No.

BALDASSARE AMATO,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

David I. SchoenCounsel of RecordAttorney at Law2800 Zelda RoadSuite 100-6Montgomery, AL 36106(334) 395-6611

Counsel for Petitioner

GibsonMoore Appellate Services, LLC421 East Franklin Street # Suite 230 # Richmond, VA 23219

804-249-7770 ¯ www.gibsonmoore.net

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QUESTION PRESENTED

Whether it violates a criminal defendant’s Fifthand Sixth Amendment fair trial rights to exclude,

pursuant to Rule 613(b) of the Federal Rules of

Evidence, extrinsic evidence of the main prosecution

witness’s material prior inconsistent statementsafter the witness/declarant has been given the

opportunity on cross-examination to explain or deny

the statements and denies them?

ii

TABLE OF CONTENTS

Page:

QUESTION PRESENTED ..........................................i

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES .......................................v

PETITION FOR WRIT OF CERTIORARI .................1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISION INVOLVED ...................1

STATEMENT OF THE CASE ....................................2

A. Relevant Underlying Facts Which Framethe Issue ............................................................3

1. Mr. Amato and the Charges AgainstHim at Trial ................................................3

B. Background Relevant to Vitale’s TrialTestimony and His Prior InconsistentStatements ........................................................5

C. Some Examples of the Relevant TestimonyProviding the Foundation Under Rule613(b) ................................................................7

D. Proceedings Below ..........................................13

.ooIII

REASONS FOR GRANTING THE PETITION ........15

The Trial Court’s Application of Fed. R.Evid. 613(b) Conflicts with Decisions on itsApplication in all Circuits Around theCountry, There is a Split of AuthorityAmong and Within the Circuits and ThisCourt Has Not Yet Written on This Issueand Must Resolve the Various Conflicts onIssues Arising with Respect to the Rule’sApplication and the Exclusion of ExtrinsicEvidence of Prior Inconsistent StatementsUnder Rule 613(b) ..........................................15

The Trial Court’s Decision in MisapplyingFed. R. Evid. 613(b) to Exclude CriticallyMaterial Extrinsic Evidence WasErroneous, Violated FundamentalConstitutionally Protected Fair TrialRights, and the Question Presented isImportant ........................................................19

CONCLUSION ..........................................................38

APPENDICES:

Order:United States Court of Appealsfor the Second Circuit

entered January 12, 2009 ...............................A-1

Memorandum and OrderThe United States District Courtfor the Eastern District of New York

entered June 27, 2006 ...................................A-11

iv

OrderRe: Denial of RehearingUnited States Court of Appealsfor the Second Circuit

entered April 27, 2009 ...................................A-27

V

TABLE OF AUTHORITIES

Page:

United852

United427

United539

United564

United877

States v. Agajanian,F.2d 56 (2d Cir. 1988) ................................25

States v. Agurs,U.S. 97 (1976) .............................................29

States v. Barrett,F.2d 244 (1st Cir. 1976) .................. 16, 17, 37

States v. Bibbs,F.2d 1165 (5th Cir. 1977) ...................... 18, 37

States v. Bonnett,F.2d 1450 (10th Cir. 1989) .......................... 16

Cases:

Chambers v. Mississippi,

410 U.S. 284 (1973) .....................................21, 30

Chapman v. California,386 U.S. 18 (1967) .............................................30

Crane v. Kentucky,476 U.S. 683 (1986) ...........................................30

Jiminez v. Walker,458 F.3d 130 (2d Cir. 2006) ..............................29

State of Vermont v. Danforth,184 VT 122; 956 A.2d 554 (2008) .........16, 17, 18

vi

United676

United771

United806

United

States v. Cutler,F.2d 1245 (9th Cir. 1982) ............................16

States v. Elliott,F.2d 1046 (7th Cir. 1985) ............................16

States v. Greer,F.2d 556 (5th Cir. 1986) ........................ 16, 18

States v. Hames,185 Fed. Appx. 318

(5th Cir., June 12, 2006) .........................................18

United States v. Harvey,547 F.2d 720 (2d Cir. 1976) .......................passim

United States v. Hudson,970 F.2d 948 (1st Cir. 1992) ............................27

United States v. Richter,826 F.2d 206 (2d Cir. 1987) ..............................24

United States v. Rose,403 F.3d 891 (7t~ Cir. 2005) ........................ 17, 37

United States v. Schnapp,322 F.3d 564 (8th Cir. 2003) .......................25, 28

United States v. Strother,49 F.3d 869 (2d Cir. 1995) ................................21

United States v. Surdow,121 Fed Appx. 898(2d Cir., February 9, 2005) ...............................18

vii

United States v. Sutton,41 F.3d 1257 (8th Cir. 1994) .............................. 16

United States v. Tropeano,252 F.3d 653 (2d Cir. 2001) ..............................30

United States v. Wilson,490 F. Supp.713 (E.D. Mich. 1980) ...........passim

United States v. Young;86 F.3d 944 (9th Cir. 1996) ......................... 17, 37

United States v. Young,248 F.3d 260 (4th Cir. 2001) ............................. 28

Washington v. Texas,388 U.S. 14 (1967) .............................................30

Wimington Trust Company v.The Manufacturer’s Life Insurance Company,

749 F.2d 694 (11th Cir. 1985) ...................... 17, 36

Statutes:

18 U.S.C. § 1962(d) ...................................................3

28 U.S.C. § 1254(1) ...................................................1

Rules:

Fed. R. Evid. 403 ....................................................28

Fed. R. Evid. 611(a) ................................................27

Fed. R. Evid. 613 ................................................1, 19

Vlll

Fed. R. Evid. 613(b) .........................................passim

Fed. R. Evid. 801(d)(2) .......................................2, 31

Other Authorities:

613 Federal Rules ofEvidence Manual 613.02 ........................................19

4-613 Weinstein’sFederal Evidence Sec. 613.05 ..........................passim

5-613 Weinstein’sFederal Evidence Sec. 613 App.100 ......................31

Goode & Wellborn,Courtroom Handbook on Federal Evidence,Rule 613 (2005) ......................................................20

McCormick, Evidence, § 41 (2d Edo 1972) .............33

Queen Caroline’s Case,2 Brod. & Bing.,284, 129 Eng. Rep. 976 (1820) .........................30, 31

S. Saltzburg & K. Redden,Federal Rules of Evidence Manual,(3d ed. 1982) ...........................................................37

Slough, Impeachment o/Witnesses:Common Law Principles and Modern Trends,34 Ind. L.J. 1 (1958) ...............................................28

Wright & Gold,Federal Practice and Procedure:Evidence § 6205, p. 527 (2006) ........................20, 21

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PETITION FOR WRIT OF CERTIORARI

Baldassare Amato respectfully petitions for awrit of certiorari to review the judgment of theUnited States Court of Appeals for the SecondCircuit in this case.

OPINIONS BELOW

The denial of panel rehearing and rehearing enbanc, dated April 27, 2009 (App., infra., 27A-2SA) isunreported. The opinion of the court of appeals(App., in~ra., 1A-10A) is reported at 306 Fed. Appx.630 (2d Cir., January 12, 2009). The Memorandumand Order of the district court (App., infra., 11A-26A) is reported at 2006 U.S. Dist. LEXIS 43366

(E.D.N.Y., June 27, 2006).

