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United States v. Arellano

United States District Court, D. New Jersey

September 26, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
ROBERT ARELLANO, et al., Defendants.

          OPINION

          PETER G. SHERIDAN, U.S.D.J.

         This 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.

         Video Evidence

          The 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.

         The 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.

         The 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.

         Defendants 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. 123(1968).

         Evidence Rule 404(b) and 403

         "Evidence 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).

         Under 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.

         The 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.

         Exhibit 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 video.

         Exhibit 290, the video of dogs in a yard, does not include dogs named in the indictment and does not depict any specific conduct charged.[1] 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.

         The 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.

         Bruton-Based Objections

         As to 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).

         "Because '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." Id.

         Bruton 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.

         The 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 ...


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