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govinfo:USCOURTS-nyed-1_23-cr-00328-5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
-against-
TONY CLANTON, et al.,
Defendants.
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X
X
MEMORANDUM AND ORDER
23-CR-328 (KAM)
Kiyo A. Matsumoto, United States District Judge:
Presently before the Court is the government’s motion in
limine to preclude cross-examination of various potential law
enforcement witnesses regarding specified administrative findings
and civil lawsuits that the government disclosed to Defendants
pursuant to its obligations under Giglio v. United States , 405
U.S. 150 (1972). The government contends that the administrative
findings and civil lawsuits against its law enforcement witnesses
do not bear on the honesty or credibility of those witnesses and
are not probative of truthfulness. (ECF No. 211, “Govt. Mot. I”;
ECF No. 221, “Govt. Mot. II”; ECF No. 233, “Govt. Reply”). Defense
counsel for Tony Clanton (“Clanton”) and Rameen Smith (“Smith,”
and together with Clanton “Defendants”) oppose the government’s
motion as to one specified administrative finding by the Civilian
Complaint Review Board (“CCRB”) and the identified civil lawsuits
against two law enforcement witnesses. (ECF No. 225, “Clanton
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Opp.”).1 For the reasons set forth below, the government’s motion
is GRANTED.
Background
I. Substantiated Administrative Findings
The government identified substantiated allegations by the
Internal Affairs Bureau (“IAB”) against the following law
enforcement witnesses that did not involve any adverse credibility
findings:
Officer JL:
2 a 2019 substantiated allegation that Officer
JL made an unauthorized radio transmission; and a 2019
substantiated allegation that Officer JL failed to properly
search a police department vehicle where controlled
substances were found (Govt. Mot. I at 5);
Officer AZ: a 2024 substantiated allegation that Officer
AZ failed to properly voucher prisoner property (Govt. Mot.
I at 7);
Trooper VP: a 2020 substantiated allegation that Trooper
VP, while employed as an officer with the NYPD, failed to
turn on his body camera during a vehicle search; and a 2020
substantiated allegation that Trooper VP, again while
employed as an officer with the NYPD, failed to properly
search a police department vehicle where controlled
substances were found. (Govt. Mot. II at 2.)3
1 At the Status Conference on December 13, 2024, Mr. Smith indicated he joined
Mr. Clanton’s opposition to the government’s motion in limine. (ECF Dkt. Minute
Entry Dec. 13, 2024.)
2 The Court identifies the witnesses by their titles and initials only.
3 In its first motion, the government identified an open inquiry into whether
Trooper VP excused himself from an overtime detail, travelled to New Jersey,
and “became involved in a domestic incident that resulted in his arrest.”
(Govt. Mot. I at 7.) In a later submission to the Court, the government
clarified that this open inquiry was not directed at Trooper VP and was instead
directed at another State Trooper. (Govt. Mot. II at 1.) Accordingly, because
Trooper VP may not be cross-examined regarding this incident, this Court finds,
and defense counsel agrees, that no further inquiry into or assessment of this
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The government further identified one adverse credibility
finding by the CCRB regarding a substantiated allegation that
Officer JL failed to obtain language interpretation services for
a complainant when responding to a 911 call related to a domestic
incident. (Govt. Mot. I at 6.) The CCRB credited the testimony
of other witnesses who “claimed the officers had difficulty
communicating with the complainant” and “question[ed] the
credibility of” Officer JL’s statement that he “did not recall the
complainant requesting language interpretation assistance.”
(Govt. Mot. I at 6.)
II. Civil Lawsuits
The government also identified various civil lawsuits
involving its law enforcement witnesses:
Officer JL: the government identified three
4 civil lawsuits
in which Officer JL was named as a defendant that were
settled and where the government is not aware of any
adverse credibility determinations related to Officer JL;
and two civil lawsuits in which Officer JL was named as a
defendant that are still pending and where the government
is unaware of any adverse credibility determinations
related to Officer JL (Govt. Mot. I at 6);
Trooper VP: the government identified one civil lawsuit
where Trooper VP was named as a defendant that was settled
and where the government is not aware of any adverse
credibility determination related to Trooper VP (Govt. Mot.
incident is required. (Clanton Opp. at 2.)
4 The government has indicated that one of these lawsuits may be related to
Officer JL’s father, who shares the same first and last name as him and served
as a police officer, and are attempting to confirm that fact. (Govt. Mot. II
at 3.) Nevertheless, this case was resolved by settlement and closed in 2011.
(Id.)
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I at 8); and one civil lawsuit stemming from Trooper VP’s
employment with the NYPD in which Trooper VP was named as
a defendant that is pending and where the government is
not aware of any adverse credibility determination related
to Trooper VP (Govt. Mot. II at 2);
Special Agent ML: the government identified two civil
lawsuits where Special Agent ML was named as a defendant
that were dismissed without any adverse credibility
findings related to Special Agent ML (Govt. Mot. I at 8);
Trooper SV: the government identified one civil lawsuit in
which Trooper SV was a Plaintiff and challenged his
termination from the Village of Freeport Police Department.
