United States District Court, D. Arizona
NEIL V. WAKE, District Judge.
Before the court are the Government's Motion in Limine Regarding Irrelevant, Unrelated and Remote Investigations from 2003 and 2004 (Doc. 83), the Response (Doc. 94) and the Reply (Doc. 96). The Government has moved to bar impeachment of one of its chief witnesses, FBI Special Agent Brian Fuller, regarding alleged embellishments and inconsistencies in testimony he gave in two prior criminal cases over a decade ago. Because the basis for Defendant's proposed impeachment is remote in time and minimally probative in any event, the Government's Motion will be granted, with one exception.
Defendant, who is charged with two counts of abusive sexual contact and two counts of aggravated sexual abuse of a child, was interviewed by Special Agent Fuller at the FBI's Gallup, New Mexico field office in December 2012. During that interview, which was not recorded, Defendant allegedly made a number of incriminating statements to Special Agent Fuller. Although FBI Special Agent Cheryn Priestino was present when Special Agent Fuller assessed Defendant's suitability to take a polygraph exam and informed him of his Miranda rights, she left the interrogation room before Special Agent Fuller began questioning Defendant about the allegations against him. Special Agent Fuller's notes and oral testimony are therefore the Government's only evidence of the statements Defendant allegedly made during his interview. Special Agent Priestino was also a witness to Special Agent Fuller's post-polygraph summary of statements Defendant had made, which he confirmed.
During discovery, the Government disclosed to Defendant information about two previous cases in which the defendants had questioned the reliability of Special Agent Fuller's notes or the truthfulness of his testimony. The Government does not view this information as exculpatory. Nevertheless, because the court has previously allowed impeachment of Special Agent Fuller on these collateral matters, the Government made its disclosure in an abundance of caution. ( See Doc. 83 at 8.)
In the first case, United States v. Miguel, 2:04-cr-01289-EHC-1 (D. Ariz.), defendant Eric Miguel was charged with first-degree murder of his five-month-old daughter. Special Agent Fuller interviewed Miguel twice, on December 6, 2004, and December 7, 2004, and made hand-written notes of each interview, from which he drafted two separate reports. The second interview, unlike the first, was video-recorded, as it was conducted at a tribal police office. Unlike the FBI, the tribal police did not prohibit recording the interrogation. Ten days after the victim died, Special Agent Fuller testified before a grand jury investigating Miguel's role in the death. Following indictment, Miguel's attorney filed a Motion to Dismiss Indictment Due to Misconduct Occurring Before the Grand Jury, which alleged that Special Agent Fuller's testimony differed in material ways from the video and transcript of the hour-long December 7 interview. That video, which the court has reviewed in camera, shows Special Agent Fuller and two Gila River Police Department detectives repeatedly asking Miguel leading questions and attempting to elicit his agreement to their descriptions of his conduct on the day the victim died.
Several elements of Special Agent Fuller's grand jury testimony to which Miguel objected turned out to be entirely accurate, and others were too trivial to detail here. Among the more substantive issues raised, Miguel took issue with Special Agent Fuller's characterization of how Miguel treated his daughter on the day of her death. For instance, Special Agent Fuller twice stated that Miguel had been "violently shaking" the victim in the hours before she died. ( See Doc. 83-2 at 22, 25.) Miguel never used this word, and in two cases denied having shaken his daughter. (Doc. 83-10 at 10, 52.) In a demonstration captured on the videotape of the December 7 interview, Miguel moves a stuffed animal up and down in his hands the way a parent trying to calm a crying child would. Similarly, Special Agent Fuller testified that while walking down the hall with the victim in his arms, Miguel had tripped on a sharp object, which Miguel said caused him to "squeeze her even tighter." (Doc. 83-2 at 22.) The transcript reveals that Miguel actually said he " held on to her tighter." (Doc. 83-10 at 5 (emphasis added).) In his report of the December 6 interview, Special Agent Fuller wrote that Miguel "squeezed [the victim] tighter with his arm" after tripping on the sharp object. (Doc. 83-8 at 4.)
Miguel also contested Special Agent Fuller's statements that Miguel said he had "grabbed [his daughter] hard, " (Doc. 83-2 at 22), and that Miguel realized his daughter had died several hours before she was taken to the emergency room, ( id. at 23). The transcript of the December 7 interview shows Miguel making inconsistent statements on these points. At different times Miguel told his interviewers that he "grabbed" his daughter, (Doc. 83-10 at 3), that he "picked... up" his daughter, ( id. at 4), that he knew his daughter was dead hours before she was taken to the hospital, ( id. at 42-44, 46), and that he only became aware of her death after being informed that she was at the hospital, ( see id. at 39-40, 45).
