ORDER

BILLY ROY WILSON, District Judge.

The Government has indicated that it may call Mr. Kerry Eldridge as a witness. Mr. Eldridge testified in a related state court case1 against this Defendant — that state court case involved facts related to this case. The state court case was tried non-jury before the Honorable Christopher J. Burns. In his Memorandum Decision, Judge Burns made this statement ("finding") regarding Mr. Eldridge's credibility:

Judge Burns's two page Memorandum Decision is attached to this Order.

Defense counsel requested a pre-trial ruling which would allow him to cross-examine Mr. Eldridge regarding Judge Burns's finding. I initially denied the request.

After additional reflection and a re-reading of the two most pertinent Second Circuit cases,2 I conclude that defense counsel should be permitted to cross-examine Mr. Eldridge regarding Judge Burns's findings as to Mr. Eldridge's credibility.

At first blush it appears to me that the Second Circuit has "over read" F.R.E. 608(b). It would be one thing to cross examine Mr. Eldridge regarding his prior inconsistent statements — which the jury could believe were false (probative of the witness's character for truthfulness); but why wouldn't the admission of Judge Burns's "findings" regarding these statements be "extrinsic evidence" which is expressly prohibited by F.R.E. 608(b)? There is no suggestion that Judge Burns made these "findings" beyond a reasonable doubt, so the "findings" are not tanta-mount to a perjury or false statement conviction under F.R.E. 609.

I wonder, too, why Judge Burns's statement would not be hearsay. Isn't it an out-of-court statement offered to prove truth of the matter asserted in the statement?3

Let me hasten to add two caveats:

1. When the Second Circuit has spoken, I am bound when I am presiding in this circuit, i.e., when the big dog barks, the little dog needs to run back under the porch.

2. We are in the midst of a jury trial, thus I haven't had much time to cerebrate about this issue.