Summary judgment was ultimately entered in favor of the
defendants. The government does not move to preclude
cross-examination about Trooper SV’s firing. (Govt. Mot.
I at 8.)
The government did not identify any civil lawsuit involving
a credibility finding, and all are pending, dismissed, or settled.
Defendants do not oppose the government’s motion to preclude
cross-examination of Officer JL, Officer AZ, and Trooper VP
regarding the identified substantiated allegations by the IAB or
of Special Agent ML and Trooper SV regarding the identified civil
lawsuits. (Clanton Opp. at 1–2.) Defendants oppose the motion to
preclude cross-examination of Trooper VP and Officer JL regarding
the identified civil lawsuits and ask the Court to order the
government to “provide the defense with all sworn statements made
by Trooper [VP] in the course of . . . litigation.” (Clanton Opp.
at 2.) Defendants also oppose the motion to preclude cross-
examination of Officer JL regarding the CCRB’s statement that it
“questioned the credibility of his recollection of whether a
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complaining witness requested an interpreter.” (Clanton Opp. at
2.)
Legal Standard
“A district court is afforded broad discretion in controlling
the extent and scope of cross-examination.” United States v.
Daniels, 566 F. Supp. 3d 191, 193–94 (E.D.N.Y 2021) (quoting United
States v. Wilkerson, 361 F.3d 717, 745 (2d Cir. 2004)). Federal
Rule of Evidence 608(b) governs the admission of “evidence of
specific acts . . . to attack the witness's character for
truthfulness[.]” Id. at 194 (citing United States v. Peterson ,
808 F.2d 969, 973-74 (2d Cir. 1987)). The same rule permits a
court, “in its discretion, [to] allow inquiry into specific
instances of the conduct of a witness on cross-examination, but
only if those acts are ‘probative of truthfulness or
untruthfulness.’” Daniels, 556 F. Supp. 3d at 194 (citing Fed. R.
Ev. 608(b)).
“In addition to determining whether, on cross-examination, a
particular prior act is probative of truthfulness and therefore
permissible under Rule 608(b), the court still must be guided by
[Federal Rules of Evidence] 611 and 403 in deciding whether to
exercise its discretion to allow cross-examination pursuant to
Rule 608(b).” Id. (quoting United States v. Brown , No. 07-CR-
874 (KAM), 2009 WL 497606, at *4 (E.D.N.Y. Feb. 26, 2009) (internal
quotation removed)). Indeed, even where a “prior act does concern
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the witness's character for truthfulness under Rule 608(b), its
probative value must not be substantially outweighed by its
unfairly prejudicial effect under Rule 403.” United States v.
Devery, 935 F. Supp. 393, 407-08 (S.D.N.Y. 1996).
Discussion
I. Cross-Examination of Incidents Underlying the
Administrative Findings
Courts may preclude cross-examination of prior, substantiated
instances of officer misconduct where the underlying conduct is
not probative of the officer’s truthfulness or untruthfulness.
See, e.g., United States v. Horsford, 422 F. App'x 29, 30 (2d Cir.
2011) (summary order) (precluding cross-examination of CCRB
complaint where “the underlying conduct involved no dishonesty”);
United States v. Barret, No. 10–CR–809 (KAM), 2012 WL 194992, at
*2 (E.D.N.Y. Jan. 23, 2012) (precluding cross-examination of
several substantiated complaints that did “not involve conduct
that bears on credibility”). Generally, “[c]omplaints against
officers are not probative of a law enforcement witness's
truthfulness or untruthfulness unless the underlying conduct
involves dishonesty.” Bryant v. Serebrenik, No. 15-CV-3762 (ARR)
(CLP), 2017 WL 713897, at *2 (E.D.N.Y. Feb. 23, 2017) (emphasis
added).
Here, the government moves to preclude cross-examination
regarding all substantiated IAB findings disclosed to Defendants
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in the government’s motion. ( See generally Govt. Mot. I; Govt.
Mot. II.) Defense counsel does not oppose the government’s motion.
(See generally Clanton Opp.)
The substantiated allegations include (1) a 2019
substantiated allegation that Officer JL made an unauthorized
radio transmission; (2) a 2019 substantiated allegation that
Officer JL failed to properly search a police department vehicle
where controlled substances were found in the back seat; (3) a
2024 substantiated allegation that Officer AZ failed to properly
voucher prisoner property; (4) a 2020 substantiated allegation
that Trooper VP failed to turn on his body camera during a vehicle
search; and (5) a 2020 substantiated allegation that Trooper VP
failed to properly search a police department vehicle where
controlled substances were found.
