United States District Court, D. New Jersey
G. SHERIDAN, U.S.D.J.
matter comes before the Court on several in limine
evidentiary motions. On September 22, 2018, the Court heard
oral argument on the motions and ruled on admissibility of
several items of evidence but reserved on admissibility of
others. The Court now rules as follows.
government seeks to admit four videos - Exhibits 22, 200,
290, 291. Exhibit 22 is an approximately
one-and-one-half-minute video of two dogs fighting. A
person's voice, which the Government contends is Love,
can be heard in the background. The Government argues it is
intrinsic and relevant because it depicts the charged conduct
and at least one of the dogs is named in the indictment. The
second video, Exhibit 200, depicts another dog fight of
approximately one and one-half minutes. A person, whom the
Government also contends is Love, can be heard shouting at
the dogs while they fight. The Government conceded neither of
these dogs are named in the indictment but argues this video
is both intrinsic and relevant because it was seized from
Love's phone and contains his voice.
third video, Exhibit 290, depict several dogs chained to
posts in a dirt yard. The cameraman, allegedly Arellano,
states the dogs' names and describes their fighting
abilities, prior victories and championships, how well they
recover after matches, how aggressive they are, and their
pedigrees. He also states that he transported one dog from
Florida. The Government contends that this video depicts dogs
in the bloodline of those in the indictment.
fourth video, Exhibit 291, depicts a fight between two dogs
in a ring with several spectators, a referee and dog
handlers. The video bears the date "8/26/1995."
Several voices in the background can be heard discussing the
match, cheering, and betting. The video is approximately
seven minutes long, and depicts a dog dying, while the other
continues to attack. At the end, someone drags the deceased
dog out of the ring by its neck. According to the Government,
the video was seized from Arellano's home and was edited
to depict only one fight; it was originally a two-hour long
compilation of multiple fights.
object to all the videos, arguing their probative value is
substantially outweighed by the risk they pose of unduly
prejudicing the jury. Defendants also raised, for the first
time at oral argument, a separate objection to the videos
based on Bruton v. United States, 391 U.S.
Rule 404(b) and 403
of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with that
character." Fed.R.Evid. 404(b)(1). Such evidence may
however "be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident." Fed.R.Evid. 404(b)(2). Such evidence is also
admissible for other reasons, including to "furnish
essential background information, to demonstrate a continuing
relationship between an unindicted co-conspirator and the
defendant, and to assist the jurors in understanding [a]
co-conspirator's role in [a] scheme." United
States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1998);
see also United States v. Simmons 679 F.2d 1042,
1050 (3d Cir. 1982). "[M]odern cases divide evidence of
other crimes and bad acts into two categories: those
'extrinsic' to the charged offense, and those
'intrinsic' to it. Extrinsic evidence must be
analyzed under Rule 404(b); intrinsic evidence need not
be." United States v. Green, 617 F.3d 233, 245
(3d Cir. 2010).
Rule 403, relevant evidence may be excluded "if its
probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence." Fed.R.Evid.
403. This rule adopts a "presumption of
admissibility." United States v. Cross, 308
F.3d 308, 323 (3d Cir. 2002). It does not mandate exclusion
"merely because its unfairly prejudicial effect is
greater than its probative value. Rather, evidence can be
kept out only if its unfairly prejudicial effect
'substantially outweighs' its probative value."
Id. (quoting Fed.R.Evid. 304). "[W]hen evidence
is highly probative, even a large risk of unfair prejudice
may be tolerable." Id.
Court finds Exhibits 22, 200, and 290 need not be excluded
under Rule 403. Exhibit 22 is highly probative because it is
offered to show the charged conduct itself- a fight with a
dog that is a subject of the indictment - and Love's
voice. There is no unfair prejudice in admitting the video
because of its direct relevance. The Court therefore finds
that Exhibit 22 is intrinsic and that it is not subject to
exclusion under Rule 403.
