IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT UNITED STATES OF AMERICA ) ) v. ) ) No. 2:13-CR-106 EDIN SAKOČ ) ) Defendant. ) GOVERNMENT S MOTION IN LIMINE TO EXCLUDE PORTIONS OF TESTIMONY BY EDINA RAKIC COMES NOW the United States of America, by and through the United States Attorney of the District of Vermont and the Assistant Attorney General of the Criminal Division, and respectfully submits the following motion in limine requesting that, pursuant to Federal Rules of Evidence 403, 404, 405, 608, and 802, the Court exclude improper character evidence and improper hearsay offered by the defendant, Edin Sakoč specifically the portions of the deposition testimony of Edina Rakic alleging that: (1) Tatjana Cucak was present at the Piljevic home where anti-muslim songs were sung (by others) and guns were distributed (by others), and (2) Milena Piljevic talked to Edina Rakic about having a Serbian husband. There is no legitimate basis for admitting this testimony: the statements about Cucak being at Piljevic s home are improper and prejudicial extrinsic evidence intended to impugn Cucak s character and suggest without any rational basis that Cucak s testimony is less credible; and the testimony about Piljevic s statements to Rakic are irrelevant and improper hearsay having nothing to do whatsoever with Cucak, the defendant, or the facts of this case. Accordingly, the Government requests that this Court exclude the following testimony from Edina Rakic s videotaped deposition to be played at trial: (1) Transcript of Edina Rakic, at 22-24; 14:13:30 14:16:48 1
(Oct. 10, 2014) [hereinafter Rakic Tr.], and (2) Rakic Tr., at 24-25; 14:16:51 14:18:11 (Oct. 10, 2014). I. Background The indictment in this case charges the defendant with unlawful procurement of citizenship under 18 U.S.C. 1425(a) and (b), arising from false statements made by the defendant to procure his U.S. citizenship. During his naturalization process, the defendant stated that he had never committed a crime for which he was not arrested, and never persecuted any person because of their race, ethnicity, religion, or membership in a particular group. Contrary to the defendant s statements, however, in or around July 1992, he had persecuted three Bosnian women because of their ethnicity and religion and he kidnapped, assaulted, and raped one of those women, Tatjana Cucak. On October 10, 2014, a videotaped deposition of defense witness Edina Rakic was conducted in Sarajevo, Bosnia and Herzegovina ( Bosnia ), to preserve her testimony for trial. Edina Rakic, the defendant s younger sister, worked at the same factory as Tatjana Cucak before the war and lived in the Capljina region. An excerpt of Edina Rakic s testimony is attached to this motion as Attachment A. II. Rakic s Testimony About Tatjana Cucak s Presence at the Piljevic Home is Not Probative of Bias and is Inadmissible Extrinsic Evidence of Character Rakic s testimony that Cucak was present in a home where anti-muslim songs were sung and guns were distributed by others, not by Cucak has no relevance or probative value in this case. Testimony by Edina Rakic Regarding Tatjana Cucak s Presence at the Piljevic Home [BY MR. BARTH] Q Can you tell us how? 2
A First of all, they gathered at Piljevic's house and sang some songs that I didn't like. MR. BAUER: Object to the form of the question with respect to the Government's witness Ms. Tatjana Cucak. This goes beyond character testimony -- I'm sorry -- testimony about her character beyond reputation or opinion. BY MR. BARTH: Q What kind of songs did you hear at the Piljevic house that you didn't like? A For instance, the verses like what is the poor servant Fata going to do when Seselj comes knocking at her door. Or the mosques fell in Dubrovnik in the place where Balija women used to pray. MR. BAUER: Objection. That is based on hearsay. THE WITNESS: We'll throw the Balija men to the Sava River and the Balija women onto the green grass. MR. BAUER: Same objection. BY MR. BARTH: Q The term "Balija," is that a derogatory term for Muslim? A Yes. Q These are anti-muslim songs? A Yes. Q When you heard these songs, were there ever times when Gara 1 was over at the Piljevic house? 1 Gara is a nickname for Tatjana Cucak. Rakic Tr. at 21; 14:11:52 14:12:05. 3
A Yes. And at the same time weapons were arriving there, weapons were distributed to people, and then they sang those songs. Q You said weapons were distributed. Did you actually see weapons? A Yes, I did. It was happening in front of my house. Q And on any occasion when weapons were brought to the Piljevic house, was Gara there? A Yes, he was there when the weapons were distributed. MR. BARTH: I think that was "she." THE INTERPRETER: Sorry. She. I'm sorry. Rakic Tr., p22-24; 14:13:30 14:16:48. This testimony is irrelevant to the facts of this case and should be excluded. The defendant apparently solicited this testimony to show that Cucak is a racist and her presence at the Piljevic house demonstrates her underlying hatred of Muslims. The defendant apparently offers this testimony to suggest a motivation for Cucak to make false allegations more than two decades later. The defendant s theory requires great leaps in logic to connect Cucak s alleged presence at the event in question with any potential for witness bias. Indeed, this testimony is little more than a thinly veiled attempt to attack Cucak s character by use of extrinsic evidence, which must be excluded under Rules 404, 405, and 608. Moreover, even if this testimony has some probative value, that value is substantially outweighed by the extreme risk of prejudice and confusion and should be excluded under Rule 403. A. Rakic s Testimony is not Probative of Witness Bias 4
