                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 24 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30167

              Plaintiff - Appellant,             D.C. No. 2:09-cr-00088-FVS-1

  v.
                                                 MEMORANDUM *
KARL F. THOMPSON, Jr.,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                      Argued and Submitted February 7, 2011
                               Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.




       We consider the government’s interlocutory appeal of the district court’s

pretrial exclusion of evidence. We have jurisdiction under 18 U.S.C. § 3731, and

we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review a district court’s pretrial exclusion of evidence for abuse of

discretion. United States v. Bonds, 608 F.3d 495, 498 (9th Cir. 2010). “[P]retrial

in limine evidentiary rulings are to be accorded the same deference on appeal as

rulings made during trial.” United States v. Layton, 767 F.2d 549, 555 (9th Cir.

1985). We do not reverse an evidentiary ruling under an abuse of discretion

standard unless we are “‘convinced firmly that the reviewed decision lies beyond

the pale of reasonable justification under the circumstances.’” Boyd v. City and

Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009) (quoting Harman v.

Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000)).

      Here, the district court properly concluded that evidence of Otto Zehm’s

innocent conduct was relevant under Boyd, 576 F.3d at 944 (“[W]here what the

officer perceived just prior to the use of force is in dispute, evidence that may

support one version of events over another is relevant and admissible.”). The

district court, however, exercised its discretion under Fed. R. Evid. 403 to exclude

this evidence because the potential for prejudice to Officer Thompson substantially

outweighed the probative value of the evidence. In so ruling, the court noted the

sympathetic nature of this evidence and expressed concern that a limiting

instruction would not be effective in keeping the jury focused on the elements of

the alleged offense. Although the district court’s reasoning for its Rule 403 ruling


                                           2
gives us pause, we cannot say that it is “illogical, implausible, or without support

in inferences that may be drawn from the record.” See United States v. Hinkson,

585 F.3d 1247, 1263 (9th Cir. 2009) (en banc) (adopting an abuse of discretion test

for denial of motions for a new trial). Indeed, “[t]he record reflects that the court

conscientiously weighed the probative value against the prejudicial effect for each

piece of evidence, which is a showing sufficient for affirmance.” Boyd, 576 F.3d

at 949.

      In affirming the district court’s ruling, we are mindful of the government’s

representation at oral argument that the excluded evidence is not essential to its

ability to prove its case beyond a reasonable doubt. Further, we take note of the

district court’s statement that, if warranted by the evidence at trial, it would

reconsider its ruling. The court’s willingness to revisit the issue is significant

because the court issued its ruling pretrial, without the benefit of the witnesses’

actual testimony.

      AFFIRMED




                                            3