200, a similar video, does not include a dog named in the
indictment and therefore does not depict the conduct charged.
The video is however probative of Love's knowledge,
involvement in the conspiracy, intent, preparation, and plan.
This probative value is not substantially outweighed by the
risk that the jury will consider the evidence for an improper
purpose. The Court therefore finds this evidence is extrinsic
to the charged conduct but admissible under Rule 404(b) and
need not be excluded under Rule 403. The Court will provide
an appropriate instruction to the jury with regard to this
290, the video of dogs in a yard, does not include dogs named
in the indictment and does not depict any specific conduct
charged. The video is however probative of
Arellano's knowledge, motive, and intent, his involvement
in the conspiracy, and his continuing possession of dogs in
the same bloodline for fighting purposes. The Court therefore
finds the video evidence is extrinsic to the crimes charged
but is admissible under Rule 404(b) and not subject to
exclusion under Rule 403. The Court will provide an
appropriate limiting instruction to the jury.
final video - Exhibit 291 - depicts no conduct charged in the
indictment and there is no indication that any defendants
were present at or involved in the dog fight depicted. It
also has the capacity to inflame the jury because it is a
particularly graphic video in which a dog is killed and
dragged out of the fighting pit. The video is also temporally
remote to the allegations, also having occurred approximately
twenty years prior to the dates in the indictment. Although
Arellano's possession of the video at the time of the
search has some marginal probative value, it is substantially
outweighed by the risk unfair prejudice, confusing the
issues, and misleading the jury. The Court therefore finds
Exhibit 291 inadmissible under Rule 403.
the Bruton-based objections raised by Defendants at
oral argument, the Court finds no compelling reason to
exclude the videos or redact their audio on that ground.
"In Bruton v. United States, 391 U.S. 123
(1968), the Supreme Court held that the introduction of a
non-testifying defendant's out-of-court statement, which
directly implicated his co-defendant by name, violated the
Confrontation Clause right of the co-defendant."
United States v. Hardwick, 544 F.3d 565, 572 (2008).
The Confrontation clause is however only violated by such a
statement "to the extent that it directly inculpates a
co-defendant." United States v. Green, 543
Fed.Appx. 266, 270 (2013).
'Bruton is no more than a by-product of the
Confrontation Clause,' it is only applicable where the
Confrontation Clause applies - that is, to statements that
are 'testimonial.'" Waller v. Verano,
562 Fed.Appx. 91, 94 (2014). "'Testimonial'
statements under the Confrontation Clause are those made by
'witnesses' who 'bear testimony,' such as by
making a 'formal statement to government officers,'
and are not statements made casually to acquaintances."
Id. (quoting Crawford v. Washington, 541
U.S. 36, 51-52 (1968)). The "key" to defining a
testimonial statement is "that 'nothing is an
assertion unless intended to be one.'"
Green, 543 Fed.Appx. at 270 (quoting Fed.R.Evid.
801(a), advisory committee note). "The burden is on the
party claiming the intention to assert existed, and ambiguous
cases should be resolved in favor of admissibility."
has no applicability to the statements at issue in these
videos. The statements are not formal confessions to law
enforcement and do not "directly implicate [their]
co-defendant[s] by name." Hardwick, 544 F.3d at
572. The narrator in Exhibit 290 - allegedly Arellano - never
named any codefendant by name or by implication. This video
was more akin to a statement casually to an acquaintance
rather than a formal statement to law enforcement and was
thus not testimonial. See Waller, 562 Fed.Appx. At
94. Bruton is therefore inapplicable to Exhibit 290.
Court also finds the other two videos, which included
off-hand comments by Love, do not raise Bruton
concerns. First, they do not directly implicate other
defendants. However, to the extent that the voice can be
construed as saying "Arellano" at the end of
Exhibit 22, which is not entirely clear, that statement is
not testimonial because it was not intended as an assertion.
The Court therefore finds B ...