JURISDICTION

The judgment of the court of appeals was enteredon January 12, 2009. The court of appeals deniedpanel rehearing and rehearing en banc on Mr.Amato’s co-defendant’s petition for rehearing and forrehearing en banc on April 27, 2009. On July 21,2009, Justice Ginsburg granted an extension of timewithin which Mr. Amato could file a petition forcertiorari to and including September 24, 2009. Thejurisdiction of this Court rests on 28 U.S.C. Section1254(1).

STATUTORY PROVISION INVOLVED

Rule 613 of the Federal Rules of Evidence providesas follows:

613. Prior Statements of Witnesses

(a) Examining witness concerning priorstatement. In examining a witness concerninga prior statement made by the witness,

whether written or not, the statement neednot be shown nor its contents disclosed to thewitness at that time, but on request the sameshall be shown or disclosed to opposingcounsel.

(b) Extrinsic evidence of prior inconsistentstatement of witness. Extrinsic evidence of aprior inconsistent statement by a witness isnot admissible unless the witness is affordedan opportunity to explain or deny the sameand the opposite party is afforded anopportunity to interrogate the witnessthereon, or the interests of justice otherwiserequire. This provision does not apply toadmissions of a party-opponent as defined inrule 801(d)(2).

STATEMENT OF THE CASE

The Petition presents this Court with theopportunity for the firsttime to address thefoundational requirementsfor the admission ofextrinsic evidence of a trial witness’s priorinconsistent statements under Rule 613(b) of theFederal Rules of Evidence, where such priorinconsistent statements are critically material to thedefense theory of the case, would undermine theprosecution’s theory of the case and the credibility ofits primary witness, and directly implicate thedefendant’s constitutionally protected rights tocompulsory process, to confront witnesses againsthim, to due process of law, and to a fair trial.

The Court should grant the Petition to resolveconflicts among the various federal circuit anddistrict courts around the country and internalconflicts within the various circuits. This Court’s

3

guidance on this frequently recurring issue is badlyneeded. The Court also should grant the Petition tocorrect the miscarriage of justice that occurred inthis case as a result of the trial court’s exclusion,pursuant to a misapplication of Rule 613(b), of thefundamentally important extrinsic evidence of theprimary witness’s prior inconsistent statementswhich inculpated himself, rather than the defendant.

A. Relevant Underlying Facts Which Framethe Issue

1. Mr. Amato and the Charges AgainstHim at Trial

Petitioner, Baldassare Amato was tried before ajury in the Eastern District of New York on asuperseding indictment charging him with RICOconspiracy, 18 U.S.C. § 1962(d), predicated on fiveracketeering acts. The two most seriousracketeering acts each charged a murder and arelated murder conspiracy. The crimes charged werealleged to have been committed in furtherance of theinterests of the Bonnano organized crime family.

The indictment alleged, inter alia, that on May 5,1992, Amato murdered Robert Perrino, a New YorkPost delivery superintendent who was associatedwith the Bonnano family and involved in illegalactivity at the Post.

The prosecution theorized that the Bonnanofamily feared Perrino would cooperate in aninvestigation of that activity, and the "consigliere"and "underboss" of the family ordered his murder.According to the Government, Amato, a Bonnanofamily "soldier," was recruited to shoot Perrino.

4

The defense contended that the underboss,Salvatore Vitale ("Vitale"), who later would becomea cooperating witness, feared Perrino wouldimplicate him and his son in the illegal activity andthat Vitale had Perrino murdered by persons close toVitale, not by Amato.

The defense theory, for which the priorinconsistent statements were an integral part, wasthat Vitale earlier had admitted his trueinvolvement in the murder to others; but laterpinned it on Amato to protect his (Vitale’s) closeassociates who helped him (Vitale) with the murder.Vitale’s prior statements to the other witnesses,before he falsely implicated Mr. Amato, wereinconsistent with his trial testimony and werecritically material to the defense theory andpresentation of the case.

It was further alleged that on February 27, 1992,Sebastiano DiFalco, an accountant and restaurateursaid to be associated with the Bonnano family, wasmurdered by persons unknown at the direction ofAmato, who was close to DiFalco and reputedlypartners with him in a restaurant. The prosecutiontheorized that Amato believed DiFalco was stealingfrom him. The defense contended that Amato wasnot DiFalco’s partner, but his friend, and had nomotive to kill him, and that Vitale implicated Amatogratuitously in the long-unsolved murder, throughhearsay to bolster his (Vitale’s) fabricatedimplication of Amato as to the Perrino murder.

Mr. Amato has at all times maintained hisinnocence with respect to the charges against him.

5

B. Background Relevant to Vitale’s TrialTestimony and His Prior InconsistentStatements

Vitale was charged in 2003 with the murder ofPerrino. In 2002 Cantarella had also been chargedwith that crime. Both testified for the Governmentir~ 2004 at the trial of Massino, the former boss of theBonanno family. Their testimony at the Massinotrial, disclosed as "3500 material" to Amato wellbefore his trial in 2006, diverged in a materialrespect regarding the Perrino murder: Cantarella atthe 2004 Massino trial testified that Vitale said hewas concerned that Perrino would cooperate aboutcriminal activity at the Post and Vitale wanted himkilled; Vitale testified, as he would at Amato’s trial,that it was Cantarella who was concerned andwanted Perrino killed.

From Cantarella’s contradiction of Vitaledeveloped Amato’s theory of defense: Vitale had astrong personal motive for killing Perrino: he fearedPerrino would implicate him and his son in theillegal activity at the Post and he had Perrinomurdered by associates whom he was protecting, notAmato. After implicating Amato in the Perrinomurder, Vitale shored up that claim by gratuitouslyimplicating Amato--albeit through hearsay--in theDiFalco murder, after learning that Amato wasconsidered a suspect. Amato believed and pursued adefense at trial based on the belief that again it wasVitale behind the DiFalco murder.

At trial, despite having furnished Amato with the3500 material for both Vitale and Cantarella, theGovernment called only Vitale. He adhered to hisposition that he had no personal interest in killing

Perrino and he denied telling Cantarella otherwise.Amato confronted Vitale with his prior inconsistentstatements and Vitale denied making them.

Amato’s defense was scuttled by the court,however, when at the end of the prosecution’s casethe court granted the Government’s motion topreclude Amato from calling Cantarella to contradictVitale’s testimony that he had never told Cantarellahe was concerned Perrino would cooperate andwanted him killed.1 The trial court’s decision wasbased on a misunderstanding and misapplication ofRule 613(b) of the Federal Rules of Evidence and itsfoundational requirements.

The trial court acknowledged that the priorstatements at issue were inconsistent andacknowledged that Vitale was given an opportunityto explain or deny them on cross-examination; butthe court then grafted on two additionalrequirements for admission not required either byRule 613(b) or by any other court in the country. Itwent well beyond Rule 613(b) and required further(1) that the prior inconsistent statements somehowhave to be highlighted during the cross-examinationand (App. infra., 21A-22A) (2) that the party seekingto offer the prior inconsistent statement extrinsicallythrough another witness, announce his intention andidentify the witness(es) well in advance. (App.infra., 24A) This ruling, which finds no support inthe law, denied Mr. Amato his constitutional right to

1 The court’s ruling under Fed R. Evid. 613(b) alsoprecluded Amato from calling James Tartaglione-a formerBonnano family "acting boss" cooperating with theGovernment--to elicit a prior inconsistent statement of Vitale,as discussed further below.

