No, it's not fair to use that testimony. In the first lawsuit, the defendants were only facing the loss of company money, so they had little reason to hire lawyers and fight hard. But in the second case, a criminal trial, they were facing prison time. Because the situations were so different, they didn't have a 'similar motive' to question Sanburg back then. Also, since Sanburg made a secret deal to save himself, his testimony is not trustworthy enough to be used to send someone to jail, especially when they never got a chance to challenge what he said.

No, the court shouldn't have used Sanburg's earlier statement in the criminal case against Feldman and Martenson. This is because they didn't get a real chance to question Sanburg when he first made the statement. They didn't know that his words would be used against them in a criminal case later, so they weren't prepared to challenge him properly at that time. Also, they had different reasons for being involved in the first case compared to the criminal case. The way Sanburg's statement was obtained makes it less trustworthy, and using it in the criminal case wasn't fair to Feldman and Martenson. It goes against their right to question people who are saying things against them in court. Because this statement was so important in finding them guilty, we have to undo their convictions and have a new trial. Also, the court didn't give them enough time to prepare for the trial after new charges were added, which is another reason for a new trial.

Yes, the admission of the deposition violates the defendants' rights. The deposition is inadmissible under both Federal Rule of Evidence 804(b)(1) and the Confrontation Clause because the defendants lacked a similar motive and a meaningful opportunity to cross-examine the witness. Under FRE 804(b)(1), the defendants had no similar motive to cross-examine Sanburg because the stakes in the civil proceeding (disgorgement of company profits) were qualitatively different from the stakes in the criminal trial (loss of liberty). Their trial strategies also differed entirely, as they chose not to contest the civil suit but vigorously defended against the criminal charges. Furthermore, they had no meaningful opportunity for cross-examination because they were unaware of Sanburg's secret immunity deal and had no reason to suspect he would incriminate them on future criminal charges. The deposition also violates the Confrontation Clause because it lacks the necessary 'indicia of reliability,' as Sanburg's testimony was self-serving, given in exchange for immunity, and not subject to adversarial testing.

No, the deposition of Herbert Sanburg was not admissible in the criminal trial of Feldman and Martenson because they did not have a meaningful opportunity to cross-examine Sanburg at the time of his deposition. I find that the admission of the deposition violated both Federal Rule of Evidence 804(b)(1) and the Confrontation Clause of the Sixth Amendment. The defendants did not have a meaningful opportunity to cross-examine Sanburg during the deposition because they were unaware of the agreement between Sanburg and the government, and they had no formal notice of criminal proceedings against them at that time. The circumstances did not provide them with a real opportunity for cross-examination, and their motives in the civil and criminal proceedings were not aligned, as they had no reason to suspect that Sanburg would incriminate them on criminal charges. Furthermore, the deposition lacks sufficient indicia of reliability to satisfy the Confrontation Clause, given the circumstances under which it was obtained and the lack of corroborating evidence for parts of Sanburg's testimony. Because the deposition was central to the prosecution's case, its improper admission requires reversal of the convictions. Additionally, I find that the trial court violated the Speedy Trial Act by holding the trial less than 30 days after the filing of a superseding indictment that included new charges, particularly a RICO count. This also constitutes reversible error. While I reject the defendants' other arguments on appeal, the convictions must be reversed and the case remanded for a new trial due to these significant errors.

United States v. Richard Feldman and Richard Martenson

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