disclose them. In some instances, prosecutors use commitments to tell the truth to rehabilitate or buttress the credibility of such witnesses when attacked at trial.
Because such commitments to truthfulness may in certain circumstances have the effect of enhancing the credibility of a witness before a factfinder, they cannot properly be set forth unless the witness' credibility is challenged. United States v. Cosentino, 844 F.2d 30, 33 (2d Cir 1988), cert. denied 488 U.S. 923, 102 L. Ed. 2d 322, 109 S. Ct. 303. However, where the witness' credibility is already in issue, the prosecution can present the information in the first instance because no purpose is served by requiring the prosecution to wait. Id.; United States v. Arroyo-Angulo, 580 F.2d 1137, 1146 (2d Cir.), cert. denied 439 U.S. 913, 58 L. Ed. 2d 260, 99 S. Ct. 285 (1978); United States v. Jones, 763 F.2d 518, 522 (2d Cir 1985), cert. denied 474 U.S. 981. In the present case, the credibility of the Government witnesses was contested and very much in issue throughout the entire litigation. Thus effective and astute defense trial counsel may have felt that an objection would serve no purpose. Defense counsel may also have felt that although a commitment to truthfulness may strengthen credibility, it can work in reverse if the factfinder reads the commitment as one to tell the truth as the prosecutor deems the truth to be. See United States v. Barnes, 604 F.2d 121, 151 (2d Cir 1979), cert. denied 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980). This is particularly likely during an era when public awareness of the risks of reliance on truthfulness of cooperating witnesses is particularly widespread.
To permit defense counsel to make the judgment call as to whether the prosecution should be permitted to bring out the plea and immunity agreements including the truth-telling provisions was neither plausibly harmful nor error under the circumstances of this case.
The prosecution also asked Mr. Gaind whether prosecution witnesses who formerly worked for Mr. Gaind had been mistaken or lying. Were this a situation in which the weight of the credibility of government agents, or an entire government agency, were put into the balance as against the believability of a defendant, I would be required to sustain a sua sponte objection as part of my supervision of the trial. United States v. Richter, 826 F.2d 206, 209 (2d Cir 1987).
In this instance Mr. Gaind and his former employees occupied a level playing field with respect to credibility; all were actually or allegedly involved in varying degrees of improper conduct. None was a government agent.
Asking Mr. Gaind whether these former employees were wrong or lying is a two-edged sword with hazards to both parties. Consequently, I permitted defense counsel to make the choice as to whether and when the prosecutor should be permitted to pursue such a line of questioning in this case.
The questions put to Mr. Gaind permitted him, if able to do so, to explain in the dramatic context of cross-examination, why the witnesses against him were not credible. This opportunity to rebut directly any inference that the prosecution witnesses must have been testifying accurately has advantages akin to the opportunity to explain a prior inconsistent statement before extrinsic evidence of it is offered. See Fed.R.Evid. 613(b).
Defense counsel chose to permit some of these questions to be asked without objection, but objected in other instances. In the latter instances I sustained the objection. It was obvious to me that defense counsel was fully aware of the advantages and disadvantages of such questions and I chose not to preeempt his judgment when he allowed some of them to be put.
Mr. Gaind, never at a loss for words, explained eloquently throughout his direct testimony why he believed that the various witnesses against him had been wrong or had motives to blame him for what he regarded as their own errors in engaging in the time travel. When the prosecutor asked Mr. Gaind while on cross-examination whether these witnesses were wrong or lying, she was merely revisiting a contention Mr. Gaind had already articulated in numerous ways. There is no possibility that these questions altered the outcome of the trial.
Mr. Gaind further argues in his appellate brief that his acquittal on one count (8) is inconsistent with a conviction on another count (22); even assuming that the verdicts on those two counts were inconsistent, it would not affect his sentence which also rests on 13 other counts unaffected by this argument.
I find no error in the conduct of the trial, and I also conclude that the events discussed in Mr. Gaind's application were harmless beyond a reasonable doubt.
Dated: White Plains, New York
September 28, 1993
VINCENT L. BRODERICK, U.S.D.J.