7

a fair trial and to exercise his fair trial rights,including his rights to due process, to present acomplete defense, compulsory process and toconfrontation and has led to his sentence of life inprison for crimes he could have shown he did notcommit; rather the government’s witness did andtold others about.

C. Some Examples of the RelevantTestimony Providing the FoundationUnder Rule 613(b)

Cantarella’s testimony at the Massino trial,furnished by the Government to Amato as 3500material on May 19, 2006, included the following:

Q. Did Sal Vitale’s son have a job at the Post?

A. He had a no-show job.

Q. A no-show job, does that mean he also hada sell off the tail situation?

A. I don’t know what his job description was.He was on the payroll and got paid.

Q.He was on the payroll and got paid but hedidn’t do any work.

A. Correct.

Q. Now, there came a time I believe you saidthat Sal Vitale approached you to talkabout Perrino, right?

A. That’s right.

Q. When was that, sir?

A. It had to be right after the -- shortly afterwe were all arrested in ’92.

8

Q. After you were arrested you had this visitfrom Sal?

A. I had a visit, no, I met with Sal.

Q. Where?

A. I believe it was in a hotel on Long Island.

Q. Do ,you remember what hotel it was?

A. I think the Hilton.

Q. At that time, do you remember what yearit was?

A. It had to be ’92.

Q. Shortly after your arrest?

A. Shortly before he was killed.

Q. And what was the conversation--when washe killed?

A. I believe May of’92.

Q. What did he say to you and what did yousay to him?

A. He brought me downstairs to theswimming pool area, he wanted to makesure there was a lot of noise, there was therunning of water and he asked if BobbyPerrino was, in my opinion, was showingany signs of weakness and possiblycooperating.

Q. And what was your opinion?

A. I don’t see him that often, very seldom do Isee him and he didn’t show no weakness tome when I did see him?

9

Q. When Sal had this conversation with youdid he tell you he wanted to kill Perrino?

A. Yes.

Q. How long after the conversation began didhe tell you he wanted to whack this guy?

A. I don’t remember the exact time, it wasn’tlong.

Q. Did he tell you why he wanted youinvolved?

A. I guess because I was--I worked at the Postand I could be approachable to Perrino.

Q. When Sal said [D’Amico] should behonored to do something for the family, didyou understand this request was beingmade for the family or it was being madefor Sal?

A. I believe it was being made for Sal.

Q. In other words, he was concerned that ifPerrino could in some way implicatesomeone, it would be Sal who might beimplicated, that he was concerned about?

A. I believe that’s correct.

Q. So, you believed at the time that Sal waslying to both you and D’Amico in order toget this guy killed?

A. Yes. (A-126-28; emphasis added.)

At Amato’s trial, Vitale--called as theprosecution’s first fact witness--testified on directexamination that it was Cantarella who "felt Bobbywas weak, and he felt that Bobby might spill the

10

beans on what was going on down there, as far asthe Bonnano Organized Crime Family."Consequently, according to Vitale, he and Sperodecided to kill Perrino.

On cross-examination by Amato’s counsel, Vitalewas given an opportunity to explain or deny theprior inconsistent statements and he testified asfollows:

Q.After he, Mr. Perrino, was arrested andRichie Cantarella and others werearrested, did you speak to RichardCantarella about this circumstance, thefact that there was an investigation andarrest?

A. Richie spoke to me. He come to find me onGrant Avenue.

Q. On Grant Avenue he came to speak to you?

A. Yes.

Q. And what did he say?

A. He didn’t think that Bobby was going to beable to take the weight. He thought thatBobby would flip.

Q. And did he ask you to do something aboutit?

A. In that context of that conversation he was

Qo

Ao

asking to kill Bobby.

Did you ever meet him in a hotel in Long:Island to discuss the situation, Mr.Cantarella, Richard Cantarella?

I would meet Richie in a hotel in LongIsland also.

11

Q. Did you meet him with respect to RobertPerrino?

A. I don’t recall if we discussed that. Itwasn’t one conversation--more than oneconversation.

Q. Do you recall a meeting at a Hilton hotel inLong Island ~ust shortly before Perrino waskilled?

A. I used to meet Richie there.

Q. And did Vou ask him at that meetingwhether Bobby Perrino was showing anysigns of weakness?

A. No, I didn’t have to. He volunteered that.

Q. Did he tell you in his opinion that RobertPerrino wasn’t showing any signs ofweakness?

A. He never said that.

Q. Did you tell Richie Cantarella that youwanted to kill Robert Perrino?

A. No. I says to Richie if he has a location inthe city, and he knew what I meant bythat. After he described the situation--after I discussed it with Spero.

Q. In s[~cJ he had a location.

A. If he had a location in the city where wecould kill Bobby. But you’re going into thelike third, fourth, fifth conversation. Itwasn’t all done in one conversation.

Q. You were not the one who suggested to himthat Perrino be killed?

12

A. No. He suggested it to me. And A1 Walkerwas suggesting it to Spero.

Q. Did you have an~v personal interest inRobert Perrino being killed?

A. Not at all. (emphasis added.)

Amato asked several other questions based onthe 3500 material which contained additionalmaterial prior inconsistent statements by Vitale toCantarella and Tartaglione.

During the trial, the government advised that itwould finish its direct case sooner than expected.Concerned that the government might not callCantarella and Tartaglione to the stand, Amatoadvised the government that he wanted themproduced so that he could call them during thedefense case to examine them concerning Vitale’sprior inconsistent statements.

Claiming to rely on Rule 613(b), the governmentmoved to preclude Amato from calling Cantarella orother cooperating witnesses to impeach Vitale’scredibility, complaining that the notice wasinsufficient. Amato identified the statements atissue, the witnesses he wanted to call to offer theextrinsic evidence of Vitale’s prior inconsistentstatements, the direct relevance to the whole defensetheory.

The court heard argument, during which Amato’scounsel provided further details of the priorinconsistent statements about which Cantarellawould testify. The Government acknowledged thatthe issue was only one of timing, not whether thestatements were inconsistent, and the courtsubsequently agreed that they were inconsistent.

13

On the day the prosecution rested, the courtgranted the Government’s motion under Rule 613(b),ruling that "Amato never confronted Vitale with thepurported evidence of the inconsistent statement(s)"or "provided Vitale with sufficient opportunity toexplain or deny the prior inconsistent statement"and that Amato at the time of his cross-examinationof Vitale did not put the Government on notice and"should have made his intentions known during hisexamination of Vitale that he would be seeking tointroduce these prior inconsistent statementsthrough Cantarella, Coppa, and/or Tartaglione."Amato expanded his protest to include the denial ofhis right to compulsory process and to present acomplete defense, and the court noted that objection.

D. Proceedings Below

Petitioner Baldassare Amato was tried before ajury in the United States District Court for theEastern District of New York from May 30, 2006 toJuly 12, 2006.

