4.Alford Cross-Examination — Scope and Use of Sworn Complaints

THE COURT: Let's have a side bar. Thanks. You know, I'll tell you what? How do you folks feel about returning at 1:30 as opposed to 2:00? Or do you have problems? No, we can't do that. We can't do that.

We'll take an extra few minutes and try to start five or ten minutes early. I don't want you sitting through this. We'll probably have a couple of things to work out and I want to make sure that it's smooth for you folks.

So does it work if we started at ten to 2:00 for people or do you have problems with that? I know some people do things during the break. All right. Let's start at ten minutes to 2:00. That way, it's only a five-minute difference, all right. Thanks very much. And I want to remind you not to talk to each other or anybody else about the case.

Thank you.

THE COURT: Ladies and gentlemen, let's all be seated. We have a couple of things that I think are worth doing now. Let's start from the beginning of the things that we were going to do at the lunch break and then we'll pick up, Mr. Turner, with where you are, and I think that these logically fit together.

First, Mr. Dratel, I had indicated to you at the side bar that we had that at the break, you'd be able to make a more of a record to the extent that you hadn't made the record that you wanted to fully at side bar, so if there's anything else you want to say, otherwise, we'll go straight to the issue that is currently tee'd up.

THE COURT: -- FinCEN was beyond the scope, and I suspect that TECS search is the same, although I don't know what TECS search is, it wasn't opened up on direct.

It's certainly the case that there are a variety of instances when people are allowed, and I know you referred to in your experience, being allowed to do more things along the lines of what you were suggesting where judges will allow some amount of leeway, particularly in the absence of an objection. But in the face of an objection, it is perfectly appropriate under the case law to -- indeed, some would argue that it's not only appropriate, but it's important under the case law so that the jury does not have its time wasted or misled or brought down alleys and byways it shouldn't otherwise be brought down to limit the scope of cross-examination to the scope of the direct.

You have made your record in terms of the fact that you believe this is within the scope of the direct and somebody probably other than myself certainly will ultimately decide that if you choose, if there is any appeal in this matter, if there's even a conviction. I don't know where this matter will go, but that's my ruling on that issue.

Mr. Turner, was there anything else the government wanted to say on that particular issue? Let's go on to the one that is currently -- that we have tee'd up.

THE COURT: That, though, I think raises a Ramirez issue if I have the name of the case correct. I have actually forgotten. It's the case. In any event, we were looking at, that set of case law not too long ago in connection with a different issue, which is, confronting the witness with a statement or an admission if it's something that's material to the case.

Now, there's a difference, and the reason that I allowed it in for this witness was not for that purpose but was because it was potentially impeachment purposes to show that he said he didn't recall making the statement and then he then recalled making the statement, so they can use a lot of different statements for that. But to the extent that Mr. Dratel was going into the truth, I think we get into a debate about admissions of a party opponent.

THE COURT: Special Agent Alford, the testimony that he gave on direct, the Court had rulings. To the extent there were objections, the Court dealt with them at the time.

In terms of the particular issue, which we're dealing with right now, which is the verified complaint, there are two analytically distinct issues that I want to separate: One is the extent to which it can be used with this witness right now on cross, and separately the extent to which the defendant may use it in connection with a defense case.

The second and latter use is a use that will come when we -- and a ruling on that will come logically once the defense case commences if the defendant chooses to put one on. The former issue is first and foremost dealt with in terms of the scope of the direct examination and not going beyond the scope.

Here, however, what I'm going to do is, I want to reread, which I can do with my LiveNote, some of Special Agent Alford's direct. I've got a little bit of time before I have a matter coming up where I can do that so that I can refresh myself as to the scope of the direct. I encourage you folks to do that as well so we don't end up with either examination that goes where it shouldn't go or objections that go where they should not go because he did start on Monday. Being refreshed on it I think is useful.

Then in terms of impeachment, if there's something on direct and there is a statement that this witness made that was contrary to that anywhere, then that obviously can be used for impeachment purposes and the origin of that statement is not particularly relevant.

Mr. Turner.

THE COURT: I understand the arguments.

Mr. Dratel, do you have something you wanted to add?

THE COURT: I understand the arguments. Let's take our lunch break now. Unless there's something else that you folks would like to raise, why don't we come back at quarter of. We'll talk about the resolution of this issue. I would like you back at a quarter of. The jury actually will back hopefully at ten of. They're scheduled to be back then and then we can resume.

Let me ask the government who is next.

THE COURT: Let's all be seated for a moment before we start again with the jury.

I had an opportunity to go back over the transcripts and have a fairly good and refreshed sense now of what was in the scope of the direct. And I also have a list of points that were raised, but also just generally I can recall now much better.

I also went back to Second Circuit case law on limitations of cross-examination and am satisfied that the scope of direct of course, under both the Federal Rules of Evidence as well as Second Circuit case law defines the scope of cross-examination.

Cross-examination, as we all know, is limited to things like showing that the witness who testified is wrong about a fact, is biased, is prejudiced, has self-interest, you know, general motivations to testify in a manner that's either for the government or suggests untruthfulness.

Things which go into entirely new areas would be beyond the scope of the direct. Now, that of course, begs the question as to what the phrase "entirely new areas" means, but I am convinced and comfortable that things like LinkedIn, etc., TECS search and FinCEN are beyond the scope of the direct.

Now, in terms of the affidavit, that, I haven't read every paragraph to know whether or not there's something in the affidavit that goes to the points of whether the witness' testimony is wrong, the testimony given on direct was wrong or otherwise demonstrates bias, prejudice, motivation to testify untruthfully, something like that. If it does, then obviously it would be appropriate, first, to set up that point and then, second, to go into it.

Let me just give you some cases. There are oodles of Second Circuit case law on the points I have just stated: U.S. v. Figueroa, 548 F.3d 222, Second Circuit; U.S. v. Lanza, 790 F.2d 1015; U.S. v. Pedroza, 750 F.2d 187; U.S. v. James, 712 F.3d 79, and there are many other cases supportive of the propositions that I've just stated.

So, the scope of the cross-examination for the witness currently on the stand, Mr. Alford, will be limited to the scope of the direct. The scope of the direct will not include things like, as we said before and I had already ruled before, the LinkedIn, FinCEN, TECS search, or other matters which were not raised and reasonably related to what was within the scope of the direct.

In terms of the use of the declaration or affidavit or complaint, the sworn statement, it will depend on whether or not there are particular statements in there which go to one of the areas that I've just suggested, but it has not been proffered for that use at this point.

Mr. Turner.

THE COURT: I hear your point. I disagree with it.

Is there anything else you'd like to say in terms of making your record?

THE COURT: That's the scope of your cross. If you want to call him in your case, you can list him as a witness and make your decision and then you can proffer him and we can determine if he's a relevant witness for you, but the scope of his cross is what I've said.

Is there anything else, a new point that you would like to add?

THE COURT: You can call him in your case, but for the government's case, and they bear the burden of proof, they can constrain the scope of their direct as they deem appropriate. You can then cross them on the scope. And then if you want to put on another case, if you chose to do so, you have no obligation to do so, you may do so. And if he's relevant for that and you have things to bring out where he's a precipient witness, so be it.

Let's bring the jury out. I want to know, is there any new point: These are the points we have already gone over.