Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

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I Case 3:03-cr-0026?:A>HN Document 100 Fnled 12/(5Z§004 Page 1 of 3 i
UNITED STATES DISTRICT COURT I
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DISTRICT OF CONNECTICUT Ag/QQAM
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UNITED STATES OF AMERICA www
v. E CRIMINAL NO.: 3:03CR264(AHN) I X
JORGE ORLANDO ARDILA E December 7, 2004 ? I
GOVERNMENT'S TRIAL MEMORANDUM IN SUPPORT OF ITS MOTION TO I l
PRECLUDE THE IMPEACHMENT OF WITNESSES , ·
_ WITH UNSWORN REPORTS OF INTERVIEW =
A Counsel for the defendant has attempted to impeach the I y
government’s witnesses through the use of FBI reports of _ I
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interview which were prepared during the investigation of this _ _
case. The government objects to this practice where, as here, _ I
the government's witnesses have not read the reports, adopted 3 I
them, or sworn to their contents. I I
It is well—settled in this Circuit that a witness may not be Z
C]SOSS·€X&1IHZI.f1€3CI CO1’1C€1i`1'1§I.l’1g SIZEIIZGITIGIIIZS COIlIZElZI.I'1@CI IH 8. IEIW I
enforcement report of interview unless the witness has adopted ZI
the statements contained therein. A third party’s
characterization of a witness’s statement may constitute a prior
statement of the witness. The witness, however, must have-
“subscribed to that characterization.” United States v. Almonte,
956 F.2d 27, 29 (2d Cir. l992). See also, United States v. I1
Schoenborn, 4 F.3d 1424, 1426-29 & n. 3 (7th Cir.l993) (witness tI
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Case 3:03-cr-OOQGGYAHN D0cument1OO Fi|ed12/@$004 Page2of3
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did not adopt FBI agent’s report of interview where witness Q
refused to sign report after reviewing it). g {
Counsel for the defendant may argue that the reports of Q Q
interview are somehow admissible as statements of the law é i
enforcement officer who prepared the report. This claim is E 3
equally unavailing. For example, in United States v. Scotti, 47 Q i
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F.3d 1237 (2d Cir. 1995), the Court held that unless an FBI agent _ .
has signed, adopted, vouched for or intended to be accountable A Y
for contents of notes, rough notes taken in witness interview ; y
could not be considered agent's statement, for purposes of rule Q
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mandating the production of statements. Nor did the notes Q
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qualify as the agent’s “statements” under subsections of the g
Jenks Act relating to the production of substantial verbatim E Q
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recital of oral statements of the witness or statements made by ` Q !
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the witness to a grand jury. Fed.Rules Cr.Proc.Rule 26.2(f)(1—3). ;
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Respectfully submitted, ;_
KEVIN J. O'CONNOR< E E
ITED STATES ATTORNE Q
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A E JHERNANDEZ i
ASSISTANT UNITED STATES ATTORNEY E
FEDERAL BAR NO. CTO8345
STEQEN REYNOL%S V
ASSISTANT UNITED STATES ATTORNEY
FEDERAL BAR NO. CTl9lO5 QJ
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Case 3:03-cr-002 YA N D0cument100 FiIed12/ 7 004 Page30f3 _
· i' 66r_EH G I
CERTIFICATE OF SERVICE I
This is to certify that on December 7, 2004, a copy of the I E
foregoing was provided to the defendant’s attorney of record: I
Francis O’Reilly, Esq. ‘ f
O'Reilly and Shaw I
2 Sherman Court ·” I
Fairfield, CT 06430 . l I
Alex Hernandez _ I
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