United States v. Michael Griffith, 385 F.3d 124, 2d Cir. (2004)

385 F.
3d 124
UNITED STATES of America, Appellee,

v.
Michael GRIFFITH, Defendant-Appellant.
No. 03-1510.
United States Court of Appeals, Second Circuit.

Argued June 16, 2004.
Decided: October 4, 2004.
Appeal from the United States District Court for the Eastern District of
New York, Carol B. Amon, J.
Gary Schoer, Syosset, N.Y. for Defendant-Appellant.
Lee J. Freedman, Assistant United States Attorney (Roslynn R.
Mauskopf, United States Attorney for the Eastern District of New York,
Susan Corkery, Assistant United States Attorney, on the brief), Brooklyn,
N.Y. for Appellee.
Before: WALKER, Chief Judge, B.D. PARKER, Circuit Judge and
MORDUE, District Judge. *
JOHN M. WALKER, JR., Chief Judge.
Defendant-appellant Michael Griffith appeals from a judgment of the United

States District Court for the Eastern District of New York (Carol B. Amon,
District Judge), convicting him, after a jury trial, of possession of a firearm as a
felon under 18 U.S.C. 922(g)(1) and 924(a)(2). Griffith was principally
sentenced to a term of 32 months' imprisonment to be followed by a three-year
term of supervised release.
On August 21, 2002, while on routine patrol in an unmarked car in Brooklyn,

Officer Edward Deighan saw Griffith and Cleveland Hainey sitting on the front
staircase of an apartment. When Officer Deighan noticed that one of the men
was drinking a bottle of beer, he got out of the car and said: "Police, do you
have a second?" The two men immediately stood up and ran down the steps,
around the side of the staircase, and toward a basement door underneath the
staircase. Officer Deighan saw the taller, heavier man (later identified as
Griffith) push open the door, remove a gun from his waistband, and toss the
gun aside as he ran into the basement apartment. Officer Deighan and his
partner followed the men into the apartment, apprehended them, and recovered
the gun. The apartment was owned by Priscilla McClean, Hainey's mother.
3
On appeal, Griffith argues, inter alia: (1) that the district court improperly
permitted McClean and Hainey to invoke their Fifth Amendment privilege
against self-incrimination; (2) that several of the district court's evidentiary
rulings were improper; and (3) that the reasons proffered by the government for
striking three non-caucasian jurors were pretextual and not race-neutral and
thus violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986).
We have affirmed the judgment of the district court in an unpublished summary

order while noting that one evidentiary issue required further explanation. See
United States v. Griffith, 102 Fed.Appx. 203 (2d Cir. June 18, 2004), 2004
U.S.App. LEXIS 12094, at *3. That issue, a question of first impression in this
circuit, is whether, under 18 U.S.C. 3153, information obtained from the
defendant during a pretrial-services interview may be used against him for
impeachment purposes.1
After Griffith took the stand, the government challenged his credibility on
cross-examination. In doing so, the prosecutor confronted Griffith with two
allegedly false statements he made to his pretrial-services officer:2 (1) that he
was a United States citizen who holds a United States passport and (2) that he
had not used any illegal drugs while on pretrial supervision. These statements
were in contrast to evidence possessed by the government that Griffith was not
a United States citizen holding a United States passport and that drug tests
revealed that he had used marijuana while on pretrial supervision. Over
Griffith's objection, the district court allowed the two pretrial statements into
evidence as bearing on Griffith's credibility.
Griffith argues that the admission at trial of his statements to pretrial services
was reversible error. He maintains that 18 U.S.C. 3153 bars the government
from cross-examining a defendant concerning any statements he made to
pretrial services. Sections 3153(c)(1) and (c)(3) of U.S.C. Title 18 provide that,
except in circumstances not relevant here:
[(1)] information obtained in the course of performing pretrial services
functions in relation to a particular accused shall be used only for the purposes
of a bail determination and shall otherwise be confidential....
8
...
[(3) such information] is not admissible on the issue of guilt in a criminal

judicial proceeding
10
...
11
We disagree with Griffith and hold that a defendant's statements to pretrial

services are admissible against the defendant when used to impeach the
defendant's credibility.
12
Generally, relevant evidence that which has "any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable," Fed.R.Evid. 401 is admissible for all
purposes "except as otherwise provided by the Constitution [or] by Act of
Congress," Fed.R.Evid. 402. The statute at issue here, 18 U.S.C. 3153, is thus
an exception to the general rule that all relevant evidence is admissible.
However, such exceptions are not to be read broadly because, otherwise,
evidence that is relevant in this case because it is probative on the question
of truthfulness and credibility would be inadmissible at trial. See United
States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)
("Whatever their origins, ... exceptions to the demand for every man's evidence
are not lightly created nor expansively construed, for they are in derogation of
the search for truth."); see also Fed.R.Evid. 608(b) (specific instances of
conduct may, in the district court's discretion, "if probative of truthfulness or
untruthfulness, be inquired into on cross-examination...."). In view of the strong
principle favoring admissibility of relevant evidence at trial, we will not read
the exception to admissibility in 3153(c)(3) beyond its plain meaning.
13
The Eighth Circuit in United States v. Wilson, 930 F.2d 616 (8th Cir.1991)
rejected a defendant's challenge to the use of his pretrial-services statements to
impeach him on cross-examination based on the plain reading of the statute. It
held, in substance, that while the statute bars the admissibility of such
statements on the "issue of guilt," the statute did not prohibit their use to
impeach credibility. "Therefore, under a plain reading of the statute, the
government can use pretrial services interview statements to impeach a
defendant." Id. at 619. We agree with the Eighth Circuit that the plain language
of 3153(c)(3) poses no bar to the admissibility of the defendant's statements
to pretrial services for the purpose of impeaching the defendant's credibility.

