U.S.
v.
Traficant

United States District Court, N.D. Ohio, Eastern DivisionApr 2, 2002
Case No. 4:01 CR 207 (N.D. Ohio Apr. 2, 2002)

Case No. 4:01 CR 207

April 2, 2002


ORDER REGARDING TESTIMONY TO IMPEACH GOVERNMENT WITNESSES


Before the Court are several motions and legal issues regarding the testimony of defense witnesses Dennis Johnson, Michael Terlecky, and Linda Kovachik.

BACKGROUND

On 21 March 2002, Dennis Johnson testified as a defense witness. In order to put the Court in a position to analyze the hearsay issues that arose during his testimony, Mr. Johnson was asked questions during a voir dire on 27 March 2002. During the voir dire, outside the presence of the jury, Mr. Johnson testified to an alleged statement by J.J. Cafaro (3/27/02 Tr. at 4980) and to an alleged statement by Charles O'Nesti (3/27/02 Tr. at 4986).

The alleged Cafaro statement was "Tell Jimbo there was nothing he or I ever done that was illegal."

The alleged O'Nesti statement was "Denny, Jim did nothing wrong. They want me to say some things that is not true, and they are going to send me to the Army."

Michael Terlecky testified as a defense witness on 26 March 2002. Because hearsay issues arose from Mr. Terlecky's testimony, he was questioned outside the presence of the jury. During the voir dire, Mr. Terlecky stated that Charles O'Nesti said to him that "he did not kickback nothing to Jim Traficant" and that Congressman Traficant "borrowed money off him, but . . . paid him back." (3/26/02 Tr. at 4928-29).

Linda Kovachik testified as a defense witness on 27 March 2002. A hearsay voir dire outside the presence of the jury was held the next morning. During the voir dire, Ms. Kovachik testified that Charles O'Nesti stated to her "I had not gotten any kickbacks from Jim." (3/28/02 Tr. at 5274).

At the time of the testimony and hearsay voir dire of each of these witnesses, Defendant Traficant argued that the statements of J.J. Cafaro and Charles O'Nesti were admissible as substantive evidence under an exception to the hearsay rule.

However, in his motions of 27 March 2002, Defendant Traficant contended for the first time that he sought to admit the above statements only for the purpose of impeaching the testimony of J.J. Cafaro, Jacqueline Bobby, and Grace Kavulic. Defendant Traficant filed three motions: a motion to allow the testimony of Mr. Terlecky as to Mr. O'Nesti's statements for the purpose of impeachment (Docket # 298); a motion to allow the testimony of Mr. Johnson as to the statements of Mr. Cafaro and Mr. O'Nesti for the purpose of impeachment and a motion that combines these two motions and also addresses issues regarding Defense Exhibit 0-1 and the testimony of Harry Manganaro, which since have been resolved in previous orders (Docket # 295).

ANALYSIS

A statement is not hearsay if it is not offered as substantive evidence to prove the truth of the matter asserted in the statement. If an out-of-court statement is offered only to impeach the testimony of a witness as a prior inconsistent statement then it is not hearsay. However, under Rule 613(b) of the Federal Rules of Evidence,

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon . . .

Under Rule 613(b), Mr. Johnson's testimony regarding J.J. Cafaro's alleged statement to him is not admissible to impeach J.J. Cafaro's testimony because Defendant Traficant never gave Mr. Cafaro, who testified as a government witness, an opportunity to explain or deny the statement.

On the other hand, Mr. Johnson's testimony regarding Charles O'Nesti's alleged statement to him and Mr. Terlecky's testimony regarding Charles O'Nesti's alleged statements to him are admissible to impeach prior testimony. The statements are not hearsay because they are offered only to impeach the prior testimony of Ms. Bobby and Ms. Kavulic. Moreover, it was not possible for Defendant Traficant to offer Mr. O'Nesti an opportunity to explain or deny the statements because Mr. O'Nesti is deceased and his arguably inconsistent statements were testified to by Ms. Bobby and Ms. Kavulic.

Ms. Kovachik's testimony regarding Mr. O'Nesti's alleged statement to her is not admissible. The statement cannot be used to impeach prior testimony by Ms. Bobby or Ms. Kavulic because it is not inconsistent with any testimony by either witness. Neither witness testified that Mr. Traficant gave kickbacks to Mr. O'Nesti.

CONCLUSION

Mr. Johnson's testimony regarding J.J. Cafaro's alleged statement to him is not admissible, but his testimony regarding Mr. O'Nesti's alleged statement to him is admissible only to impeach prior testimony. Mr. Terlecky's testimony regarding Mr. O'Nesti's alleged statement to him is admissible only to impeach prior testimony. Ms. Kovachik's testimony regarding Mr. O'Nesti's alleged statements to her is not admissible.

Defendant Traficant may re-call Mr. Johnson and Mr. Terlecky to testify to the admissible statements.

Therefore, Defendant Traficant's motion to allow the testimony of Mr. Terlecky as to Mr. O'Nesti's statements for the purpose of impeachment (Docket # 298) is granted. Defendant Traficant's motion to allow the testimony of Mr. Johnson as to the statements of Mr. Cafaro and Mr. O'Nesti for the purpose of impeachment is granted as to Mr. O'Nesti's statement but denied as to Mr. Cataro's statement. Thus, the consolidated motion (Docket # 295) is granted in part and denied in part.