United States v. DiNapoli, 8 F.3d 909 

U.S. Court of Appeals for the Second Circuit

1993

Chapter

6

Title

Hearsay

Page

257

Topic

804(b)(1) Former Testimony

Quick Notes

This case concerns conspiracy and organized crime charges under RICO act, where 6 concrete companies were involved in a bid rigging scheme orchestrated by the Genovese Family.  9 of 11 Df - were convicted.  The district court's refusal to admit into evidence defense witnesses' grand jury testimony in appellants' trial for violations of the RICO Act

The court affirmed the district court, holding that appellee prosecutor did not have substantially similar interests in questioning witnesses before a grand jury and at trial, therefore, the district court correctly refused to admit the witnesses' grand jury testimony

Court - The proper approach, in assessing similarity of motive under Rule 804(b)(1)

o    The Court must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.

804(b) Hearsay exceptions

• The following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness:

1.       Former testimony.

o    Testimony given as a witness at another hearing of the same or a different proceeding, or

o    in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially had similar intensity to prove (or disprove) the same side of a substantially similar issue?  In this case No.  But this is the question that should be asked!!!

Procedure

Trial

o         9 of 11 Df - were convicted.  The district court's refusal to admit into evidence defense witnesses' grand jury testimony in appellants' trial for violations of the RICO Act.

En Banc

o         In banc court reconsiders panel ruling, United States v. Salerno, 974 F.2d 231 (2d Cir. 1992), which reversed the convictions for exclusion of grand jury testimony

Appellant

o         The court affirmed the district court, holding that appellee prosecutor did not have substantially similar interests in questioning witnesses before a grand jury and at trial, therefore, the district court correctly refused to admit the witnesses' grand jury testimony

Facts

Discussion

Key Phrases

Rules

Pl United States

Df DiNapoli

RICO

o         The case concerns conspiracy under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), against several defendants accused of participating in a bid-rigging scheme in the concrete construction industry in Manhattan.

Construction Bid Rigging Scheme

o         The trial evidence indicated the existence of a "Club" of six concrete construction companies that during 1980-1985 rigged the bids for concrete superstructure work on nearly every high-rise construction project in Manhattan involving more than $ 2 million of concrete work.

Organized Crime Family

o         Organized crime figures, notably members of the Genovese Family, orchestrated the scheme and enforced adherence to the bid allocations.

Grand Jury

o         Returned First Indictment.

o         Alleged the essential aspects of the criminal activity.

o         Named all of the appellants as Dfs.

DeMatteis and Bruno

o         Testified under immunity.

o         Denied awareness of bid rigging scheme.

DeMatteis Javits Project

o         Denied questions to the Javits bidding questions.

Dematteis Wiretape

o         Prosecutor called his attention to the substance of the conversation ONLY.

Brunos conflicting Answers

o         His defense wrote the prosecution and said his answer were inaccurate.

o         They could resubmit by affidavit.

o         Prosecution denied.

The thirteen-month trial

o    9 out of 11 convicted.

o    DeMatteis and Bruno invoked the privilege against self-incrimination.

District Court Judge refused to admit the grand jury testimony as prior testimony under Rule 804(b)(1). Similar motive was not satisfied.

o    She ruled generally that the "motive of a prosecutor . . . in the investigatory stages of a case is far different from the motive of a prosecutor in conducting the trial" and hence the "similar motive" requirement of Rule 804(b)(1) was not satisfied.

DISCUSSION

o    Determine how similarity of motive at two proceedings will be determined for purposes of Rule 804(b)(1).

Court Similar motive

o    The test must turn not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue.

Court Where both trials where same matter is disputed

o    It will normally be the case that the side opposing the version of a witness at the first trial had a motive to develop that witness's testimony similar to the motive at the second trial.

o    The opponent at the first trial normally has a motive to dispute the version so long as it can be said that disbelief of the witness's version is of some significance to the opponent's side of the case.

o    The motive at the second trial is normally similar.

Governments View

o    The prosecutors motives at the grand jury and at trial are almost always dissimilar.

District Courts View

o    The prosecutors motives in both proceedings are always similar.

Court Rejects both views.

Court Where both trials contained different issues

o    The prosecution would not be able to use the former testimony for the second case in for an issue that was different in the first case.

The proper approach, in assessing similarity of motive under Rule 804(b)(1)

o    The Court must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.

o    The nature of the two proceedings

o    Both what is at stake and the applicable burden of proof

o    Cross-examination at the prior proceeding

o    Both what was undertaken and what was available but forgone -- will be relevant though not conclusive on the ultimate issue of similarity of motive

AFFIRMED

Rules

804(b) Hearsay exceptions

• The following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness:

1.       Former testimony.

o    Testimony given as a witness at another hearing of the same or a different proceeding, or

o    in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Class Notes