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False statements made in a pretrial interview to determine eligibility for bail can be used to impeach a defendant who testifies at the trial, the 2nd U.S. Circuit Court of Appeals has ruled. Addressing a novel question of law in the circuit, the court ruled that false statements given by defendant Michael Griffith in U.S. v. Griffith, 03-1510, were properly used to attack his credibility when he took the witness stand, even though a federal statute ensures confidentiality for remarks made to so-called pretrial services officers. Griffith’s problems began on Aug. 21, 2002, when a police officer in an unmarked car saw him and a second man, Cleveland Hainey, drinking beer on the stoop of a Brooklyn apartment building. Officer Edward Deighan got out of his car with his partner and said, “Police. Do you have a minute?” Griffith and Hainey allegedly ran down the steps to the basement door of an apartment owned by Hainey’s mother, Priscilla McClean. As the door was opened, the officer saw Griffith remove a gun from his waistband and toss it aside, the police reported. The officers arrested the men and recovered the gun. Griffith was tried before Eastern District Judge Carol B. Amon for being a felon in possession of a firearm. The prosecutor confronted him with two lies he allegedly told his pretrial services officer: that he was a U.S. citizen with a U.S. passport and that he had not used illegal drugs while under pretrial supervision. The government claimed it had evidence that Griffith was not a citizen and that he had tested positive for marijuana while under supervision. On appeal, Griffith’s lawyer argued that his statements were inadmissible at trial under 18 U.S.C. �3153(c)(1) and (c)(3) which, respectively, provide that information obtained during the performance of pretrial services functions shall be used only for purposes of a bail determination and is otherwise confidential, and that such information “is not admissible on the issue of guilt in a criminal judicial proceeding.” Griffith also argued that Amon was wrong to allow McClean and Hainey to invoke their Fifth Amendment privilege against self-incrimination, that the judge made several incorrect evidentiary rulings and that the government struck three non-white jurors for pretextual and not race-neutral reasons. Writing for the 2nd Circuit, Chief Judge John M. Walker said the court rejected by summary order Griffith’s challenge based on the Fifth Amendment, the evidentiary rulings and the jury selection argument. Turning to the main issue, Walker said that 18 U.S.C. �3153 is 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,” Walker wrote. He cited the 8th Circuit’s decision in U.S. v. Wilson, 930 F.2d 616 (1991), which upheld the use of a defendant’s pretrial services statements to impeach that defendant on cross-examination. The 8th Circuit, he said, held that the statute bars admissibility of pretrial services statements on the issue of guilt but not questions of credibility. “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,” Walker said. “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.” Judge Barrington D. Parker and Northern District Judge Norman A. Mordue, sitting by designation, joined in the opinion. Gary Schoer of Syosset represented Griffith. Assistant U.S Attorney Lee J. Freedman represented the government.

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