On June 27, 2006, following a motion in limine bythe government to preclude Mr. Amato from callingwitnesses to adduce extrinsic evidence of priorinconsistent statements by the government’sprimary trial witness against Mr. Amato, the districtcourt entered an Order, precluding any and all suchextrinsic evidence based on the Court’smisunderstanding and misapplication of Rule 613(b)of the Federal Rules of Evidence. (App. infra., llA-26A) The Court granted the government’s motionover Mr. Amato’s objections based on hisconstitutionally protected fair trial rights, includinghis rights to compulsory process, to due process of

14

law, to confront witnesses against him and generallyto a fair trial.

On July 12, 2006, the jury returned a verdict ofguilty as charged. On October 27, 2006, Mr. Amatowas sentenced to life imprisonment, lifetimesupervised release, a fine of $250,000, and a specialassessment of $400.

On January 12, 2009, the United States Court ofAppeals for the Second Circuit denied Mr. Amato’sappeal, affirming the judgment of conviction andsentence, without ever substantively addressing Mr.Amato’s fully briefed claim concerning the Rule613(b) exclusion of the prior inconsistent statementsand the impact of the same on his constitutionallyprotected fair trial rights. (App. infra., 1A-IOA)

On April 27, 2009, the Court of Appeals denied amotion for rehearing and rehearing en banc filed byMr. Amato’s co-defendant (App. infra., 26A-27A) andthis Petition for a Writ of Certiorari to the SecondCircuit follows, after an extension for filing the samewas granted by Justice Ginsburg.

15

REASONS FOR GRANTING THE PETITION

1. The Trial Court’s Application of Fed. R.Evid. 613(b) Conflicts with Decisions onits Application in all Circuits Around theCountry, There is a Split of AuthorityAmong and Within the Circuits and ThisCourt Has Not Yet Written on This Issueand Must Resolve the Various Conflictson Issues Arising with Respect to theRule’s Application a~l. the Exclusion ofExtrinsic Evidence of Prior InconsistentStatements Under Rule 613(b)

There is a sharp split of authority among theCircuit courts of appeals on several issues-surrounding the application of Rule 613(b) whichrequires this Court’s guidance in order to achievesome measure of uniformity in important decisionson the admissibility of prior inconsistent statementswhich often implicate fundamentally importantconstitutional rights to due process of law, toconfrontation, and to other fair trial rights andwhich often imp act on important commercialdealings as well.

A recent decision from the Supreme Court ofVermont, for example, in analyzing how to applythat State’s analog to Fed. R. Evid. 613(b), expresslynoted the development of what it characterized as alenient "minority rule," on the foundation whichmust be laid and the timing for laying it before aprior inconsistent statement can be admitted underRule 613(b) and a more stringent rule purportedlyadopted by at least six other federal circuits. Underthe latter, there purportedly is a firm requirementthat for admissibility under Rule 613(b), a

16

foundation for the prior inconsistent statement mustbe laid in full while the declarant whose priorinconsistent statements are to be put at issue is onthe witness stand. See, State of Vermont v.Danforth, 184 VT 122, 129; 956 A.2d 554, 559(2008)(Joining the "majority" rule in excluding theprior inconsistent statement because notice of theintention to offer extrinsic evidence of the witness’sprior inconsistent statement not given until secondday of trial, after witness/declarant had testified).2

A more comprehensive review of the relevantcase law, however, reveals that even on this oneissue - whether Rule 613(b) requires that thefoundation for the admission of extrinsic evidence ofthe prior inconstant statement must be laid by cross-examination which confronts the witness/declarantwith the prior inconsistent statements while thewitness/declarant is on the stand and before theextrinsic evidence of the prior inconsistent statementis adduced through another witness - the split ofauthority among the Circuits is even morecomplicated than the Court in Danforth recognizedand, indeed, there is a conflict on this very issueeven within some of the Circuits the Danforth Courtput in the "majority" camp. See e.g., United States v.Wilson, 490 F. Supp. 713, 719-20 (E.D. Mich.

2 The Court in Danforth, cites the decision in United Statesv. Barrett, 539 F.2d 244 (1’t Cir. 1976) as reflecting the"minority" rule, with the "majority" rule being reflected bydecisions’ in United States v. Sutton, 41 F.3d 1257, 1260 (8th

Cir. 1994); United States v. Bonnett, 877 F.2d 1450, 1462 (10th

Cir. 1989); United States v. Greer, 806 F.2d 556, 559 (5th Cir.1986); United Stat~s v. Elliott, 771 F.2d 1046, 1051 (7th Cir.1985); United States v. Cutler, 676 F.2d 1245, 1249 (9th Cir.1982). Danforth, 184 VT at 129; 956 A.2d at 559.

17

1980)(holding under 6th Circuit precedent that Rule613(b) that it is perfectly permissible to call awitness to adduce extrinsic evidence of a priorinconsistent statement, even before thewitness/declarant whose statements are at issuetestifies or is cross-examined about the priorinconsistent statements and that Rule 613(b)purposely relaxed this foundational requirement,relying on and adopting Barrett); The EleventhCircuit appears to be fully in accord with thisposition. See e.g., Wimington Trust Company v. TheManufacturer’s Life Insurance Company, 749 F.2d694, 699 (11th Cir. 1985).

Moreover, contrary to the Danforth Court’sunderstanding of the split of authority andnotwithstanding the cases its cites in support of itsconclusion concerning the breakdown of the split ofauthority, other decisions from the very Circuits itposits as being in the "majority" camp of requiringthe presentation of the prior inconsistent statementsto the witness/declarant on cross-examination whilehe/she is on the stand and before the extrinsicevidence is adduced, other decisions from these verysame Circuits actually hold exactly to the contrary,placing those Circuits fully in line with the FirstCircuit’s "relaxed foundation" view of Rule 613(b)reflected in Barrett and characterized in Danforth asthe "minority rule." See e.g., United States v. Young,86 F.3d 944, 949 (9th Cir. 1996)(reversing lower courtand finding only that the witness be permitted "atsome point" to explain or deny the prior inconsistentstatement); United States v. Rose, 403 F.3d 891, 903-904 (7th Cir. 2005)(failure to cross-examinewitness/declarant on prior inconsistent statementwhile on stand and prior to adducing extrinsic

18

evidence of prior inconsistent statement does notpreclude admission under Rule 613(b); procedure issimply to allow witness/declarant to be recalled tostand later and citing 6th, 7th, 8th, and 9th Circuits asbeing fully in accord with this position).

The Fifth Circuit also appears to have an internalconflict on this subject. Compare United States v.Greet, 806 F.2d 556, 559 (5th Cir. 1986)(cited inDanforth as being in the "majority" camp requiringstrict compliance with advance foundation "rule")with United States v. Bibbs, 564 F.2d 1165, 1169-70(5th Cir. 1977)(allowing admission of extrinsicevidence of prior inconsistent statement even beforewitness/declarant whose statements are at issue isgiven an opportunity to explain or deny the priorinconsistent statements) and United States v.Haines, 185 Fed. Appx. 318, 322-323 & n.4 (5th Cir.,June 12, 2006)(citing Bibbs as binding authority andnoting conflict among the Circuits).

