## Facts

- The United States prosecuted Anthony Lepore, John Rife, and Brian Domalik in a federal public-corruption case arising from Rite Way Service, Inc.’s efforts to obtain and keep janitorial-services contracts with public entities.
- The indictment alleged a scheme (spanning roughly 2006–2012) in which Rite Way executives provided things of value to Patrick Jackson, a public employee, in exchange for assistance securing contracts.
- Cecil Clark, a Rite Way employee, pleaded guilty to conspiracy to commit bribery and began cooperating with the government; he was expected to testify for the prosecution at trial.
- Clark had handwritten notes that the government contended were made during the relevant period and reflected information consistent with the government’s theory about the alleged bribery and contract-related conduct.
- Defendant John Rife moved in limine to exclude Clark’s notes as hearsay.
- The government responded that, if Clark testified and was cross-examined, the notes could be admissible as non-hearsay prior consistent statements under Federal Rule of Evidence 801(d)(1)(B), depending on how the defense attacked Clark’s credibility.
- Separately, a motion in limine addressed whether a video of Rife’s television interview (containing general denials or explanations) could be shown to the jury.

## Issues

1. Whether Clark’s handwritten notes were inadmissible hearsay, or instead could be admitted as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B) if used to rebut a charge that Clark recently fabricated his account or testified under an improper influence or motive.
2. Whether a video recording of Rife’s television interview was admissible under Rules 401 and 403.

## Decision

- The court ruled that Clark’s handwritten notes were not automatically excluded as hearsay and could be admitted at trial as prior consistent statements under Rule 801(d)(1)(B), but only if the required foundation and trial conditions were met (including Clark’s testimony and a credibility attack that made the rule applicable).
- The court declined to issue a blanket, unconditional ruling admitting the notes; the ultimate admissibility depended on how the evidence was offered and how the defense cross-examined Clark.
- The court excluded the video of Rife’s television interview, finding it did not meaningfully relate to the charged conduct and carried a risk of confusing or misleading the jury that outweighed any limited value.

## Legal Principles

- A prior statement is not hearsay under Federal Rule of Evidence 801(d)(1)(B) when the declarant testifies and is subject to cross-examination, the statement is consistent with the testimony, and it is offered to rebut an express or implied charge of recent fabrication or improper influence or motive.
- For a prior consistent statement offered to rebut fabrication or improper motive, timing matters: the statement must have been made before the alleged motive to lie arose.
- Courts may defer a final admissibility decision on Rule 801(d)(1)(B) material until trial because whether the rule applies often turns on the exact form of impeachment and the context in which the statement is offered.
- Evidence must satisfy Rule 401’s relevance standard; general denials that do not address the specific charged conduct or time period may fail to make a fact of consequence more or less probable.
- Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice, confusion of the issues, or misleading the jury.

## Conclusion

In this pretrial evidentiary order, the court held that cooperating witness Cecil Clark’s handwritten notes could be admitted only if the government laid proper foundation and the defense attacked Clark in a way that triggered Rule 801(d)(1)(B)’s prior-consistent-statement doctrine, while Rife’s recorded television interview was excluded because it lacked meaningful relevance to the charged scheme and risked confusing the jury.


United States v. Lepore, 2016 U.S. Dist. LEXIS 113681 (2016)