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No. 09-375

 

In the Supreme Court of the United States

BALDASSARE AMATO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
KIRBY A. HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Whether the district court abused its discretion in excluding extrinsic evidence of a witness's prior incon sistent statements.

In the Supreme Court of the United States

No. 09-375

BALDASSARE AMATO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-10a) is not reported in the Federal Reporter but is available at 306 Fed. Appx. 630. The opinion of the district court (Pet. App. 11A-26A) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on January 12, 2009. A petition for rehearing was denied on April 27, 2009 (Pet. App. 27A-28A). On July 21, 2009, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to and including Sep tember 24, 2009, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Eastern District of New York, petitioner was convicted of racketeering conspiracy, in violation of 18 U.S.C. 1962(d); engaging in an illegal gambling busi ness, in violation of 18 U.S.C. 1955; and conspiring to engage in an illegal gambling business, in violation of 18 U.S.C. 371. He was sentenced to life imprisonment. The court of appeals affirmed. Pet. App. 1A-10A.

1. Petitioner was a soldier and "made" member in the Bonanno organized crime family of La Cosa Nostra for at least 30 years. He participated in the crime fam ily's illegal gambling business, controlling "Joker- Poker" machines and a seasonal baccarat card game. Gov't C.A. Br. 5-7, 10-11.

Petitioner also was responsible for two murders. On May 4, 1992, petitioner murdered Robert Perrino at the behest of Bonanno family underboss Salvatore Vitale. Perrino was the superintendent of deliveries at the New York Post and a Bonanno associate. The Bonanno fam ily feared Perrino would cooperate with police in an in vestigation of the family's corrupt influence at the pa per, and decided to order his killing. Vitale first asked a Bonanno captain to find shooters from Canada to kill Perrino. The captain was unable to do so, but suggested to Vitale in petitioner's presence that Vitale use petition er to accomplish the murder. Petitioner readily agreed. Petitioner was later observed at the murder scene by one of the Bonanno associates assigned to dispose of Perrino's body. Gov't C.A. Br. 15-18.

Petitioner also ordered the murder of Sebastiano DiFalco. Petitioner and DiFalco had a financial dispute related to a restaurant called Giannini. After several failed attempts, petitioner's order was carried out by others in February 1992. Gov't C.A. Br. 11-15.

2. At trial, Vitale testified for the government and discussed petitioner's role in the Perrino and DiFalco murders. Vitale admitted that he and Bonanno consig lieri Anthony Spero decided that Perrino should be killed because, based on information they received from Bonanno associate Richard Cantarella and others, they feared that Perrino would "spill the beans" about the Bonanno crime family's illegal activities. Pet. C.A. App. 131. Vitale described the plans for the murder that he and Spero developed. Id. at 131-134; Gov't C.A. Br. 16. During cross-examination, petitioner's counsel ques tioned Vitale about his meetings with Cantarella and their discussions about killing Perrino. Vitale testified that Cantarella "volunteered" that Perrino was showing signs of weakness. Pet. C.A. App. 147. Vitale also testi fied that it was Cantarella, rather than Vitale, who sug gested Perrino's killing. Ibid. Vitale denied having a "personal interest" in having Perrino killed. Id. at 148. With respect to the DiFalco murder, Vitale testified that he had learned from Bonanno boss Joseph Massino that petitioner killed DiFalco because petitioner believed that DiFalco was stealing money from the Giannini res taurant. Gov't C.A. Br. 12-13.

About three weeks after Vitale completed his testi mony, petitioner first informed the government and the district court that he intended to call Cantarella and others to impeach Vitale's testimony with prior inconsis tent statements. Gov't C.A. Br. 31-32. According to petitioner, Cantarella would testify that Vitale told him that Perrino "was 'weak' and might cooperate, thereby indicating Perrino must be killed-which Cantarella believed reflected Vitale's own personal concerns should Perrino cooperate." Pet. C.A. App. 105.

The government moved to exclude this testimony under Federal Rule of Evidence 613(b). Pet. App. 11A. Rule 613(b) provides in relevant part that, "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an op portunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the wit ness thereon, or the interests of justice otherwise re quire." The district court granted the government's motion and excluded the evidence. Pet. App. 11A-26A.

