DOJ-OGR-00006398.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 438** **Filed 11/12/21** **Page 38 of 54** the Federal Rules of Evidence contain extensive provisions governing the impeachment of witnesses. Fed. R. Evid. 607-13. Rule 806 also authorizes attacks on the credibility of hearsay declarants, agents, and co-conspirators when those individual’s statements have been admitted into evidence. Fed. R. Evid. 806. This rule "effectively treats the hearsay declarant as a witness for impeachment and rehabilitation purposes." 2 McCormick on Evid. § 324.2 (8th ed.). For individuals who are not witnesses and not hearsay declarants, however, none of those rules apply. Instead, those non-witnesses' "credibility is irrelevant." United States v. McGowan, 58 F.3d 8, 15-16 (2d Cir. 1995). The Second Circuit has therefore "clearly established . . . the principle that a statement not offered to prove the truth of the matter asserted may not be impeached under Rule 806." United States v. Padino, 445 F.3d 211, 217 (2d Cir. 2006); see United States v. Dipietro, No. 02 Cr. 1237 (SWK), 2005 WL 1430483, at *1 (S.D.N.Y. June 17, 2005) ("It has long been the case in the Second Circuit that it is proper to preclude cross-examination of an individual whose statements are not admitted for their truth."). Even if the individual is a "central figure" in the case, "a district court need not allow impeachment" if the individual's "out-of-court statements were not admitted for their truth." United States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997) (quoting McGowan, 58 F.3d at 15-16); see United States v. Perez, No. 05 Cr. 441 (PKL), 2005 WL 2709160, at *3 (S.D.N.Y. Oct. 20, 2005) ("Because the informant's statements are not hearsay, and because the government will not call the informant as a witness at trial, it follows that defendant may not impeach the credibility of the informant."). In this case, the Government is not planning to call Minor Victim-5 or Minor Victim-6. To the extent other witnesses are expected to testify about the activities of Minor Victim-5 and **37**