• Re: OT: John Durham loves Hillary long time! (2/2)

    From John Doe@21:1/5 to All on Mon May 9 09:55:59 2022
    [continued from previous message]

    Bill Priestap and Trisha Anderson’s Notes Moving to the next issue, the
    defense seeks to exclude notes taken by two of Mr. Baker’s deputies sometime after his meeting with Mr. Sussmann. The Special Counsel argues the notes themselves can come in under two hearsay exceptions: either as prior
    consistent statements of Mr. Baker, Fed R. Evid. 801(d)(1)(B), or as
    recorded past recollections of Mr. Preistap and Ms. Anderson, Fed. R. Evid. 803(5). Review of those rules, however, makes it clear that whether the
    notes may be read into evidence under either exception depends both on
    whether Mr. Baker’s credibility is attacked and on Mr. Priestap and Ms. Anderson’s testimony. Accordingly, the Court will lay out the steps needed
    to admit the notes, but will reserve judgment on whether such foundation has been laid until trial. Beginning with Mr. Baker’s past recollection
    recorded. Federal Rule of Evidence 801(d)(1)(B) provides that a statement is not hearsay if, “the declarant” (here, Mr. Baker) “testifies and is subject
    to cross-examination about a prior statement, and the statement . . . is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on
    another ground.” Accordingly, the statement cannot be admitted to bolster
    Mr. Baker’s credibility before it is attacked. If Mr. Baker’s memory is challenged on cross examination, his prior consistent statement would be admissible to bolster his testimony. But the notes are not Mr. Baker’s, so
    he cannot testify to their contents. The Rule is clear that a past recorded recollection may be admitted if the record “was made or adopted
    by the witness when the matter was fresh in the witness’s memory.” (emphasis added). There is no evidence that Mr. Baker “made or adopted” these notes.
    The notes therefore do not meet the definition of a recorded recollection of Mr. Baker. Accordingly, the government may only introduce the statements through Mr. Priestap’s or Ms. Anderson’s live testimony about their
    respective notes. See United States v. Montague, (D.C. Cir. 1992) (holding
    that “Rule 801(d)(1)(B) does not bar introduction of the prior consistent statement through a witness other than the declarant,” and a third-party officer presenting the prior statement testified at trial); United States v. Hebeka, (“Rule 801 can be met even when a third party testifies as to
    someone else’s prior statement,” and “both witnesses were subject to cross examination concerning their memory of past events.”). The evidentiary
    analysis is the same for either of the note takers. Taking Ms. Anderson as
    an example, her notes are admissible only if she testifies that the conversation is something she “once knew about but now cannot recall well enough to testify fully and accurately,” her testimony establishes that the notes were made while the conversation was fresh in her mind, and the notes accurately reflect her knowledge. If Ms. Anderson is able to testify fully
    and accurately about her conversation with Mr. Baker, the notes would no
    longer be needed, and so would no longer be admissible under Rule 803(5).

    Note 4.
    This strikes the Court as no sure thing given the recent revelation of a
    text message apparently sent by Mr. Sussmann to Mr. Baker the day before
    their meeting indicating that he was not attending the meeting on behalf of
    a client. See Gov’t Mot. in Lim. at 2.

    In addition, if the government is unable to establish the foundation the
    Rule requires, the notes likewise cannot be admitted. A final note: Even if
    the notes satisfy the standard for a past recollection recorded, the notes themselves likely would not come in. So long as they are offered by the government as rehabilitation evidence—as the Special Counsel suggests it might—their contents may only be read into evidence, not “received as an exhibit” for the jury to view. Fed. R. Evid. 803(5) (allowing past recollections to be “received as an exhibit only if offered by an adverse party”—in this case Mr. Sussmann (emphasis added)).


    The CIA Meeting Next up, the government seeks to introduce statements Mr. Sussmann made during a meeting with the CIA in February 2017 under Fed. R. Evid. 404(b). In particular, the government alleges that when Mr. Sussmann provided an additional set of allegations about the candidate Trump’s ties
    to Russia to the CIA, he said he was “not representing a particular client.” Indictment ¶ 42(a). The government also alleges Mr. Sussmann made an
    additional false statement during that meeting—that he had previously
    brought “similar, ‘but unrelated’” information to the FBI. Gov’t Suppl.
    Notice at 2. Specifically, Mr. Sussmann allegedly provided to the CIA an updated version of the Alfa Bank data, as well as an additional set of allegations about Russian-made phones that were used on Trump networks (the “YotaPhone allegations”). The Special Counsel claims Mr. Sussmann’s
    description of this second set of allegations as “unrelated” to the
    information he brought to the FBI was misleading because the two sets of allegations were, in fact, related. The defense objects to the introduction
    of this second statement, and submits that the Special Counsel should not be permitted to argue this additional statement was false. The government
    contends both statements are admissible under Rule 404(b) to show Mr. Sussmann’s motive, plan, and absence of mistake or accident. The Court has already ruled from the bench that both statements are admissible, assuming
    the government lays a proper foundation. Whether Mr. Sussmann’s description
    of the YotaPhone allegations as “unrelated” to the Alfa Bank allegations was actually misleading can be confronted on cross examination. However, the
    Court will not permit this line of inquiry to lead to additional technical testimony about the YotaPhone allegations or their accuracy. Discussions amongst CIA employees about the data, and any conclusions the CIA may have drawn about the accuracy of the data after the meeting had ended, are not relevant to Mr. Sussmann’s earlier statement to the FBI. Therefore, the same parameters the Court has set for the DNS data will apply to the accuracy and gathering of the YotaPhone data as well. F.