The Second Circuit has no definitive publisheddecision on the issue, as the Court below in theinstant case noted; however, it would appear to becloser to the restrictive rule adopted in Danforth.See e.g., United States v. Surdow, 121 Fed Appx.898, 900 (2d Cir., February 9, 2005)(unpublished)(appearing to require either cross-examination of the witness/declarant or advanceannouncing the intention to use extrinsic evidence ofprior inconsistent statements while thewitness/declarant is on the stand for admissionunder Rule 613(b); United States v. Harvey, 547 F.2d720, 723 (2d Cir. 1976)(reversing conviction forexclusion of extrinsic evidence of prior inconsistentstatements where witness/declarant was givenopportunity on cross-examination in to explain or

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deny prior inconsistent statements in advance ofproffered extrinsic evidence of prior inconsistentstatements and noting in dicta that Rule 613(b)’sfoundational requirement in that regard ismandatory).

Commentators point to many additional areas ofconflict among the various courts regardingadditional Rule 613(b) issues. See 4-613 Weinstein’sFederal Evidence Sec. 613.05; 613 Federal Rules ofEvidence Manual 613.02, n.6.

This Court must act now to provide guidance tothe lower courts in light of so much conflictconcerning the proper application of Rule 613(b).

2. The Trial Court’s Decision inMisapplying Fed. R. Evid. 613(b) toExclude Critically Material ExtrinsicEvidence Was Erroneous, ViolatedFundamental Constitutionally ProtectedFair Trial Rights, and the QuestionPresented is Important

Rule 613 was designed to relax the foundationalrequirements for introduction of a witness’s priorinconsistent statement, not to stiffen them. SeeAdvisory Committee Note to Fed. R. Evid. 613,Subdivision (b) ("The traditional insistence that theattention of the witness be directed to the statementon cross-examination is relaxed in favor of simplyproviding the witness with an opportunity to explainand the opposite party with an opportunity toexamine on the statement, with no specification ofany particular time or sequence"). The more flexibleprocedure under Rule 613(b) has been succinctlydescribed as follows:

2O

This means that the modest requirements ofRule 613(b) may be satisfied in two ways.First, these requirements are satisfied if theimpeaching party follows the traditionalapproach, even if the rule does not compel himto do so. Following this approach insures thatthe witness has an opportunity to explain ordeny during the impeaching party’s cross-examination and before any extrinsic evidenceis offered. This approach further provides theopponent with the required opportunity toexamine the witness about the statementsince the cross-examination will alert theopponent as to the need to conduct thatexamination on redirect. Second, therequirements of Rule 613(b) also can be met ifthe impeaching party ignores the traditionalapproach. Thus, impeaching counsel canexamine the witness without mentioning thestatement or providing any of the requiredopportunities, and then offer extrinsicevidence after opposing counsel has completedhis examination and the witness has beenexcused. So long as the witness then isavailable to be recalled by opposing counsel,the required opportunities to explain or denyand examine the witness can be provided.

Wright & Gold, Federal Practice andProcedure: Evidence § 6205, p. 527(2006)(emphasis added)(footnote omitted);accord Goode & Wellborn, CourtroomHandbook on Federal Evidence, Rule 613, p.352 (2005); see also Weinstein’s FederalEvidence § 613.0512] (2006) ("Most courts holdthat the requirements of Rule 613(b) are met

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if the witness has an opportunity to explainafter the contents of the statement are madeknown to the jury" while "other courtscontinue to state that the opportunity toexplain or deny should precede the admissionof extrinsic evidence").

The relaxed rule "permit[s] the impeaching partyto maintain surprise and, thus, the effectiveness ofimpeachment," Wright & Gold, Federal Practice andProcedure: Evidence § 6205, p. 527, but at the sametime prevents sharp practice, bad faith, orunfairness, e.g., introducing extrinsic evidence of aprior inconsistent statement after the witness to beimpeached is no longer available to deny or explainit. See Weinstein’s Federal Evidence § 613.0514][b].

The Second Circuit has simply stated that awitness’s statement may be offered to impeach thewitness’s credibility if "(1) the statement isinconsistent with the witness’s trial testimony, (2)the witness is afforded an opportunity to deny orexplain the same, and (3) the opposing party isafforded the opportunity to cross-examine thewitness thereon." United States v. Strother, 49 F.3d869, 874 (2d Cir. 1995).

Here, the court applied Rule 613(b) too rigidlyand, in so doing, denied Amato the right to presentwitnesses in his own defense and a fair trial. SeeChambers v. Mississippi, 410 U.S. 284, 302(1973)("Few rights are more fundamental than thatof an accused to present witnesses in his owndefense" and a rule of evidence "may not be appliedmechanistically to defeat the ends of justice").Amato did more than he was required to do underthe Rule, because he did confront Vitale with the

22

statements to Cantarella and Tartaglione beforeseeking to introduce those statements, therebyalerting the Government to address these questionson re-direct, if it so chose.

The court’s ruling that Amato at the time of hiscross-examination of Vitale did not put theGovernment on notice and "should have made hisintentions known during his examination of Vitalethat he would be seeking to introduce these priorinconsistent statements through Cantarella, Coppa,and/or Tartaglione" (App. infra., 24A) is notsupported by the Rule or any case law. Amato’scross-examination of Vitale about the statementswas sufficient notice, because "the cross-examinationwill alert the opponent as to the need to conduct thatexamination on redirect." Wright & Gold, supra.

This is particularly so here, and a contraryconclusion is particularly irksome, because, unlikecases where the opposing party is ignorant ofextrinsic proof of a prior inconsistent statement inthe adversary’s possession, here the Governmentfurnished the extrinsic proof of Vitale’s priorinconsistent statements through the 3500 materialof its own cooperating witnesses. The Governmentwas certainly well aware of Cantarella’s testimony atthe Massino trial concerning the Perrino murder andundoubtedly well aware that it clashed with Vitale’s.Indeed, that was very likely a strong factor in theGovernment’s decision not to call Cantarella atAmato’s trial. Under such circumstances, toembrace the Government’s argument, as the courtdid (App. infra., 24A), that during Vitale’s testimonyAmato did not put the Government on notice of hisintention to introduce Vitale’s prior inconsistentstatements through the testimony of Cantarella and

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other cooperating witnesses is to defeat the purposeof Rule 613(b) and to allow it to be exploited inunwarranted circumstances.

In ruling that Amato "should have made hisintentions known during his examination of Vitalethat he would be seeking to introduce these priorinconsistent statements through Cantarella, Coppa,and/or Tartaglione," (App. infra., 24A), the courtappears to have been led astray by the Government’smotion, which--selectively quoting and lifting fromits context a statement in Weinstein’s FederalEvidence--indicated that a party was obliged to’"informD the court and opposing counsel, at the timethe witness testifies, of the intention to introduce’impeaching extrinsic evidence so that appropriatesteps may be taken to comply with Rule 613(b)."(citing Weinstein’s Federal Evidence § 613.0515];emphasis the Government’s.) The Governmentpushed this position at argument of the motion,stating that this is "required by 613(b)," that "Rule613(b) precisely addresses that," and that accordingto Judge Weinstein "opposing counsel has to ’informthe court and opposing counsel at the time thewitness testifies of the intention to introduce’impeaching extrinsic evidence." (emphasis added.)The court noted this argument and characterized itas the "prevailing practice," to which the court wouldadhere. (App. infra., 23A)

But this is not at all the thrust of thecommentary in the Weinstein treatise, nor is it thelaw. Rather, the commentary, in full context, issimply saying that this would be an acceptable wayof complying with the rule where the witness has notbeen confronted with the statement: "Theimpeaching party would seem to comply sufficiently

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with the rule by informing the court and opposingcounsel, at the time the witness testifies, of theintention to introduce an impeaching statement andthat the opponent may therefore prefer to keep thewitness available to be called to explain thestatement." Id.

