United States District Court, E.D. Louisiana
NELSON ARCE ET AL.
LOUISIANA STATE ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is a motion filed by Ana Christine Shelton
(“plaintiff”) that, in part, seeks redactions from
the State of Louisiana's Exhibit 8. Louisiana
opposesthe motion. For the following reasons, the
motion is granted in part, denied in part, deferred in part,
and denied as moot in part.
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; 2) a sentence documenting the substance of
a telephone conversation between an individual named Jessie
Wilson and Nelson's probation officer; and 3) three
paragraphs documenting the substance of a telephone
conversation between an individual named Junko Nagamatsu and
Nelson's probation officer.
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,  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).
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. 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.”).
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. 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.”).
plaintiff objects to 1) several references to specific drugs
of which Nelson admitted or denied use, or for which he
tested positive, during probation; and 2) a reference to the
specific pending criminal charges against Nelson in
Plaquemines Parish. Plaintiffs requests their redaction on
the grounds of relevance, prejudice, and improper character
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. 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.” See Fed. R. Evid. 404.
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. 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. 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.
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.” 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.
the Court orders Louisiana to redact as follows: On page 5,
remove “heroin” and replace it with “an
unlawful drug.” On page 16, remove
“heroin” and replace it with “an unlawful
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 ...