Rakic s testimony about Cucak s alleged presence in a home where anti-muslim songs were being sung and guns distributed is not probative of Cucak s bias. While a witness bias is relevant to credibility, the defendant must establish a sufficient foundation, i.e., that the activity or association logically indicates bias. See United States v. Abel, 469 U.S. 45, 52 (1984) (membership in group probative of bias where group s tenants required lying for other members). Here, Cucak s mere presence in a home where others sung anti-muslim songs and others distributed guns is not probative of Cucak s views on Muslims or participation in anti- Muslim activity. Rakic s account of events wholly fails to indicate any motivation for Cucak to bring false allegations nearly twenty years later. Rakic s testimony further fails to provide the requisite logical nexus to make the testimony probative of bias. As an initial matter, there is no testimony regarding the reason for Cucak s presence at the house or her relationship to the people in the house during the events in question. There is no testimony alleging these gatherings were of any organized group, no testimony that it was an anti-muslim group, no testimony that Cucak was a member of any such group, and no testimony that a tenet of membership was to lie. In other words, there is no foundation to establish that her association was intentionally related to anti-muslim views or that she belonged to any group that had anti-muslim sentiment. See United States v. Keys, 899 F.2d 983, 986-87 (10th Cir. 1990) (finding evidence of gang membership was not probative of bias because proponent had not laid foundation showing of which gang the witness was allegedly a member). Nor is there any evidence that Cucak s alleged association with the people in this house would affect her credibility. For example, in Abel, the Supreme Court held that a witness s membership in the Aryan Brotherhood was probative of bias because the group s tenets required 5
members to lie for each other. Abel, 469 U.S. at 48-49. There is no such evidence here. Rather, this case is at best analogous to United States v. Arias-Izquierdo, 449 F.3d 1168 (11th Cir. 2006), in which the Eleventh Circuit found that membership in the Communist party was not probative of the witnesses bias against would-be Cuban defectors. The Eleventh Circuit distinguished Abel because, unlike the Aryan Brotherhood, membership in Communist party does not by definition[] impugn [the witnesses ] credibility. Id. at 1179-80. Comparison to Arias-Izquierdo, however, only highlights how tenuous the assertion of Cucak s bias is there is no evidence that she belonged to any organized group of any kind, and certainly not one with established tenets requiring her to lie. Rakic claims to have seen Cucak present at a neighbor s house while others were singing anti-muslim songs and passing out weapons over two decades ago. Rakic Tr. at 22-24; 14:13:44-14:16:44. Rakic does not claim to have seen Cucak actually participate in these activities. She never claims to have discussed these incidents with Cucak, or to have observed Cucak behave in any way suggesting she sympathized with this alleged anti-muslim activity. In fact, Cucak and Rakic barely knew each other. Transcript of Tatjana Cucak, at 87-88; 17:00:36-17:02:50 (Oct. 9, 2014) [hereinafter Cucak Tr.]. Thus, the defendant has not laid a sufficient foundation that Cucak was actually a member of any organization or group. See Keys, 899 F.2d at 986-87. At best, this evidence indicates that Cucak knew people who held anti-muslim views not that she herself held these views, or that she claimed any form of membership or association with people holding those opinions. Furthermore, there is no indication that even if Cucak had participated in these events, it evinced an inherent bias such as the Supreme Court found in Abel. See Arias-Izquierdo, 449 F.3d at 1179-80. The defendant is straining to imply that association with a group of neighbors twenty years ago inherently impugns Cucak s credibility an implication at odds with the value 6