None of the above conduct is probative of the witnesses’
truthfulness or untruthfulness becaus e none of the underlying
conduct involves dishonesty. See United States v. Agoro, No. 20-
CR-293 (WFK), 2024 WL 1374833, at *22 (E.D.N.Y. Apr. 1, 2024)
(holding that “substantiated or partially substantiated IAB
offenses regarding incomplete memo b ooks, failing to properly
voucher or safeguard a prisoner's property, creating slightly
inaccurate property vouchers, losing Department equipment, and
failing to timely notify [one’s] bureau of [a] lost department
radio are not probative of truthfulness,” and that the “Court would
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have precluded cross-examination on these materials under Federal
Rule of Evidence 608(b), as none of these allegations are probative
of [the Detective's] truthfulness or untruthfulness”). Indeed,
courts have regularly precluded cross-examination of witnesses
regarding IAB reports where, as here, the reports “describe
substantiated allegations regarding the witnesses’ violations of
department policies involving paperwork and other administrative
tasks” but made neither adverse findings against the officers nor
credibility determinations. Daniels, 566 F. Supp. 3d at 196.
Accordingly, the government’s motion to preclude cross-
examination of the above-referenced substantiated IAB findings
against the law enforcement witnesses disclosed in its motion is
GRANTED.
II. Cross-Examination of Prior Finding of Adverse Credibility
The government moves to preclude cross-examination of an
instance where the CCRB “questioned the credibility” of Officer
JL’s statements regarding a substantiated allegation that Officer
JL failed to obtain language interpretation services for a
complainant when responding to a 911 call. (Govt. Mot. I at 6.)
According to the government, Officer JL reported that he recalled
speaking to the complainant in English without difficulty and did
not recall if the complainant requested an interpreter. (Govt.
Mot. I at 2.) Defense counsel argues that the Court should permit
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cross-examination regarding this incident as it bears on Officer
JL’s credibility. (Clanton Opp. at 2.)
“[E]ven if the prior act does concern the witness's character
for truthfulness under Rule 608(b), its probative value must not
be substantially outweighed by its unfairly prejudicial effect
under Rule 403.” Devery, 935 F. Supp. at 407–08. When
“determining the probity and relevance of a prior incident in which
a court has criticized a witness's testimony as unworthy of
belief,” courts in this district consider the seven factors set
forth in United States v. Cedeño, 644 F.3d 79 (2d Cir. 2011):
(1) whether the prior judicial finding addressed the
witness's veracity in that specific case or generally;
(2) whether the two sets of testimony involved similar
subject matter; (3) whether the lie was under oath in a
judicial proceeding or was made in a less formal context;
(4) whether the lie was about a matter that was
significant; (5) how much time had elapsed since the lie
was told and whether there had been any intervening
credibility determination regarding the witness; (6) the
apparent motive for the lie and whether a similar motive
existed in the current proceeding; and (7) whether the
witness offered an explanation for the lie and, if so,
whether the explanation was plausible.
Barret, 2012 WL 194992, at *3.
As explained below, the Court first notes that the CCRB did
not find that Officer JL lied, but instead questioned his
credibility. The CCRB is not a court and does not conduct judicial
proceedings, and its investigations and determinations are made in
non-adversarial proceedings during which the officer is not under
oath, is not given an opportunity to confront his accuser, and is
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not represented by counsel. Moreover, the CCRB’s inquiry regarding
whether a complainant needed or requested an interpreter is
unrelated to Officer JL’s potential testimony at trial, and any
motives by the witness in the CCRB proceedings and trial are
unrelated. Consequently, upon weighing the seven factors set forth
in Cedeño as they apply to the facts before the Court, the Court
finds that they weigh in favor of precluding cross-examination
regarding the fact that CCRB investigators questioned the
credibility of Officer JL during the course of their investigation.
The first factor weighs against permitting cross-examination
because the CCRB “did not indicate that in general, [Officer JL]
lacks capacity for veracity,” or find that he lied; instead, the
CCRB “questioned” the credibility of his statements regarding his
recollection of the English ability of the complainant during its
investigation. Barret, 2012 WL 1964992, at *3. The second factor
also weighs against permitting cross-examination because Officer
JL is expected to testify in the instant trial regarding “his
response to the June 3, 2023 robbery and authentication of body
worn camera footage.” (Govt. Mot. I at 6.) This anticipated
testimony is unrelated to the statements he made to the CCRB
regarding obtaining translation services.
Regarding the third factor, although Officer JL’s statements
to the CCRB were not under oath and were made during the course of
a CCRB investigation, “which is a less formal context than a
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judicial proceeding[,] . . . the investigation at issue was
conducted under the auspices of an official process and was
sufficiently significant to have apprised [Officer JL] of his duty
to respond truthfully.” Barret, 2012 WL 1964992, at *3. This
weighs slightly in favor of permitting cross-examination.
