DOJ-OGR-00008420.jpg

Case 1:20-cr-00330-PAE Document550- Filed 12/17/21 Page2of3 FBI document, the judge was reasonable in insisting that the witness be allowed to examine his purported statement before being impeached by it. If the witness denied it was his statement, the matter could then be resolved by calling the FBI agent who had compiled the report. We do not think Rule 613(a) was intended to take away the district judge's discretion to manage the trial in a way designed to promote accuracy and fairness; and while it would be wrong for a judge to say, “In my court we apply the common law rule, not Rule 613(a),” he is entitled to conclude that in particular circumstances the older approach should be used in order to avoid confusing witnesses and jurors Id. at 1211; see also Sloman v. Tadlock, 21 F.3d 1462, 1472 (9th Cir. 1994). Here, the alleged prior inconsistent statements are principally from FBI 302 reports or notes that were not written by the witness. Accordingly, the Court should follow the approach described in Marks. Second, if a witness admits making an inconsistent statement in 3500 material, the witness is thereby impeached, and there is no need for further extrinsic evidence. See United Sates v. Rivera-Donate, 682 F.3d 120, 127 (1st Cir. 2012) (concluding that a prior statement is not even inconsistent where the witness acknowledges and explains the inconsistency); United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987) (denying petition for rehearing). But see United States v. Strother, 49 F.3d 869, 876 (2d Cir. 1995) (“Extrinsic evidence of a prior inconsistent statement is more persuasive to a jury than a witness’s acknowledgement of inconsistencies in a prior statement.”).! It is irrelevant that the witness then chooses to stand by her trial testimony. Finally, the Government believes the statements at Tr. 455:3-18, 532:12-17, and 596:7-25 ' The Government believes Strother, which involved a harmless error analysis of two critical memoranda, is distinguishable from this case. There, the marginal probative value of admitting the actual statement was high. Here, by contrast, admitting extrinsic evidence of a statement the witness has admitted contained in an agent’s report that the witness has not disputed is minimal. pe DOJ-OGR-00008420