Arce et al v. Louisiana State et al
ORDER AND REASONS re 98 MOTION in Limine; ORDERED that, to the extent that the motion seeks to preclude Louisiana from offering a propensity-based argument, the motion is DISMISSED AS MOOT. FURTHER ORDERED that, to the extent that the motion seeks to preclude testimony about the reasons why Nelson's probation officer moved to revoke Nelson's probation, the motion is DEFERRED. In all other respects, the motion is DENIED. Signed by Judge Lance M Africk on 11/20/2017.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NELSON ARCE ET AL.
LOUISIANA STATE ET AL.
ORDER AND REASONS
Before the Court is a motion in limine 1 filed by plaintiffs. 2 The motion seeks
to preclude defendants from offering testimony and documentary evidence concerning
the specific charge for which Nelson was convicted, as well as the reasons that Nelson
Arce was discharged from drug treatment facilities.
Plaintiffs argue that such
evidence is irrelevant, unfairly prejudicial, inadmissible hearsay, and/or inadmissible
The motion also seeks to preclude the State of Louisiana
(“Louisiana”) from arguing that Nelson had a propensity to violate probation.
Louisiana opposes 3 the motion in part.
For the following reasons, the motion is denied in part, deferred in part, and
dismissed as moot in part.
R. Doc. No. 98.
The Court notes that Lazaro Arce’s claims against Louisiana have been dismissed.
R. Doc. No. 111. Further, Sheriff Joseph Lopinto has moved to dismiss Lazaro’s
claims against him in his official capacity on the same basis that the Court dismissed
Lazaro’s claims against Louisiana. R. Doc. No. 89. While the Court has not yet ruled
on Sheriff Lopinto’s motion, the Court doubts that Lazaro has standing to file the
3 R. Doc. No. 117. Louisiana has informed the Court that it retracts the following
clause from its memorandum: “a term that appears nowhere in Nelson’s probation
documents or criminal file.” Id. at 7. Further, Sheriff Lopinto has informed the Court
that he does not intend to respond to the motion, as the motion only concerns disputed
issues between plaintiffs and Louisiana.
Plaintiffs argue that the Court should preclude testimony and documentary
evidence concerning Nelson’s criminal history—more specifically, the charge that
resulted in his probation—as irrelevant under Rules 401 and 402, unfairly prejudicial
under Rule 403, and inadmissible character evidence under Rule 404.
plaintiffs admit that “the jury will need some basic background information to
understand the nature of [their] allegations,” they nonetheless argue that Nelson’s
criminal history is “wholly irrelevant” to the case. 4 According to plaintiffs, “the jury
does not need to know the charge for which Nelson was convicted and sentenced, the
fact that his sentence was suspended and probation was ordered in its place, or
Nelson’s complete criminal history.” In their view, “the only purpose for offering this
information is to impugn Nelson Arce’s character and ask the jury to infer that . . . he
was a bad person or a junkie and thus perhaps deserving of the discrimination he
[allegedly] suffered.” 5
Louisiana counters that “certain basic information regarding Nelson’s
conviction is helpful to the jurors’ understanding of the case and the reasons why . . .
it was significant in the State’s eyes that Nelson complete inpatient drug
rehabilitation and not use drugs, and ultimately, why his probation was revoked.” 6
Moreover, Louisiana contends that “the identity of the crime to which Nelson pleaded
guilty is relevant . . . to issues surrounding Nelson’s probation requirements and
R. Doc. No. 98-1, at 4.
6 R. Doc. No. 117, at 4.
subsequent violations.” 7 Louisiana also views plaintiffs’ request to exclude evidence
that Nelson’s sentence was suspended and that probation was ordered as
“nonsensical,” given the fact that plaintiffs’ case against Louisiana expressly concerns
“actions that occurred while Nelson was on probation.” 8
Further, Louisiana states that it “does not intend to argue that Nelson was a
bad person because of his convictions.” 9 Louisiana goes on to state that it “has been
willing to compromise” with plaintiffs: it is “willing to redact references to ‘heroin
possession’ from the record, as long as the jury may be informed that Nelson pleaded
guilty to ‘drug possession.’” 10
The Court concludes that the categorical exclusion of all testimony and
documentary evidence concerning Nelson’s conviction would be improper.
“[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. “[T]he standard of relevance in an
evidentiary context is not a steep or difficult one to satisfy.” Pub. Emps. Retirement
Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321 (5th Cir. 2014). Louisiana has
demonstrated that this category of evidence is relevant to the case. In particular,
Louisiana points out that Nelson’s conviction provides context for the terms and
conditions of probation imposed on Nelson.
Id. (emphasis in original).
