Opinion
CRIMINAL ACTION NO. 01-282, SECTION "R" (1).
April 17, 2003
ORDER AND REASONS
Before the Court is the government's appeal from the Magistrate Judge's decision denying in part and granting in part the government's motion to quash Johnny Davis's subpoena duces tecum to the Personnel Department and the Public Integrity Department of the New Orleans Police Department. The government also filed a motion in limine to prohibit defendant from eliciting testimony about the files requested in the subpoenas. For the following reasons, the Court GRANTS the government's motion on appeal and REVERSES the portion of the Magistrate Judge's ruling denying the government's motion to quash. The Court also GRANTS the government's motion in limine.
Davis is charged in a multi-count indictment with conspiracy to possess with intent to distribute heroin, conspiracy to use firearms in furtherance of the heroin conspiracy, and crimes relating to the heroin conspiracy, including four homicides. On February 26, 2003, at Davis's request, Magistrate Judge Sally Shushan ordered subpoenas served on the Public Integrity Division ("PID") of the New Orleans Police Department ("NOPD") for the records of all disciplinary actions, complaints, write-ups, and other forms of reprimand relating to nine officers, and on the Personnel Department of the NOPD for the complete personnel files of the same officers. The government, joined by the City of New Orleans, moved to quash the subpoenas. The defendant argued that the subpoenas are relevant and necessary because he will elicit testimony at trial concerning misconduct on the part of federal agents and the nine police officers who investigated the homicides with which defendant is charged. Specifically, defendant argued that the alleged misconduct includes planting drugs on individuals, paying witnesses for testimony, lying to witnesses, and threatening witnesses to procure false testimony against defendant. The Magistrate Judge granted the government's motion in part and denied it in part, allowing the production of one informal complaint and two formal complaints against New Orleans police officers, but quashing all other documents.
Because defendant's motion for discovery was a pretrial matter referred to Magistrate Judge Shushan pursuant to 28 U.S.C. § 636(b)(1)(A), this Court reviews the Magistrate Judge's decision under a "clearly erroneous or contrary to law" standard. See 18 U.S.C. § 636(b)(1)(A) (1997). Thus, for the government to prevail, it must show not that the Magistrate Judge could have exercised her discretion and granted its motion to quash, but rather that she should have granted its motion to quash as a matter of law. The government has met this burden.
18 U.S.C. § 636(b)(1)(A) provides:
(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.
Under the governing law concerning the pretrial production of documents under a subpoena duces tecum in a criminal case, the subpoena is "not intended to provide a means of discovery for criminal cases." United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090 (1974) (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675 (1951)). Among other things, the moving party must show "that the documents are evidentiary and relevant." Id. at 699 (citing Bowman, 341 U.S. 214). Specifically, the moving party must show that the subpoenaed document is (1) relevant, (2) admissible, and (3) requested with adequate specificity. See id. at 700; see also United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992) (citing Nixon, 418 U.S. at 700). The question of the admissibility of the subpoenaed documents must be resolved in light of Rule 608(b) of the Federal Rules of Evidence, which provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
FED. R. EVID. 608(b). Interpreting Rule 608(b), the Fifth Circuit has held,
This language prohibits proof by extrinsic evidence even where the prosecutor "inquires into" prior acts on cross-examination. The cross-examining attorney must take the witness' answer. [Citations omitted.] This result is consistent with the long-standing doctrine that a witness may not be impeached with extrinsic evidence as to a collateral matter. Prior wrongful acts not resulting in a criminal conviction ordinarily are "collateral matters." [Citations omitted.]United States v. Herzberg, 588 F.2d 1219, (5th Cir. 1977).
