United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO ADMIT CHARLES HANDFORD'S
INCONSISTENT STATEMENTS PURSUANT TO FRE 806 Docket No.
M. Chen United States District Judge.
moves to admit four statements made to the FBI by Charles
Handford of StarKist that are allegedly inconsistent to
hearsay statements attributed to Handford but testified to by
Scott Cameron. Docket No. 492 (“Mot.”) at 1.
Defendant relies on FRE 806, which reads as follows,
When a hearsay statement-or a statement described in Rule
801(d)(2)(C), (D), or (E)-has been admitted in evidence, the
declarant's credibility may be attacked, and then
supported, by any evidence that would be admissible for those
purposes if the declarant had testified as a witness. The
court may admit evidence of the declarant's inconsistent
statement or conduct, regardless of when it occurred or
whether the declarant had an opportunity to explain or deny
it. If the party against whom the statement was admitted
calls the declarant as a witness, the party may examine the
declarant on the statement as if on cross-examination.
Fed. R. Evid. 806. Defendant argues he is entitled to
introduce and admit impeachment evidence against Handford
under the Sixth Amendment's Confrontation Clause. Mot. at
1. The Court previously ruled that “[i]f a
coconspirator's statement is admitted under FRE
801(d)(2)(E), the coconspirator's credibility may be
attacked if he or she made an inconsistent statement under
FRE 806.” Docket No. 310.
Government does not challenge FRE 806's application.
However, the Government argues the identified statements are
not inconsistent with what came out in Cameron's
testimony that was attributable to Handford. Additionally,
the Government contends Handford made further inconsistent
statements in subsequent interviews and attorney proffers.
Docket No. 503 (“Opp.”) at 5. Its position is
that it will have to “impeachment with Handford's
subsequent statements, and will require the testimony of the
FBI agent who interviewed Handford, all of which will create
a side-show concerning Handford's credibility.”
Id. This is the Government's FRE 403 argument
credibility is probative because he is the StarKist
individual with whom Cameron allegedly entered into an
agreement. The prejudice the Government raises is “a
mini-trial concerning Handford.” The Government would
seek to call the FBI agent who interviewed him to expose
untruthfulness of his prior statement elicited by Defendant.
Opp. at 6-7. FRE 806 explicitly permits witness-credibility
rehabilitation: “When a hearsay statement-or a
statement described in Rule 801(d)(2)(C), (D), or (E)-has
been admitted in evidence, the declarant's credibility
may be attacked, and then
supported, by any evidence that would be
admissible for those purposes if the declarant had testified
as a witness. Fed.R.Evid. 806 (emphasis added). The
parties' stipulation to admit portions of 302 reports for
impeachment purposes applies and extends to rehabilitation
purposes to obviate the need of calling authors of the report
to testify. But during a hearing on this subject, the
Government argued that in addition to offering rehabilitating
statements (i.e., prior consistent statements) from
the 302 reports, it would have to call the FBI witness to
testify or offer other extrinsic evidence about inconsistent
statements from Handford. The Government has not identified
such statement and evidence.
discussed below, Defendant's motion is GRANTED in
PART and DENIED in PART. The Court will admit some
inconsistent statements identified by Defendant. If the
Government intends to introduce further inconsistent
statements attributable to Handford (whether in 302 reports
or via FBI witness testimony) or other evidence, it may do so
in the same procedural fashion-e.g., file a chart
identifying the predicate statement and the alleged
inconsistent statement or contradictory evidence. Motion and
chart due by November 14, 2019 at 4:00 p.m.
Handford Statement No. 1
Government concedes Statement No. 1 is
inconsistent. See Opp. at 5-6, see
also Trial Tr. at 780:12-16. Defendant's motion to
admit Statement No. 1 is GRANTED.
Handford Statement No. 2
trial transcript excerpt Defendant offers shows Cameron
testified that he wrote “Read and delete” in the
body of a forwarded e-mail (trial exhibit 207) because he
knew it was illegal to talk to Handford. The purported
inconsistent statement offered by Defendant in Handford's
302 interview demonstrates the following: “Handford
stated that he did not think he was doing anything illegal by
talking to Cameron about pricing.” Defendant's
Exhibit A at 2.
not an inconsistent statement, namely, because Cameron's
trial testimony does not identify any statement made by
Handford. That Cameron wrote “read and delete” in
a subsequently-forwarded e-mail on which Handford was not
included, and that Cameron understood the communication to be
illegal does not make Handford's prior statement
inconsistent. Nor is there any other prior statement
inconsistent with the trial testimony offered by Defendant.
Defendant's request to admit Statement No. 2 is
DENIED because he has not identified a
predicate statement from Handford for the prior statement to
Handford Statement No. 3
Statement No. 2, there is no predicate statement for
Statement No. 3 which is inconsistent with a prior 302
statement. In Statement No. 3, Defendant points to trial
testimony where Cameron defines his reference to
“crossing the line” as entering into an agreement
and gathering competitive intelligence, which differed from
knowledge that was otherwise publicly available.
Defendant's Exhibit A at 4. Cameron also describes what
Defendant ordered him to do: “what I was being tasked
with was to figure out what their plans are, confidential
information, not information that was public
knowledge.” Id. These statements are not
attributable to Handford. Defendant offers an excerpt from a
302 report ...