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Arce v. State

United States District Court, E.D. Louisiana

November 22, 2017

NELSON ARCE ET AL.
v.
LOUISIANA STATE ET AL.

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is a motion[1] filed by Ana Christine Shelton (“plaintiff”)[2] that, in part, seeks redactions from the State of Louisiana's Exhibit 8.[3] Louisiana opposes[4]the motion. For the following reasons, the motion is granted in part, denied in part, deferred in part, and denied as moot in part.

         I.

         First, plaintiff objects to three sections of Exhibit 8 on grounds of authenticity, hearsay, relevance, and prejudice. These sections are 1) an email from an individual named Deena Provance to Nelsons' probation officer regarding Nelson's discharge from a drug treatment program;[5] 2) a sentence documenting the substance of a telephone conversation between an individual named Jessie Wilson and Nelson's probation officer;[6] and 3) three paragraphs documenting the substance of a telephone conversation between an individual named Junko Nagamatsu and Nelson's probation officer.[7]

         After reviewing the parties' briefing, the Court has concluded that it will defer a formal ruling on the authentication and hearsay challenges to these sections of Exhibit 8 until trial. At that point, the Court will be in a better position to consider 1) whether Louisiana has sufficiently authenticated Exhibit 8 for purposes of Rule 901; and 2) whether Louisiana has demonstrated that the objected-to portions of Exhibit 8 comply with the Federal Rules of Evidence's hearsay regime, [8] either because they not being offered for the truth of the matter asserted or because they fall within an exception to the general prohibition against hearsay. See, e.g., In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2012 WL 85447, at *3 (Jan. 11, 2012) (Barbier, J.) (discussing the admissibility of emails via the business records exception); see also, e.g., United States v. Cone, 714 F.3d 197, 219-20 (4th Cir. 2013) (same).[9]

         With respect to plaintiff's request to redact these sections of Exhibit 8 on the grounds of relevance and prejudice, the request is denied. Louisiana has adequately explained their relevance for purposes of Rules 401 and 402-namely, to counter plaintiff's allegations concerning why Nelson's probation officer moved to revoke Nelson's probation.[10] See Pub. Emps. Retirement Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321 (5th Cir. 2014) (“[T]he standard of relevance in an evidentiary context is not a steep or difficult one to satisfy.”).

         Moreover, the Court concludes that these sections of Exhibit 8 do not run afoul of Rule 403. Plaintiff seems convinced that Louisiana seeks to admit them in order to put forward a propensity-based argument.[11] However, Louisiana has explained how it intends to use these sections, and it is not to put forward such an argument. While prejudicial to plaintiff's position, they are not unfairly so. 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.”).

         II.

         Next, plaintiff objects to 1) several references to specific drugs of which Nelson admitted or denied use, or for which he tested positive, during probation;[12] and 2) a reference to the specific pending criminal charges against Nelson in Plaquemines Parish.[13] Plaintiffs requests their redaction on the grounds of relevance, prejudice, and improper character evidence.

         A.

         With respect to plaintiff's request to redact the references to specific drugs- namely, heroin, cocaine, and THC-Louisiana has adequately explained their relevance to the case for purposes of 401 and 402: clarifying the motivation behind Nelson's probation officer decision to move to revoke Nelson's probation.[14] Moreover, their relevance does not involve an argument by Louisiana that Nelson “was a bad person who would have violated probation regardless of whether or not he was provided with effective communication.”[15] See Fed. R. Evid. 404.

         Moreover, the Court notes that plaintiffs object to some-but not all- references to Nelson testing positive for cocaine and THC. On page 15, plaintiffs object to the sentence, “He tested positive for Coc and THC, ” but do not object to the header indicating that he tested positive for those drugs.[16] On page 16, plaintiffs likewise object to a reference to Nelson's position on testing positive for THC, but again do not object to the header indicating the same.[17] Because the jury would be privy to Nelson's positive tests for cocaine and THC regardless of whether the Court orders the terms “cocaine” and “THC” redacted, the Court discerns no Rule 403 problem with their use.

         However, the Court concludes that the probative value of referencing heroin “is substantially outweighed by a danger of . . . unfair prejudice.” Fed.R.Evid. 403. First, the probative value of identifying heroin is low in light of the obvious and equitable alternative: redacting the name of the drug and using the generic term “unlawful drug.”[18] See Old Chief v. United States, 519 U.S. 172, 184 (1997) (“[A] reading of the companions to Rule 403, and of the commentaries that went with them to Congress, makes it clear that what counts as the Rule 403 ‘probative value' of an item of evidence, as distinct from its Rule 401 ‘relevance, ' may be calculated by comparing evidentiary alternatives.”). In contrast, and considering in particular the facts of this case, the danger of unfair prejudice to plaintiff that may result from including a mention of heroin is substantial, given the stigma historically attached to it.

         Therefore, the Court orders Louisiana to redact as follows: On page 5, remove “heroin” and replace it with “an unlawful drug.”[19] On page 16, remove “heroin” and replace it with “an unlawful drug.”[20]

         B.

         With respect to plaintiff's request to redact the reference to the specific pending criminal charges against Nelson in Plaquemines Parish, Louisiana has informed the Court that it does not object to plaintiff's ...


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