The fourth and fifth factors weigh against permitting cross
examination because Officer JL’s statement regarding whether he
was able to communicate with the complainant is not a matter of
great significance, the incident occurred four years ago, and the
Court is unaware of any intervening credibility determinations
regarding Officer JL. The sixth factor also weighs against
permitting cross-examination because Officer JL’s apparent motive
to speak untruthfully during the CCRB investigations—ostensibly to
protect himself from disciplinary action—differs from any motive
to lie in the instant proceeding, in which he is expected to
testify as to his response to a robbery and the authentication of
the corresponding body camera footage. Finally, the seventh factor
weighs against permitting cross-examination as Officer JL has
offered a plausible explanation for his statements to the CCRB,
which is that he could not recall any difficulty communicating
with the complainant.
On balance, the Cedeño factors weigh against permitting
cross-examination on the CCRB’s findings and investigation into
Officer JL and the Court finds that “the risk of distraction
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resulting from [Defendants’] intended interrogation substantially
outweighs any probative value of the evidence.” See United States
v. Lawes, 292 F.3d 123, 131–32 (2d Cir. 2002) (upholding district
court’s decision to preclude cross-examination of a police officer
regarding a CCRB citation in which the CCRB “did not credit his
testimony” and noting “the proposed cross-examination was of
little, if any plausible relevance to [the witness's]
credibility”) (citing Fed. R. Evid. 403). The government’s motion
to preclude cross-examination of Officer JL regarding the CCRB’s
findings is GRANTED.
III. Cross-Examination of Incidents Underlying the Civil
Lawsuits
Civil lawsuits against government law enforcement witnesses
that offer only unproven allegations or that have settled “lacking
any adverse findings” are not “probative of the witness’
truthfulness.” United States v. Ahmed, No. 14-CR-277 (DLI), 2016
WL 3647686, at *3 (E.D.N.Y. Jul. 1, 2016); see also United States
v. Jackson, No. 19-CR-356 (ARR), 2020 WL 6558215, at *3 (E.D.N.Y.
Nov. 9, 2020) (finding that because “[a]ll of the civil lawsuits
brought against the government's witnesses are either currently
pending or have already ended in settlement without any admission
of wrongdoing by the defendant or adverse credibility finding by
the court,” there was “no reason to believe that the underlying
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files are likely to contain material that is relevant to the
credibility of the witnesses”).
Here, the government moves to preclude cross-examination
regarding the disclosed civil lawsuits against the aforementioned
law enforcement witnesses. Defense counsel objects to precluding
cross-examination only as to the 2020 civil lawsuit against Trooper
VP and the civil lawsuits against Officer JL, arguing the
government “has generously relied on the phrase that it is ‘not
aware of any adverse credibility finding[s]’” against Trooper VP
and Officer JL. (Clanton Opp. at 2.) Defense counsel argues that
Trooper VP was likely deposed in the 2020 civil lawsuit and seeks
an order that the government provide “all sworn statements made by
Trooper [VP] in the course of that litigation.” (Clanton Opp. at
2.)
In response, the government interviewed both Trooper VP and
Officer JL and determined that, in the lawsuit relating to Trooper
VP, “he did not testify in court or sit for any deposition, and
there was no adverse credibility finding relating to him,” and
that the case has settled. (Govt. Reply at 2.) Similarly, Officer
JL reported that he did not testify in court or sit for any
deposition in the identified lawsuits and advised the government
that “he is not aware of any adverse credibility findings from
those lawsuits,” and that two of the cases are pending. (Govt.
Reply at 3.)
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The civil lawsuits the government has identified have
settled, been dismissed, or are pending without the government’s
knowledge of any adverse credibility finding. It is well settled
that such lawsuits are not “probative of the witness’ truthfulness”
and are inadmissible under Rule 608(b). Ahmed, 2016 WL 3647686,
at *3; see also United States v. Jackson , No. 19-CR-356 (ARR),
2020 WL 6558215, at *3 (E.D.N.Y. Nov. 9, 2020) (finding that
because “[a]ll of the civil lawsuits brought against the
government's witnesses are either currently pending or have
already ended in settlement without any admission of wrongdoing by
the defendant or adverse credibility finding by the court,” there
was “no reason to believe that the underlying files are likely to
contain material that is relevant to the credibility of the
witnesses”). Accordingly, the government’s motion to preclude
cross-examination as to the aforementioned civil lawsuits is
GRANTED.
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Conclusion
For the foregoing reasons, the government’s motion in
limine to preclude Defendants from cross-examining certain law
enforcement witnesses on the disclosed Giglio materials is
GRANTED.
So ordered.
Dated: January 23, 2025
Brooklyn, New York _______________________________
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
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