                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
UNITED STATES OF AMERICA,           )
                                    )
      v.                            )               Criminal No. 09-0026 (PLF)
                                    )
RICO RODRIGUS WILLIAMS,             )
                                    )
      Defendant.                    )
____________________________________)


                          MEMORANDUM OPINION AND ORDER

               This matter came before the Court on the government’s motion in limine

regarding two unrelated requests: First, the government requested that the Court preclude the

defendant from making improper “missing witness” arguments about either Latisha Ellis or Dr.

Kathleen Ingwersen — both of whom the government announced would not testify at trial.

Second, the government requested that the Court preclude the defendant from impeaching

government witnesses by omissions in their prior statements. (See Mot. at 1, Oct. 18, 2010.)

               As to the government’s first request, the defendant represented that he “does not

intend to argue that [Ms. Ellis’ or Dr. Ingwersen’s] testimony would have been favorable to him

or adverse to the government.” (Resp. at 2, Oct. 21, 2010.) Thus, this being a nonissue, the

Court will deny as moot the government’s motion to preclude the defendant from making

improper “missing witness” arguments.

               As to the government’s second request, the law is clear that “[o]ne may impeach a

witness by asking him about prior inconsistent statements.” United States v. Stock, 948 F.2d

1299, 1301 (D.C. Cir. 1991). A prior inconsistent statement can take the form of either an
affirmative statement or an omission. See id. Regarding omissions, “[p]rior statements that omit

details covered at trial are inconsistent if it would have been ‘natural’ for the witness to include

them in the earlier statement.” Id. (citing Jenkins v. Anderson, 447 U.S. 231, 239 (1980));

Jenkins v. Anderson, 447 U.S. at 239 (“Common law traditionally has allowed witnesses to be

impeached by their previous failure to state a fact in circumstances in which that fact naturally

would have been asserted.”); see also 28 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD ,

FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6203, at 517 (1993) (“[A]n inconsistency may

exist where the prior statement omits an important fact mentioned during testimony, especially

where one would reasonably expect the witness to mention the fact if he believed it to be true.”).

                This “test is plainly elastic, as the ‘naturalness’ of a witness’s decision to omit a

point may depend on nuances of the prior statement’s context, as well as on his own loquacity.”

United States v. Stock, 948 F.2d at 1301. A district court’s role is thus to determine whether “a

jury might reasonably [find a witness’] omission unnatural and the prior statements inconsistent

with [the witness’] trial testimony.” See id. If so, “[i]n the absence of some countervailing

factor,” then the matter should go to the jury — that is, counsel “deserve[] a chance to convince

the jury that [a witness’] omission . . . was inconsistent with [the witness’ trial] testimony.” See

id. Furthermore, in the criminal context, the court of appeals has cautioned that, although district

courts “must have some discretion over the matter, appellate courts have found preclusions

[relating to cross-examination on a witness’ prior omission] to be error.” United States v. Stock,

948 F.2d at 1301; see also id. at 1302 (“[W]e find that the court’s forbidding defense counsel to

cross-examine [a witness regarding his omission] violated [the defendant’s] right to confront

witnesses.”).


                                                   2
               The “naturalness” inquiry is a context-specific one, and a blanket rule of

preclusion is inappropriate. See United States v. Stock, 948 F.2d at 1301. Thus, the

government’s motion to preclude the defendant from impeaching government witnesses by

omissions, implicitly denied during the course of the government’s presentation of its

case-in-chief, now is formally denied.1

               Accordingly, it is hereby

               ORDERED that the government’s motion in limine to preclude the defendant

from making improper “missing witness” arguments [91] is DENIED as moot; and it is

               FURTHER ORDERED that the government’s motion in limine to preclude the

defendant from impeaching government witnesses by omissions [91] is DENIED.

               SO ORDERED.


                                                     /s/________________________
                                                     PAUL L. FRIEDMAN
DATE: November 3, 2010                               United States District Judge




       1
                 During the course of the defendant’s trial, the defendant has attempted to impeach
several of the government’s witnesses by omissions. (See, e.g., Trial Tr. at 46:5-49:24, Oct. 26,
2010 A.M.) The Court’s rulings on any of the government’s objections during the course of the
trial reflect the principles discussed in this Memorandum Opinion and Order. (See id.)

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