Free Reply/Response Misc - District Court of Connecticut - Connecticut

_____ ____ ,_______;__ ___.,,,,,_.m_________._...,,........._.__....-.._m.rr._.i...i-i.
,, -. Case 3:03-cr-00253-SRU Document 46 Filed 12/06/2004 Page 1 of 3 I
UNITED STATES DISTRICT COURT Iif I E iw.
. I I ms he Q
DISTRICT OF CONNECTICUT
.m..__.._ Zuni 1 -
UNITED STATES OF AMERICA 3:03cr253 (SRUM I-.; I ,6 I..,.,_ I I
gllsiiilf · I .-I ` I
VS. ` " · - ` .
SALVATORE]. CARTELLI, ]R. DECEMBER 10, 2004
DEFENDANT’S MEMORANDUM: RE IMPEACHMENT
EVIDENCE AND EVIDENCE PERTAINING TO "NEEDLYZER" OR
GLOBAL TELECOM ACTIVITIES
I
I. FACTS
The Government has indicated that should the defendant testify, it will attempt to
impeach him with evidence of the jury verdict entered against for mail fraud him on October I
8, 2004 in United States v. Latouche et. al., Docket No. 3:03CR182(SRU). I
Moreover, given the potential government witness list and potential exhibits, it is I
' 'l1A":P:I`?*- { I
possible that a witness ngight reference the evidence, activities, or conduct as introduced in I
11. ARGUMENT
I
Although the defendant was found guilty by a in that prior action, he has not yet I
been sentenced. A judgment of conviction has not yet been entered against him. I
Fed.R.Evid. 609, z`m‘.·2r 45.41, provides that I
"(1)evidence ...that an accused has been convicted of such a crime shall be admitted
if the court determines that the probative value of admitting this evidence outweighs
its prejudicial effect to the accused; and
(2)evidence that any witness has been convicted of a crime shall be admitted if it I
involved dishonesty, or false statement, regardless of the punishment?
I
Notwithstanding the clear language of that rule, the Government claims that United
States v. Vanderbosch, 610 F.2d 95, 97 (2d. Cir 1979) stands for the proposition that a jury I
’ i



4 Case 3:03-cr-00253-SRU Document 46 Filed 12/06/2004 Page 2 of 3 l
verdict of guilty is sufficient for impeachment purposes, even if the defendant has not yet
been sentenced.
However a review of Vanderbosch, supra, indicates that the Court’s holding at 97
was as follows:
"/lccordingly, we hold that a jury verdict of guilty prior to entry of judgment is
admissible for impeachment purposes if it meets the other requirements of
Fed.R.Evid. 609." (Emphasis added).
In Vanderbosch, the defendant did not raise the issue that the prejudicial effect of
the prior conviction outweighed its probative value. See Vanderbosch, p. 98. The Court l
noted that the trial judge was "not remiss in failing to make a Sua Sponte determination of
an issue not raised”.
The requirements of Rule 609 (a) that the trial judge must make a determination that
the probative value of admitti.ng the evidence outweighs its prejudicial effect on the
defendant are thus not simply overruled by Vanderbosch.
Here, there is no probative value in allowing the jury to hear of Mr. Cartelli’s prior
conviction on a mail fraud charge. It has nothing to do with this credit card fraud charge. It I
is only offered in the hopes that a will believe that if the defendant was guilty of mail
l
fraud, he is likely guilty of credit card fraud. That prejudice to him far outweighs any possible
probative value (and none can be easily gleaned by this writer). i
It is not clear if the Government would argue that Rule 609 (2) overrules Rule
609(1), but that would be contrary to the purpose for the two sections. Section 1 pertains to
offenses punishment by death or imprisonment of more than 1 year, and section two i
eliminates the reference to any specific punishment. Notwithstanding Rule 609(2), the trial i
court must still determine if the prejudicial effect of the evidence is outweighed by its
l
probative value.
l
2 l

I W i
Case 3:03-cr-00253-SRU Document 46 Filed 12/06/2004 Page 3 of 3 (
Moreover Rule 403 allows the trial court discretion to preclude evidence as to this
verdict or of any matters relating to the prior trial as any probative value they might have is
"substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury." If construed as Sec 404(ln) evidence, the same should be precluded for l
i
these reasons. _ i
For the same reasons, witnesses at this trial should be cautioned to avoid reference
to evidence or matters pertaining to the prior trial. As argued earlier, those matters will only E
I
tend to make the jury believe that the prior evidence should be used against him in this case. l
i
THE DEF N A T
\
BY lil
]O * A ia . EINHORN, ESQ. g
4 * N STREET
N » HAVEN, CT 06511
TEL NO. (203) 77745777
FED. BAR NO. 00163
CERTIFICATION
This is to certify that a copy of the foregoing was hand delivered this 6th day of i
December, 2004 to:
Calvin Kurimai, Esq., Assistant U.S. Attorney,157 Ch h Street, New Haven, CT 06510.
jon om
i
l
3 i