The Commission is not seeking to introduce the findings themselves into evidence but, rather, is seeking to ask Hunter about ALJ Cintron’s credibility findings during his testimony pursuant to FRE 608(b). Case 1:07-cv-06682-RA Document 123 Filed 09/19/13 Page 9 of 10 9 CONCLUSION Pursuant to FRE 608(b), the Plaintiff should be permitted to examine Hunter concerning the credibility determinations made by ALJ Cintron in paragraphs 160, 163, 165, 167, 169, 172, 179, 183, 184, 185, 186, 187, 188, 189, 191, 212 and 215 of the FERC Initial Decision. Dated: September 19, 2013 New York, New York Respectfully submitted, ATTORNEYS FOR PLAINTIFF U.S. COMMODITY FUTURES TRADING COMMISSION /s/ David W. MacGregor David W. MacGregor Chief Trial Attorney Manal Sultan Chief Trial Attorney Commodity Futures Trading Commission 140 Broadway, 19th Floor New York, NY 10005 (646) 746-9700 (646) 746-9762 (direct dial) (646) 746-9940 (facsimile) dmacgregor@cftc.gov Case 1:07-cv-06682-RA Document 123 Filed 09/19/13 Page 10 of 10

See, e.g., Berkovich v. 3 To the extent Plaintiff intends to use the disciplinary histories or prior lawsuits as extrinsic evidence of the officers’ character for truthfulness, such use is expressly prohibited by the Rule. See Fed. R. Evid. 608(b). 4 See also United States v. Nelson, No. 10-cr-414 (PKC), 2011 U.S. Dist. LEXIS 60873, at *3 (S.D.N.Y. June 2, 2011) (“[C]ross examination of [officer] regarding the CCRB substantiated complaint was not proper under Rule 608(b). . . because the allegations in the CCRB complaint do not bear on Officer’s character for truthfulness”); United States v. Laster, No. 06-cr-1064, 2007 U.S. Dist. LEXIS 74113, at *6-7 (S.D.N.Y. Sept. 28, 2007) (“[A]llegations contained in the CCRB complaint, though substantiated, do not bear on [the officer]’s character for truthfulness” and therefore, “there is no basis . . . to cross-examine [the officer] regarding the CCRB complaint”); Lewis v. Velez, 149 F.R.D. 474, 481 (S.D.N.Y. 1993) (“While impeachment is indeed a proper purpose for the introduction of prior acts, none of the acts chronicled in [officer]’s disciplinary record reflect dishonesty or deceit.”)

In order to cross examine a witness about specific instances of the witness’s conduct, the conduct must be “probative of the character for truthfulness or untruthfulness.” Fed. R. Evid. 608(b). The impeachment evidence “should be limited to specific modes of conduct that are generally agreed to indicate a lack of truthfulness.”

Third, and finally, Rule 608 states that the witness’s truthfulness cannot be attacked through “extrinsic evidence.” See Fed. R. Evid. 608(b); Whitmore, 359 F.3d at 618-19. In other words, if a witness denies what the government accuses him of doing, for instance, disobeying an order not to leave the Green Zone, the government cannot then introduce evidence to show the witness in fact did what he denied doing.

Case 1:12-cv-02274-SAS-HBP Document 47 Filed 10/01/12 Page 12 of 16 10 would have no bearing on Mr. Bradley’s character for truthfulness or untruthfulness. See Fed. R. Evid. 608(b); United States v. Gambardella, No. 10 Crim. 674 (KBF), 2011 WL 6314198, at *1 & n.1 (S.D.N.Y. Dec. 15, 2011) (denying reconsideration of order excluding of prior acts of domestic violence by witness because it was “not sufficiently probative of [the witness’s] character for truthfulness or untruthfulness” and that “any probative value” of cross- examination regarding the domestic abuse “would be substantially outweighed by the danger of unfair prejudice”); see also Miller v. United States, 135 F.3d 1254, 1256 (8th Cir. 1998) (finding no error in district court’s exclusion of cross-examination regarding “instances of domestic violence because it was collateral and had little relevance . . . and cross-examination is limited to only those acts that are probative of the propensity for truthfulness”). Moreover, Mr. Bradley has never been convicted of any crime, let alone any related to domestic violence.

Defendant will argue that ifplaintiff engaged in some form of inappropriate contact in the workplace on these two occasions this evidence is relevant to show that plaintiff and Ms. Padilla engaged in different kinds of inappropriate contact in front ofothers in the workplace. Under FRE 404(b) and 608 this evidence is not admissible for such a purpose. This court should preclude defendant from offering alleged evidence of sexual contact unknown prior to discharge or occurring outside the presence ofothers.

The trial court did not err in precluding evidence of the arrest for tax problems, because civil tax problems cannot be regarded as indicating a lack of truthfulness under this standard. See United States v. Escobar, 50 F.3d 1414, 1423-24 (8th Cir. 1995) (Civil tax problems cannot be regarded as indicating a lack of truthfulness under" Federal Rule of Evidence 608(b) and, accordingly, may not be inquired into on cross-examination to impeach a witness's credibility.) In addition, for the same reasons as discussed above, the Court must balance Plaintiff’s need for this “evidence” against Defendant’s right to assert the Fifth Amendment privilege against self- incrimination.

For example, under FRE 608(a), reputation and opinion evidence regarding a witness’s “character for truthfulness or untruthfulness” may be admissible. Similarly, under FRE 608(b), extrinsic evidence of a specific instance of conduct may be introduced on cross-examination for impeachment purposes. Under FRE 404(b)(2), even evidence of prior bad acts may be admissible for non-character purposes, which Trump’s own case citations make clear “is a rule of inclusion – not exclusion.”

United States v. Desposito, 704 F.3d 221, 233-34 (2d Cir. 2013). Although the introduction of extrinsic evidence is not allowed to follow up on the inquiry under Rule 608(b), that rule does not govern impeachment of a witness with respect to specific falsehoods. United States v. Beverly, 5 F.3d 633, 639-40 (2d Cir. 1993).

See United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004). To the extent the conduct is probative, the Court may admit it unless the probative value is substantially outweighed by unfair prejudice, see United States v. Devery, 935 F. Supp. 393, Case 1:12-cr-00750-NRB Document 137 Filed 01/30/15 Page 23 of 24 22 406 (S.D.N.Y. 1996); see Fed. R. Evid. 608(b), 1972 advisory committee note (noting that questioning pursuant to Rule 608(b) is limited by the “overriding protection of Rule 403”). Here, each of Reichman’s prior instances of misconduct are directly probative of his truthfulness as they all involve attempts to deceive or mislead his employer and clients about the true nature of his activities.