10 Id. at 5.
Relevant evidence is admissible unless otherwise provided by the Constitution,
a federal statute, another Federal Rule of Evidence, or another rule prescribed by the
Supreme Court. Fed. R. Evid. 402. 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. The Fifth Circuit has counseled that Rule 403 is meant to be applied “sparingly.”
Baker v. Can. Nat./Ill. Cent. R.R., 536 F.3d 357, 369 (5th Cir. 2008). Moreover, Rule
404 severely restricts the admissibility of evidence to support propensity-based
arguments. See Fed. R. Evid. 404.
The Court concludes that Louisiana’s representations about its intended use
of Nelson’s conviction, coupled with its willingness to instruct its witnesses to not
mention the particular drug at the center of the conviction (and to redact the same
from documentary evidence), adequately addresses plaintiffs’ Rule 403 and 404
concerns. With respect to plaintiffs’ Rule 403 objection in particular, the danger of
unfair prejudice does not substantially outweigh the probative value of the fact that
Nelson’s probation arose from a conviction for drug possession. The Court also notes
that it is willing to provide a limiting instruction to the jury regarding Nelson’s
conviction, should plaintiffs request such an instruction.
Plaintiffs also argue that the Court should preclude testimony and
documentary evidence about the reasons why elson was discharged from drug
treatment facilities. They argue that such evidence is inadmissible hearsay under
Rules 801 and 802, irrelevant under Rules 401 and 402, unfairly prejudicial under
Rule 403, and inadmissible character evidence under Rule 404.
Plaintiffs first argue that “[a]ny information concerning Nelson Arce’s
discharge from various drug treatment facilities and the reasons [for the discharge]
would be impermissible hearsay.” 11 According to Louisiana, it expects plaintiffs to
argue at trial that Nelson’s probation officer moved to revoke Nelson’s probation
because she learned that Nelson had left Louisiana. 12
Louisiana states that it
“intends to introduce evidence that [Nelson’s probation officer] had learned of other
probation violations as well (not just leaving the state), including Nelson’s failure to
complete a mandatory inpatient drug rehabilitation program and failed drug tests.” 13
Thus, “[i]t is the fact of the communication rather than the substance of the
communication that is at issue and is thus non-hearsay.” 14
The Court concludes that the categorical exclusion on hearsay grounds of all
testimony and documentary evidence concerning Nelson’s discharge from drug
treatment programs is improper. Under the Federal Rule of Evidence 801(c),
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or
(2) a party offers in evidence to prove the truth of the matter asserted in
R. Doc. No. 98-1, at 6.
R. Doc. No. 117, at 6.
However, a party may offer an out-of-court statement for other reasons. For example,
where the out-of-court statement is “offered to show the effect on the listener”—
precisely how Louisiana indicates that it intends to use evidence regarding why
Nelson was discharged from drug treatment programs—then it is by definition not
hearsay under the Federal Rules of Evidence. White v. Fox, 470 Fed. App’x 214, 222
(5th Cir. 2012).
The Court also concludes that such a categorical exclusion is not warranted on
any other basis asserted by plaintiffs. The evidence is relevant as to why Nelson’s
probation officer moved to revoke Nelson’s probation. While this category of evidence
may be prejudicial to plaintiffs’ position, it is not unfairly so—and thus does not run
afoul of Rule 403. See United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979)
(“Relevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter under Rule 403.”).
Nevertheless, the Court will defer a formal ruling as to such testimony in the
event that such testimony is offered at trial. At that point, the Court will be in a
better position to consider the specific questions asked of the witnesses. The Court
is also willing to provide a limiting instruction to the jury concerning the permissible
use of this category of evidence, in the event that plaintiffs request the same.
Lastly, plaintiffs argue that Louisiana “cannot be permitted to argue to the
jury that because Nelson was convicted of possession of heroin or because he was
discharged from treatment facilities, he was a bad person who would have violated
probation regardless of whether or not he was provided with effective
communication.” 15 Louisiana represents that it “does not intend to argue that Nelson
was a bad person who had a propensity to break the law or violate rules.” 16 Given
this representation, plaintiffs’ objection is moot.
IT IS ORDERED that, to the extent that the motion seeks to preclude
Louisiana from offering a propensity-based argument, the motion is DISMISSED AS
IT IS FURTHER ORDERED that, to the extent that the motion seeks to
preclude testimony about the reasons why Nelson’s probation officer moved to revoke
Nelson’s probation, the motion is DEFERRED.
In all other respects, the motion is DENIED.
New Orleans, Louisiana, November 20, 2017.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
R. Doc. No. 98-1, at 8.
R. Doc. No. 117, at 8.
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