Ull Aff. Ex K), and (2) two pages from a ledger allegedly documenting illegal payments made by Ull to Bennett during Bennett's tenure as an officer of Local 272 (see Ull Aff. Ex. I).
We are quite mindful of the potential for unfair prejudice in the event plaintiff mentions allegations of corruption and then fails to connect them to his own circumstances. At this stage, however, we lack sufficient information to make an informed ruling on this point. Accordingly, defendants' broad motion to preclude any reference to alleged bribes is denied at this time subject to reconsideration at trial. Plaintiff, however, is directed to advise defendants and the Court in writing at least one week prior to trial of the precise nature of the claims of corruption he intends to make and of the specific evidence he proposes to offer in order to permit the Court to rule on any objections. We turn, then, to the two specific issues raised by defendants.
Transcript of Bennett's Sentencing Hearing
The transcript of Bennett's sentencing hearing is hearsay and does not fall within any of the exceptions to the hearsay rule. Fed. R. Evid. 801. It is therefore inadmissible to prove the truth of the matters asserted. We exclude the allocution and any reference to it in plaintiff's opening statement. However, plaintiff plans to call Bennett as a witness at trial (Ladson Aff. at 6 & Joint PTO at 3). In the event that Bennett testifies at trial, plaintiff may elicit testimony concerning Bennett's actions to the extent that the testimony is relevant and the probative value of the testimony is not substantially outweighed by danger of unfair prejudice, confusion of the issues or misleading the jury. Fed. R. Evid. 401, 403. The allocution may be usable in connection with such testimony to impeach or to refresh recollection.
Defendants seek to exclude two ledger pages (see Ull Aff. Ex. I) which, plaintiff alleges, are documentary evidence of illegal bribes paid to Bennett from June 1976 through 1984 while he was an employee and officer of Local 272. Plaintiff claims that he received the two pages in an unmarked envelope in the mail and that he has no idea who sent them to him. (Ladson Dep. 226-27, Ull Aff. Ex. J) He alleges that the handwriting is that of Robert Ull, the president of Ulltra and an officer of defendant L.P.S. Management Corporation. Plaintiff further alleges that the initials of Ull and other officers of the defendant corporations appear on the document. (Ladson Aff. 4-5) The Court notes that the heading "Gene Bennett (272)" appears at top of one of the pages.
If the ledger pages are what plaintiff claims, they are relevant here. According to Robert Schneider, a supervisor at Ulltra at the time plaintiff was fired, garage owners including Ull paid bribes to Local 272 officers in order to ensure that the systematic firing of minority and union workers was not challenged by the union. (Schneider Dep. 66-75, Ladson Aff. Ex 3) According to the plea allocutions of the three defendants in the racketeering case, the purpose of the illegal payments by garage owners over an extended period of time was to maintain the "good will" of the union officials and to "buy labor peace." (Ladson Aff. Ex. 1 at 9; Ex. 2 at 9; Ex. B at 10) While we recognize that the ledger pages cover a period ending in 1984 and that plaintiff was fired in 1990, we cannot say that the ledger pages, if they are what plaintiff says they are, do not come within Fed. R. Evid. 401.
The question whether the ledger pages are what plaintiff claims raises issues of authenticity (i.e., is the handwriting that of Ull) and conditional relevancy (i.e., is it a list of bribes paid to Bennett).
Fed. R. Evid. 901(a) provides that authenticity is sufficiently established for purposes of receipt of a document into evidence if there is "evidence sufficient to support a finding that the matter in question is what its proponent claims." That appears to be so here. Both plaintiff and Schneider identify the handwriting on the ledger as Ull's. (Ladson Dep. 228, Ull Aff. Ex. J & Schneider Dep. 43, Ladson Aff. Ex. 3) Under Rule 901(b)(2), non-expert identification of the handwriting on the document satisfies the authentication requirement, assuming competency on the part of the identifier. Furthermore, Schneider testified to having seen a document fitting the general description of the ledger pages on Ull's desk. (Schneider Dep. 41-43, Ladson Aff. Ex. 3) Assuming the document is otherwise admissible, it will be for the trier of fact to decide if the handwriting is really Ull's.
Of course, even if the handwriting is Ull's, the question remains whether the pages record bribes, in which case they are relevant, or something else, in which case they probably are not. Under Fed. R. Evid. 104(b), when the relevancy of evidence is conditioned on a fact, the Court must admit it upon the introduction of evidence sufficient to support a finding that the condition is fulfilled. Since the document is at least consistent with the view espoused by plaintiff, it also will be for the trier of fact to decide what the document represents.
Even if all of the foregoing criteria are met at trial, as appears likely, we recognize that there will be a substantial issue as to whether the document should be excluded pursuant to Rule 403, particularly in view of its remoteness in time. As this may be affected by evidence at trial, we decline to pass on the Rule 403 issue at this time.
Accordingly, the motion to exclude the ledger pages is denied subject to renewal at trial.
Appointment of Counsel
Plaintiff has declined at least one prior offer by the Court to seek counsel willing to represent him on a pro bono basis. As the foregoing makes clear, the trial of this action involves legal issues that, despite the admirable effort that plaintiff himself has made to date, are best addressed by a member of the Bar. The Court is concerned that plaintiff's lack of legal representation may prejudice his position unnecessarily. Accordingly, we afford plaintiff the final opportunity to indicate his willingness to accept either representation or advice from an attorney willing to provide it pro bono publico if one proves to be available. Absent receipt of a written request for such assistance within ten days hereof, the action will proceed pro se.
Dated: New York, New York
March 15, 1995
Lewis A. Kaplan
United States District Judge