Opinion
Criminal No. 21-017 (FAB)
2022-11-09
UNITED STATES of America, Plaintiff, v. Sixto Jorge DÍAZ-COLÓN, Defendant.
Myriam Y. Fernandez-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff. Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.
Myriam Y. Fernandez-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff. Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendant Sixto Jorge Díaz-Colón ("Díaz")'smotion to introduce evidence of prior inconsistent statements pursuant to Federal Rule of Evidence 613 ("Rule 613"). (Docket No. 190.) For the reasons set forth below, Díaz's motion in limine is DENIED without prejudice.
I. Background
The factual basis for this criminal action is set forth in the Opinion and Order published on June 16, 2022. See United States v. Díaz-Colón, 607 F.Supp.3d 136 (D.P.R. 2022) (Besosa, J.). A grand jury returned a three-count indictment on January 26, 2021, charging Díaz with attempted extortion in violation of 18 U.S.C. §§ 1951 and 2 (count one), interstate extortion in violation of 18 U.S.C. §§ 875(d) and 2 (count two), and destruction of records in a federal investigation in violation of 18 U.S.C. § 1519 (count three). (Docket No. 1.) Díaz moves to impeach unspecified witnesses with prior inconsistent statements. (Docket No. 190.) The United States responded, and Díaz replied. (Docket Nos. 198 and 201.)
II. Federal Rule of Evidence 613
During cross-examination, counsel "is permitted to show discrepancy between two statements, one made at trial and one made previously, by extrinsic evidence if necessary, not to demonstrate which of the two is true but to show that the two do not jibe, (thus calling into question the declarant's credibility)." United States v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999) (citation omitted). Impeachment by prior inconsistent statement is governed by Rule 613, providing that:
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.Fed. R. Evid. 613 (emphasis in original). It is hornbook law that "a party may not present extrinsic evidence to impeach a witness by contradiction on a collateral matter." United States v. Cruz-Rodríguez, 541 F.3d 19, 30 (1st Cir. 2008) (quotation omitted).
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).
Inquiring about a prior statement does not, without more, trigger the extrinsic evidence requirements set forth in Rule 613(b). This provision is applicable only "[when] the cross-examiner moves beyond questioning the declarant witness about the prior statement to proving the statement with documentary evidence or calling another witness to recount the witness's prior statement." Katherine T. Schaffzin, Sweet Caroline: The Backslide from Federal Rule of Evidence 613(b) to the Rule in Queen Caroline's Case, 47 U. MICH. J. L. REFORM 283, 285 (2014); Weissenberg's Fed. Evid. § 613.1 (2022) ("[Extrinsic] evidence is evidence that is offered through the testimony of a different witness, or written evidence authenticated by a distinct witness."); see, e.g., United States v. Pridgen, 518 F.3d 87, 90 (1st Cir. 2008) (holding that the district court erred by prohibiting the defendant from impeaching a witness with the testimony of an investigator (i.e. extrinsic evidence), after the investigator claimed that the witness provided an inconsistent account of the shooting).
III. Discussion
Díaz's motion in limine is fraught with ambiguity, requesting permission to introduce "extrinsic evidence in the form of [federal] agent's prior interviews of witnesses, which is inconsistent with their trial testimony." (Docket No. 190 at p. 2.) Trial is set to commence on December 9, 2022. (Docket No. 149.) Defense counsel is not a clairvoyant. Indeed, he concedes that it "is impossible . . . at this time provide [sic] in advance which inconsistent statements would be used until the witness testifies at trial." (Docket No. 201 at p. 1.) (emphasis in original). Essentially, Díaz is moving the Court to ensure that the parties comply with Rule 613. Of course, the Federal Rules of Evidence are applicable in this litigation. The Court will not, however, entertain speculation or opine on the merits of an evidentiary dispute that may, or may not, arise at trial.
