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United States v. Gasperini

United States District Court, E.D. New York

July 20, 2017

UNITED STATES OF AMERICA
v.
FABIO GASPERINI, Defendant.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS UNITED STATES DISTRICT JUDGE.

         Before the court is the Government's motion in limine[1] seeking to preclude Defendant from claiming that the Government forged documents produced in discovery and from calling Saritha Komatireddy, one of the prosecuting Assistant United States Attorneys (the "AUSA"), as a witness at trial. (July 6, 2017, Gov't Ltr. ("MIL") (Dkt. 80) at 5-6.) For the reasons that follow, the court GRANTS the motion.

         I. BACKGROUND

         The court assumes familiarity with the allegations against Defendant. (See May 31, 2017, Mem. & Order (Dkt. 45) at 2-3.) Accordingly, the court recites only those facts and allegations that are relevant to the present motion.

         During discovery, the Government provided Defendant with records that it states were obtained from Italian law enforcement. The first set of documents consist of a summary of information from various businesses obtained by Italian law enforcement officials (the "Law Enforcement Records"). (2d Mot. to Dismiss ("2d MTD") (Dkt. 58) at 2.) The Government stated that the second set of documents were obtained "from an advertising company" (the "Advertising Company Records"), though the Government later clarified that it obtained those documents indirectly through foreign law enforcement officials. (Opp'n to 2d MTD ("2d MTD Opp'n)(Dkt 68) at 4.)

         After receiving Bates-stamped PDF versions of the Law Enforcement Records in discovery, Defendant requested original copies of those documents. (Mot. to Compel ("MTC") (Dkt. 61) at 2.) In response, the Government provided two copies, one in Word format and one in PDF format. (Id.) Defendant notes that, while the metadata of both original copies of the Law Enforcement Records indicate they were authored by "M.G.", the metadata of the Law Enforcement Records produced in discovery indicates that copy was "authored" by the AUSA. (Reply to MTC Opp'n ("MTC Reply") (Dkt. 74) at 2-3.) Defendant also states that there were differences in margin and document sizes between the original and discovery copies of the Law Enforcement Records. (Id. at 3.) Based on these objections, Defendant stated that he anticipated calling the AUSA as a "witness to testify about the chain of custody of this record." (Id. at 3.)

         Defendant also requested original copies of the Advertising Company Records. (See 2d MTD at 7.) In response, the Government provided an Excel document, also authored by "M.G." (Id. at 7; MTC Reply at 3.)

         With respect to both sets of records, Defendant objected that both sets of records "contain no date, no subject line, no protocol number, [and] no name or signature of the person preparing it." (MTC at 2; 2d MTD at 2-3.) Based on this, Defendant's counsel stated that he was "ready to swear to this Court that, as a matter of Italian law, [the Law Enforcement Records] cannot be an official Italian government record." (MTC at 2.)

         Following inquiry by Defendant, the Government indicated that it intended to offer certifications as to both the Law Enforcement and Advertising Company Records under Federal Rule of Evidence 902(3).[2] (Tr. of July 6, 2017, Hr'g ("Hr'g Tr.") (Dkt. 96) 30:13-17.) The Government also stated that it will not offer the copies of those documents produced in discovery at trial, but will instead rely on "printouts of the original documents" and summaries of business records. (Gov't Suppl. Br. in Supp. of MIL ("MIL Suppl. Br.") (Dkt. 107) at 3.)

         II. DISCUSSION

         The Government seeks to preclude Defendant from arguing that the government forged[3]copies of the documents produced in discovery and from calling the AUSA as a witness at trial. (MIL at 6.) The Government contends that Defendant's arguments that the Government altered discovery materials are irrelevant to the issues at trial, as the Government will not rely on the copies produced in discovery at that time. For the same reason, the Government also argues that Defendant fails to make the heightened showing needed to call a prosecutor as a trial witness. The court agrees: Defendant is precluded both from arguing that the Government forged or altered documents produced in discovery and from calling the AUSA as a trial witness.

         A. Legal Standard

         Criminal defendants enjoy a constitutional right to present a defense. United States v. Blum, 62 F.3d 63, 67 (2d Cir. 1995) (citations omitted). That right is not absolute, however, and "must be balanced against a court's leave to set reasonable limits on the admission of evidence." Id. (citations omitted); see also United States v. Morel 751 F.Supp.2d 423, 431 (E.D.N.Y. 2010) (excluding under Federal Rule of Evidence 403 defendant's proposed evidence that government initially declined to prosecute him).

         The admissibility of evidence at trial is determined by the Federal Rules of Evidence, and only relevant evidence may be admitted. Fed.R.Evid. 402. Evidence is relevant if it "has any tendency to make a fact more or less probable" and "the fact is of consequence in determining the action." Fed.R.Evid. 401. Moreover, even relevant evidence may be excluded if the court determines that "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the ...


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