The commentary assumes that the impeachingparty has not confronted the witness with thestatement; if the impeaching party has done so, ofcourse, the opponent has already been already puton notice by the cross-examination and may have thewitness explain the asserted inconsistency onredirect.

Even more troublesome is the court’s ruling that"Amato never confronted Vitale with the purportedevidence of the inconsistent statement(s)" or"provided Vitale with sufficient opportunity toexplain or deny the prior inconsistent statement."(App. infra., 22A) Not only did Amato provide Vitalewith sufficient opportunity to explain or deny theprior inconsistent statements, Vitale did deny them.

It is difficult to imagine what more could havebeen done to give Vitale an opportunity to deny orexplain the statements, other than to ask himwhether Cantarella would be lying if he had sotestified--an improper question. United States v.Richter, 826 F.2d 206, 208 (2d Cir. 1987). Thus,Amato laid an adequate foundation for Cantarella’sprospective testimony that at the Long Island hotelshortly before Perrino’s murder it was Vitale, notCantarella, who had asked if Perrino was showingany signs of weakness and possibly cooperating, and,when Cantarella replied he was not, Vitale said hewanted to kill Perrino, which Cantarella understood

25

to mean that Vitale was concerned that Perrinowould implicate Vitale.

Similarly, when Amato’s counsel asked Vitalewhether he had ever told Cantarella that it was Ursowho was going to pick up Perrino at the pizzeria andwalk him to the murder site, to which Vitaleresponded "I wouldn’t have said that;" whether, onthe day after Perrino was killed, Vitale had toldTartaglione that he should have been with Vitale theprevious night and Vitale had to take Urso instead,to which Vitale responded: "I don’t recall that. I don’tbelieve that’s true;" and whether he had toldTartaglione he was concerned Perrino wouldcooperate--because he was "becoming religious, goingto church"--to which Vitale responded "I don’tremember what I said to Mr. Tartaglione,’’~ it isdifficult to imagine what more counsel could haveasked.

The court did not find that Amato fiat out failedto afford Vitale "an opportunity to deny or explain"the statements, e.g. United States v. Schnapp, 322F.3d 564, 570 (8th Cir. 2003); but rather that it was"unclear" and presented a "closer question." (Appinfra., 21A-22A) The court’s reasoning seems to bethat Amato’s counsel also asked Vitale aboutconversations he had with other Bonnano family

3 "[S]tatements need not be diametrically opposed to be

inconsistent." United States v. Agajan~an, 852 F.2d 56, 58 (2dCir. 1988). If the witness "answers that he or she does notremember making the statement, counsel may resort toextrinsic proof as the next step." Weinstein’s Federal Evidence§ 613.0513][a]. In any event, here the district courtacknowledged that the prior statements at issue wereinconsistent for purposes of Rule 613(b). (App. infra., 19A)

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members about the facts of the Perrino murder.Apparently it was the court’s view that this somehowneutralized or diluted the questions asked Vitaleabout his statements to Cantarella and Tartaglione,because, according to the court, it was "unclear"whether Amato was impeaching Vitale based onextrinsic prior inconsistent statements or is "simplyprobing Vitale’s recollection" to elicit contradictionsin his testimony. (App. infra., 21A-22A)

But the Rule only requires that the witness begiven an "opportunity to explain or deny" thestatement, not that it be labeled a "prior inconsistentstatement" for him. Under the court’s reasoning, adefendant who questions a witness closely about allthe facts he testified to on direct examination riskslosing the ability to introduce extrinsic evidence ofprior inconsistent statements, even if the witnesshas denied them, because the denials do not standout in sharp enough relief.

Moreover, most of the references to things said toor by the other seven Bonnano family membersidentified by the court were of a different naturethan the confrontational questions that are thehallmark of the foundational type for introduction ofprior inconsistent statements. The questionsconfronting Vitale with his prior statements toCantarella or Tartaglione referred Vitale to veryparticular circumstances and began "Did you tell

.... Did you ask ..., .... Did you ever tell " or avariation of these. Nothing about the mention ofthings said to others during cross-examination ofVitale by Amato’s counsel should excuse opposingcounsel from recognizing foundational questionsregarding prior inconsistent statements, especiallywhen opposing counsel is already in possession of

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those statements. Certainly the Government was, touse the language of Rule 613(b), "afforded anopportunity to interrogate the witness thereon."

Finally, even if the Government were asleep atthe switch during Vitale’s cross-examination, theGovernment, consistent with Rule 613(b), could haverecalled him on its rebuttal case to further deny orexplain Cantarella’s and Tartaglione’s testimony.See United States v. Hudson, 970 F.2d 948, 955 (lstCir. 1992)(requirements of Rule 613(b) satisfiedwhere federal prisoner witness was available forrecall).

The court opined that calling cooperatingwitnesses like Cantarella and Tartaglione "wouldpresent a much greater logistical burden on theGovernment" than calling FBI agents (which co-defendant Basile proposed to do). (App infra., 25A)The judge’s concern might have some currency if ithad been pressed by the Government--which neverindicated it could not produce Cantarella andTartaglione, quite the contrary--but seems beyondthe interests that a disinterested judicial officershould be advancing. And the court never foundthat Vitale was not readily available to be recalled.

The court also cited to Rule 611(a) as supportingits ruling, stating that the rule gives the court"broad latitude" in deciding whether priorinconsistent statements should be admitted.4 (App.infra., 24A) The court counted against Amato that"the statements with which Amato seeks to impeach

4 Rule 611(a) provides that the court shall exercisereasonable control over the mode and order of interrogatingwitnesses and presenting evidence.

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Vitale primarily implicate the collateral matters ofVitale’s role, motive and interest in orderingPerrino’s death." (App. infra., 25A; emphasis added.)This was a complete mistake. A witness’s motiveand interest are not collateral matters. Weinstein’sFederal Evidence § 613.0511], citing Slough,Impeachment of Witnesses: Common Law Principlesand Modern Trends, 34 Ind. L.J. 1, 18 (1958)("twoclasses of facts would be admissible independently ofself contradiction: (1) facts relevant to matters atissue; (2) facts admissible to discredit the witness byshowing motive, bias, interest, and any other similarmatter likely to affect his testimony")(emphasisadded). In any event, these were statements byVitale indicating that he and not Amato wantedPerrino murdered for reasons having nothing to dowith Amato. Nothing could be more material andless collateral.

It is true, as the court observed, that the courthas discretion to admit or exclude extrinsic evidenceof a prior inconsistent statement. (App. infra., 18A,citing United States v. Schnapp, 322 F.3d at 571,and United States v. Young, 248 F.3d 260, 268 (4thCir. 2001).) But in Schnapp, the court exercised itsdiscretion to exclude a statement because, unlikehere, the witness had not been afforded anopportunity to deny or explain it. 322 F.2d at 572.And in Young, the court exercised its discretion toexclude the statement under Rule 403, because itwas not "probative." 248 F.3d at 258. Here, thecourt necessarily abused its discretion because iterred in finding that Amato had not afforded Vitalean opportunity to deny or explain the statements; iterred in ruling that Amato was required, at the timeVitale was cross-examined, to notify the Government

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of his intention to impeach Vitale by introducing hisprior inconsistent statements through the testimonyof Cantarella and Tartaglione; and it erred inconcluding that evidence of Vitale’s interest in themurder of Perrino was "collateral."

