United States v. DiNapoli
8 F.3d 909 (1993)
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Rule of Law:
For prior testimony of an unavailable witness to be admissible under Federal Rule of Evidence 804(b)(1), the party against whom it is offered must have had a 'similar motive' to develop the testimony at the prior proceeding, which requires a fact-specific inquiry into whether that party had an interest of substantially similar intensity to prove or disprove the same side of a substantially similar issue.
Facts:
- Several defendants, including Vincent DiNapoli, were accused of participating in a bid-rigging scheme in the Manhattan concrete industry, known as the 'Club,' which was orchestrated by the Genovese crime family.
- A federal grand jury investigated the scheme and returned an indictment against the defendants.
- After the indictment, the grand jury continued its investigation to identify additional participants or projects.
- The grand jury called Frederick DeMatteis and Pasquale Bruno, principals in a concrete company, to testify under grants of immunity.
- In their testimony, both DeMatteis and Bruno denied any awareness of the bid-rigging 'Club.'
- The prosecutor questioned them and pointed out some inconsistencies but refrained from confronting them with evidence from undisclosed cooperating witnesses or wiretaps to protect the ongoing investigation.
- After Bruno testified, the prosecutor informed him in the grand jury's presence that there was 'strong concern' that his testimony had 'not been truthful.'
- During the subsequent trial, DeMatteis and Bruno invoked their privilege against self-incrimination and became unavailable to testify.
Procedural Posture:
- Vincent DiNapoli and others were convicted on RICO charges in the U.S. District Court for the Southern District of New York.
- At trial, the district court excluded the exculpatory grand jury testimony of two unavailable witnesses, finding the prosecution lacked a 'similar motive' under FRE 804(b)(1).
- The defendants (appellants) appealed to the U.S. Court of Appeals for the Second Circuit.
- A panel of the Second Circuit reversed the convictions, ruling the 'similar motive' requirement was inapplicable.
- The U.S. Supreme Court granted certiorari and reversed the panel's decision, holding that all requirements of Rule 804(b)(1), including 'similar motive,' must be met.
- The Supreme Court remanded the case to the Second Circuit for a determination of whether the 'similar motive' requirement was satisfied.
- On remand, the Second Circuit panel concluded that the prosecution's motive was similar and again reversed the convictions.
- The U.S. Court of Appeals for the Second Circuit then granted a rehearing in banc to consider the 'similar motive' issue.
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Issue:
Does the prosecution have a 'similar motive' under Federal Rule of Evidence 804(b)(1) to develop the testimony of grand jury witnesses who provide exculpatory testimony, compared to its motive at a subsequent criminal trial where the witnesses are unavailable and their grand jury testimony is offered by the defense?
Opinions:
Majority - Newman, Jon O.
No, the prosecution did not have a 'similar motive' to develop the witnesses' testimony at the grand jury as it would have had at trial. For prior testimony to be admissible under the hearsay exception in Rule 804(b)(1), the 'similar motive' test requires more than the questioner being on the same side of the same issue; it requires a substantially similar degree of interest in prevailing on that issue. The inquiry must be fact-specific, considering the nature of the two proceedings. Here, the prosecutor's motive was dissimilar for two key reasons: 1) The defendants had already been indicted on the basis of probable cause, so the prosecutor had little incentive to vigorously impeach testimony that was not a threat to the indictment. 2) The grand jurors had already expressed their disbelief in the witnesses' testimony, so the prosecutor had no motive to prove to them that the testimony was false. The prosecutor's limited cross-examination and decision to withhold key impeachment evidence further demonstrated a motive focused on investigation rather than the adversarial impeachment required at trial.
Dissenting - Pratt, George C.
Yes, the prosecution's motive was similar. The majority's 'interest of substantially similar intensity' test is a judicial gloss that improperly rewrites the rule's 'similar motive' standard into a much stricter 'same motive' standard. This new test is unworkable, as it requires a district judge to probe the prosecutor's subjective state of mind at two different points in time. The record shows the prosecutor vigorously questioned both witnesses on the exact same issue as trial—the existence of the 'Club'—demonstrating a similar motive. Furthermore, the majority's conclusion that the prosecutor lacked motive because an indictment was already secured implies the grand jury was being used for improper pre-trial discovery, a conclusion which should not be the basis for excluding exculpatory evidence. This decision improperly places the admissibility of such testimony entirely within the prosecutor's control.
Dissenting - Miner
Yes, the prosecution's motive was similar. The record demonstrates that the prosecution actively sought to establish the falsity of the testimony through impeaching questions. Informing Bruno that the grand jury had 'strong concern' about his truthfulness was not an endpoint but a tactic to pressure him into changing his testimony and providing more information about the 'Club.' This shows a clear motive to develop the testimony. The government had a substantial interest in plumbing the depths of the criminal scheme to find additional projects or defendants, which provided a strong and similar motive to challenge the witnesses' denials at the grand jury stage as it would have at trial.
Analysis:
This decision significantly clarifies the 'similar motive' requirement under Federal Rule of Evidence 804(b)(1), particularly in the grand jury context. By rejecting a simple positional test in favor of a fact-specific inquiry into the 'intensity of interest,' the court makes it more difficult for criminal defendants to introduce exculpatory grand jury testimony from unavailable witnesses. The ruling establishes that the unique, investigative, and non-adversarial nature of a grand jury proceeding can create strategic motives for a prosecutor that are fundamentally dissimilar to those at trial. This precedent gives prosecutors leverage by allowing them to argue their grand jury questioning was for investigatory purposes, thereby preventing the admission of prior testimony that could be favorable to the defense.
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