USA v. Eldridge et al

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
THAMUD ELDRIDGE,
KASHIKA SPEED,
KEVIN ALLEN, and
GALEN ROSE,
Defendants.
This case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28
U.S.C. § 636(b)(1). On March 17, 2011, defendants Thamud Eldridge and
Kashika Speed filed motions (Dkt. Nos. 100, 101) to disqualify either the entire
office of the United States Attorney for the W estern District of New York or
Assistant U.S. Attorney Joseph Tripi individually. On October 7, 2011, Magistrate
Judge Scott issued a Decision and Order (Dkt. No. 123) denying the primary
request to disqualify the entire U.S. Attorney’s Office but granting the alternative
request to disqualify AUSA Tripi.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 59(a) of the Federal Rules of
Criminal Procedure (“FRCP”), the Government filed objections to the Decision
and Order on November 21, 2011 (Dkt. No. 125). The moving defendants filed
responses to the Government’s objections on December 22 and 28, 2011 (Dkt.
DECISION AND ORDER
09-CR-329A
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 1 of 7

Nos. 131, 133). The Government filed reply papers on January 5, 2012 (Dkt. No.
134). The Court held oral argument on January 19, 2012.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court “may reconsider any
pretrial matter under this [section] where it has been shown that the magistrate
judge’s order is clearly erroneous or contrary to law.” The Court has reviewed the
Government’s objections and Magistrate Judge Scott’s Decision and Order.
Upon such review, the Court finds that the portion of Magistrate Judge Scott’s
Decision and Order denying disqualification of the entire U.S. Attorney’s Office is
neither clearly erroneous nor contrary to law. For the reasons below, however,
the Court vacates the Decision and Order in part with respect to the
disqualification of AUSA Tripi, and denies that request for disqualification without
prejudice to renew as a motion in limine at trial.
As a general principle, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.” Garcia
v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006) (citation omitted). W ith respect to the
issue of disqualifying prosecutors, “the Second Circuit has adopted a restrained
approach to disqualification motions and has cautioned that where a threat of
tainting the trial does not exist, the litigation should proceed, and the remedy for
unethical conduct lies in the disciplinary machinery of the state and federal bar.”
U.S. v. Cain, No. 05-CR-360, 2007 W L 1202305, at *3 (W.D.N.Y. Apr. 23, 2007)
2
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 2 of 7

(Arcara, C.J.) (editorial marks omitted) (quoting Bottaro v. Hatton Assocs., 680
F.2d 895, 896–97 (2d Cir. 1982); see also U.S. v. Regan, 103 F.3d 1072, 1083
(2d Cir. 1997) (“A defendant who wishes to call a prosecutor as a witness must
demonstrate a compelling and legitimate reason to do so.”) (citation omitted).
Defendants’ rationale for disqualifying AUSA Tripi is as follows. Detective
Mary Evans (“Evans”) interviewed defendant Eldridge just hours after Officers
Earl Perrin (“Perrin”) and Mark W hite (“W hite”) allegedly beat him on the night of
December 7, 2005 in a separate incident (see generally Case No. 06-CR-311).
Evans lied about Eldridge’s appearance in her interview notes by denying any
suggestion of physical harm. Evans and other officers are motivated to cover up
the beating because they are biased against “cop shooters” like Eldridge; the bias
manifested itself when the officers who interacted with Eldridge on December 7,
2005 changed their behavior after discovering Eldridge’s identity. Evans thus
lacks credibility about her investigation in this case. Defendants normally would
call Perrin as a witness to expose Evans’s bias, but the Government already has
decided not to use him or the events of December 7, 2005 in its case in chief at
trial. According to defendants, therefore, the only other way to attack Evans’s
credibility and to expose her bias in this case is to call AUSA Tripi as a witness.
AUSA Tripi would repeat statements that Perrin made to him that would appear to
confirm that Eldridge was beaten on December 7, 2005. (See, e.g., Dkt. No. 123
at 5 (summarizing Perrin’s statements).)
3
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 3 of 7

