by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Seventh Circuit ruled that it is impermissible to admit a statement made by the defendant to Pretrial Services for the purpose of impeaching the testimony of a witness at trial.

In August 2014, Detective Robert Erdely recorded the Internet Protocol (“IP”) address of a computer transmitting child pornography to him over the internet. The sender was using a rare software program called “Tixati” to access the “BitTorrent” network and send the child pornography in torrent file 817e. (BitTorrent allows users to combine multiple files into one electronic package called a “torrent file.”) The IP address corresponded to an account in the name of Eva Chaparro (hereinafter “Eva” to avoid confusion) at a home in McHenry, Illinois.

Based on a tip from Erdely, the McHenry County Sheriff’s Office executed a search warrant on the home on December 2, 2014.

When police arrived at the house, only three people were inside: Eva, her husband Hector Chaparro, and Eddie Ramos. Officers found three computers, including a Compaq-brand desktop recovered from an upstairs bedroom that Eva said was where her grandson Michael Chaparro slept. An on-site forensic examination of the desktop computer revealed that someone used the hard drive to access child pornography on July 30, 2013, and pieces of torrent file 817e had been downloaded to it in addition to other images of child pornography. The computer had a single user account named “M1KEY” and had Tixati software installed in it.

But the forensic examination also revealed that the computer had not been powered on since August 24, 2013, so it could not have been used to send the child pornography to Erdely in August 2014. While the search was in progress, Michael Chaparro arrived at the home. Police seized an LG-brand smartphone from him that was later determined to have images of child pornography that were stored to its memory on November 24, 2014.

Police charged Michael Chaparro with transmitting child pornography over the internet in August 2014 (Count 1), accessing child pornography on the smartphone in November 2014 (Count 2), and accessing child pornography on the desktop in July 2013 (Count 3).

At trial, the Government presented no evidence in its case-in-chief that Chaparro lived at Eva’s home in the years before the search on December 2, 2014. Defense then called Ramos who testified that Michael lived with a girlfriend from Easter 2013 to Thanksgiving 2014.

The Government, without prior notice, then called Pretrial Services Officer James Wheatley, requesting he be permitted to testify as a rebuttal witness “for the purpose solely of impeaching Mr. Ramos.” The trial court initially denied the Government’s request, ruling that 18 U.S.C. § 3153 “shields the Pretrial Services officer from having to give this testimony.”

Minutes later, the trial court reversed itself based upon United States v. Griffith, 385 F.3d 124 (2d Cir. 2004), which held that statements made during a defendant’s pretrial interview may be used to impeach the defendant. The district court recognized that the Government was seeking to impeach a defense witness and not the defendant, but determined the case was on point anyway.

Before Wheatley testified, the district court gave a limiting instruction to the jury: “the testimony that Mr. Wheatley may give regarding the Defendant’s statements may be considered by you only insofar as it may affect the credibility of Eddie Ramos and not for any other purpose.” Wheatley then testified that he had interviewed Chaparro on March 3, 2016, to gather information for a bond report, and Chaparro had stated that he “had lived with his grandparents from approximately December of 2011 to December of 2014” and did not mention living anywhere else.

The jury convicted on all counts, and Chaparro appealed. He argued, inter alia, that the district court erred by allowing Wheatley to testify as to Chaparro’s statement that was made during the pretrial interview.

The Seventh Circuit observed that 18 U.S.C. 3153(c)(1) “establishes a baseline rule that pretrial services information should remain confidential: ‘Except as provided in paragraph (2) of this subsection, information obtained in the course of performing pretrial services functions in relation to a particular accused shall be used for the purpose of a bail determination and shall otherwise be confidential.’” Paragraph (2) lists five exceptions to the confidentiality bar, none of which applied to this case. But 18 U.S.C. § 3153(c)(3) states in pertinent part: “Information made confidential under paragraph (1) of this subsection is not admissible on the issue of guilt in a criminal judicial proceeding. ...”