The court first concluded that petitioner's cross-ex amination of Vitale did not satisfy Rule 613(b)'s require ment that the witness be given an opportunity to explain or deny the statement. Although petitioner asked Vitale some questions about his conversations with Cantarella, Pet. App. 12A-14A, the court found that these "ex changes * * * [were] embedded within a lengthy exami nation of Vitale's conversations with other alleged mem bers of the Bonanno * * * family" about the Perrino murder and that it was "unclear from the entire cross- examination whether [petitioner] [was] impeaching Vitale based on extrinsic evidence of inconsistent state ments, or simply probing Vitale's recollection of the events in question to elicit contradictions in Vitale's tes timony," id. at 21A-22A. It also found that "[petition er's] counsel neither confronted Vitale with the pur ported evidence of the inconsistent statements," nor asked any "questions that put Vitale on notice of the extrinsic evidence of a prior inconsistent statement." Id. at 22A. Given these considerations, the court found that petitioner "did not provide Vitale with sufficient oppor tunity to explain or deny the prior inconsistent state ment." Ibid.

The court next decided to adhere to "the prevailing practice" set forth in Judge Weinstein's "widely re spected evidence treatise" to determine whether peti tioner properly placed the government and the court on notice of his intent to impeach Vitale under Rule 613(b). Pet. App. 23A. Under that approach, "[w]hen an im peaching party does not confront a witness with the spe cifics of a prior inconsistent statement, the party should 'inform[] the court and opposing counsel, at the time the witness testifies, of the intention to introduce' the ex trinsic evidence to alert the court and opposing party to the potential need to 'keep the witness available to be called to explain the statement.'" Ibid. (second set of brackets in original) (quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 613.05[5], at 613-28 (Joseph M. McLaughlin ed., 2d ed. Oct. 2004) (Weinstein)). Applying that rule, the court concluded that petitioner "did not provide this court or the Government with sufficient notice under Rule 613(b)." Id. at 24A.

Finally, the court considered other factors that in formed the exercise of its discretion. Referring to its authority to control the order of witnesses and presenta tion of evidence under Federal Rule of Evidence 611(a), the court noted that the statements that petitioner wished to admit "primarily implicate[d] the collateral matters of Vitale's role, motive and interest in ordering Perrino's death." Pet. App. 25A. It also concluded that calling Cantarella and others would present "a much greater logistical burden" on the government and "sac rifice the orderly conduct of this trial." Id. at 25A-26A. It therefore granted the government's motion to exclude petitioner's extrinsic impeachment evidence. Ibid.

The jury found petitioner guilty on all counts, and the district court sentenced him to concurrent terms of life imprisonment. Pet. App. 2A.

3. The court of appeals affirmed in an unpublished summary order. Pet. App. 1A-10A. As relevant here, it summarily rejected petitioner's claims "concerning vari ous evidentiary rulings and [found] no abuse of discre tion or denial of due process." Id. at 9A.

ARGUMENT

Petitioner contends (Pet. 15-38) that the courts of appeals are divided on the requirements for admitting evidence of prior inconsistent statements under Federal Rule of Evidence 613(b) and that the district court vio lated his Fifth and Sixth Amendment rights to due pro cess, confrontation, and "other fair trial rights" (Pet. 15) when it excluded extrinsic evidence of a witness's prior inconsistent statements. The court of appeals' unpub lished decision finding no abuse of discretion in the dis trict court's evidentiary ruling does not merit this Court's attention.

1. Federal Rule of Evidence 613(b) provides, in rele vant part, as follows:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