The exclusion of evidence violates the right topresent a complete defense and denies the defendanta fair trial when the excluded evidence "creates areasonable doubt that did not otherwise exist."Jiminez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006),citing United States v. Agurs, 427 U.S. 97, 112-13(1976).

If the jury disbelieved Vitale, it is doubtful thatAmato would have been convicted of the Perrino andDiFalco murders, and the jury may have questionedthe Government’s theory about Amato’s role in thegambling operation.

If the jury concluded that Vitale had a personalinterest in murdering Perrino, but lied about thisinterest in his testimony, the jury may well haveaccepted the theory of defense that Vitale had astrong personal motive for killing Perrino, namely,he feared Perrino would implicate him and his sonJoel in the illegal activity at the Post and he hadPerrino murdered by persons close to Vitale, whomhe was protecting, not Amato.

Similarly, the jury would have doubted Vitale’stestimony that he had heard that Amato killedDiFalco. This statement was critical to Amato’sconviction. Vitale was the central trial witnessagainst Amato and the verdict turned on whether hewas to be credited or impeached.

3O

The error in precluding Amato from callingCantarella and Tartaglione to introduce Vitale’sprior inconsistent statements was constitutionalerror, not only error in applying a rule of evidence.See Crane v. Kentucky, 476 U.S. 683, 687(1986) ("Constitution guarantees defendant ’ameaningful opportunity to present a completedefense’")(citation omitted); Washington v. Texas,388 U.S. 14, 19 (1967)(fundamental element of dueprocess is "the right to present the defendant’sversion of the facts as well as the prosecution’s to thejury so it may decide where the truth lies");Chambers v. Mississippi, 410 U.S. 284.

Thus, "the more rigorous harmlessness test forconstitutional errors" is applicable, United States v.Tropeano, 252 F.3d 653, 659 (2d Cir. 2001), namely,whether the Government can show "beyond areasonable doubt that the error complained of didnot contribute to the verdict obtained." Chapman v.California, 386 U.S. 18, 24 (1967). Given theprimacy and centrality of Vitale’s testimony, theGovernment cannot possibly satisfy that burden.

The decision in United States v. Wilson, 490 F.Supp. 713 (E.D. Mich. 1980) is particularlyinstructive. As the Court in Wilson wrote, theconcept of requiring that before extrinsic evidence toimpeach by means of a prior inconsistent statementcan be introduced, a foundation which requires thatthe witness be asked in advance (i.e. on cross-examination) whether he had made the allegedlyinconsistent statement, originated with QueenCaroline’s Case, 2 Brod. & Bing., 284, 319, 129 Eng.Rep. 976 (1820) (also referred to as the Queen’sCase). Wilson, 490 F. Supp. at 719. Under the rulein Queen Caroline’s Case, the witness had to be

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confronted with specific foundational questionsregarding when, where, and to whom the statementwas made. Id. Similar to the view taken by thedistrict court in Mr. Amato’s case, in short, the cross-examination on the prior inconsistent statement hadto be, in a sense, highlighted and very specificallydetailed in order to constitute the requisitefoundation which would later allow the introductionof extrinsic evidence of the prior inconsistentstatement.

As the Wilson Court found, such a foundation nolonger is required for several reasons. "Congressunequivocally abolished the stringent requirementsof the Queen’s Case from the Federal law of evidencewhen it promulgated Fed. R. Evid. 613(b)." Wilson,490 F. Supp. at 719-20; 5-613 Weinstein’s FederalEvidence Sec. 613 App.100.

The Wilson decision is instructive for anadditional reason which highlights an error below:Rule 613(b)’s restrictions on the use of extrinsicevidence of prior inconsistent statements, does noteven apply to admissions of a party-opponent asdefined in Fed. R. Evid. 801(d)(2). Vitale testified asa co-conspirator under Rule 801(d)(2) and thereforeRule 613(b) had no application at all to the offeringof extrinsic evidence of his prior inconsistentstatements for, by definition, his prior inconsistentstatements would come in as substantive evidence,not merely impeachment evidence, underRule S01(d)(2) and for such prior inconsistentstatements, Rule 613(b) does not apply, nor is thereany need to establish the foundation under that rule.Wilson, 490 F. Supp. at 720.

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As the Court found in Wilson, under suchcircumstances, the appropriate remedy would be toallow the Government to put on the extrinsicevidence of the prior inconsistent statement throughits witness Ratliff, and then to permit Urbanski to becalled on sur-rebuttal.

Ultimately, allowing the extrinsic evidence ofprior inconsistent statements helps the jury reach "abetter ascertainment of the truth." Wilson, 490 F.Supp. at 725.

.The district court’s exclusion of the criticallyimportant witnesses in Mr. Amato’s case who wouldhave testified that Vitale previously had expressedhis personal motive for wanting to kill Mr. Perrino,prior statements which clearly were inconsistentwith Vitale’s testimony and, specifically with Vitale’sdenial on cross-examination of making any suchstatements, is especially confounding in light of adecision from the Second Circuit in United States v.Harvey, 547 F.2d 720 (2d Cir. 1976).

In Harvey, the defendant was charged witharmed robbery and larceny. A Government witness,Mrs. Martin, testified at trial that she saw Harveyentering the bank he was accused at trial of robbing,at the time of the robbery. Martin testified that shehad known Harvey for a number of years, had neverhad any arguments or disagreements with him, hadnever accused Harvey of fathering her child and,otherwise had no bias or prejudice against Harveythat would have led her to falsely inculpate him inthe crime charged. Harvey, 547 F.2d at 722.

Following Martin’s testimony, during which shespecifically denied each of these facts, in response toquestions on cross-examination, the defendant

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Harvey sought to put on extrinsic evidence of priorinconsistent statements by Martin which would haveshown her bias or prejudice against Harvey andwhich would have provided a motivation for givingfalse testimony against Harvey at trial. Specifically,Harvey sought to offer testimony ~om his wife whohad encountered Martin while she (Mrs. Harvey)was on duty as a nurse in a hospital where Martinwent for treatment of a broken leg. Mrs. Harveywould have testified that during that encounter,Martin had accused the defendant Harvey offathering her child and refusing to support it andthat when her husband (Mr. Martin) had learnedabout this he beat her and broke her leg, leading herto go to the hospital. Harvey, Id. The district courtbarred the admission of such extrinsic evidence ofMartin’s prior inconsistent statements under Rule613(b) finding the same to be "collateral."

