UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Criminal Case No. 21-cr-161 (PAD)
UNITED STATES’ MOTION IN COMPLIANCE WITH ORDER AT DOCKET NUMBER 660
The Government understands that the defense has subpoenaed Mr. Prado to attempt to impeach Luis Cadiz on his motive for relating certain inaccuracies to federal agents and the grand jury. To be clear, during its cross-examination of Mr. Cadiz, the defense already emphasized the inconsistencies between Mr. Cadiz’s earlier and subsequent statements to federal agents and the grand jury. Consequently, the defense has had the opportunity to impeach Mr. Cadiz. But the Government understands that the defense seeks to use Mr. Prado to contradict Mr. Cadiz’s stated reason for some of his misstatements whether Mr. Prado told Mr.
Cadiz to minimize certain details regarding his own role in the crimes (i.e., to impeach on the reasons for the impeachment).
The Government understands that defense counsel is trying to impeach Mr. Cadiz on collateral matters. The statements that they seek to impeach are collateral because they are not evidence that establishes or disproves any element of the crimes charged. For example, whether Mr. Cadiz pulled the victim’s hair in the car does not make the carjacking resulting in death more or less likely. Likewise, whether Mr. Verdejo fired the gun or gave the gun to Mr. Cadiz and told him to fire does not make it more or less likely that Mr.e Verdejo, aiding and abetting Mr. Cadiz, used and carried a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(i) (note that Mr. Verdejo is not charged with discharge of the gun).
Even assuming that Mr. Cadiz’s misstatements were not collateral, defense counsel has already impeached Mr. Cadiz with those inconsistencies. The reasons why Mr. Cadiz lied to federal agents and a grand jury are secondary to any issue going to guilt or innocence in this case. 1
1 The Government currently does not have a position on whether the subpoena was properly served or the scope of Luis Cadiz’s attorney-client privilege.
Background 2
Luis Cadiz testified that, while represented by Prado and under advice from Prado, he changed certain details in his description of the murder of Keishla Rodriguez Luis Cadiz was consistent in the core facts relevant to the elements of the four aiding-and-abetting offenses charged: carjacking resulting in murder, kidnapping resulting in murder, use and carry of a firearm in furtherance of a carjacking, and the killing of an unborn child. Those consistent, core facts include the following: that Verdejo and Cadiz planned the murder, that Verdejo punched and injected the victim after she had entered the Durango; that Verdejo and Cadiz tied up the victim; that Verdejo and Cadiz took the victim’s car after that had assaulted her; that Verdejo and Cadiz threw the victim off of the Moscoso bridge; that Verdejo had a gun that was used to shoot in the lagoon; that Verdejo jumped into the water to finish murdering Keishla. But, during direct and crossexamination, Mr. Cadiz repeatedly acknowledged that he had lied to federal agents and under oath in front of the grand jury regarding details such as whether he had pulled the victim’s hair when she entered the Durango, where the victim’s car had been parked while they were throwing her off of the Moscoso bridge; and who had fired the gun. He testified that the reasons for certain inaccuracies were two-fold:
(1) his prior counsel, Mr. Prado, had told Mr. Cadiz to minimize his role in certain
2 The trial transcript for Friday is still pending and therefore has not been quoted in this motion.
aspects, and (2) Mr. Cadiz wanted to protect his brother, who was involved in moving the victim’s car after she had been murdered.
For example, Mr. Cadiz stated as follows:
Who fired the shots
Q And with respect to who fired the shots, what was the falsehood that you indicated about who fired the shots?
A That Felix had made the shots.
Q Okay. What's the truth?
A That I was the one who made the shots.
Q And why did you say that Felix had fired the shots, in that first meeting with the U.S. Attorney's Office and the FBI Saturday night?
A Because Mr. Prado was my attorney. I thought that with him I was safe, and he told me to tell that lie.
Tr. of July 6, 2023 at 40:4-13
During his direct examination (as well as in various meetings with federal agents and during a second hearing before grand jury), Mr. Cadiz testified that, in fact, Verdejo had handed him a gun and told him to shoot Keishla:
A Then he picked up a weapon, and he passed it to me.