Rule 613(b) does not specify when the party seeking to introduce the prior inconsistent statement must afford the witness the opportunity to explain or deny the state ment. See Fed. R. Evid. 613(b) advisory committee's note to 1972 Proposed Rule 613. As a result, most courts of appeals agree that Rule 613(b) does not pro hibit a district court from admitting extrinsic evidence of a prior inconsistent statement solely because the wit ness's opportunity to explain or deny the statement did not precede its admission. See 4 Weinstein § 613.05[2][a] at 613-18 to 613-19 (Feb. 2008 & Feb. 2009); see also, e.g., United States v. Schnapp, 322 F.3d 564, 571 (8th Cir. 2003) ("The rule, on its face, does not require that the witness be cross-examined about the alleged prior inconsistent statement before that state ment may be presented as impeachment evidence."); United States v. Bibbs, 564 F.2d 1165, 1169 (5th Cir. 1977) (Rule 613(b) does not "require that impeachment foundation precede the impeaching witness' [sic] testi mony."), cert. denied, 435 U.S. 1007 (1978). But see United States v. Bonnett, 877 F.2d 1450, 1461-1462 (10th Cir. 1989) ("Under Fed. R. Evid. 613(b) and Fed. R. Evid. 801(d)(1), before a prior inconsistent statement may be introduced, the party making the statement must be given the opportunity to explain or deny the same."). "Most courts hold that the requirements of Rule 613(b) are met if the witness has an opportunity to explain after the contents of the statement are made known to the jury," for example by recalling the witness to testify. 4 Weinstein § 613.05[2][a] at 613-18 to 613- 18.1 (Feb. 2009); see United States v. Moore, 149 F.3d 773, 781 (8th Cir.) ("One method of providing such an opportunity [for the witness to explain the statement and the opposing party to examine the statement] is to allow recall of the witness after the prior statement is admitted."), cert. denied, 525 U.S. 1030 (1998), and 525 U.S. 1082 (1999).

But while the rule does not forbid the district court from admitting extrinsic evidence when Rule 613(b)'s requirements have not first been satisfied, neither does it require the court to do so. United States v. Young, 248 F.3d 260, 268 (4th Cir.) ("Rule 613(b), however, speaks only to when extrinsic proof of a prior inconsis tent statement is inadmissible; it says nothing about the admissibility of such evidence."), cert. denied, 533 U.S. 961 (2001); United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987) ("The Rule merely states that a witness must have an opportunity to deny or ex plain a prior inconsistent statement and that the oppo site party must have an opportunity to question him about it if extrinsic evidence of the statement is admit ted. The Rule does not state the converse, namely that extrinsic evidence of a prior statement must be admitted in all cases where a witness has had an opportunity to confront and explain it."). Pursuant to their authority to "exercise reasonable control over the mode and order" of a trial (Fed. R. Evid. 611(a)), "trial courts have the discretion to exclude testimony about a prior state ment that was not revealed while the witness was on the stand." 4 Weinstein § 613.05[2][a] at 613-19 (Feb. 2008).1

As a consequence, Rule 613(b)'s "procedure is not mandatory, but is optional at the trial judge's discre tion." Schnapp, 322 F.3d at 571 (internal quotation marks and citation omitted); see United States v. Marks, 816 F.2d 1207, 1211 (7th Cir. 1987) ("We do not think Rule 613(a) was intended to take away the district judge's discretion to manage the trial in a way designed to promote accuracy and fairness; and while it would be wrong for a judge to say, 'In my court we apply the com mon law rule, not Rule 613(a),' he is entitled to conclude that in particular circumstances the older approach should be used in order to avoid confusing witnesses and jurors."). Indeed, "confronting a witness with his incon sistent statement prior to its introduction into evidence" continues to be the "preferred method of proceeding." Wammock v. Celotex Corp., 793 F.2d 1518, 1522 (11th Cir. 1986); United States v. Barrett, 539 F.2d 244, 255- 256 (1st Cir. 1976) (laying prior foundation for extrinsic evidence is "good practice" but not "absolutely re quired"); see also id. at 255 (noting that, when Rule 613 was proposed, the Reporter of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States testified that, in his view, "the exist ing practice would continue in general to be followed under the rule. It is convenient and effective to raise the matter on cross-examination, and doing so would avoid problems that might ultimately arise if witnesses become unavailable before the end of the trial") (quoting Rules of Evidence (Supplement): Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 75 (1973)).

2. In this case, after considering relevant factors, the district court exercised its discretion to exclude peti tioner's extrinsic impeachment evidence. Pet. App. 22A-26A. This discretion plainly was not abused. In light of petitioner's failure to confront Vitale with the purportedly inconsistent statement or to promptly in form the government and the court that it intended to impeach Vitale with his prior inconsistent statements to Cantarella, the district court was rightfully concerned that producing federal witnesses to New York from other parts of the country, including those in the Wit ness Security Program, would "present a * * * logisti cal burden on the Government," id. at 25A, "delay the trial," ibid., and interfere with the goal of orderly trial administration embodied in Rules 611(a) and 613(b), id. at 26A. The court also properly considered, in excluding the evidence, that the prior inconsistent statements im plicated only collateral matters pertaining to Vitale's "role, motive and interest in ordering Perrino's death," id. at 25A, and did not relate to petitioner or his partici pation in Perrino's murder.

