USA v. Reid

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-057-JD
Gordon Reid
SEALED ORDER
Gordon Reid renews his ex parte motion for subpoenas to be
issued to Detectives Patterson and Mucci, Tony Moccia, and Harold
King. Reid previously moved for subpoenas for the same
individuals, arguing that they had information that he intended
to use to impeach Renee King, who has now testified on behalf of
the government. That motion was denied on the grounds that the
information sought was not admissible pursuant to Federal Rule of
Evidence 608. On reconsideration, the court again denied the
motion after considering the application of Federal Rules of
Evidence 404(a)(2), 404(b), and 403.
Reid now argues in support of his renewed motion that
because the government introduced “extrinsic evidence” during its
examination of Renee King about her knowledge of and culpability
for the criminal activity of her brother-in-law, Harold King, and
his associate, Tony Moccia, her testimony has “opened the door”
for Reid to impeach her with testimony from the detectives,
Moccia, and King to contradict her testimony. He further argues
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that the testimony of these witnesses is not governed by Rule
608(b), but instead must be evaluated under Federal Rules of
Evidence 402 and 403.
Once again, Reid is attempting to send this trial into a
detour to examine the criminal activity of others that is
unrelated to the events at issue in this case. King testified
that she was aware of her brother-in-law’s criminal activity and
that she told the investigating detectives what she knew. Reid
thoroughly cross-examined King on this subject. Unable to shake
her testimony, he now seeks testimony from additional witnesses
to show or imply that, contrary to her testimony, Renee King was
involved in that criminal activity.
The court will not allow this trial to be sidetracked into
an examination of criminal activity that is unrelated to the
charge against Reid for which he is being tried in this case. As
was explained to Reid previously, Rule 608(b) precludes use of
extrinsic evidence of a collateral matter to impeach a witness’s
character for truthfulness. United States v. Tse, 375 F.3d 148,
166-67 (1st Cir. 2004). In this motion, Reid indicates that he
does not intend to use the additional witnesses’ testimony for
that purpose. Instead, he intends to impeach King’s testimony by
contradiction, based on a theory that the government “opened the
door” by introducing “extrinsic evidence” through her testimony
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about that activity.
King’s testimony about the activities of Moccia and Harold
King was not “extrinsic evidence” of her own knowledge about
those events. United States v. Boulerice, 325 F.3d 75, 82 n.5
(1st Cir. 2003) (“Evidence is extrinsic if offered through
documents or other witnesses, rather than through [examination]
of the witness himself or herself.”) (internal quotation marks
omitted). The government did not introduce any other evidence
about King’s knowledge of the criminal activities of Moccia and
Harold King.
Reid contends that the testimony of the detectives, Moccia,
and Harold King is admissible to impeach Renee King by
contradicting her testimony about her lack of involvement in the
criminal activities. To the contrary, “largely for reasons of
efficiency, extrinsic evidence to impeach is only admissible for
contradiction where the prior testimony being contradicted was
itself material to the case at hand.” United States v. Perez-
Perez, 73 F.3d 224, 227 (1st Cir. 1995); accord United States v.
Camuti, 78 F.3d 738, 744 (1st Cir. 1996) (“Ordinarily, extrinsic
evidence is not admissible to impeach by contradiction, but an
exception exists where the contradiction is on a material
issue.”). The criminal activities of Moccia and Harold King are
collateral matters that are not material to this trial. “A
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matter is collateral if the matter itself is not relevant in the
litigation to establish a fact of consequence, i.e., not relevant
for a purpose other than mere contradiction of the in-court
testimony of the witness.” United States v. Marino, 277 F.3d 11,
24 (1st Cir. 2002) (internal quotation marks omitted).
Therefore, the testimony Reid seeks is inadmissible to use for
impeachment by contradiction.
To the extent Reid argues that the testimony of the four
listed individuals is admissible under Federal Rules of Evidence
402 and 403, he is mistaken. Rule 402 states that all relevant
evidence is admissible except as otherwise provided by, among
other things, the Federal Rules of Evidence. Rule 403 states
that relevant evidence may be excluded if its probative value is
outweighed by “the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.”
King’s testimony about the collateral matters involving her
brother-in-law and Moccia has no probative value as to the charge
against Reid, and therefore, extrinsic evidence is not admissible
to contradict her statement. Further, the minimal probative
value of any additional evidence on these collateral matters is
far outweighed by the danger of confusing the issues and
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misleading the jury and by considerations of undue delay and a
waste of time.
Conclusion
For the foregoing reasons, the defendant’s renewed motion
for subpoenas (document no. 156) is denied.
SO ORDERED.
__________Joseph A. DiClerico, Jr.
United States District Judge
February 17, 2006
cc: Gordon Reid, pro se
Michael J. Iacopino, Esquire
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