Opinion
08 Cr. 694 (JFK).
February 27, 2009
For the United States of America: LEV L. DASSIN, Acting U.S. Attorney, for the Southern District of New York, New York, New York, Of Counsel: William J. Harrington, Julian J. Moore, Assistant U.S. Attorneys.
For Defendant: Michael Hurwitz, Esq., Hurwitz Stampur Roth, New York, New York.
OPINION AND ORDER
Defendant Michael Schlussel is charged by indictment with three counts: (1) conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349; (2) mail fraud, in violation of 18 U.S.C. §§ 2, 1341; and (3) conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). Trial is scheduled to begin on March 2, 2009.
Before the Court is the Government's request for a ruling that the prior crimes of its witness, David William Pagano ("Pagano"), are inappropriate grounds for impeachment. Also before the Court is Defendant's request for permission to examine Pagano regarding his conduct related to his prior crimes as well as his back taxes and restitution payments.
I. BACKGROUND
In a letter dated February 13, 2009, the Government informed Defendant and the Court that it intends to call Pagano as a witness at trial. The Government argued that, under Rule 609(b) of the Federal Rules of Evidence, the following are impermissible grounds on which to impeach Pagano: (1) Pagano's guilty plea on November 17, 1997, to criminal possession of a controlled substance in the seventh degree; (2) Pagano's guilty plea on September 19, 1988, to sexual abuse in the first degree; (3) Pagano's guilty plea on October 5, 1988, to sexual abuse in the first degree. In a letter dated February 17, 2009, Defendant agreed that the drug conviction was inadmissible, but requested more information regarding the two sexual abuse convictions. In response, the Government provided Defendant and the Court with Pagano's "3500 material," i.e., all statements "of the witness in the possession of the United States which relate[] to the subject matter as to which the witness has testified [or, in this case, will testify]." 18 U.S.C. § 3500. The 3500 material revealed the following relevant information.
A. The September 19, 1988, Sexual Abuse Guilty Plea
On or about December 14, 1987, Pagano was arrested and charged with, among other things, sexual abuse by forcible compulsion, in violation of N.Y. Penal Law § 130.65(1). The eight-year-old daughter of his then-girlfriend had accused Pagano of making inappropriate contact with her. Pagano pled guilty to the sexual abuse charge and received five years' probation. At the time, Pagano was an auxiliary police officer, but he did not inform the auxiliary police of his arrest or conviction.
At an April 15, 2003, proffer session with the Government in the instant case, Pagano stated that he pled guilty to the charge because the case had gone on for a year and he and his then-girlfriend were getting married. At a February 10, 2009, proffer session with the Government, however, Pagano stated that he accepted responsibility for committing the act.
A. The October 5, 1988, Sexual Abuse Guilty Plea
On or about April 7, 1988, Pagano was arrested and charged in Brooklyn with, among other things, grand larceny by extortion in the second degree under N.Y. Penal Law § 155.40(2), and sexual abuse in the first degree under N.Y. Penal Law § 130.65. The arrest stemmed from an incident in which Pagano, who was still an auxiliary police officer at the time, accosted a female driver who had sideswiped his car on the West Side Highway in Manhattan. Pagano flashed his auxiliary badge to induce her to pull over. After she did so, he made inappropriate sexual advances. Pagano and the driver eventually drove to an ATM, where the driver withdrew $140 and gave it to Pagano, allegedly against her will. On October 5, 1988, Pagano pled guilty to the sexual abuse charge and received five years' probation. Notably, at the April 15, 2003, proffer session with the Government in the instant case, Pagano stated that he pled guilty to extortion and not sexual abuse.
C. Back Taxes and Restitution
At the February 10, 2009, proffer session, Pagano stated that he was paying restitution and owed $126,000 in back taxes from his involvement in what is referred to in the 3500 material as "a [bathtub] distributorship in [Florida]". He also stated that he has not paid taxes on $16,000 that he made from selling light bulbs.
Defendant argues that he should be permitted to examine Pagano on his two prior sexual abuse convictions and on Pagano's conduct related to those convictions, such as Pagano's supposed denials of guilt during the proffer sessions. Defendant also requests a ruling that he may examine Pagano on his back taxes and restitution.
II. DISCUSSION A. Prior Convictions
"For the purpose of attacking the character for truthfulness of a witness . . . evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year. . . ." Fed.R.Evid. 609(a)(1). However, "[e]vidence of a conviction . . . is not admissible if a period of more than ten years has elapsed since the date of the conviction . . . unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b). Rule 609(b) places "the greater burden" on the party seeking to use the old convictions. United States v. Weichert, 783 F.2d 23, 26 n. 3 (2d Cir. 1986). Through Rule 609(b), Congress intended "that convictions over ten years old be admitted very rarely and only in exceptional circumstances."Zinman v. Black Decker, 983 F.2d 431, 434 (2d Cir. 1993). In conducting the balancing required by Rule 609(b), courts have considered the "nature, age, and severity of the crime and its relevance to the witness's credibility, the importance of credibility as an issue in the case, the availability of other means to impeach the witness, and whether the witness has `mended his ways' or engaged in similar conduct recently." Daniels v. Loizzo, 986 F. Supp. 245, 252 (S.D.N.Y. 1997).
Defendant does not appear to argue that the prior sexual assault convictions must be admitted under the mandatory provision of Rule 609(a)(2), which states, "evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." According to the Second Circuit, "crimes of force . . . do not come within" Rule 609(a)(2). United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977); see also Fed.R.Evid. 609 advisory committee's note ("The [2006] amendment provides that Rule 609(a)(2) mandates the admission of evidence of a conviction only when the conviction required the proof of (or in the case of a guilty plea, the admission of) an act of dishonesty or false statement. Evidence of all other convictions is inadmissible under this subsection, irrespective of whether the witness exhibited dishonesty or made a false statement in the process of the commission of the crime of conviction."). Therefore, Rule 609(a)(2) does not apply to Pagano's convictions for sexual abuse by forcible compulsion.
