ORDER RE MOTIONS IN LIMINE

VINCE CHHABRIA, District Judge.

Seltenrich's Motions in Limine

1. As discussed below, the Court will, in an abundance of caution, give Seltenrich one final opportunity to articulate the basis for an insanity defense. (Dkt. No. 96.) In the event the Court does not deviate from its prior ruling on this issue, the motion to exclude information contained in his prison medical file will be granted, with the understanding that evidence of prior positive drug tests may be admitted if Seltenrich opens the door.

2. The motion to exclude evidence relating to Seltenrich's 2008 bank robbery is denied under Rule 404(b). (Dkt. No. 100.) The identity of the robber is a key question in this case. Evidence of similarities between the note that Seltenrich handed the bank teller during his 2008 robbery, and the note used in connection with the 2015 robbery, is probative of the identity of the person who committed the 2015 robbery. The evidence is sufficient to show that Seltenrich authored the 2008 note, because the note was recovered in connection with a bank robbery that Seltenrich admitted to committing. The 2008 act is not too remote in time. United States v. Smith, 282 F.3d 758, 769 (9th Cir. 2002). And the language used in the 2008 note is sufficiently distinctive to make it helpful in identifying the robber. See United States v. Luna, 21 F.3d 874, 878-79 (9th Cir. 1994); see, e.g., United States v. Johnson, 820 F.2d 1065, 1069-70 (9th Cir. 1987). While there is some risk that the jury might use this evidence for propensity purposes, the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. The Court will give a limiting instruction to the jury on the proper use of this evidence.

3. Regarding Seltenrich's motion to allow him to present an insanity defense, the Court will, in an abundance of caution, give him one more opportunity to attempt to articulate the basis for the defense (and the basis for his request for CJA funds). (Dkt. No. 101.)

Government's Motions in Limine

1. The motion to admit the note used in Seltenrich's 2008 bank robbery, and evidence that he handed this note to the bank teller, is granted for the reasons stated above with respect to Seltenrich's second motion in limine.

2. The motion to admit lay witness testimony regarding the identity of the person in the bank surveillance video is granted. The proffered witnesses appear to have sufficient familiarity with the defendant's appearance at the time the robbery in this case occurred to make their testimony helpful to the jury. United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005).

3. The motion to admit facts regarding Seltenrich's supervised release and the reentry center is granted. This evidence is not substantially more prejudicial than probative, because these facts are relevant to establishing the identity of the robber and to provide the context of the crime to the jury.

4. As to the government's fourth motion in limine, Seltenrich will not be prohibited from referring to himself in the first person during opening statement, closing argument, and examinations. But the jury will be instructed that his statements, arguments, and questions are not evidence. Seltenrich will be expected to comply with procedural and substantive rules of court, and is subject to the same good faith limitations imposed on lawyers. If Seltenrich does not make a good faith effort to comply with these rules, his right to represent himself will be revoked.

5. The motion to preclude the defendant from making references to his sentence, punishment, or jury nullification is granted.

6. If the defendant testifies, he will be required to testify in a question-and-answer format, with his advisory counsel asking the questions. Seltenrich may provide advisory counsel with a list of questions in advance of his testimony.

7. If the defendant testifies, and assuming he contests the identity of the robber, his 2008 bank robbery conviction will be admissible to impeach his credibility under Rule 609(a)(1)(B). If the defendant contests the identity of the robber, his credibility will be central to the case. Although a risk of prejudice arises from the similarity of his 2008 conviction to the charged offense, the probative value of the conviction for assessing Seltenrich's credibility outweighs the prejudicial effect. See United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995).

The 1985 bank robbery conviction will not be admitted, however, because it is too remote in time. In any event, admitting the 2008 conviction makes the probative value of the 1985 conviction minimal.

8. The motion to preclude the defendant from introducing evidence that should have been produced in reciprocal discovery is denied without prejudice. The government has not pointed to any specific evidence it suspects to have been withheld.

9. The motion to preclude unnoticed affirmative defenses is granted.

14. It appears that the first five documents the government identified in its fourteenth motion in limine are self-authenticating. However, this does not automatically mean they're admissible. To the extent the government seeks to admit these documents at trial, it must establish their admissibility. With respect to Pacific Western Bank's FDIC "Certificate of Proof of Insured Status" and Certificate of Insurance, Mr. Wine is required to provide Seltenrich with a copy of the documents for inspection tomorrow morning or to obtain them from the government if they are not in his possession.

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Any motions in limine not addressed above will be discussed at the pretrial conference. Mr. Wine is ordered to provide Seltenrich with a copy of this Order tomorrow morning, sufficiently in advance of the pretrial conference to give Seltenrich an opportunity to review it.

IT IS SO ORDERED.