The opinion of the court was delivered by: Victoria A. Roberts United States District Judge
Honorable Victoria A. Roberts
I. INTRODUCTION AND PROCEDURAL HISTORY
On December 10, 2009, the Government filed a First Superseding Indictment against Defendant Dr. Alan Silber. Dr. Silber is charged with: (1) Health Care Fraud Conspiracy, in violation of 18 U.S.C. §1349 (Count I); and (2) Health Care Fraud, in violation of 18 U.S.C. §§ 1347 and 2 (Counts II-VII).
Trial is scheduled for March 25, 2010.
On March 19, 2010, the Government filed a Trial Brief that includes potential legal issues that could arise during trial. (Doc. #126).
Briefing was completed on March 24, 2010, and the Court heard oral argument.
II. APPLICABLE LAW AND ANALYSIS
A. The Government's Intent to Introduce Dr. Silber's Statements Through the Testimony of FBI Agents, if Dr. Silber Testifies at Trial, or Offers any Evidence Inconsistent with His Statements
Dr. Silber was interviewed by the FBI on November 27, 2007. If Dr. Silber testifies at trial, or offers evidence that is inconsistent with the statements he provided FBI agents on November 27th, the Government intends to introduce Dr. Silber's statements.
The statements were provided pursuant to a letter from the Government dated October 29, 2007:
(2) Except as otherwise specified in this letter, no statement made by you or your client during this proffer discussion will be offered against your client in the government's case-in-chief in any criminal prosecution of your client for the matters currently under investigation.
(3) If your client is prosecuted, the government may use your client's statements in cross-examining your client, and to rebut any evidence offered by your client that is inconsistent with the statements made during this discussion.
The Government may introduce Dr. Silber's statements through the testimony of agents who were present at the interview on November 27, 2007. See Fed. R. Evid. 801(d)(2)(A): "A statement is not hearsay if [t]he statement is offered against the party and is the party's own statement, in either an individual or representative capacity[.]"
Based on the October 29, 2007 letter, the Court finds the Government may introduce Dr. Silber's statements: (1) on cross-examination of Dr. Silber (if he testifies);
(2) if defense counsel elicits testimony that is inconsistent with Dr. Silber's statements; and (3) if defense counsel offers evidence that is inconsistent with Dr. Silber's statements. See United States v. Fifer, 2006 WL 3368563 at **6 (6th Cir. Nov. 20, 2006): the district court did not abuse its discretion by allowing [testimony] about the proffer session or proffer letter, or in admitting FBI Form 302. . . . [Defendant] waived his objections under Fed. R. Evid. 408 and 410 by signing the proffer letter which stipulated that the Government may use statements made during the proffer session to "[r]ebut any evidence, argument or representations offered by or on behalf of your client in the Government's case-in-chief in connection with the trial[.]"
See also United States v. Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998) (introduction of the defendant's statements was proper if either the defendant's testimony, or evidence he presented through the testimony of others -- including Government witnesses -- contradicted the proffer).
Importantly, the Government can only introduce Dr. Silber's statements, if there is a genuine inconsistency between Dr. Silber's statements and the testimony or evidence offered by defense counsel (i.e, the truth of one must imply the falsity of the other). See id. at 1025-26.
If a witness presents unsolicited testimony that is inconsistent with Dr. Silber's statements, defense counsel may move to strike that testimony. If the testimony is stricken, the Government may not introduce Dr. Silber's statements on that issue.
B. Enforcement of the Federal Rules of Evidence to Prohibit Improper Impeachment of Government Witnesses ...