The Court sets forth a general framework of the applicable legal regime for impeachment by prior inconsistent statement. Nothing in this Opinion and Order constitutes an adjudication by the Court, other than the decision to reserve judgment.
Díaz alludes to impeachment by prior inconsistent statements contained in memoranda prepared by law enforcement agents. (Docket No. 190 at p. 1.) The United States posits that:
[Any] summaries contained in the Federal Bureau of Investigation 302s or related documents and reports, unless otherwise approved or adopted by the witness, are not the statements of witnesses and any attempts to use those documents as extrinsic evidence of impeachment during cross-examination would likely constitute improper impeachment subject to exclusion.(Docket No. 198 at pp. 304.) In several jurisdictions, this proposition is true: A document prepared by a third-party is not the declarant's statement unless the declarant approves or adopts the statement as his or her own. See United States v. Almonte, 956 F.2d 27, 29 (2d Cir. 1991) (holding that "a third party's characterization of a witness's statement does not constitute a prior statement of that witness unless the witness has subscribed to that characterization.") (citation and quotation omitted); United States v. Stadtmauer, 620 F.3d 238, 267 n.35 (3d Cir. 2010) ("Though the District Court permitted [the defendant] to cross-examine Zecher on the content of his statements, it refused on several occasions to admit the Form 302s themselves as prior inconsistent statements [. . .] The Court's reasoning was that the Form 302s contained the FBI's characterizations of what Zecher said (which Zecher had not adopted.") (citing cases); United States v. Adames, 56 F.3d 737, 744-45 (7th Cir. 1995) ("When [the witness] testified that he did not adopt the statement [in a police report], did not write it and could not say that what was in it was everything he head told the agents, attorney Parsons discontinued his line of questioning, apparently conceding that for impeachment purposes the statement of the agent was not a statement of [the witness]."); United States v. Saget, 991 F.2d 702, 710 (11th Cir. 1993) (affirming the exclusion of "[the witness's] prior inconsistent statement via the FBI agent's summary" because "a witness may not be impeached with a third party's characterization or interpretation of a prior oral statement unless the witness has subscribed to or otherwise adopted the statement as his own").
The First Circuit Court of Appeals has, however, rejected the requirement of adoption by a witness-declarant. In United States v. Catalán-Román, the defendant moved to "introduce testimony of several FBI agents" and 302s to impeach a key trial witness pursuant to Rule 613. 585 F.3d 453, 463 (1st Cir. 2009). The district court held that the agents' testimony and 302s constituted improper impeachment evidence. Id. at 464. The witness had, however, adopted an audio recording and a signed written statement prior to trial. Id. This evidence served as extrinsic evidence within the meaning of Rule 613. Id. On appeal, the Catalán-Román court held that the requirement of adoption "[has] no basis in the rules of evidence or the common law of impeachment." Id. at 464 n.12. Rather, "[any] form of statement is acceptable for impeachment by prior inconsistent statement." Id. (citation and quotation omitted); see Pagán-Romero v. United States, Case No. 19-2008, 2022 WL 15523367, at *6, 2022 U.S. Dist. LEXIS 197063 at *18 (D.P.R. Oct. 27, 2022) ("[The] Petitioner fails to cite any rule of evidence or otherwise substantiate his argument that the Government would have been categorically barred from impeaching Rivera with the statements in his 2012 FBI report unless he adopted those statements.") (Arias-Marxuach, J.). Accordingly, an indiscriminate prohibition of memoranda prepared by law enforcement agents (i.e. 302s) for impeachment purposes contravenes authoritative precedent.
