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United States v. Arellano

United States District Court, D. New Mexico

May 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT ARELLANO, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the government's Motion in Limine and Notice of Intent to Introduce Evidence as Res Gestae and of Prior Bad Acts Pursuant to Federal Rule of Evidence 404(b), filed on March 15, 2018 (Doc. 57), the United States' Motion to Strike the Untimely-Filed Response to Rule 404(b)/Res Gestae Notice, filed on April 10, 2018 (Doc. 69), and the government's Motion in Limine to Exclude Reference to the United States' Advisement of Rights to Shirley Arellano, filed on April 27, 2018 (Doc. 85). The Court heard oral argument on these motions on May 29, 2018. For the reasons explained below, the Court will grant in part the Motion in Limine and Notice of Intent to Introduce Evidence as Res Gestae and of Prior Bad Acts, deny the Motion to Strike, and deny the Motion in Limine to Exclude Reference to the United States' Advisement of Rights to Shirley Arellano.

         I. Motion in Limine and Notice of Intent to Introduce Evidence as Res Gestae and of Prior Bad Acts Pursuant to Federal Rule of Evidence 404(b)

         A. Background

         The 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). (See Doc. 1.) On March 15, 2018, the government gave “notice of its intention to introduce evidence of other crimes, wrongs or acts of the Defendant as res gestae, or” in the alternative, “pursuant to Federal Rule of Evidence 404(b) . . . .” (Doc. 57 at 1.) In addition to the 17 photographs and 2 video clips on which Judge Browning made preliminary findings at the January 18, 2018 motion hearing (see Doc. 66), the government has given notice that it intends to introduce 50 additional pieces of evidence. (See Doc. 57 at 4-5.) The government sorts these 50 documents and audio clips into five broad categories: (1) “dog ‘pedigrees' handwritten by the defendant[, ]” including references to certain dogs' fighting history, “kennel” names, injuries, kills, and sales prices; (2) “the defendant's handwritten notes pertaining to” the dog fighting venture, including notes on training, breeding, communications with other dog fighters, etc.; (3) “air waybills showing shipment of dogs to and from the defendant”; (4) advertisements defendant drafted for dog fighting magazines, as well as magazines that featured Defendant in articles and/or advertisements; and (5) “correspondence with other dog fighters.” (Id. at 4.)

         Mr. Arellano makes several general objections[1] to the evidence as a whole: (1) the proffered evidence is simply too old to be connected to the charged crimes (see Doc. 68 at 2-3, 5-6); (2) the government fails to establish the date of each item or provide the specific “legal rule of admissibility [that] applies to each item” (id. at 4); (3) where photos and videos do not depict Mr. Arellano, they cannot be defined “as a ‘prior bad act' attributable to” him under Rule 404(b)(2) (id. at 4-5); (4) the age of the evidence shows that the government is using it to support the forbidden “inference that the defendant has the propensity to commit the bad act” (id. at 5, 6 (citing United States v. Shirley, 214 F.Supp.3d 1124, 1146 (D.N.M. 2016)); (5) dog fighting was not illegal at the time Mr. Arellano participated in it (see Id. at 6); (6) it is unfair to admit this evidence and also “limit [Defendant] from arguing to the jury that there is no evidence he was ever involved in a dog fight in the past” (id. at 6); and (7) the age of the evidence means it is irrelevant, and its probative value is outweighed by unfair prejudice to the Defendant (id. at 7-8).

         B. Legal Standard

         The government seeks to admit the evidence under two theories: first, that it is “intrinsic” or “res gestae” evidence; and second, that it is “extrinsic” evidence admissible under Rule 404(b)(2). (See Doc. 57.) The discussion regarding intrinsic versus extrinsic evidence is largely academic. See United States v. Lujan, No. CR 05-0924 RB, 2011 WL 13210276, at *5 (D.N.M. May 11, 2011). The distinction often dictates how a court may consider character evidence under Rule 404.