3. Contrary to petitioner's suggestion (Pet. 15-19), the district court's decision does not conflict with the First Circuit's decision in Barrett, supra. Barrett held that extrinsic evidence of a prior inconsistent statement was not inadmissible solely because the witness was not first given an opportunity to explain it, but nevertheless suggested that the court "might properly in its discre tion have refused to receive the [extrinsic impeachment evidence]" had the witness become unavailable for recall or had the district justified its decision by reference to "judicial economy and convenience." 539 F.2d at 256. The district court's decision here was consistent with this approach, as the court excluded petitioner's evi dence only after finding that considerations of judicial economy counseled against calling Cantarella. Pet. App. 25A. Moreover, the First Circuit has since clarified that Barrett does not call in question the district court's dis cretionary authority to insist that the foundation re quired by Rule 613(b) precede admission of the impeach ment evidence. United States v. Hudson, 970 F.2d 948, 956 n.2 (1st Cir. 1992) ("Even if a proponent is not al ways required to lay a prior foundation under Rule 613(b), a trial court is free to use its informed discretion to exclude extrinsic evidence of prior inconsistent state ments on grounds of unwarranted prejudice, confusion, waste of time, or the like. * * * Moreover, Barrett not withstanding, Fed. R. Evid. 611(a) allows the trial judge to control the mode and order of interrogation and pre sentation of evidence, giving him or her the discretion to impose the common-law 'prior foundation' requirement when such an approach seems fitting.").

Given that the courts of appeals, including the First Circuit, have generally committed the admission of ex trinsic impeachment evidence to the sound discretion of the trial court, review is not warranted in this case be cause the outcome would not have been different in any other circuit.2

4. Petitioner's other challenges to the district court's evidentiary ruling do not merit this Court's re view. He contends (Pet. 31) that, independent of Rule 613(b), Cantarella's testimony was admissible as a co- conspirator statement. This argument is beyond the scope of the question presented by the petition, see Sup. Ct. R. 14(1)(a), and was not made to the court of appeals. It is also wrong: Federal Rule of Evidence 801(d)(2)(E) requires that the "statement by a coconspirator of a party" must be offered against the party-not against an opponent.3

In addition, petitioner's argument (Pet. 27-28, 32-36) that the district court erred in concluding that the im peachment evidence was collateral misinterprets the district court's ruling. Petitioner relies principally on United States v. Harvey, 547 F.2d 720 (2d Cir. 1976), for the proposition that a witness's motives, interest and bias in testifying against a defendant are never collat eral matters. In that case, the court of appeals held that the district court abused its discretion in excluding evi dence (not limited to prior inconsistent statements) that a principal witness was biased against the defendant because he had fathered the witness's child and refused to pay support. Here, by contrast, the proffered evi dence did not pertain to Vitale's bias against petitioner, and the district court correctly reasoned (Pet. App. 25A) that Vitale's personal motives (or lack thereof) for want ing to kill Perrino were collateral to the issue of whether petitioner also participated in the murder. For the same reason, because Vitale never claimed that it was peti tioner and not he who "wanted Perrino murdered" (Pet. 28), petitioner's contention (Pet. 29) that the admission of the prior inconsistent statement would have "cre ate[d] a reasonable doubt that did not otherwise exist" is unsupported (quoting Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006), cert. denied, 549 U.S. 1133 (2007)).4

Finally, petitioner's fact-bound claim (Pet. 24-27) that the district court erred in finding that petitioner did not afford Vitale a sufficient opportunity to deny or explain the statements he made to Cantarella does not warrant this Court's review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
KIRBY A. HELLER
Attorney