Finally, Miguel objected to Special Agent Fuller's answer to a question posed by the grand jury about whether, as part of his investigation, he had tried "to determine whether there was any medical conditions on [the victim] or something that would have resulted in her death that is not related to the violent shaking she underwent." (Doc. 83-2 at 26.) Special Agent Fuller answered that he had posed that question to several of the victim's family members, all of whom told him they were unaware of any ailments that might have caused her death. ( Id. ) According to Miguel, the victim's mother in fact told Special Agent Fuller during a December 8, 2004 interview that the victim's fontanel "would fall in" and that the victim had been sick with diarrhea during the weeks before she died. (Doc. 83-4 at 6.) In addition, Miguel claimed he had himself told Special Agent Fuller on December 6, 2004, that the victim had "had health problems" in the months preceding her death, which caused "tightening up" and difficulty sleeping. ( Id. )
The second case, United States v. Dosela, 2:03-cr-01234-NVW (D. Ariz.), also featured charges against a parent for murdering a young child. In that case, Special Agent Fuller testified at trial to statements that defendant Sharon Jane Dosela had made during an interview shortly after Dosela's daughter died from blunt force trauma to the head. Special Agent Fuller testified that two to three weeks before the victim died, while walking home from a visit to a different part of the reservation where she lived, Dosela had tripped and fallen on top of the victim several times. (Doc. 83-7 at 159.) On cross-examination, Special Agent Fuller acknowledged that the notes from his interview of Dosela indicated that she "fell w/" the victim twice. (Doc. 83-7 at 78.) Notwithstanding the "w/" notation, Special Agent Fuller maintained he had a clear memory that Dosela said she had fallen on her daughter, not merely with -i.e., at the same time as-her. ( Id. at 78-79.) Special Agent Fuller further testified on direct that, according to Dosela, the victim's stepfather would sometimes "yank" around another of Dosela's children, but would stop when Dosela confronted him about it. (Doc. 83-7 at 188-89.) Dosela's attorney asked Fuller to admit on cross-examination that his notes of this portion of his interview read as follows: "[Dosela] confronted [the stepfather] then she would stop." (Doc. 83-7 at 108-09 (emphasis added).) If the notes so stated, they might have undercut the Government's argument that, despite being able to prevent the stepfather from beating the victim, Dosela declined to intervene to save her daughter. The notes were not received in evidence, and Special Agent Fuller denied he had written "she" instead of "he." ( See id. at 108-09, 126.)
Dosela's final substantive contention concerned Special Agent Fuller's testimony regarding her state of mind. Special Agent Fuller told the jury that, by the night before the victim's death, Dosela "believed" the victim "was... dying" from beatings inflicted by Dosela and the victim's stepfather. ( See Doc. 83-7 at 177-78.) He admitted on cross-examination, however, that Dosela had never actually told him she knew the victim was dying; rather, Special Agent Fuller merely inferred from a number of Dosela's other statements that she was aware her daughter was near death. ( Id. at 96-98.)
II. LEGAL ANALYSIS
Defendant does not argue that Special Agent Fuller lied-that is, made knowingly false statements-in his Miguel and Dosela testimony. Defendant does not challenge Special Agent Fuller as a knowingly untruthful witness. Having examined the voluminous evidence in detail, the court concludes that Special Agent Fuller's prior testimony does not trigger a Government obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose it as possible exculpatory or impeachment evidence.
Rather, Defendant seeks to cross-examine Special Agent Fuller concerning his Miguel and Dosela testimony to show only that Special Agent Fuller is biased, that he subconsciously filters ambiguous evidence in a manner favorable to the Government. Cross-examination may properly address both "the subject matter of the direct examination and matters affecting [a] witness's credibility." See Fed.R.Evid. 611(b). The trial court has broad discretion in permitting cross-examination. See United States v. Candoli, 870 F.2d 496, 503 (9th Cir. 1989) ("The scope of cross-examination is within the discretion of the trial court."). Here, the Government argues that, notwithstanding that discretion, Defendant should not be allowed to impeach Special Agent Fuller's credibility by introducing the purported irregularities from Miguel and Dosela. This argument is grounded in Rules 404(b) and 608 of the Federal Rules of Evidence. The former provides, "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). The latter bars "extrinsic evidence" that is used "to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness." Fed.R.Evid. 608(b). Neither Rule 404(b) nor Rule 608 prohibits admission of evidence, including extrinsic evidence, of Special Agent Fuller's prior testimony to show bias. See United States v. Bailey, 696 F.3d 794, 806 (9th Cir. 2012) ("Rule 404(b) has thus long been characterized as a rule of inclusion-not exclusion.' Indeed [u]nless the ...