In reversing Harvey’s conviction, the SecondCircuit noted that extrinsic evidence that a witnesshas a motive to testify falsely is not a collateral issueand clearly is admissible. Id. Indeed, it found thatthe "law of evidence has long recognized" that adefendant must be permitted to adduce extrinsicevidence, "including the testimony of otherwitnesses," to prove facts which show bias in favor ofor against a party. Id., citing McCormick, Evidence,§ 41 (2d Ed. 1972). As the Court noted, "specialtreatment is accorded evidence which is probative ofa special motive to lie ’for if believed it colors everybit of testimony given by the witness whose motivesare bared.’" Id. (quotation omitted)

The Court in Harvey, went on to note that, likemany other Circuits, the Second Circuit requiresthat a "proper foundation must be laid before

34

extrinsic evidence of bias may be introduced," andthat such foundation requires that a witness be"afforded an opportunity to explain or deny the priorinconsistent statement;" however, it held that Rule613(b) "relaxes the traditional foundationrequirement that a witness’s attention on cross-examination be directed specifically to the time andplace of the statement and the person to whommade." Id., citing inter alia Advisory Comm. Notes,Fed. R. Evid. 613(b); McCormick, Evidence, § 37n.45. In Mr. Amato’s case, in contrast, while thedistrict court conceded, as it had to, that Vitale’s wasspecifically confronted with his prior inconsistentstatements, and denied ever making the same, thatfoundation, nevertheless, was insufficient underRule 613(b), nevertheless, because that area of cross-examination was not, somehow highlighted, oremphasized, and, instead, was simply a part of alonger cross-examination.

By so holding, the district court grafted anadditional requirement onto Rule 613(b) which, notonly is not required by the Rule, but is directlycontrary to the Rule, the Advisory Committee Notesexplaining the Rule’s effect in actually relaxing thefoundational requirements and is contrary to allcases construing the Rule.

The Court in Harvey expressly noted that Martinwas asked about each of the prior inconsistentstatements and, in each case, denied ever makingthem. This opportunity, alone, certainly was enoughto obviate any surprise to the Governmentconcerning the proffered extrinsic evidence of theprior inconsistent statements, notwithstanding thefact that defense counsel arguably could have been

35

"more expansive in establishing his foundation."Harvey, 547 F.2d at 723.

The Court in Harvey recognized that the right tointroduce extrinsic evidence showing a witness’smotive for lying about a defendant is not limitlessand is subject to some level of discretion by thedistrict court. Id. Mr. Amato does not take issuewith that general principle; rather, he agrees withthe Harvey Court and with its further statementthat "it is rarely proper to cut off completely aprobative inquiry that bears on a feasible defense."Id. It is especially important, as the Court in Harveyheld, that a criminal defendant be given everyopportunity to present facts which, if believed, couldlead to the conclusion that a witness who testifiedfor the government either favored the prosecution orwas hostile to the defendant and to show the reasonsestablishing the same. Id. In the Harvey case, theproffered extrinsic evidence of prior inconsistentstatements was offered to show Mrs. Martin’spossible motivation for lying about Harvey - heranger toward him for refusing to support the childhe had fathered with her, which led to a beatingfrom her own husband.

In Mr. Amato’s case, the proffered extrinsicevidence of Vitale’s prior inconsistent statementswas offered to show Vitale’s direct personal interestin inculpating Mr. Amato in order to conceal his own(Vitale’s) role in the Perrino murder and the role ofhis (Vitale’s) close personal associates in the same.By pointing the finger at Mr. Amato, the defensetheory argued, Mr. Vitale was protecting himself andhis close associates from prosecution for the murderwhich he earlier had expressed a direct personalinterest in carrying out, while denying the same at

36

trial. Surely, that was a most compellingcircumstance which, especially after a foundationwhich included confronting Vitale with such priorinconsistent statements on cross-examination andhis denial of the same, must have been permittedthrough the extrinsic evidence proffered byMr. Amato, including the testimony of witnesses tothose prior inconsistent statements by Vitale. Theconviction in Harvey was reversed under much lesscompelling circumstances and the district court’sdecision in Mr. Amato’s case cannot be reconciledwith authority from the Second Circuit and all otherauthority from around the country on this principleor with the language of Rule 613(b) itself.

Virtually every other Circuit which hasconsidered this question in one form or another isconsistent with the decisions in Harvey and Wilsonand sets forth its own formulation of the principlethat Rule 613(b) was intended to relax thefoundational requirements (all of which were fullymet in Mr. Amato’s case) and that Rule 613(b)actually favors the admission of extrinsic evidence ofprior inconsistent statements under circumstanceseven less compelling than those present inMr. Amato’s case without any requirement that thefoundation include a highlighting of the opportunityto explain or deny the statements or that it bedependent on specific advance notice to the witnessor to the government of the identity of specificwitnesses the defendant intended to call in its case-in-chief to present such extrinsic evidence of thewitness’s prior inconsistent statements. See e.g.Wilmington Trust Company v. The Manufacturer’sLife Insurance Company, 749 F.2d 694, 699 (11th Cir.1985) (Rule 613(b) does not specify any particular

37

time or sequence for giving the witness anopportunity to explain or deny or examine the priorinconsistent statements at issue; allowing extrinsicevidence testimony of the prior inconsistentstatement before the witness was given anopportunity to explain or deny the prior inconsistentstatement), citing, United States v. Barrett, 539 F.2d244, 254-56 (1st Cir. 1976); S. Saltzburg & K.Redden, Federal Rules of Evidence Manual at 430,(3d ed. 1982); United States v. B~bbs, 564 F.2d 1165,1169-70 (5th Cir. 1977); No. 3 J. Weinstein & M.Berger, Weinstein’s Evidence § 613.(04) at 613-16 n.6 (1981) (extrinsic evidence witness could testifyabout prior inconsistent statements even beforedeclarant was given an opportunity to explain ordeny the conversation at issue).

See also United States v. Young, 86 F.3d 944, 949(9th Cir. 1996) (reversing conviction and finding that"the foundational prerequisites of Rule 613(b)require only that the witness be permitted - at somepoint to explain or deny the prior inconsistentstatement."; holding that even absent the declarant’sdenial of the statement on cross-examinationextrinsic witness’s later testimony about declarant’sprior inconsistent statement would not have beenbarred. Declarant simply would have been given anopportunity to explain or deny on rebuttal); UnitedStates v. Rose, 403 F.3d 891, 903-904 (7t~ Cir. 2005)(failure to cross-examine declarant/witness on priorinconsistent statements did not preclude defensefrom eliciting extrinsic evidence testimony fromanother witness about the prior inconsistentstatement; procedure simply was for government tobring declarant back to the stand on rebuttal to givehim an opportunity to explain or deny the prior

38

inconsistent statements; finding error harmlessbecause not direct or compelling evidence), citing 6th,

7th, 8th, 9th Circuits as being in accord with itsunderstanding of Rule613(b) application in notrequiring cross-examination of the declarant/witnessprior to the admission of extrinsic defense testimonyconcerning the prior inconsistent statements.

The lower court’s misapplication of Rule 613(b)leaves Mr. Amato serving a life sentence for murderslikely committed by a government witness whopreviously admitted the same. By denying Mr.Amato the ability to put evidence of such admissionsbefore the jury, the court caused a great miscarriageof justice which this Court can and must correct.

CONCLUSION

For all of the foregoing reasons, the petition for awrit of certiorari should be granted.

Respectfully Submitted,

David I. SchoenCounsel of RecordAttorney at Law2800 Zelda RoadSuite 100-6Montgomery, AL 36106(334)395-6611

Counsel for Petitioner