UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA Criminal Action No. 21-738 (BAH)

v. Chief Judge Beryl A. Howell

MICHAEL OLIVERAS,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Michael Oliveras faces trial on February 20, 2023 on a four-count information

arising from his alleged conduct at the U.S. Capitol on January 6, 2021. Pending before the Court

is the government’s opposed Motion in Limine to Preclude Arguments and Evidence (“Gov’t’s

Mot.”), ECF No. 28, seeking to preclude defendant from pursuing a trio of hypothesized lines of

defense. For the reasons discussed below, the motion is granted.

I. DISCUSSION

The government “requests that the Court issue an order precluding Defendant Michael

Oliveras from any of the following: (1) arguing any entrapment by estoppel defense related to

law enforcement; (2) offering evidence or argument concerning any claim that by allegedly

failing to act, law enforcement made the defendant[’]s entry into the United States Capitol

building or grounds or [his] conduct therein lawful; or (3) arguing or presenting evidence of

alleged inaction by law enforcement unless the defendant specifically observed or was otherwise

aware of such conduct.” Gov’t’s Mot. at 1. Each component of the government’s motion is

examined in turn.

1 A. Entrapment by Estoppel

To prove an entrapment by estoppel defense, which the government seeks to preclude, “a

defendant criminally prosecuted for an offense must prove (1) that a government agent actively

misled him about the state of the law defining the offense; (2) that the government agent was

responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the

defendant actually relied on the agent's misleading pronouncement in committing the offense;

and (4) that the defendant's reliance was reasonable in light of the identity of the agent, the point

of law misrepresented, and the substance of the misrepresentation.” United States v. Chrestman,

, 31 (D.D.C. 2021) (quoting United States v. Cox,

(10th

Cir. 2018)).

Here, defendant has proffered absolutely no evidence supporting any element of the

entrapment-by-estoppel affirmative defense. Further, even if he had, the logic in Chrestman that

a U.S. President cannot unilaterally abrogate statutory law applies with equal force to

government actors in less powerful offices, such as law enforcement officers protecting the U.S.

Capitol Building.

Defendant rebuts none of this, offering only a threadbare opposition that Chrestman

reaches only the pretrial release context, while ignoring that the legal principles articulated were

not limited to that context. Def.’s Resp. Gov’t Mot. Preclude Args. and Evid. (“Def.’s Opp’n”)

at 1–2, ECF No. 37. In addition, defendant expresses the view that precluding ex ante any

categories of argument and testimony is “not appropriate” since no testimony has yet been taken.

Id. at 2. Given, however, that a motion in limine by its nature does exactly that—rule in advance

as to whether certain evidence may be introduced or argument made—defendant’s last gasp

argument falls flat.

2 B. Conduct Purportedly Made Lawful Due to Officer Inaction

Next, the government seeks to preclude arguments or testimony suggesting that alleged

inaction by law enforcement officers somehow caused defendant’s conduct to be lawful. Gov’t’s

Mot. at 15–16. Defendant offers no substantive rebuttal. See Def.’s Opp’n.

Settled caselaw makes clear that law officer inaction—whatever the reason for the

inaction—cannot sanction unlawful conduct. See Cox v. Louisiana,

, 569–70

(1965); United States v. Gutierrez-Gonzalez,

, 1168–69 (10th Cir. 1999) (holding

defendant’s belief that he was legally in the United States was not reasonable despite an INS

clerk failing to arrest defendant “on the spot” when he illegally re-entered the country); Garcia v.

Does,

(2d Cir. 2015) (declining to extend the entrapment-by-estoppel defense to

a case that involved the location and movements of protestors who argued that their prosecuted

conduct had been implicitly approved by the police, but could not show that it was “affirmatively

authorized” by the police). Thus, defendant is precluded from arguing that law enforcement, by

failing to act or censure his conduct, somehow made any of his otherwise allegedly unlawful

conduct lawful.

C. Officer Permissiveness Not Perceived by Defendant

Finally, the government seeks to preclude defendant from presenting evidence or

argument about alleged permissiveness by law enforcement officers, except to the extent that

defendant observed or was otherwise actually aware of such conduct. Gov’t’s Mot. at 16. The

government allows that “[t]he conduct of law enforcement officers may be relevant to Oliveras’s

state of mind on January 6, 2021.”

As a logical matter, however, any action or inaction of

which defendant was not aware cannot possibly have had any effect on his state of mind and is

inadmissible as irrelevant under Federal Rule of Evidence 401.

3 Defendant does not challenge this basic proposition but instead suggests that unless and

until defendant testifies whether he was or was not aware of specific officer conduct, any

testimony about officer action or inaction must be fair game. Def.’s Opp’n at 2. Defendant has

it backwards. Although he need not testify, he must somehow establish his awareness of the

alleged permissiveness. Fortunately, he can do so any number of ways, such as a good faith

proffer outside the presence of the jury, see Gov’t’s Reply at 5, ECF No. 44 (quoting Mem. &

Order at 4, United States v. Williams, No. 21-cr-377 (BAH), ECF No. 87), or using other

evidence to show that defendant was adequately nearby the alleged inaction at the correct time to

have perceived and understood such permissiveness as giving him permission to enter the

Capitol. Short of that, defendant cannot present a defense that he is not culpable of otherwise

unlawful conduct due to permissiveness by law enforcement officers at the Capitol.

II. ORDER

For the foregoing reasons, it is hereby

ORDERED that the government’s Motion in Limine to Preclude Improper Defense

Arguments and Evidence (“Gov’t’s Mot.”), ECF No. 28, is GRANTED.

SO ORDERED.

Date: January 17, 2023

__________________________ BERYL A. HOWELL Chief Judge

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