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UNITED STATES v. SHIELDS

August 29, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID J. SHIELDS and PASQUALE F. DELEO, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

At the conclusion of the government's redirect examination of its cooperating witness, Robert Cooley, counsel for defendant David J. Shields expressed his intent to question Cooley regarding certain out-of-court statements he had previously made regarding the purported trustworthiness of defendant Pat DeLeo. Cooley made these statements in a covertly recorded conversation he had with DeLeo's law partner, State Senator John D'Arco, Jr., in October, 1989, approximately 13 months after the events underlying this case. In that conversation, Cooley said, among other things, "Twice I caught him [DeLeo] cheatin' me," and "I said John he's cheatin' me but he's also cheatin' your kid, and cheating everybody, I say you know I don't trust this guy, if a guy's cheatin' you he's cheatin' you." (Transcript of Oct. 12, 1989 Conv. between Cooley and D'Arco at 42-43.) Cooley then went on to describe two instances in which DeLeo had pocketed money from clients which he was supposed to have shared with Cooley in order to compensate him for work Cooley had done. (Id. at 42-43.)

 Shields' counsel contended that inquiry into these statements was justified in order to impeach testimony on redirect examination. On redirect, the government reestablished what Cooley's thoughts had been when he initially approached DeLeo about the fictional Nichols v. Wilson case that he was handling:

 Q: Mr. Cooley, when you were being asked questions by Mr. Webb, he went through the conversations you had with Pat Marcy, and at the end of those questions, you said you did not want the case to be before Shields. Do you remember that?

 A: Yes, sir.

 Q: Would you explain what you meant by that?

 A: Well, I wanted the case to go before a judge I had already dealt -- I had already dealt with.

 Q: Did there come a time when your opinion about that changed?

 A: Yes, sir.

 Q: When did that happen?

 A: After my conversation with Pat DeLeo.

 (Tr. at 985; see also id. at 1000 (Cooley did not think he would lose the case based upon what DeLeo had told him).) Later in the redirect, Cooley affirmed, as he had on cross-examination, that he did not believe DeLeo was scamming him (id. at 1005) and did believe that DeLeo was in fact paying Shields (id. at 1012).

 Based upon these inquiries, Shields contended that he must be permitted to examine Cooley about his 1989 statements to D'Arco. Shields argued that the government had placed DeLeo's veracity in issue by establishing on redirect that Cooley had changed his opinion of Shields based upon what DeLeo had told him and that Cooley did not doubt DeLeo's representations. (Tr. at 1017.) Thus, in Shields' view, inquiry regarding Cooley's statements to D'Arco -- to the effect that DeLeo was a "cheat" -- was proper as a means to impeach this testimony. The government objected to this intended line of inquiry (id. at 1017-18) and the Court sustained the objection (id. at 1019, 1023-24.)

 The Court issues this order for purposes of reiterating and detailing for the record its reasons for precluding inquiry into Cooley's prior out-of-court statements to D'Arco. Shields' counsel initially sought to question Cooley about these statements during his cross-examination of Cooley, in order to establish that Cooley had reason to doubt DeLeo's representations regarding Shields' willingness to fix cases. (See Tr. at 633-35.) In response, the government indicated that if Shields were allowed to inquire into this area, it would inquire into prior instances in which Cooley and DeLeo had allegedly fixed cases together. (See id. at 634-35.) After having the parties voir dire Cooley outside the presence of the jury (id. at 643-52), the Court ruled that it would permit both inquiries (id. at 653). At this juncture, Shields decided not to question Cooley about his statements to D'Arco, and the matter was temporarily put to rest. (Id. at 656.) The issue resurfaced at the conclusion of cross-examination, when the government revealed that it still intended to elicit testimony from Cooley on redirect examination regarding the case-fixing which he and DeLeo had allegedly engaged in with one another in the past. The government contended that such testimony was necessary in order to explain why Cooley would trust DeLeo's representations regarding Shields. (Id. at 711-19.) The Court initially indicated that it would permit the testimony. (Id. at 751). However, after an evening's reflection, the Court ruled that because Shields had foregone ...


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