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Case 1:20-cr-00330-PAE Document 708 Filed 07/12/22 Page2of15 conclude they are admissible. Accordingly, resolving these issues will likely obviate the need for the defense to call those law enforcement officers and significantly save the jury’s time.! I. Applicable Law Prior inconsistent statements are generally admissible for impeachment purposes only, see Fed. R. Evid. 613, and are inadmissible hearsay for substantive purposes unless they were made at “a trial, hearing, or other proceeding, or in a deposition.” Fed. R. Evid. 801(d)(1)(A); see Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001). In determining whether a party may impeach a testifying witness through extrinsic evidence of a prior inconsistent statement, the Court must consider the following five factors: First, whether the proffered statement in fact is inconsistent with the testimony sought to be impeached, i.e., whether there is any variance between the statement and the testimony that has a reasonable bearing on credibility. United States v. Ghailani, 761 F. Supp. 2d 114, 117-18 (S.D.N.Y. 2011) (internal citations and quotation marks omitted). While “two statements... need not be diametrically opposed” to be inconsistent, they must still be inconsistent. United States v. Trzaska, 111 F.3d 1019, 1024 (2d Cir. 1997) (citation omitted). “[I]n certain circumstances, a witness’s failure to recall a prior statement regarding a subject at issue in the trial is so incredible that it may be deemed inconsistent and thus subject to impeachment by extrinsic evidence.” United States v. Ashburn, 2015 WL 5098607, at *27 (E.D.N.Y. Aug. 31, 2015); see United States v. Insana, 423 F.2d 1165, 1170 (2d Cir. 1970) (explaining that “there may be circumstances where ' On this point, the Government notes that the defense’s letter of today was the first time the Government was informed of the complete list of prior inconsistent statements the defense intended to offer, despite the Government’s efforts since the close of its case to confer on the subject. pe DOJ-OGR-00011269