Case No. 4:01 CR 207
April 1, 2002
ORDER GRANTING GOVERNMENT'S ORAL MOTION TO BAR THE TESTIMONY OF RUSSELL SAADEY, JR.
Before the Court is the government's oral motion to prevent Russell Saadey Jr. from testifying as a defense witness on the ground that Defendant Traficant failed to produce an audiotape of Mr. Saadey as required under Rule 26.2 of the Federal Rules of Criminal Procedure.
For the reasons that follow, the government's oral motion is granted.
On the morning of 26 March 2002, Defendant Traficant indicated that he planned to call Russell Saadey Jr. as his first witness that day. (3/26/02 Tr. at 4778-79). Mr. Saadey's attorney, Brian Kopp, explained Mr. Saadey had been convicted of ten federal felony counts (including RICO, case fixing in Mahoning County, extortion, and filing false tax returns) but had not yet been sentenced. Therefore, he anticipated that Mr. Saadey would assert his Fifth Amendment privilege against self-incrimination with respect to questions on both direct and cross examination. Because it appeared that Mr. Saadey would respond to some questions but not others, the Court scheduled a voir dire of Mr. Saadey outside the presence of the jury in order to evaluate Fifth Amendment and evidentiary issues that may arise in the uncommon situation when a defense witness on cross, as well as direct, examination invokes the Amendment's protection. Such situations present potential conflict between the defendant's due process and Sixth Amendment rights to present witnesses on his own behalf and the United States' right to cross-examine direct testimony on key issues. Cross-examination, of course, also implicates the "truth-seeking function" of the Court. Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Taylor v. Illinois, 484; U.S. 400, 409 (1988);Denham v. Deeds, 954 F.2d 1501, 1504 (9th Cir 1991).
At the end of the trial day, the Court ordered Defendant Traficant to produce any reciprocal discovery for the next day's witnesses. (3/26/02 Tr. at 4962). Defendant Traficant stated that he had a tape of himself conversing with Mr. Saadey "relative to his brother-in-law James Sabatine." (3/26/02 Tr. at 4962, 4964).
At noon the next day, Congressman Traficant proceeded with his "dry run" direct examination of Mr. Saadey. Mr. Saadey invoked his Fifth Amendment right approximately seven times, but testified outside the hearing of the jury that Mr. Sabatine, after a stressful meeting with the FBI, had denied bribing the Congressman.
At the close of the direct examination, the government asked Defendant Traficant to produce the Saadey tape pursuant to Rule 26.2. (3/27/02 Tr. at 5097). Defendant Traficant could not comply with the request, stating, "I don't have the tape . . . I have destroyed the tape." (3/27/02 Tr. at 5097). The government then made its oral motion under Rule 26.2(e) to bar the testimony of Mr. Saadey. In response to the motion, Defendant Traficant represented, "I had destroyed the tape to protect the interests of Mr. Saadey." (3/27/02 Tr. at 5100). He went on to explain that the tape" [d]id confirm the fact that Mr. Sabatine had, in fact told his brother-in-law shortly after meeting with the FBI, in a stressful situation, that he did not bribe or give gratuities of any kind to the Congressman." (3/27/02 Tr. at 5101).
At the end of the trial day, before the cross examination portion of the voir dire of Mr. Saadey, taken without the jury present and to preserve the record, this Court again ordered Defendant Traficant to produce any statements of Mr. Saadey relating to his testimony. (3/27/02 Tr. at 5204, 5206). After a brief recess, Assistant United States Attorney Bernard Smith stated that the government "received nothing from the Congressman." (3/27/02 Tr. at 5205). Defendant Traficant responded that he "had non documents for the government concerning Mr. Saadey, period. . . It is gone. I have destroyed the tape." (3/27/02 Tr. at 5205).
On cross-examination outside the presence of the jury, Mr. Saadey invoked his Fifth Amendment right approximately thirty-six times.
Rule 26.2(a) provides,
After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order . . ., the defendant . . . to produce, for the examination and use of the moving party, any statement of the witness that is in [his] possession and that relates to the subject matter concerning which the witness has testified.
Rule 26.2(f) defines a "statement" to include a mechanical recording of an oral statement. Rule 26.2(e) explains the sanction for failure to produce a statement: "If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed."
Here, Defendant Traficant claims to have possessed an audiotape containing the oral statement of a defense witness. According to the Congressman's representations, the taped statement involved issues at the heart of the witness's testimony. Yet, after the direct examination portion of the voir dire and in response to a government request and a Court order to produce the tape, Defendant Traficant unambiguously indicated that he would be unable to produce the audiotape because he had totally destroyed it the night before.
By destroying the tape, Congressman Traficant elected not to turn it over to the government as required by Rule 26.2. Although he normally would not be required to produce any witness statements until after the direct examination before the jury, it would be a waste of time and a burden on the jury to now proceed with a direct examination of Mr. Saadey in front of the jury in the face of the fact that it is certain, based on Defendant Traficant's representation that he totally destroyed the tape, that Defendant Traficant would be unable to produce the tape after the direct examination. Therefore, instead of proceeding before the jury with a pointless and counter-productive direct examination of Mr. Saadey and then striking it from the record and asking the jurors to disregard it, this Court will bar his testimony before the jury.
It is not necessary to pass on the admissibility (let alone credibility) of Mr. Saadey's hearsay statement that his brother-in-law, Mr. Sabatine, told him that he did not bribe the Congressman. The voluntary destruction of the taped conversation between Defendant Traficant and Mr. Saadey, after notice to produce it blocks any testimony from Mr. Saadey.
The government's oral motion to prevent Russell Saadey, Jr. from testifying before the jury as a defense witness is granted. Any Fifth Amendment or hear say issues surrounding Mr. Saadey's testimony are moot.