of freedom of association that we hold in this country. In fact, other testimony suggests that Cucak and her family were actually tolerant of other ethnic groups. See e.g., Cucak Tr. at 7-9:13:31:15-13:33:24 (testifying that her family lived in the homes of Croat family members and a Muslim neighbor); Transcript of Misko Djuraskovic, at 11; 17:21:42-17:22:24 (testifying that Tatjana Cucak came to live in his house after having lived with Ahmet Culic, a Muslim neighbor). Rakic lacks close personal knowledge, the alleged incident is very remote in time, and Rakic s factual allegations do not touch upon Cucak s personal beliefs. The defendant offers no evidence connecting Cucak to the activities at the Piljevic house, nor is there any evidence linking those activities to any motive Cucak could have to be dishonest. Rakic s testimony simply cannot be probative of bias. B. The Defendant s Purported Evidence of Bias is Merely Improper Character Evidence and Must be Excluded under Rule 404 Rakic s testimony is a thinly veiled attempt to introduce improper character evidence, and must be excluded under Rule 404. It is true that evidence offered to prove a witness s bias is generally not subject to the limitations on character evidence. See Abel, 469 U.S. at 52; United States v. Atherton, 936 F.2d 728, 733 (2d Cir. 1991). However, if the evidence offered is not actually probative on the issue of bias, as is established above, then Rules 404, 405, and 608 apply as if the evidence were any other form of character evidence. See Atherton, 936 F.2d at 734 (characterizing evidence not probative of bias as mere character credibility evidence subject to Rule 608). Under Rule 404(a), character evidence generally may not be offered to prove a person acted consistent with that character. The rules generally exclude character evidence because of 7
the risk of prejudice, confusion, and delay that it may cause. Michelson v. United States, 335 U.S. 469, 476 (1948). 2 C. Even if Character Evidence is Admissible, the Method of Proof is Limited to Opinion or Reputation Testimony and This Extrinsic Evidence must be Excluded If the Court determines evidence of Cucak s character is admissible, Rules 405 and 608 require that the method of proving character be limited to opinion or reputation evidence, and extrinsic evidence of particular conduct must be excluded. Rule 405(a) generally limits admissible character evidence to reputation or opinion testimony. An exception allows a party to offer specific instances of conduct only when a person s character trait constitutes an essential element of a charge, claim, or defense. Fed. R. Evid. 405(b). In this instance, however, Cucak s character is not an essential element of the charges against the defendant or any applicable defenses he may raise. 3 2 An exception permits a defendant to offer evidence of a victim s pertinent character trait under 404(a)(2)(B). However, Cucak is not a victim in this case because the Government has charged the defendant with unlawful procurement of citizenship, not with rape. Further, even if Cucak is a victim, the alleged trait of ethnic discrimination is not pertinent. See United States v. Hahn, 230 F.3d 560, 564 (2d Cir. 2000) (describing a pertinent trait as one that relate[s] to some element at issue in the case. ). 3 Character is an essential element only when it is a dispositive issue under applicable law. Compare United States v. Doyle, 130 F.3d 523, 542 (2d Cir. 1997) (rejecting defendant s argument that good acts constituted essential element by disproving intent), with, Munafo v. Metro. Transit Auth., 2003 WL 21799913, at *24 (E.D.N.Y. 2003) ( courts have found where a plaintiff claims reputational injury, defendants must be permitted to introduce specific evidence that the plaintiff s reputation has already been compromised ) (citations omitted). Character evidence does not constitute an essential element of a claim or charge unless it alters the rights and liabilities of the parties under the substantive law. Gibson v. Mayor and Council of City of Wilmington, 355 F.3d 215, 232 (3d Cir. 2004) (internal quotations omitted) (citations omitted) (finding plaintiff s character was not at issue where the outcome depended upon his untruthfulness on a single occasion, not in general). 8
Another limitation, under Rule 608, generally restricts evidence about a witness s credibility to only reputation or opinion evidence regarding the witness s character for truthfulness, and prohibits the use of extrinsic evidence of specific conduct for this purpose except when evidence of a criminal conviction is admissible. Fed. R. Evid. 608(b). See United States v. Shoreline Motors, 413 Fed. Appx. 322, 329 (2d Cir. 2011) ( cross-examination is generally the proper mechanism by which to test an adverse witness s credibility, and the use of extrinsic evidence to further pursue questions posed on cross-examination is generally not permitted ). While evidence offered to prove a witness s bias is generally not subject to Rule 608, all evidence not probative on the issue of bias is subject to the limitations of Rule 608. See Atherton, 936 F.2d at 734. Because Rakic s testimony is not probative of bias, if it is at all relevant to prove untruthfulness which would require the same leaps in logic as discussed supra Part II.A it must be limited by Rule 608. Thus, the defendant may only offer opinion