The Magistrate Judge conducted an in camera examination of the subpoenaed documents to determine whether any of them satisfied the Nixon test. According to the Magistrate Judge, the Personnel Department of the NOPD produced three types of information: yearly attendance records, civil service job counseling and evaluation reports, and commendations. The PID produced two types of information: informal complaints and formal complaints. Based on this Court's review of the documents, the Magistrate Judge correctly concluded that none of the Personnel Department documents were relevant or probative of the untruthfulness of any of the officers. Nevertheless, the Magistrate Judge erroneously found that one of the PID's informal complaints was subject to production under defendant's subpoena because it concerned an unsubstantiated allegation that the officer had been untruthful in a court proceeding. The Magistrate Judge stated, "Even though a mere complaint is not probative of the untruthfulness of the officer, the public nature of the complaint and the gravity of the charges against Davis weigh in favor of its production." (Rec. Doc. No. 404 (emphasis added).) The Magistrate Judge cited no authority for the foregoing proposition. Likewise, the Magistrate Judge erroneously concluded that two of the PID's formal complaints were subject to production under defendant's subpoena because they alleged that officers or persons under their supervision stole money from suspects or their families. The Magistrate stated, "While both complaints remain unsubstantiated and thus are not probative of the untruthfulness of the officers, the gravity of the charges against Davis weigh in favor of their production." ( Id. (emphasis added).)
In United States v. Morrison, 98 F.3d 619 (D.C. Cir. 1996), the D.C. Circuit held that cross-examination about an unsubstantiated complaint against a witness is improper because a complaint is not probative of the witness' truthfulness or untruthfulness. In Morrison, the district court sustained the government's objection to the defense's question about a civil complaint that had been filed against the witness. Morrison, 98 F.3d at 628. The district court refused sidebar, stating that the question was "so obviously wrong." Id. The D.C. Circuit cited Rule 608(b) and concluded that "the district judge evidently sustained the objection on the ground that the mere filing of a complaint is not 'probative of truthfulness or untruthfulness,' regardless of whether the allegations in the complaint, if true, would seriously undermine the witness' credibility." Id. Further, in a number of cases, the courts of appeals have affirmed the quashing of a subpoena when the documents sought were inadmissible extrinsic evidence. See United States v. Innamorati, 996 F.2d 456, 479 (1st Cir. 1993) (citations omitted) (affirming district court's quashing of subpoena of police officers on basis that "[a] court may, indeed normally does, preclude a party from proving with extrinsic evidence that a witness lied in court on a collateral matter"); United States v. Polizzi, 801 F.2d 1543, 1551 (9th Cir. 1986) (affirming district court's quashing of subpoena to obtain evidence that "would have constituted extrinsic evidence attacking [the witness'] credibility, evidence prohibited by Fed.R.Evid. 608(b)"). For these reasons, the Magistrate Judge's decision is contrary to law.
In defense of the Magistrate's decision, defendant makes two arguments. First, defendant cites general law holding that capital cases are different than other criminal cases and that courts must employ a greater degree of scrutiny over capital sentences. It seems that defendant relies on this case law to argue that in reviewing any procedure used in a capital case, such as deciding whether to quash a pretrial subpoena, courts should grant the capital defendant's request even if it is in conflict with governing law. Defendant cites no law to support this proposition, and the Court finds that it is without merit. See, e.g., Standford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (quoting Zettlemoyer v. Fulcomer, 923 E.2d 284, 301 (3d Cir. 1991)) ("Even in a death penalty case, 'bald assertions and conclusory allegations do not provide sufficient ground to warrant the state to respond to discovery or to require an evidentiary hearing.'").
Defendant also notes that these records are available under the Louisiana Public Records law and argues that he does not have adequate time before trial to obtain the documents by means of a public records request. Whether the documents are available as public records is irrelevant to the question of whether the documents are admissible at trial.