14
Our holding comports with well-established Supreme Court precedent that has
drawn a distinction between using evidence to prove substantive guilt and using
evidence to impeach. Policies extrinsic to the trial that may warrant barring the
former frequently give way when the issue is the witness's truthfulness under
oath at trial. See Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108
L.Ed.2d 293 (1990) (evidence secured during a police-initiated conversation
occurring after the defendant has invoked his Sixth Amendment rights is
inadmissible as substantive evidence in the government's case-in-chief, but is
admissible to impeach the defendant's inconsistent trial testimony); United
States v. Havens, 446 U.S. 620, 626-28, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980)
(evidence suppressed as the fruit of an illegal search and seizure may be used to
impeach a defendant's trial testimony); Harris v. New York, 401 U.S. 222, 22526, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (statement made by defendant to police
in violation of Miranda is inadmissible in the government's case-in-chief, but is
admissible to impeach the defendant's credibility).
CONCLUSION
15
For the foregoing reasons, we affirm.
16
Shortly after we resolved this case by summary order, the Supreme Court
issued its decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004). Counsel for Griffith promptly filed a motion for an
extension of time to file a petition for rehearing until 14 days following the
publication of this opinion, informing the court of the Blakely decision and of
its potential impact on Griffith's sentence, which we granted. We recently held,
however, that, until the Supreme Court instructs otherwise (as it will have the
opportunity to do when it considers the arguments in United States v. Booker,
No. 04-104, and United States v. Fanfan, No. 04-105), we will assume that
Blakely does not affect the Guidelines and, accordingly, that all sentences
imposed in accordance with the Guidelines are valid. See United States v.
Mincey, 380 F.3d 102, 2004 WL 1794717, at *3 (2d Cir. August 12, 2004).
17
Notwithstanding the foregoing, the mandate in this case will be held pending
the Supreme Court's decision in Booker and Fanfan. Should any party believe
there is a need for the district court to exercise jurisdiction prior to the Supreme
Court's decision, it may file a motion seeking issuance of the mandate in whole
or in part. Although any petition for rehearing should be filed in the normal
course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the
court will not reconsider those portions of its opinion that address the
defendant's sentence until after the Supreme Court's decision in Booker and
Fanfan. In that regard, the parties will have until 14 days following the
Supreme Court's decision to file supplemental petitions for rehearing in light of
Booker and Fanfan.
Notes:
*
The Honorable Norman A. Mordue, of the United States District Court for the
Northern District of New York, sitting by designation
We have considered a defendant's request for disclosure of exculpatory or

impeachment information in the presentence report of a government witness in
light of 18 U.S.C. 3153See United States v. Pena, 227 F.3d 23, 28 (2d
Cir.2000)(holding that "when a defendant requests that the government disclose
pretrial services materials [of a government witness] pursuant to its discovery
obligations to provide defense counsel with exculpatory and impeachment
information in its possession, district judges should review those materials in
camera and determine whether they contain such information"). However, in
Pena we distinguished between third-party requests for pretrial-services
information and section 3153's "allowance of certain uses of such materials
against that defendant." Id. Moreover, we specifically noted that the question
presented here, whether a defendant's own statements to pretrial services could
be used against him for impeachment purposes, was not then properly before
us. Id. This case, unlike Pena, involves the admissibility of the defendant's
statements to pretrial services to impeach the defendant at trial, not the
disclosure of pretrial-services information to a third party.
Pretrial-services reports contain:

information pertaining to the pre-trial release of each individual charged with
an offense, including information relating to any danger that the release of such
person may pose to any other person or the community, and, where appropriate,
include a recommendation as to whether such individual should be released or
detained and, if release is recommended ... appropriate conditions of release....
18 U.S.C. 3154(1).

United States v. Michael Griffith, 385 F.3d 124, 2d Cir. (2004)

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385 F.

UNITED STATES of America, Appellee,

United States Court of Appeals, Second Circuit.

Defendant-appellant Michael Griffith appeals from a judgment of the United

On August 21, 2002, while on routine patrol in an unmarked car in Brooklyn,

We have affirmed the judgment of the district court in an unpublished summary

[(1)] information obtained in the course of performing pretrial services

[(3) such information] is not admissible on the issue of guilt in a criminal

We disagree with Griffith and hold that a defendant's statements to pretrial

to pretrial services for the purpose of impeaching the defendant's credibility.

For the foregoing reasons, we affirm.

We have considered a defendant's request for disclosure of exculpatory or

Pretrial-services reports contain:

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