Free Trial Memo - District Court of Connecticut - Connecticut

Case 3:03-cr-00253-SRU

Document 40

Filed 11/30/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. SALVATORE J. CARTELLI, JR. : : : : :

Docket No. 3:03CR253(SRU) November 30, 2004

GOVERNMENT'S TRIAL MEMORANDUM RE: IMPEACHMENT EVIDENCE Trial in the captioned case is scheduled to begin on December 14, 2004. If the defendant testifies, the Government intends to impeach him, pursuant to Fed. R. Evid.609(a)(2), with evidence of the jury verdict returned on October 8, 2004 finding him guilty of mail fraud, in violation of 18 U.S.C. §1341, in United States v. Albert D. LaTouche and Salvatore J. Cartelli, Jr., Docket No. 3:03CR182(SRU). Sentencing in that case is scheduled for December 30, 2004. Fed. R. Evid. 609(a)(2) provides that "evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment." It is not necessary, however, that a judgement of conviction be entered. "[A] jury verdict of guilty prior to the entry of judgement is admissible for impeachment purposes if it meets the other requirements of Fed. R. Evid.609." United States v. Vanderbosch, 610 F.2d 95, 97 (2d Cir. 1979). Accord, United States v. Mitchell, 886 F. 2d 667, 671 (4th Cir. 1989) (court's acceptance of jury's verdict sufficient predicate for use of verdict for impeachment in subsequent trial); United States v. Smith, 623 F.2d 627, 630 (9th Cir. 1980) (verdict of conviction alone sufficient for impeachment under Fed. R. Evid. 609); United States v. Rose, 526 F.2d. 745, 747 (8th Cir.1975) cert. denied, 96 S. Ct. 1497 (1976) (no significant difference between jury's

Case 3:03-cr-00253-SRU

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finding of guilt and entry of judgement thereon as far as probative value for impeachment purposes). Fed. R. Evid. 609(a)(2) requires that the crime of conviction used for impeachment must be one that "... involved dishonesty or false statement ..." Criminal fraud is a crime involving dishonesty or false statement. See United States v. Hayes, 553 F.2d 834, 827 (2d Cir. 1977) (citing conf. Rep. No. 93-1597, 93d Cong., 2d Sess. 9, reprinted in (1974) U.S. Code & Ad. News 7098, 7103); United States v. Harris, 512 F. Supp. 1174, 1176 (D. Conn. 1981) Therefore, for the reasons set forth above, the Government should be permitted to impeach the defendant with the verdict of guilty returned on October 8, 2004.

Respectfully Submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

/s/ BRIAN SPEARS ASSISTANT UNITED STATES ATTORNEY FOR: CALVIN B. KURIMAI ASSISTANT UNITED STATES ATTORNEY Federal Bar No.:ct07223 157 Church Street New Haven, CT 06510 (203) 821-3700

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Case 3:03-cr-00253-SRU

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Filed 11/30/2004

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CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been sent by fax and U.S. Mail this 30th day of November, 2004, to: Jonathan J. Einhorn, Esq. 412 Orange Street New Haven, CT 06511 New Haven, CT 06506

____________________________ /s/ BRIAN SPEARS ASSISTANT UNITED STATES ATTORNEY

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