Both of Pagano's prior convictions for sexual abuse are inappropriate grounds for impeachment under Rule 609(b). The convictions are over twenty years old and, even if they were more recent, have very little bearing on Pagano's character for truthfulness. Further, any probative value the convictions carry is substantially outweighed by the danger of prejudice given that both crimes were sexual in nature and targeted vulnerable victims. See 3 Stephen A. Saltzburg, Michael M. Martin Daniel J. Capra, Federal Rules of Evidence Manual § 609.02[10] (8th ed. 2002) ("As a practical matter, the exclusionary presumption of the Rule 609(b) test means that an old conviction should almost always be excluded, and this is especially so if . . . the old conviction is highly inflammatory."). Pagano's employment as an auxiliary police officer at the time he committed the crimes, if anything, heightens the evidence's prejudicial effect while adding little to its probative value. Therefore, Defendant may not examine Pagano on his prior convictions for sexual abuse.
B. Conduct Relevant to Pagano's Character for Truthfulness
According to Defendant, the following conduct is relevant to Pagano's character for truthfulness: (1) Pagano's statement at the April 15, 2003, proffer session that he pled guilty to sexually abusing his then-girlfriend's daughter because the case had gone on for a year and he was about to get married; (2) Pagano's failure to inform the auxiliary police of his arrest and conviction for sexually abusing his then-girlfriend's daughter; and (3) Pagano's claim at the April 15, 2003, proffer session that he pled guilty to extorting the female driver who sideswiped him when in fact he had pled guilty to sexually abusing her. Defendant seeks permission to inquire about this past conduct during Pagano's cross-examination.
Defendant does not offer a legal basis for inquiring into Pagano's past conduct. The Court construes Defendant's request as coming under Rule 608(b) of the Federal Rules of Evidence, which governs the admissibility of evidence of the character and conduct of a witness, such as prior false statements. See United States v. Triumph Capital Group, Inc., 237 Fed. Appx. 625, 629 (2d Cir. 2007) ("[I]t can be appropriate to introduce false statements . . . under Rule 608(b)(1) to shed light on a witness' credibility.").
"Specific instances of the conduct of a witness, . . . may . . . in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. . . ." Fed.R.Evid. 608(b). But Rule 608(b) "does not authorize inquiry on cross-examination into instances of conduct that do not actually indicate a lack of truthfulness." United States v. Nelson, 365 F. Supp. 2d 381, 386 (S.D.N.Y. 2005) (quoting Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence § 608.22[2][c][i] (2d ed. 1997)). Courts apply Rule 608(b) in conjunction with Rule 403, which requires exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403; see also United States v. Schwab, 886 F.2d 509, 513 (2d Cir. 1989) (noting that, "with respect to admission of prior acts of misconduct," courts must consider Rules 608(b) and 403).
The instances of Pagano's past conduct at issue are not appropriate areas of inquiry under Rules 608(b) and 403. First, Pagano's statement that he pled guilty to sexually abusing his then-girlfriend's daughter because the case had gone on for a year and he was about to get married does not constitute a denial of guilt. At no point in any proffer session did Pagano explicitly deny his guilt. In fact, during the most recent session, he explicitly stated that he accepts responsibility for his actions.
Second, Pagano's failure to inform the auxiliary police of his arrest and conviction for sexually abusing his then-girlfriend's child has little or no bearing on Pagano's character for truthfulness. Defendant provides no evidence suggesting that Pagano was under any obligation to reveal the crime or that he made false statements regarding the crime to the auxiliary police. Even if Defendant could prove that there was misconduct, the fact that it occurred over twenty years ago renders its probative value almost negligible. The Court concludes that any probative value is substantially outweighed by the danger of confusing the issues or misleading the jury.
Third, Pagano's claim at the April 15, 2003, proffer session that he pled guilty to extorting the female driver as opposed to sexually abusing her also has little to no bearing on his character for truthfulness. In addition to the sexual abuse charge, Pagano had in fact been charged with grand larceny by extortion, a charge that his guilty plea resolved. Further, the record does not suggest that Pagano made this claim in order to conceal the sexual abuse charge. To the contrary, during that same proffer session he admitted that he made inappropriate sexual advances against the driver. The Court finds that what little probative value this evidence may have is substantially outweighed by the danger of confusing the issues or misleading the jury.
C. Back Taxes and Restitution
A witness's failure to pay taxes bears directly on his character for truthfulness. See Chamblee v. Harris Harris, Inc., 154 F. Supp. 2d 670, 681 (S.D.N.Y. 2001) ("Evidence that a witness has failed, for years, to file a tax return is a matter which affects the witness's credibility."); Mischalski v. Ford Motor Co., 935 F. Supp. 203, 208 (E.D.N.Y. 1996) (noting that failure to pay income taxes bears "directly on a plaintiff's propensity for truthfulness and must be admitted for impeachment purposes if plaintiff takes the stand.").
Pagano recently owed, and may still owe, approximately $142,000 in back taxes. Defendant may examine him on these back taxes since they bear directly on Pagano's character for truthfulness.
Without knowing more about the restitution that Pagano was (and perhaps still is) paying due to his involvement with a Florida bathtub distributorship, the Court cannot rule on its admissibility. The 3500 material simply states, "[Pagano] is paying restitution on the baths." The Court will address this issue just prior to trial after conferring with the parties.