Both parties cite extensively United States v. Barrett, 539 F.2d 244 (1st Cir. 1976), and United States v. Hudson, 970 F.2d 948, 956 (1st Cir. 1992). (Docket No. 190 at p. 2; Docket No. 198 at p. 4.). Congress promulgated Rule 613(b) in 1975, abolishing the Rule in Queen Caroline's Case. 5 Weinstein's Fed. Evid. § 613 (2021) (hereinafter, "Weinstein"). This rule mandated that extrinsic evidence of prior inconsistent statements "be read into evidence either immediately after the defense's opening statements or at the beginning of the defense's cross-examination, but in either case, and this is essential, the existence and contents of the [statement] had to be revealed before the defense could question the witness as to [the statement's] contents." Ryan R. Martins, The Legal Legacy of the Queen's Trial: The Rise and Fall of Caroline's Rule, 23 Green Bag 2d, 243, 245 (2020) (noting that Parliament, "citing neither reason nor precedent," required Queen Caroline's defense counsel to read a witness's letters containing prior inconsistent statements (i.e. praising the Queen's good character) before questioning the witness about inconsistent testimony adduced at trial (i.e. lurid details about an extramarital affair). Queen Caroline's Rule proved impractical, however, "[giving] the dishonest witness too great an advantage" by affording time and opportunity to modify trial testimony. Weinstein, § 613.02.
The First Circuit Court of Appeals published Barrett a year after Congress abandoned Queen Caroline's Rule. 539 F.2d 244. The defendant in Barrett violated, inter alia, 18 U.S.C. § 2314 (interstate transportation of stolen postage stamps). Id. at 245. The following sequence of trial testimony emphasized the shift in impeachment procedure.
First, "Buzzy" Adams ("Adams") testified for the United States, claiming that in October 1974 the defendant confessed to committing the crime. Id. at 247. The defendant did not impeach Adams during the subsequent cross-examination. Id.The district court erred, however, because Rule 613 "relaxed any absolute requirement that this practice [i.e. disclosing the extrinsic evidence to the witness before impeachment] be observed, only requiring instead that the witness be afforded at some time an opportunity to explain or deny, and for further interrogation." Id. at 255. Nothing in the record suggested that Adams was unavailable to recall for additional cross-examination. Id.
Second, the defendant attempted to call two third-party witnesses during his case-in-chief. Id. These witnesses allegedly heard Adams state that "[the defendant] had nothing to do with the crime" in November 1974. Id. The defendant argued that this testimony was "admissible as a prior inconsistent statement to impeach Adam's credibility." Id. at 254.
Third, the district court excluded testimony regarding the November 1975 conversation because the defendant "failed during cross-examination to lay a foundation for introducing extrinsic evidence of the statement by first directing Adam's attention of the occasion of the alleged contradictory statement and asking him if he made it." Id. (citing Queen Caroline's Case, 2 Brod. & Bing. 284, 313, 129 Eng. Rep. 976 (1820)).
In Hudson, the First Circuit Court of Appeals reinforced its decision in Barrett. 970 F.2d 948. Rule 613 does not "require that the witness be confronted with the statement while on the witness stand, but rather, only that the witness be available to be recalled in order to explain the statement during the course of the trial." Id. at 955; see Cruz-Rodríguez, 541 F.3d at 30 n.5 (rejecting the United States' argument that the defendant "had to confront the prosecution witnesses with their prior inconsistent statements while they were on the witness stand in order to afford them an opportunity to explain or deny their earlier statements.") (citation and quotation omitted).
Barrett and Hudson are not, however, a carte blanche to impeach witnesses on collateral matters. Evidence is collateral if "the matter itself is not relevant to the litigation to establish a fact of consequence, i.e., not relevant for a purpose other than mere contradiction of the in-court testimony of the witness." United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993). The exclusion of collateral evidence is "analogous to Rule 403's relevancy balancing test, which calls for relevant evidence to be excluded when its 'probative value is substantially outweighed by . . . considerations of undue delay, [or] waste of time." Catalán-Román, 585 F.3d at 469. Consequently, the Court will ascertain whether the parties have complied with Rule 613 at trial in the event that a witness's testimony is inconsistent with a prior statement.
IV. Conclusion
For the reasons set forth above, Díaz's motion to introduce evidence of prior inconsistent statements pursuant to Rule 613 is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.