JANUARY 2010

1 Accord United States v. Barile, 286 F.3d 749, 756 (4th Cir. 2002) ("Although we conclude that the prior inconsistent statements * * * are admissible under Rule 613(b), our inquiry does not end because, 'even if all the foundational elements of Rule 613 are met, a district court is not unequivocally bound to admit any or all extrinsic evidence of a prior inconsistent statement.' * * * 'Rather, a district court may still exercise its discretion to exclude such evidence.'") (quoting Young, 248 F.3d at 268); United States v. Hames, 185 Fed. Appx. 318, 322 (5th Cir. 2006) (unpublished) (even if Rule 613(b) does not require that im peachment foundation precede the introduction of the impeachment evi dence, a district court does not abuse its discretion "when it in fact re quires a foundation before admitting extrinsic evidence of the impeach ment. * * * To hold otherwise would severely limit the trial courts' broad discretion in controlling the manner and presentation of evidence at trial."); United States v. Surdow, 121 Fed. Appx. 898, 899 (2d Cir. 2005) (unpublished) (trial court's broad discretion under Fed. R. Evid. 611(b) "permits it to exclude extrinsic impeachment evidence 'that was not revealed while the witness was on the stand,' or at least before the witness was permitted to leave the court") (quoting 4 Weinstein § 613.05[1], at 613-19 (2004)).

2 In support of his claim of a circuit conflict, petitioner cites a Ver mont state case, State v. Danforth, 956 A.2d 554 (Vt. 2008), that con trasts the First Circuit's "minority" rule that requires the court to in quire into the availability of the witness to be impeached before it can exclude the extrinsic evidence with the positions of six other circuits that purportedly reject that approach. Pet. 15-19 & n.2. As petitioner acknowledges (Pet. 16-18), however, Danforth ignored other cases from circuits taking the "majority" position that do not require that the wit ness be confronted with the inconsistent statement before it can be in troduced. See, e.g., Moore, 149 F.3d at 781 (8th Cir.); Bibbs, 564 F.2d at 1169 (5th Cir.); United States v. Speece, No. 92-3077, 1993 WL 17105, *4 (10th Cir. Jan. 26, 1993) (unpublished) (citing Barrett for the propo sition that "foundation for impeachment by prior inconsistent state ments desirable but not absolutely required under the rule if court gives opportunity to explain or deny at some time during trial"). And even courts of appeals that apply the traditional rule by affirming decisions of trial courts to exclude proffered evidence, in particular cases and under the abuse of discretion standard, have left the door open to the admission of the extrinsic evidence before the Rule 613(b) foundation is satisfied. See, e.g., Schnapp, 322 F.3d at 572 ("[T]he district court had the option to allow defendant to testify regarding [the witness's] alleged prior inconsistent statement, and then permit the government to recall [the witness] to explain or deny the alleged state ment. * * * Upon careful review, we cannot say that the district court's decision to disallow defendant's testimony regarding [the wit ness's] alleged prior inconsistent statement rises to the level of an abuse of discretion."); Hames, 185 Fed. Appx. at 322 (acknowledging that foundation need not precede impeaching witness's testimony, but concluding that trial court did not abuse its discretion in excluding the evidence); Surdow, 121 Fed. Appx. at 900 (same).

3 Petitioner was not precluded from calling Cantarella as a defense witness to support his theory that Vitale had a personal motive to kill Perrino and that he asked his other associates, and not petitioner, to commit the murder. Indeed, petitioner candidly acknowledged below that he did not want to call Cantarella for that purpose because he wanted to strictly limit the government's cross-examination. See Pet. C.A. App. 202-203. Having made that choice, however, petitioner can not now complain (Pet. 31) that he was denied the right to elicit testi mony from Cantarella that did not involve prior inconsistent statements by Vitale.

4 Petitioner's reliance (Pet. 21) on Chambers v. Mississippi, 410 U.S. 284 (1973), for his similar contention that the district court's evidentiary ruling denied him "the right to present witnesses in his own defense and a fair trial" is unavailing. In Chambers, the Court held that due process was violated when a murder defendant was prevented from cross-examining an individual [McDonald] who had given a sworn con fession that he was the murderer but later recanted it, and from putting before the jury three witnesses who would have testified that McDonald had confessed to them in circumstances "that provided considerable assurance of [the confessions'] reliability." Id. at 300. The trial court's rulings prevented the defendant from effectively challenging McDon ald's explanation for the recanted confession, an explanation that would have been difficult to reconcile with the proffered testimony of the three witnesses, which powerfully incriminated McDonald. The limitations imposed in Chambers prevented the defendant from raising substantial questions about his alleged guilt; that was not the case here.