Second, defendant makes a Sixth Amendment argument, citing cases that emphasize the importance of a defendant's right to cross-examine witnesses. Defendant incorrectly relies on Davis v. Alaska, 415 U.S. 308 (1974). In Davis, the Court considered the narrow issue of
whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent when such impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.Davis, 415 U.S. at 309. In Davis, there was no subpoena to compel production of a wide range of documents which the moving party hoped would reveal evidence to impeach certain witnesses' credibility. Moreover, the defendant in Davis did not seek to introduce unsubstantiated complaints about a witness' past behavior to impeach his credibility. Rather, the defendant sought to demonstrate an eyewitness' possible bias, prejudice, or ulterior motive by introducing evidence of his probationary status as a juvenile delinquent at the time of the trial and at the time he witnessed the defendant commit the charged offense. See id. at 310-11. The Court concluded that the defendant's Sixth Amendment right to confront the witnesses against him and impeach a witness by revealing possible bias, prejudice, or ulterior motive trumps the State's interest in protecting juvenile records pursuant to a state statute. See id. at 311, 314, 317-20. Davis is simply inapplicable to the question before the Court, which the Fifth Circuit made clear in Cloud v. Thomas, 627 F.2d 742 (5th Cir. 1980).
In Cloud, the government rested its case entirely on one witness, the defendant's arresting officer. See Cloud, 627 F.2d at 743. In a petition for habeas corpus, the defendant relied upon his Sixth Amendment right to confront and cross-examine witnesses to challenge the trial judge's refusal to allow cross-examination of the officer as to a prior incident in which the officer filed a false report in an unrelated case, which resulted in the officer's suspension but no criminal charges. See id. As in this case, the defendant in Cloud sought to introduce the extrinsic evidence solely on the ground that he had a right to show that the officer had a propensity for untruthfulness. See id. The Cloud court stated that, unlike in Davis, the defendant did not seek cross-examination to show that the officer had any bias, prejudice, or ulterior motives, or for any reason other than to impeach the officer's credibility. See id. (citing Davis, 415 U.S. at 317). The Cloud court held that there is "no constitutional right to attempt such impeachment." Id. at 744. Further, the court noted that although " Davis mentions the traditional importance of allowing the cross-examiner to discredit a hostile witness, . . . it nowhere holds that the sixth amendment [sic] requires the admission of all character evidence of whatever relevance and probative value." Id. (citing Davis, 415 U.S. at 316). In arriving at this conclusion, the court quoted Truman v. Wainwright, 514 F.2d 150 (5th Cir. 1975), a post- Davis case, in which a panel of the court said, "[I]t is firmly established in this circuit that a witness may not be impeached by inquiry into specific acts of misconduct not resulting in a conviction." Id. (citing Truman, 514 F.2d 150). Davis's Sixth Amendment argument is therefore without merit.
The Court also finds that the Magistrate Judge clearly erred because any probative value that could arguably attach to these three unsubstantiated complaints against the NOPD officers is clearly and substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. FED. R. EVID. 403. Not only was there no conviction of a crime, there was no finding of wrongdoing of any kind against the officers.
Having reviewed the foregoing case law and Rule 608(b), the Court concludes that the Magistrate's decision not to quash the three PID complaints was clearly erroneous and contrary to law. The documents which the NOPD produced pursuant to defendant's subpoenas are inadmissible at trial, because they are not probative of the officers' truthfulness or untruthfulness. The files do not contain criminal convictions, and Rule 608(b) does not permit the use of extrinsic evidence to impeach a witness' credibility. Further, the Court grants the government's motion in limine to prevent defendant from eliciting testimony concerning any NOPD files because such testimony is prohibited under Rule 608(b). Under Rule 608(b), the defendant may elicit testimony about a witness' specific acts on cross-examination only if the acts are probative of the witness' truthfulness or untruthfulness. Because the Court finds that the files in question are not probative of the officers' truthfulness or untruthfulness, they cannot be inquired into on cross-examination. See Morrison, 98 F.3d at 628.
As the Magistrate noted, the government is fully aware of its Brady, Giglio, Jencks Act, and Federal Rule of Criminal Procedure 26(2) obligations.
Accordingly, IT IS ORDERED that the government's appeal of Magistrate Judge Sally Shushan's ruling denying in part its motion to quash is hereby GRANTED and Magistrate Judge Shushan's ruling denying that motion in part is REVERSED. Further, the government's motion in limine is GRANTED.