Q Where did Mr. Verdejo take the weapon from?
A From a bag.
Q Where was the bag?
A He had it next to him always.
Q Describe the bag.
A I don't remember correctly how, what color the bag was.
Q Describe the gun.
A It was khaki-brown.
Q And what did Mr. Verdejo do with the brown gun?
A He passed it to me.
Q What, if anything, did he tell you when he handed you the gun?
A To shoot her.
Q What, if anything, did you say or do?
A That I wasn't going to do it, and he told me to do it.
Q Did you, in fact, do it?
A I didn't shoot at Keishla, but I did shoot to the back, to the left.
Q Approximately, how many shots did you fire?
A Two.
Tr. at 17:9-18:4.
Whether Luis Cadiz grabbed the victim’s hair when she was in the car, before Verdejo punched her
Q And during that meeting with the U.S. Attorney's Office and the FBI, did you initially indicate, do you recall if you initially indicated that you had grabbed Keishla by the hair when she first entered the Durango?
A I hadn't said that.
Q Why?
A Because Prado told me not to say that part, so that all of the guilt would be on Felix.
Tr. of July 6, 2023 at 46:23-47:5
Mr. Cadiz also explained that he had changed another detail where the victim’s car was left while the murder was being committed to protect his brother:
Q And why did you misrepresent where Keishla's car was left?
A Because I was afraid to involve I was afraid that I was involving my brother in this.
Q And where did you indicate to the U.S. Attorney's Office that you had left Keishla's car?
A Underneath the bridge that was next to Teodoro Moscoso.
Q Okay. And where, in fact, did you leave -- did you and Mr. Verdejo leave Keishla's car while you were on the Moscoso?
A In Hato Rey, close to the corrections building.
Tr. of July 6, 2023 at 46:14-22
Argument: Defense appears to be calling Mr. Prado for purposes of collateral impeachment, which would be improper.
“It is well established that a party may not present extrinsic evidence to impeach a witness by contradiction on a collateral matter.” United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993). “ ‘A matter is considered 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.’ ” Mulinelli-Navas, 111 F.3d 983, 988 (1st Cir. 1997)
(quoting Beauchamp, 986 F.2d at 4). Thus, in order to be admissible, the offered testimony must be material to the defendant's “guilt or innocence.” Marino, 277 F.3d 11, 24 (1st Cir. 2002); Mulinelli-Navas, 111 F.3d at 988.
“The determination of whether a matter is collateral is “analogous to Rule 403's relevancy balancing test, which calls for relevant evidence to be excluded when its ‘probative value is substantially outweighed’ ” by considerations such as confusing the issues, misleading the jury, or wasting time.” United States v. Torres-Correa, 23 F.4th 129, 135 (1st Cir. 2022) (holding that “[t]he problem with introducing the FBI video is not that it would have been irrelevant to [the witness’] credibility. Rather, the problem is that the video's limited relevance to [the witness’] credibility was insufficient to outweigh the danger it posed of confusing the jury and causing delay.”).
In United States v. Mulinelli-Navas, 111 F.3d 983 (1st Cir. 1997), as amended (May 23, 1997), the United States Court of Appeals for the First Circuit upheld the district court’s ruling that the testimony of an attorney on what he had told an accomplice before the accomplice gave an interview would have been extrinsic evidence on a collateral matter and, thus, was not admissible to impeach accomplice's testimony at trial. In that case, the Government charged defendant Mulinelli-Navas with conspiring to approve fraudulent loans to Luis LopezMendoza, among others. Lopez-Mendoza was a key witness who testified against Mulinelli-Navas, explaining the fraudulent scheme that Mulinelli-Navas had proposed. “During his testimony, López recanted statements made in an earlier affidavit, in which he denied that Mulinelli had knowledge of the fraud. He testified that he lied because the attorney to whom he made the affidavit told him, before starting the tape recorder, that the attorney's purpose was to ‘protect’ Mulinelli. The defense sought to introduce the testimony of the attorney regarding whether he actually stated that the purpose of his meeting with López was to protect Mulinelli. After hearing the attorney's proposed testimony out of the presence of the jury, the trial court upheld the prosecution's objection that his testimony was extrinsic evidence on a ‘collateral matter’ and thus was inadmissible.” Id. at 986.