         Rule 404(a) prohibits the admission of evidence of a person's “bad character” to prove that the person acted in accordance with that character on a particular occasion. See Fed. R. Evid. 404(a)(1). Rule 404(b) prohibits the introduction of “prior bad acts”-that is, “[e]vidence of a crime, wrong, or other act”-in order to prove that the defendant has a general propensity to act in such a manner. See Fed. R. Evid. 404(b)(1); see also Shirley, 214 F.Supp.3d at 1144 (citation omitted). The rule provides a nonexhaustive list of exceptions, however, which allows courts to admit “‘other wrongs' evidence to be used for valid purposes ‘such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'” Lujan, 2011 WL 13210276, at *5, *6 (quoting Fed.R.Evid. 404(b)(2) (alterations in original)).

         Importantly, “Rule 404(b) applies only to prior bad acts extrinsic to the crime charged.” Id. (quoting United States v. Kravchuk, 335 F.3d 1147, 1155 (10th Cir.), cert. denied, 540 U.S. 941 (2003) (internal citation omitted)). Where the evidence is intrinsic to the crime charged, courts are not constrained by Rule 404. See United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011) (noting that “[i]f the contested evidence is intrinsic to the charged crime, then Rule 404(b) is not even applicable) (citation omitted); United States v. O'Brien, 131 F.3d 1428, 1432 (10th Cir. 1997) (“It is well settled that Rule 404(b) does not apply to other act evidence that is intrinsic to the crime charged . . . .”) (citations omitted). Admission of either intrinsic and/or extrinsic evidence is not without its limits, as the court must engage in a Rule 403 analysis to determine whether the evidence is unduly prejudicial under either analysis. See Lujan, 2011 WL 13210276, at *10 (citations omitted).

         The Tenth Circuit has defined “intrinsic evidence [as] that which is ‘directly connected to the factual circumstances of the crime and provides contextual or background information to the jury. Extrinsic evidence, on the other hand, is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.'” Id. at *6 n.10 (emphasis omitted) (quoting United States v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009) (internal quotation omitted)). Aside from the difference in definitions, there are limited practical consequences to admitting evidence as either intrinsic or extrinsic. See Lujan, 2011 WL 13210276, at *10. For our purposes, the only relevant difference is that the Tenth Circuit has not required courts to give a limiting instruction for intrinsic evidence. See Id. (citing United States v. Green, 175 F.3d 822, 831 (10th Cir.), cert. denied, 528 U.S. 852 (1999)). The Court cannot find any prohibition in either the rules or in the caselaw that prohibits courts “from giving a limiting instruction for intrinsic evidence if appropriate.” Id. (citing Fed.R.Evid. 105). “Here, I will give limiting instructions where appropriate, without regard to the ‘intrinsic' or ‘extrinsic' nature of the evidence.” See id.

         C. Analysis

         Before turning to the disputed evidence, the Court notes that while Mr. Arellano makes several general objections in his responsive brief, he never cites a single, specific exhibit. (See Doc. 68.) The Court will begin by addressing and overruling four of Mr. Arellano's global objections.

         First, Mr. Arellano complains that the government fails to establish the date of each item or provide the specific “legal rule of admissibility [that] applies to each item.” (Doc. 68 at 4.) The Court notes initially that the government has provided sufficient arguments and notice to show why the evidence should be admitted as either intrinsic or extrinsic. (See Doc. 57.) In his second, related argument, Defendant contends that “much of those videos and photos were taken” in the 1970s-1980s when “it was not a crime to engage in dog fighting . . . .” (Doc. 68 at 6.) This is similar to an argument Defendant made with respect to the government's earlier noticed exhibits, and which Judge Browning overruled because the exhibits were items taken during the search of Defendant's home. (See, e.g., Doc. 66 at 52:3-15 (“It seems to me the authentication argument is weak here, because it's found at the scene. It's real evidence.”).)

         To the extent that Defendant argues that the government will be unable to authenticate the noticed photographs and documents, the Court finds that the government may authenticate them as real evidence under Rule 901 because they were found at the crime scene. Objects that are “relevant because [they were] found at the scene of the crime, ” often referred to as “real” evidence, “are treated as independent substantive sources of evidence because the trier of fact may draw inferences from the objects themselves about some fact of consequence.” 2 McCormick On Evid. § 213 (7th ed.); see also United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989) (noting that to admit real evidence that is “unique, readily identifiable and relatively resistant to change, ” the proponent must provide the proper foundation by offering “testimony that the evidence is what its proponent claims”) (citations omitted).

