3.Defense Disclosure Obligations Under Rules 612 and 16
54 linesMR. AGNIFILO: I know it's 1:00 o'clock, does the Court want to take a break?
THE COURT: Sure. We'll take a hour lunch. Please rise for the jury.
(Jury exits the courtroom.)
THE COURT: The witness may step down. Don't discuss your testimony with anyone. We'll take an hour lunch.
(Whereupon, the witness steps down.)
MR. LESKO: Your Honor, could we discuss a matter briefly?
THE COURT: You may be seated.
MR. LESKO: Your Honor is well aware of the fact that defendant's counsel has indicated he would provide impeachment material to the Government after the direct examination of our witnesses.
THE COURT: Yes.
MR. LESKO: We inquired of the defense as to whether there was any additional material, other than some that had been provided to us. I would note, and I don't think I misplaced it, we never received Defense exhibit 332.
It's particularly troubling, as your Honor is well aware, Rule 612 provides if writings are used to refresh a witness's memory that writing has to be provided to the adverse party. We've requested this impeachment material. It was specifically used in a Rule 12 context. It was not provided. The first time I saw it was on the screen when it was shown to the witness.
I'm inquiring of the Court to now direct the defense to provide the Government with any material it's going to use in particular any 612 material.
It's patently unfair. It's against the back drop of multiple requests, many of which have been made on the record.
MR. AGNIFILO: First of all, we sent it on May 13. We have an e-mail.
Second of all, Rule 612 does not say anything about giving the material ahead of time. It's a rule of a trial examination while the examination is going on, that I can't have a witness refresh his recollection based on something unless I give it to the adverse party at the time that I'm using it to refresh his recollection. So it's an absolute misstatement of Rule 612.
But more to the point, we gave it over days ago. So we don't have to give over Rule 612 material days ago and we did it any way.
MR. LESKO: I'll go check the e-mail. I don't have it in my stack of materials. I will say, under any scenario I don't think it's appropriate for me to see the document that's being used to refresh the witness's recollection at the time that's happening. I don't want to get into all the aspects of Rule 612, but it does provide that a party has to make that document available to an adverse party prior to using it to refresh the witness as recollection.
The cat is out of the bag. The reason I'm bringing it up is so in the future we don't want to be sand-bagged with documents that we haven't seen, that haven't been produced. I'm just worried that this is going to start a trend of using documents that aren't produced to the Government, at least after direct examination of our witnesses.
THE COURT: Wasn't this --
MR. AGNIFILO: There is no obligation, nor has there ever been, that we have to produce documents to them. They are combining things, and it's not right.
Rule 612 is at the time that the witness is looking at the document. That's first.
Second of all, we gave it over.
And third of all, we don't have an obligation. So we don't get into a sandbag situation because it's cross-examination. We get to --
THE COURT: But it's impeachment material, you're acknowledging it's impeachment material.
MR. AGNIFILO: I don't think it's impeachment material, per se. I asked the witness --
THE COURT: Well, how do you define impeachment material?
MR. AGNIFILO: Undermines the credibility of the witness, surprises the witness. We don't have to give impeachment material ahead of time; that's why its impeachment material. This is not impeachment material. This is a witness saying I don't remember saying this, I don't remember this event. I show him the document. He says, now I remember it. He says it to the jury. At a time when the prosecutor is staring at the same document, the witness is staring at, which is all 612 requires.
MR. LESKO: Your Honor, I'm not looking for any sort of curative action with respect to this. We got through it. It's done. I'm saying, in the future we are requesting on the record that the material, in particular impeachment material, be provided to the Government after the direct examination of the witness, before cross-examination. That's it. Simple.
THE COURT: You don't agree with that.
MR. AGNIFILO: No, we don't. Impeachment material absolutely doesn't. We are doing it out of the goodness of our heart. And let me tell you something, that's the last time I do that. We're doing this out of the goodness of our heart.
Your Honor has had trials for 18 years.
THE COURT: Nineteen.
