Opinion
1:17-cr-00296-ERK
11-12-2021
UNITED STATES, v. MICHAEL LIBURD, Defendant.
NOT FOR PUBLICATION
Edward R. Korman Senior United States District Judge
To the extent I can do so without first hearing the evidence developed at trial, I will resolve the admission of evidence the government seeks to proffer in short memoranda in advance of trial. I will dispose of two such evidentiary disputes here.
I agree with the government that the 911 recording constitutes both a present sense impression and an excited utterance under Federal Rules of Evidence 803(1) and (2) as I set forth in my opinion United States v. Mejia-Valez, 855 F.Supp. 607, 613 (E.D.N.Y. 1994). It will therefore be admissible at trial.
As to the sworn statements the defendant made during the proceeding for his now-withdrawn guilty plea, these statements are not admissible as part of the government's case-in-chief nor as impeachment evidence. Federal Rule of Evidence 410(a) bars the admission of a withdrawn guilty plea as well as statements made during the proceedings involving such a plea. Since the government does not assert that the defendant waived his right not to be impeached by statements made during plea proceedings, these statements will not be admitted. See United States v. Mezzanatto, 513 U.S. 196, 200 & n.2 (1995) (“We certainly agree that the Rules give a defendant the right not to be impeached by statements made during plea discussions.”); United States v. Lawson, 683 F.2d 688, 693 (2d Cir. 1982) (“Congress[] explicit[ly] inten[ded] to preclude use of statements made in plea negotiations for impeachment purposes.”).
The government is directed to provide me with photographic evidence of the crime scene, so that I can rule on the admissibility of that evidence.
SO ORDERED.