 See United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009).
Case 3:19-cr-00112-JMK-SAO Document 570 Filed 02/20/22 Page 12 of 12