    Whether the Special Counsel Must Immunize Mr. Joffe As noted previously, the final motion before the Court concerns Mr. Joffe’s availability as a trial witness. Mr. Joffe is reportedly willing to be a defense witness but has indicated that, if called to testify, he would invoke his rights under the Fifth Amendment. Mr. Sussmann maintains the Special Counsel “has made it impossible for [him] to call Mr. Joffe as an exculpatory witness” by
    informing Mr. Joffe’s lawyer that Mr. Joffe remains a “subject” of the
    Special Counsel’s investigation, even though nearly six years have passed
    since the relevant events took place. Def.’s Mot. Re: Immunity at 1, ECF No. 59. Mr. Sussmann argues that the Special Counsel’s “threat[]” of criminal prosecution long past the running of any applicable statute of limitations amounts to prosecutorial misconduct. Id. at 5. On that basis, he urges the Court to order the Special Counsel to extend use immunity to Mr. Joffe or,
    if he refuses to do so, to dismiss the indictment based on a violation of
    Mr. Sussmann’s constitutional right to a fair trial. For the reasons
    explained below, the Court will deny this request. “[P]rosecutorial . . . actions aimed at discouraging defense witnesses from testifying ha[ve] been deemed to deprive the criminal defendant of his Sixth Amendment compulsory process right.” United States v. Davis, (D.C. Cir. 1992); see also United States v. Simmons, (D.C. Cir. 1982) (“The right of a defendant to establish
    a defense by presenting his own witnesses is a fundamental element of due process of law.” (citing Washington v. Texas, (1979)). In United States v. Smith, (D.C. Cir. 1973), for example, the D.C. Circuit reversed a judgment
    of conviction when the prosecutor improperly threatened a key defense
    witness the night before his scheduled testimony. Id. at 978–79; see also United States v. Simmons, (D.C. Cir. 1982) (stating that “the action of the United States Attorney [in Smith] was completely uncalled-for and
    constituted an improper threat to deprive the defendant of a witness”);
    United States v. Blackwell, (D.C. Cir. 1982) (noting it would have been reversible error for the prosecutor to warn potential witness that if she testified, a gun charge that was dropped could be reinstated against her). However, absent the type of “extraordinary circumstances” described above,
    the Court has no authority to order the government to grant a witness
    immunity. United States v. Lugg, (D.C. Cir. 1989); see also United States v. Heldt, (D.C. Cir. 1981) (“Generally, a trial court has no authority, in the absence of a request by the government, to provide use immunity for a
    defense witness.”); United States v. Ebbers, (2d Cir. 2006) (to obtain
    relief, a “defendant must show that the government has used immunity in a discriminatory way, has forced a potential witness to invoke the Fifth Amendment through ‘overreaching,’ or has deliberately denied ‘immunity for
    the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation’” (citations omitted)). No such extraordinary circumstances are present here. Unlike the situation in Smith,
    or that noted in Blackwell, the Special Counsel’s Office has not contacted
    Mr. Joffe directly to attempt to dissuade him from testifying. Nor has the defense offered evidence that the Special Counsel’s refusal to grant Mr.
    Joffe immunity is unmoored from any legitimate law enforcement purpose. See Ebbers, 458 F.3d at 119 (affirming denial of defendant’s request because the government’s immunity decisions were “consistent with legitimate law enforcement concerns”). At oral argument, the Special Counsel pointed to at least one hypothetically relevant criminal statute with a seven-year statute
    of limitations. Mot. Hr’g Tr. at 19:9–13; see 18 U.S.C. § 1031. Accordingly, the Special Counsel’s continued representation that Mr. Joffe is a subject
    of its investigation, rather than simply a witness, does not amount to prosecutorial misconduct on this record. The Court therefore has no basis to order the Special Counsel to extend use immunity to Mr. Joffe.



    For the foregoing reasons, it is hereby ORDERED that Defendant’s Motion to Exclude Testimony or Evidence Pertaining to Former FBI Assistant Director
    Bill Priestap’s and Deputy General Counsel Trisha Anderson’s Notes is

    Note 5.
    The Court notes that its limitation on the presentation of evidence
    concerning the propriety of Mr. Joffe’s conduct in relation to the Alfa Bank data—which is the Special Counsel’s stated basis for his “subject”
    status—could affect Mr. Joffe’s decision to invoke the Fifth Amendment.

    It is further ORDERED that Defendant’s Motion to Dismiss Case if the Special Counsel Does Not Immunize Rodney Joffe is DENIED.

    It is further ORDERED that Special Counsel’s Motion in Limine is GRANTED in part and DENIED in part.

    It is further ORDERED that Defendant’s Motion to Preclude the Special
    Counsel from Presenting Evidence or Argument Regarding Matters Subject to
    the Attorney-Client Privilege is GRANTED in part and DENIED in part, as explained on the record on April 27, 2022.


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