There is a slight chance that defendants’ theory of bias would make its way
to the jury at trial. W ithout deciding the issue now, Federal Rule of Evidence
804(b)(3) possibly might permit AUSA Tripi to repeat Perrin’s statements as
admissions against Perrin’s interest. See Fed R. Evid 804(b)(3) (“The following
are not excluded by the rule against hearsay if the declarant is unavailable as a
witness: . . . A statement that: (A) a reasonable person in the declarant’s position
would have made only if the person believed it to be true because, when made, it
was so contrary to the declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and (B) is supported by
corroborating circumstances that clearly indicate its trustworthiness, if it is offered
in a criminal case as one that tends to expose the declarant to criminal liability.”).1
Additionally, the Government is wrong to make a categorical argument against
extrinsic evidence that might demonstrate bias. “In analyzing the issue, it will be
helpful to distinguish among the various purposes for which prior misconduct may
have evidentiary value. First, the misconduct may be relevant to an issue in the
Again without deciding the issue now, Perrin might qualify as1
“unavailable” for purposes of Rule 804(b)(3) because he testified, at a post-trial
hearing in Case No. 06-CR-311, that he does not remember whether he made
the statements in question. See Fed. R. Evid. 804(a)(3) (“A declarant is
considered to be unavailable as a witness if the declarant: . . . testifies to not
remembering the subject matter.”).
4
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 4 of 7

case, such as intent or identity. W hen offered for that purpose, prior misconduct
is governed by Fed. R. Evid. 404(b). Second, the misconduct may be relevant to
impeachment of a witness, including the defendant, because it tends to show the
character of the witness for untruthfulness. W hen offered for that purpose, prior
misconduct is governed by Fed. R. Evid. 608(b), which precludes proof by
extrinsic evidence and limits the inquiry to cross-examination of the witness.
Third, the misconduct may be relevant to impeachment of a witness on some
ground other than the character of a witness for untruthfulness. The most typical
example is misconduct offered to show bias of the witness. W hen offered for that
purpose, misconduct is not limited by the strictures of Rule 608(b).” U.S. v.
Schwab, 886 F.2d 509, 511 (2d Cir. 1989); see also U.S. v. James, 609 F.2d 36,
46 (2d Cir. 1979) (“Although the language of [FRE 608(b)] is unfortunately rather
awkward, the Notes of the Advisory Committee show that it was intended to
regulate only the use of specific instances of conduct to prove that the witness is
a ‘bad person’ or is a generally untruthful person who should not be believed.
However, bias of a witness is not a collateral issue and extrinsic evidence is
admissible to prove that a witness has a motive to testify falsely.”) (internal
quotation marks and citations omitted).
That said, defendants’ stated need to call AUSA Tripi as a trial witness is
tenuous enough that disqualification now ignores the Second Circuit’s “restrained
approach” and constitutes clear error. The statements in question that AUSA
5
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 5 of 7

Tripi would repeat as a witness are the subject of ongoing proceedings before
this Court in Case No. 06-CR-311. “[I]f it turns out there was no assault and
Perrin’s statements simply reflect an alcohol-induced false claim of bravado made
in a misplaced attempt to impress old friends, the credibility of other portions of
Perrin’s testimony would not be undermined. Nor would there be any reason to
question W hite’s credibility.” (Case No. 06-CR-311, Dkt. No. 146, at 16.) A
corollary of such a finding would be that Perrin—and thus AUSA Tripi—would
have nothing to offer that might expose any bias by Evans or other officers.
Additionally, defendants conceded at oral argument that discovery is not
complete and that the need to call AUSA Tripi as a witness may change
depending on the outcome of that discovery. Finally, the parties acknowledged
that the details of their trial strategies may change between now and any eventual
trial, which has not even been scheduled yet. Under these circumstances, the
probability that AUSA Tripi would taint any eventual trial by becoming a witness,
while not zero, is too low right now for the aggressive remedy of disqualification.
In fairness to defendants’ need for further discovery and case development, the
Court will make the rejection of AUSA Tripi’s disqualification without prejudice to
renew as a motion in limine, should future events increase the need for AUSA
Tripi’s testimony.
6
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 6 of 7

CONCLUSION
For all of the foregoing reasons, the Court vacates Magistrate Judge
Scott’s Decision and Order (Dkt. No. 123) in part with respect to the
disqualification of AUSA Tripi, and denies that request for disqualification without
prejudice to renew as a motion in limine at trial.
This case is referred back to Magistrate Judge Scott for further
proceedings.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: January 31 , 2012
7
Case 1:09-cr-00329-RJA Document 138 Filed 01/31/12 Page 7 of 7