MR. AGNIFILO: I don't want -- 19 years. How many times --
THE COURT: We're fast approaching my 19th anniversary, I consider it 19 years.
MR. LESKO: If I may also, your Honor, Mr. Agnifilo is calling this impeachment material, but in our view what he calls impeachment material in our view is case in chief material. For efficiency sake I'm sure that some of that material will be used by the defense, and while the witness is here there is no reason to recall Government witnesses after we're done.
THE COURT: I understand that.
MR. LESKO: So think it's just, take this on a case by case basis, I actually do not agree with the characterization that all this material is only impeachment material; and therefore, if it's case in chief material then it should have been disclosed already under Rule 16. We haven't received any Rule 16 disclosures.
So I'm just bringing this to the Court's attention. I think it's going to be an issue throughout the trial. This is first instance where it's really coming to a head.
MR. AGNIFILO: We gave it to them days ago. I don't know what they did with it. We gave it. We'll show them how we gave it to them.
Second of all, I dispute this being case in chief. Case in chief has something to do with my choice, the witnesses I choose to call, witnesses that I know about more than 48 hours ahead of time, witnesses that I have spoken to before they get on the stand. This trend one day is going to get stopped dead by the Second Circuit when the Second Circuit says, case in chief means your case. It doesn't mean stuff you heard about 48 hours before it happens. It doesn't mean witnesses you have no control over that you don't call, it's Rule 16. It's my case in chief.
This is not my case in chief, this is my cross examining a Government witness. It's particularly galling that we gave them the stuff and that we're still having this discussion.
No curative action, of course no curative action, we have not done anything wrong. I think that they are trying to expand Rule 16 into places that the Second Circuit at some point, I hope that day comes soon, is going to say is not Rule 16. This is not Rule 16.
I have no control over this witness. They called him. And they covered all these things. They are trying to hem me into a very narrow bandwidth, Judge, in terms of what is beyond the scope of direct. And the truth is, they got it all of it. This witness testified for many, many hours.
THE COURT: You got your questions answered. Don't argue with success.
MR. AGNIFILO: I'm not arguing.
THE COURT: You are. You want to -- you're trying to reargue something where you got the answers to your questions, right? Right. Sit down.
MR. AGNIFILO: Yes. Thank you, Judge.
THE COURT: All right. If it's case in chief material if you're trying to expand the discussion to new subjects, that's case in chief. And I'm happy to follow the Second Circuit right down to the last period, comma and question mark. But until word comes from Olympus, that will help me and you, I have to sort of find my way. Just like Demosthenis, with my lamp and the darkness.
All right, I'm doing the best I can and you need to do it too. Let's have lunch.
(Lunch recess.)
(Continued on next page.)
A F T E R N O O N S E S S I O N
(Time noted: 2:00 p.m.)
(In open court; Jury not present.)
THE COURT: Okay. Please be seated.
(Defendant enters the courtroom.)
THE COURT: Oh, if the witness is going to be shown the document to refresh his recollection, for instance, a paper copy of the document should be provided to the other side and to me. Because doing it on the screen, you know, in the first instance, is very difficult. So I prefer if we did it that way in the future.
MR. AGNIFILO: Okay.
THE COURT: Okay. Thank you very much.
MR. AGNIFILO: Yes.
THE COURT: Just more work for Ms. Geragos, but since she's not doing the cross, I think she can handle it.
MR. AGNIFILO: It's like a Cyrano de Bergerac, she sort of is and she isn't.
THE COURT: I see. Good to know.
Okay. Let's bring the witness in please.
(Witness resumes the stand.)
THE COURT: Okay. Ready?
MR. AGNIFILO: Yes, Judge.
THE COURT: Bring the jury in please.
(Jury enters the courtroom.)
THE COURT: Please be seated everyone.
Okay. Mr. Agnifilo, you may continue your cross-examination of the witness.
The witness is reminded he is still under oath.
MARK VICENTE: Yes, Your Honor.