United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
matters before the Court include the government's motion
to exclude argument about the lack of a specific dog fight
(Doc. 62), the government's request to strike Mr.
Arellano's late filing (Doc. 75), and Mr. Arellano's
request for the government to pay his related legal fees
(Doc. 86). For the reasons explained below, the Court denies
all requests except for the government's motion to
exclude illegal argument, which is granted only insofar as to
preclude Mr. Arellano from arguing that the existence of a
specific dog fight is an element of the charged offense.
government has charged Mr. Arellano with 13 counts of
possessing a dog for the purpose of fighting in an animal
fighting venture, in violation of 7 U.S.C. § 2156(b).
The parties vigorously debated whether the government should
have the burden of proving the existence of a specific animal
fight as an element of each charge. During oral argument on
the issue, the Court indicated that it was inclined to rule
that a specific animal fight was not an element of a §
2156(b) violation (Doc. 66 at 115:6-10), a decision the Court
confirmed in its March 5, 2018 Order continuing trial,
(see Doc. 54 at 1).
that Mr. Arellano may nevertheless misconstrue the elements
of the charged crime to the jury, the government filed a
motion in limine to prevent Mr. Arellano from arguing that
the existence of a specific animal fighting venture is an
element of the § 2156(b) offense. (See Doc. 62
at 1.) Three days past his deadline to do so, Mr. Arellano
responded, contending that granting the government's
motion would impermissibly deprive the jury of relevant
evidence. (See Doc. 72 at 2.)
government asked the Court to strike Mr. Arellano's
response as untimely or, in the alternative, order Mr.
Arellano's attorney to show cause why he should not be
sanctioned. (See Doc. 75 at 5-6.) The government
also clarified that it only wanted to preclude Mr. Arellano
from misstating the law, not to prevent him from presenting
relevant facts to the jury. (Id. at 4-5.) Mr.
Arellano fired back, arguing that the government's motion
to strike was frivolous and requesting that the government
pay for his attorney's fees in responding to the motion.
(Doc. 86 at 4.)
The government does not need to prove a specific
Court has confirmed that the government need not prove the
existence of a specific fight, but additional explanation may
be helpful. Section 2156(b) outlaws possession of an animal
“for purposes of having the animal participate in an
animal fighting venture.” 7 U.S.C. § 2156(b). The
question is: does there need to be a specific animal fight,
as Mr. Arellano argues, or is it enough that the defendant
possessed the animal for the purpose of participating in an
unspecified animal fight? To answer this question, the Court
looked to other provisions of § 2156. See Gustafson
v. Alloyd Co., 513 U.S. 561, 568 (1995) (defining
contested language in a manner that can be consistently
applied throughout the relevant statute).
(c) of § 2156 makes it a crime to advertise an animal
for use in an animal fighting venture. See 7 U.S.C.
§ 2156(c). Under Mr. Arellano's construction, an
individual who runs the following ad: “looking to sell
Fido to anyone who needs a fighting dog for her next dog
fight” cannot be convicted under this section unless a
buyer arranges a specific fight in which to use Fido. And
subsection (e) makes it “unlawful for any person to
knowingly sell, buy, transport, or deliver in interstate or
foreign commerce” a sharp instrument designed to be
attached to the leg of a bird for use in an animal fighting
venture. See 7 U.S.C. 2156(e). Under Mr.
Arellano's construction, an individual who sells these
prohibited sharp instruments cannot be convicted under §
2156(e) unless a buyer arranges a specific fight in which to
use the instruments. Mr. Arellano's theory that there
needs to be a specific animal fight, if applied uniformly to
the same text throughout § 2156, would render certain
provisions of the statute absurdly narrow.
Court thus declined Mr. Arellano's invitation to require
proof of a specific fight. The Government may prove a §
2156(b) offense by showing beyond a reasonable doubt that
there is to be some general animal fighting venture for which
the dog in question is to participate.
The Court will not strike Mr. Arellano's
deciding upon the appropriate sanction for a scheduling order
violation, a district court should consider three factors
laid out in United States v. Wicker, 848 F.2d 1059
(10th Cir. 1988): “(1) the reason for the delay,
including whether the non-compliant party acted in bad faith;
(2) the extent of prejudice to the other party; and (3)
‘the feasibility of curing the prejudice with a
continuance.' ” United States v. Yepa, 608
Fed.Appx. 672, 677 (10th Cir. 2015) (citing Wicker,
848 F.2d at 1061). Those three factors are meant only to
guide the court, and are not the only possible
considerations. Id. (citation omitted). For example,
a court can suppress non-compliant evidence even when there
is no prejudice to the party entitled to disclosure, in order
to “maintain the integrity and schedule of the
court.” Id. at 678 (citation omitted).
Ultimately, “the court should impose the least severe
sanction that will accomplish prompt and full compliance with
the discovery order.” See Id. at 677-78.
the first factor, the reason for delay, negligence can be
sufficient to justify excluding evidence, but
“exclusion is ordinarily only appropriate where a party
acts in bad faith or lacks any legitimate reason for a
delay.” Id. at 678. Mr. Arellano offered
several reasons for his late filing: his filing was
consistent with the District's local rules; he believed a
continuance on the trial was imminent; and he was busy with
other matters. (See Doc. 72 at 1 n.1.) These were
interesting arguments for Mr. Arellano to make, as he was the
one who assured the Court that “[t]he remaining
deadlines in the current Scheduling Order will stay
unchanged” in his motion to continue the trial. (Doc.
70 at 3.) And as the government notes, none of Mr.
Arellano's arguments are convincing: the local rules do
not provide safe harbor for scheduling order violations, and
Mr. Arellano's workload and subjective belief about the
imminence of a continuance are not sufficient to justify an
unexcused late filing. (See Doc. 75 at 2.) In any
event, Mr. Arellano should have made his arguments in a