         Instead, Defendant's arguments go more to the weight of the evidence, rather than to its admissibility. Defendant is free to point out any failure to date the documents/photographs, and the jury may consider that failure in deciding what weight to give the evidence. See, e.g., United States v. Hock Chee Koo, 770 F.Supp.2d 1115, 1124 (D. Ore. 2011) (finding that an “error in the creation date [of a document] goes to the weight of the evidence, not its admissibility”) (citing United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988) (“alleged inaccuracy of computer printouts went to weight, not admissibility”)). Similarly, without proof that the evidence pre- or post-dates the federal statute criminalizing animal fighting ventures, see Pub. L. 94-279, 90 Stat. 417 (Apr. 22, 1976) (making it unlawful to “knowingly sponsor or exhibit an animal in any animal fighting venture to which any animal was moved in interstate or foreign commerce[, ]” or “to sell, buy transport, or deliver to another person or receive from another person . . . any dog or other animal for purposes of having the dog or other animal participate in an animal fighting venture”), Defendant may argue to the jury the possibility that the documents pre-dated the relevant statutory authority, and the jury may consider that argument in deciding what weight to give the evidence. Importantly, Defendant does not point to any exhibit that obviously pre-dates the relevant statute. Therefore, the probative value of the exhibits is not so outweighed by the potential for unfair prejudice that the exhibits should be excluded.

         Third, Mr. Arellano argues that where photos and videos do not depict Mr. Arellano specifically, they cannot be defined “as a ‘prior bad act' attributable to” him under Rule 404(b)(2). (Doc. 68 at 4-5.) The Court finds that the fact Defendant is not pictured in every single photograph is not so prejudicial that it substantially outweighs the probative value of the photographs. The jury may consider the Defendant's absence in the photos and videos when deciding what weight to give to each exhibit. See United States v. Harris, 534 F.2d 207, 213 (10th Cir. 1975) (finding that arguments regarding admissibility of photographs, including arguments that the photographs did not include the defendants/witnesses, went more to the weight of the evidence than its admissibility).

         Fourth, Defendant asserts that it is unfair to admit the proffered evidence and also “limit [Defendant] from arguing to the jury that there is no evidence he was ever involved in a dog fight in the past.” (Doc. 68 at 6.) Defendant points to no ruling in which the Court has precluded Defendant from making this argument. Moreover, the burden remains on the government to prove each element of the charged crime.

         The Court will address Defendant's remaining arguments below in reference to the specific subcategories of evidence.

         For simplicity's sake, the Court will adopt the government's numbering scheme to reference the subcategories of material at issue, beginning with subcategory 20 and ending with 33. (See Doc. 57 at 4-5.) Several of the subcategories of material contain multiple exhibits; for example, subcategory 20 includes exhibits 95-97. (See id.) Using the five categories of documents proposed by the government (see Id. at 4), the Court will offer brief summaries and examples of each exhibit, followed by its ruling on the exhibits.

         1. Category 1: dog “pedigrees” with handwritten notes recording the lineage or “bloodline” of certain dogs, references to the dogs' fighting history and “kennel” names, references to injuries, kills, etc., sales prices, and dates.

         This category includes subcategories 20 (exhibits 95-97) and 21 (exhibit 98). The exhibits include handwritten notes recording the lineage of certain dogs, together with handwritten notes purportedly relevant to dog fighting (i.e., “Very hard mouth! 2 kills!” (Ex. 95); “Heartworm ended his career early. He's been bred 3x's only with [sic] this past month. Litters of 7, 5, & 8. 7 males have won, 1x. 2 [males have] lost 1x. 1 female won 4x's . . . .” (Ex. 96); “1xW killed[, ] 2xW in the pit . . . . She got her leg busted early in that match . . . . ...


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