On the issue of collateral impeachment, the First Circuit explained as follows:
During his cross-examination, López referred to an interview he had prior to the prosecution of this case with an attorney named Jerome Murray (“Murray”). López' trial testimony regarding his interactions with Mulinelli differed from the responses he had given during his interview with Murray, and he stated that he lied during that interview because Murray told him that the purpose of the interview was to “protect” Mulinelli. Defense counsel stated that he wished to have Murray testify to impeach López' testimony that Murray told López that the interview was intended to “protect” Mulinelli. The trial court refused to allow Murray to testify.
Murray's testimony would have gone to the question whether López was lying about what Murray had said before the interview, and therefore related to López' credibility. On appeal, Mulinelli contends that the district court usurped the jury's role in making credibility determinations and thereby abused its discretion. Although the use of contradictory testimony is a valid means of impeachment, it is limited in several important ways. United States v. Payne, 102 F.3d 289, 294 (7th Cir.1996). One of these limitations is the collateral issue rule, which bars a party from impeaching a witness on a collateral matter through the use of extrinsic evidence. United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir.1993) (“[W]hen a witness testifies to a collateral matter, the examiner ‘must take [the] answer,’ i.e., the examiner may not disprove it by extrinsic evidence.”). “A matter is considered 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.’ ” Id. at 4 (quoting 1 McCormack on Evidence § 45, at 169). In other words, “[a] matter is collateral if it could not have been introduced into evidence for any purpose other than
contradiction.... [T]he evidence must have an independent purpose and an independent ground for admission.” Payne, 102 F.3d at 294 (citation and internal quotation marks omitted); see also United States v. Roulette, 75 F.3d 418, 423 (8th Cir.), cert. denied, 519 U.S. 853, 117 S.Ct. 147, 136 L.Ed.2d 93 (1996). The inquiry into what is collateral is squarely within the trial court's discretion. United States v. Kozinski, 16 F.3d 795, 806 (7th Cir.1994).
In light of the collateral issue rule, in order to be admissible, Murray's offered testimony must not only contradict a statement of López', but must also be material to Mulinelli's guilt or innocence. Mulinelli fails, however, to indicate any independent and material ground for admitting Murray's testimony as to what he told López at the time of the interview. See Payne, 102 F.3d at 295 (noting that defendant's proffer for the purpose of impeaching a witness was collateral, as it did not directly relate to substantive issues concerning his guilt or innocence, and therefore was inadmissible); see also United States v. Zuno–Arce, 44 F.3d 1420, 1422–23 (9th Cir.) (where accomplices testifying on *989 behalf of the government presented contradictory testimony, trial court acted within its discretion in determining that “whether they lied, or erred in their perceptions or recollections” were questions of credibility for the jury), cert. denied, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995). The district court did not abuse its discretion in excluding Murray's testimony, which was relevant only to López' credibility on a matter immaterial to Mulinelli's guilt.
Id. at 988 See also United States v. Lipscomb, 539 F.3d 32, 39 (1st Cir. 2008)
(“The thrust of Lipscomb's argument is that the detectives' testimony is key to the Government's case and evidence of inconsistency regarding the license plate undermines the detectives' credibility. Lipscomb thus argues that the district court
abused its discretion by invading the jury's role in making credibility determinations. The testimony regarding the license plate is, however, a collateral issue; a party is barred from impeaching a witness on a collateral matter through the use of extrinsic evidence.”); United States v. Shalash, No. 11 cr 627, 2013 WL 4820927, at *4 (N.D. Ill. Sept. 10, 2013) (“The government also seeks to preclude the defense from calling the CI for the sole purpose of impeaching her or presenting inadmissible evidence. As this technique is improper, the government’s request is granted.”).
Mulinelli-Navas is directly applicable here. Verdejo seeks the testimony of attorney Prado to impeach Cádiz. But “[i]n light of the collateral issue rule, in order to be admissible, [Prado’s] offered testimony must not only contradict a statement of [Cadiz], but must also be material to [Verdejo’s] guilt or innocence.”
