Free Motion in Limine - District Court of Arizona - Arizona

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MARK PAIGE 45 West Jefferson Luhrs Tower - Suite #806 Phoenix, AZ 85003-2317 (602) 254-5457 State Bar #020902 [email protected] Attorney for Defendant

UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 14 The defendant, Goran Becun, hereby moves the court for an Order excluding from 15 evidence any testimony, documents or other form of evidence alleging genocide in Bosnia/Serbia 16 on the following bases: 17 1. The government's failure to produce in discovery any documentation to establish the 18 defendant's involvement whatsoever in any such activities; 19 2. Such evidence would be unfairly prejudicial to the defendant since, in light of no 20 evidence to connect this defendant to such conduct, there is no probative value. See, FRE 21 401-403; or 22 3. In the alternative, the probative value, if any, is substantially outweighed by the unfair 23 prejudice to the defendant which will result upon the admission of such evidence. 24 Respectfully submitted this 20th day of March, 2006. 25 4. 26 requests and FRCrP 16, the IOM file relating to this defendant nor the "A" from United 27 28 -1The government's failure to produce in discovery, pursuant to the defendant's DISTRICT OF ARIZONA _______________________________________ ) UNITED STATES, ) No.: CR-04-1280-PHX-FJM ) Plaintiff, ) ) MOTION IN LIMINE TO EXCLUDE v. ) EVIDENCE REGARDING ) GENOCIDE Goran Bencun, ) ) Defendant. ) (Argument Requested) _______________________________________)

Case 2:04-cr-01280-FJM

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States Immigration.

S/ Mark A. Paige MARK PAIGE Attorney for Defendant Copy of the foregoing was mailed/delivered this 20th day of March , 2006 to: Andrew Pacheco Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue Suite 1200 Phoenix, AZ 85004-4408

S/ Mark A. Paige Mark A. Paige

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARGUMENT

MEMORANDUM The defendant is accused of three offenses relating to giving false information to the United States Government in the process of his immigration to the United States from Serbia. The primary contention of the government will be that the defendant lied on his immigration documents when he failed to disclose that he was in the "army" of the Republic of Srpska. Under the cover of "materiality" the government will ask the jury to re-fight the Bosnian War, including allegations of genocide. However, the government can produce no facts to support the involvement of this defendant in that conduct, nor conclusive proof of the involvement of his "military" unit in such alleged atrocities. In fact, the government has presented testimony previously, in other proceedings, that the military unit in which they allege the defendant to have served, was disbanded prior to the genocidal conduct in late July 1995. In addition, the government has presented testimony that this unit, the Red Berets, were not involved to the best of its information, save one particular member whose involvement was unknown. Also, as of the time of this writing, the government has not disclosed to the defendant the complete IOM file relating to this defendant nor a complete copy of this defendant's "A" File from the United States Immigration Office(s).

Only relevant evidence is admissible at trial. FRE 402. Rule 402 states that "Evidence which is not relevant is not admissible." Relevant evidence is defined as: ...evidence having any 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. FRE 401. Evidence relating to the existence or reference to genocidal conduct occurring after the

26 defendant's unit was disbanded is not relevant in this trial. The defendant is not charged with 27 28 -3-

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genocide. Evidence of the genocide occurring at Srebrenica will not make the existence of any fact more or less probable. The evidence is not relevant. The evidence should be excluded. Even if relevant, the evidence would be properly excluded under FRE 403 as unfairly prejudicial. Relevant evidence is properly excluded "...if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues...". FRE 403. In the present case, admission of evidence as to the genocide taking place during or after the conclusion of a war between two factions would be unfairly prejudicial and confuse the issue as to the nature of the allegation in the Indictment. This is particularly true when there is no evidence that this defendant had any involvement whatsoever in such activities. This is also particularly true when the unit in which the defendant is alleged to have served was disbanded prior to the genocide. The rule calls for a balancing between the probative value and need for the evidence against the harm likely to result from its admission. The harm in this case is to pander to the emotions and the outrage of the jury and confusion of the issues to be determined at trial. This is not a murder trial or a war crimes tribunal. This is a trial on issues of perjury and false statements. The evidence, even if relevant, is unfairly prejudicial. The evidence should be excluded.

Date: March 20, 2006 //

S/ Mark A. Paige Attorney for Defendant G. Bencun

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