or reputation evidence of Cucak s character for truthfulness or untruthfulness. See Fed. R. Evid. 608. Since Rakic s testimony clearly offers only extrinsic evidence of specific conduct, and not her knowledge of Cucak s reputation or her opinion of Cucak s character for untruthfullness, this part of Rakic s testimony is therefore inadmissible. D. The Probative Value of Rakic s Testimony is Substantially Outweighed by Unfair Prejudice, Misleading Effect, and Confusion of Issues Under Rule 403 Rakic s testimony is substantially more prejudicial and misleading than probative for any purpose, and therefore should be excluded under Rule 403 even if it would be otherwise relevant. Rule 403 permits the court to exclude otherwise admissible evidence if its probative value is outweighed by an unfairly prejudicial effect, if it would confuse issues, mislead the jury, or cause undue delay. A particularly instructive case is United States v. Watts, 2013 WL 2020178 9
(E.D.N.Y. 2013), in which the court excluded testimony of a defense witness, which was offered to challenge the credibility of a government witness. Watts contended that a witness, Mr. Patello, had lied on the stand about the content of a phone conversation he had had with Mr. Stein. Id. at *2. The subject matter of the conversation was irrelevant to the issues in the case. Watts planned to offer testimony by Stein to prove Patello had lied, and therefore was biased in favor of the Government. Applying a two-step Rule 403 analysis, the court first considered whether Stein s testimony would be probative on the issue of Patello s credibility and bias. The court found that Watts s evidence was not probative. Id. at *3. Second, the court determined Watts s evidence would cause undue delay, mislead the jury, and confuse issues by effectively forcing the court to conduct a mini-trial to identify the content of the irrelevant phone conversation. Id. at *4. As discussed, supra, Rakic s testimony is not probative of bias. See supra Part II.A. Nor is the testimony proper or admissible character evidence. See supra Part II.B and C. Furthermore, even if the testimony bears some negligible probative value, the value is substantially outweighed by danger of unfair prejudice, misleading the jury, confusing the issues, and causing undue delay. Rakic s allegations deliberately portray Cucak as affiliated with a militant, ethnically discriminatory group. This portrayal would cause jurors to unfairly view Cucak as having bad character, and would prejudice the Government s case unfairly. This prejudice and confusion substantially outweigh any probative value that Rakic s testimony might have. The defendant should not be permitted to introduce this highly prejudicial and misleading testimony with little if any probative value merely by labeling it as bias or credibility evidence. 10
to this case. III. Piljevic s Statements to Rakic are Inadmissable Hearsay and Irrelevant Additionally, Rakic s testimony about what Piljevic said to her is hearsay and irrelevant Testimony of Edina Rakic Regarding Milena Piljevic s Statements to Edina Rakic BY MR. BARTH: Q Ma'am, did Ms. Piljevic ever talk to you about the fact that you had a Serbian husband? MR. BAUER: I'm going to object based on relevancy and hearsay. MR. BARTH: Did your -- with the understanding the government has an objection to this question, I'm going to repeat it. BY MR. BARTH: Q Did Ms. Piljevic ever talk to you about the fact that you had a Serbian husband? A She considered that since he was a Serbian that I should do the same as they, that I was the same like them. Q One moment. (Counsel conferring.) A I'm not sure that I fully understood your question. BY MR. BARTH: Q What I -- you answered my question. Rakic Tr., at 24-25; 14:16:51 14:18:11. This testimony is based on an out of court statement by Milena Piljevic, who is not the declarant while testifying. It is not even a statement by Tatjana Cucak. It is therefore an inadmissible hearsay statement under Rule 802. Further, no conceivable exception to the hearsay rule under Rule 803 applies to this testimony. This testimony is also irrelevant to this case under Rule 401. 11
It has nothing to do with the defendant, any charges against him, defenses, or witnesses in this case. No testimony links this statement to Tatjana Cucak or any bias she may have. Accordingly, this testimony should be excluded from Rakic s testimony presented at trial. WHEREFORE, for the foregoing reasons, the United States respectfully asks that the Court grant its motion in limine. Dated at Burlington, in the District of Vermont, this 5th day of December 2014. Respectfully submitted, UNITED STATES OF AMERICA TRISTRAM J. COFFIN United States Attorney By: /s Eugenia A.P. Cowles Assistant U.S. Attorney P.O. Box 570 Burlington, VT 05402-0570 (802) 951-6725 12 LESLIE R. CALDWELL Assistant Attorney General By: /s Jay Bauer Trial Attorney Human Rights and Special Prosecutions Criminal Division Department of Justice 1301 New York Avenue, N.W. Washington, D.C. 20530 (202) 353-0228 Jay.Bauer@usdoj.gov