Id. at 988. Here, Verdejo’s counsel has already had the opportunity to impeach Luis Cadiz on his prior statements regarding who fired the shows to federal agents and the grand jury while Luis Cadiz was represented by Mr. Prado. Luis Cadiz has been extensively questioned on and acknowledged those inconsistencies. Why Luis Cadiz made those misstatements is immaterial to guilt or innocence.
Furthermore, Verdejo cannot show that who fired shots on the Moscoso bridge is relevant to his guilt or innocence. The shots fired never made contact with Keishla and were not the cause of her death. Count three of the superseding
indictment alleges that the defendants, “aiding and abetting each other, did knowingly use and carry a firearm during and in relation to a crime of violence.”
(DE 130 at 2). Whether Verdejo told Cádiz to shoot at her or shot at Keishla himself makes no difference to his guilt or innocence of that offense. MulinelliNavas, 111 F.3d at 988; United States v. Lipscomb, 539 F.3d 32, 39 (1st Cir. 2008)
(“The district court did not abuse its discretion in limiting the defendant’s ability to present testimony and evidence on the issue, which was only relevant to impeaching the detectives' credibility on a topic immaterial to Lipscomb’s guilt.”).
Verdejo seeks Prado’s testimony solely to impeach Cádiz on point immaterial to Verdejo’s guilt or innocence.
While some “older authority suggests that the collateral matter doctrine applies only when the testimony to be contradicted was elicited on crossexamination,” more “recent authority and commentary rejects this approach, reasoning that contradiction as to a trivial matter wastes time and confuses the issues no matter whether the contradiction occurs on direct or cross-examination.”
C.A. Wright, et al., 27 Fed. Pract. & Proc. § 6096 (2d ed. 2019); see K.S. Broun, et al., 1 McCormick on Evidence § 45 (8th ed. 2020) (“[I]f the ‘collateral’ fact happens to have been drawn out on direct, the rule against extrinsic contradiction still applies.”).
Indeed, the First Circuit has made clear that “testimony elicited on direct” is not “always or automatically impeachable.” United States v. Catalan-Roman, 585
F.3d 453, 470 n.22 (1st Cir. 2009). Consistent with that position, the First Circuit has not hesitated to apply the collateral-matter rule when the contradicted testimony was elicited on direct examination. See, e.g., United States v. CruzRodríguez, 541 F.3d 19, 29-30 (1st Cir. 2008); Fryar v. Curtis, 485 F.3d 179, 184 (1st Cir. 2007).
In United States v. Diaz-Colon, 2023 WL 2196931 (D.P.R. Jan. 10, 2023), the defense sought to introduce evidence on the source of an 889-page Telegram chat. The chat, itself, may have been relevant to the criminal charges. But defense counsel additionally argued that “the source of disclosure is relevant within the context of cross-examination. [The Government’s cooperating witness] allegedly ‘bragged about having the chats and told the defendant that the defendant could have had exclusive rights to them long before.’ According to [defendant], “this is a false statement of a cooperating witness.”” Id. at *7. While acknowledging that the defendant could question the cooperating witness at trial as to whether his statement regarding the source of the video was false, the district could did not permit defense counsel to present extrinsic evidence on the source of the chats. “The person responsible for the 889-page disclosure is a collateral matter, probative only to impeach putative testimony but immaterial to the question of
guilt. Accordingly, extrinsic evidence regarding the source of disclosure is inadmissible.” Id. at *7.
Similarly, defense counsel, here, had the opportunity to question Luis Cadiz at trial regarding his falsehoods, and there is no dispute that Luis Cadiz made certain misstatements. But the source reason for those misstatements is a collateral matter.
In United States v. Catalan-Roman, 585 F.3d 453, 469 (1st Cir. 2009), as amended (Dec. 23, 2009), the First Circuit explained that “[a]lthough any demonstrated inconsistency in a witness's statement may impeach a witness's credibility, other concerns (such as wasting time and misleading the jury) become more important when the inconsistency at issue involves a statement relating to a matter that is not relevant in the litigation to establish a fact of consequence.”