The pretrial confidentiality mandated by Congress in this statute is designed to enable judges to make prompt, accurate, and lawful pretrial release decisions. Judges rely on the information obtained during the pretrial interviews to determine who may pose a danger if released, conditions of release, etc. United States v. Mundy, 2019 WL 3729318 (S.D. Ind. 2019). It is essential that Pretrial Services be able to obtain truthful and accurate information swiftly, often being required to prepare their reports within hours of a detainee’s arrest. James R. Marsh, Performing Pretrial Services: A Challenge in the Federal Criminal Justice System, Fed. Probation, Dec. 1994. Without the promise of confidentiality, detainees are reluctant to answer questions, and many, upon advice of counsel, refuse to be interviewed. Id.

Yet in spite of the strong policy concerns favoring confidentiality, the First, Second, Third, Eighth, and Tenth Circuits have carved an exception not found in the statute based on the canon of “negative inference.” (See opinion for listing of supporting citations from those Circuits.) That is, because § 3153(c)(3) specifically bars evidence “on the issue of guilt,” these Circuits have held the statute implicitly permits such evidence for impeachment purposes. These Circuits reason that because evidence on the issue of guilt (evidence offered as true for the purpose of showing guilt) is different from impeachment evidence (evidence offered only to impugn the credibility of a witness), then Congress implicitly permitted impeachment evidence by explicitly prohibiting only evidence establishing guilt, i.e., “the expression of one thing suggests the exclusion of others.” Exelon Generation Co., LLC v. Local 15, Int’l Bhd. of Elec. Workers, 676 F.3d 566 (7th Cir. 2012).

The Seventh Circuit expressed reservations about the reasoning of those Circuits but determined that even assuming Congress intended to create an impeachment evidence exception the exception was inapplicable to this case. Of the five general methods for impeaching a witness, two of them are (1) introducing a prior inconsistent statement and (2) contradicting the substance of the testimony. United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996).

Testimony that a witness gave a statement before trial that is inconsistent or “at odds with” a statement made during trial isn’t presented to the jury as an offer that the previous statement was true and the statement at trial was false. Evidence of inconsistent statements is presented only to show that the witness had made irreconcilable statements at different times, calling the witness’s credibility into question as neither statement may be true. United States v. Dietrich, 854 F.2d 1056 (7th Cir. 1988). But impeachment by offering a contradictory statement requires the jury to accept the contradictory statement as true and the witness’s trial statement as false. United States v. Boswell, 772 F.3d 469 (7th Cir. 2014). Otherwise, there would be no impeachment. Id.

The Seventh Circuit illustrated this point with a case from American judicial lore involving Abraham Lincoln as a defense attorney. A witness testified he saw the defendant commit the crime because a bright, full moon was high overhead. Lincoln presented an almanac that stated that at the time of the crime there was only a quarter-moon low in the sky. The only way the witness could be impeached is if the jury believed the almanac.

In the instant case, the jury was instructed to consider Wheatley’s testimony only for the purpose of impeaching Ramos. Ramos testified that Chaparro did not live at the home during the time period that the crimes charged in Counts 1 and 3 occurred. Wheatley testified that Chaparro had stated that he did live at the home during the relevant time period. The only way Wheatley’s testimony could impeach Ramos is if the jury believed Wheatley’s testimony was true. This meant the jury was asked to consider as true the evidence that Chaparro was at the home during the relevant time period. This also meant the testimony was offered as evidence “on the issue of guilt,” which is prohibited by § 3153(c)(3).

The Court concluded that without the testimony of Wheatley, there was reasonable doubt that the jury would’ve convicted Chaparro of Counts 1 and 3 and vacated those convictions.

As a remedy, Chaparro could be resentenced on Count 2 (vacatur of Counts 1 and 3 meant his sentencing Guidelines range would be lower), or the Government could retry him on the two vacated offenses.

Accordingly, the Court vacated Counts 1 and 3 and remanded for further proceedings consistent with its opinion. See: United States v. Chaparro, 956 F.3d 462 (7th Cir. 2020).

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