(internal quotation marks and citations omitted). In that death-penalty case, the district court reasoned that “in response to defendants' request to impeach Torres's claim that Rodríguez had pleaded for his life before being shot, the court said, ‘it's collateral source, collateral impeachment by extrinsic evidence because whether he said, no, no, or yes, yes ... that all doesn't go directly to the issues of guilt or innocence of the two defendants.’” Id. at 469. The First Circuit held that this was an error, though harmless. Id. at 470-71. It reasoned that “some of the details Catalán sought to impeach such as the defendants' and victim's behavior during
the shooting plainly helped the government establish the premeditation that was charged as an aspect of the murder in count eight. Furthermore, several of the details were certainly relevant to the jury's consideration of the death penalty if the defendants were convicted.” Id. at 470.
This case is distinguishable from Catalan-Roman. In the latter case, the district court prevented FBI agents from testifying about prior statements of a key witness that contradicted his version of certain details regarding the crime in a death-penalty case (e.g., whether the victim pleaded for his life before being shot, which would be relevant to the penalty phase). In the case of Mr. Cadiz, his prior statements to the FBI and the grand jury have been fully aired during direct and cross-examination. Mr. Cadiz’s inaccuracies have been thoroughly explored before the jury. A meta-analysis of the reasons for those inaccuracies is collateral.
Mr. Prado has not represented Luis Cadiz in over two years, and defense counsel has had a fully opportunity to cross-examine Luis Cadiz on his statements to federal agents and the grand jury that Luis Cadiz made while he was represented by Mr. Prado and afterwards. Defense, now, seeks to go down the rabbit hole of exploring the motives for some of those inaccuracies via a “he said he said” mini-trial.
Prado’s testimony would confuse issues, mislead the jury and create undue delay
The Government anticipates that it will rest in the first half of this coming week. Mr. Prado’s schedule, as the result of his health concerns expressed to the Court, is uncertain and seems likely to result in scheduling problems and delay. Furthermore, any testimony by Mr. Prado is rife with issues of attorney-client privilege and work-product doctrine that would likely create further delays as four parties the Government, Mr. Verdejo’s counsel, Mr. Cadiz’s prior counsel, and Mr. Cadiz’s current counsel would attempt to delineate the limits. Certain testimony regarding Mr. Prado such as discussions of payments with controlled substances might also touch on Fifth Amendment issues, that would require further motion practice. In addition, Luis Cadiz has already admitted to lying to federal agents and the grand jury; trying to impeach him on the reasons for his impeachment is cumulative. It also creates a significant risk of confusion as jurors attempt to understand the intricacies of attorney-client privilege and Mr. Prado’s participation in the case.
Conclusion
Calling a witness’s prior attorney when the witness has not issued a blanket waiver of the attorney-client privilege is a delicate topic. Asking that attorney about potentially criminal conduct (e.g., suborning perjury and controlledsubstance offenses) should generally be handled with great care. To compel that
attorney’s testimony on collateral matters (i.e., to try to impeach on the reasons for which a witness has already been impeached) should give greater pause. And when that attorney faces health issues that seem likely to result in delays in trial, the Court should decline to entertain such a side-show.
“A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308 (1998); see also Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”). Here, Verdejo cannot show that the testimony sought is admissible under the standard Rules of Evidence.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico, on July 9, 2023.
W. Stephen Muldrow United States Attorney s/ Jonathan GottfriedJonathan Gottfried
Assistant U.S. Attorney
U.S.D.C./PR Bar G-02510
Torre Chardon, Suite 1201
350 Carlos Chardon Avenue
San Juan, PR 00918
(787) 766-5656
Jonathan.L.Gottfried@usdoj.gov
s/ Jeanette CollazoU.S.D.C./PR Bar 226803
Torre Chardon, Suite 1201
350 Carlos Chardon Avenue
San Juan, PR 00918
(787) 766-5656
Jeanette.collazo@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all CM/ECF participants.
s/ Jonathan Gottfried Jonathan GottfriedU.S.D.C./PR Bar G-02510