OCTOBER TERM, 1991
UNITED STATES v. SALERNO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 91-872. Argued April 20, 1992-Decided June 19, 1992
The respondents were indicted on a variety of federal charges, including fraud and racketeering in connection with the allocation of construction contracts among a so-called "Club" of companies in exchange for a share of the proceeds. Witnesses DeMatteis and Bruno, owners of the Cedar Park Construction Corporation, testified before the grand jury under a grant of immunity that neither they nor Cedar Park had participated in the Club. At trial, however, the United States used other evidence to show that Cedar Park was a Club member. The respondents subpoenaed DeMatteis and Bruno, but they invoked their Fifth Amendment privilege against self-incrimination and refused to testify. The District Court denied the respondents' request to admit the transcripts of DeMatteis' and Bruno's grand jury testimony pursuant to Federal Rule of Evidence 804(b)(1)-which permits admission of an unavailable declarant's testimony from a former hearing if the party against whom it is now offered had a "similar motive to develop the testimony by direct, cross, or redirect examination"-reasoning that a prosecutor's motive in questioning a witness before the grand jury is different from his motive in conducting the trial. The respondents were convicted, but the Court of Appeals reversed, holding that the District Court had erred in excluding the grand jury testimony. It ruled that, to maintain "adversarial fairness," Rule 804(b)(1)'s similar motive element should evaporate when the Government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial.
1. Former testimony may not be introduced under Rule 804(b)(1) without a showing of "similar motive." Nothing in Rule 804(b)(1) suggests that a court may admit former testimony absent satisfaction of each of the Rule's elements. The respondents err in arguing that the Rule contains an implicit limitation permitting the "similar motive" requirement to be waived in the interest of adversarial fairness. Also rejected is the respondents' argument that the United States forfeited its right to object to the testimony's admission when it introduced contradictory evidence about Cedar Park. Here, the United States never revealed what DeMatteis and Bruno said to the grand jury, but, rather, attempted to show Cedar Park's involvement using other evidence. Incralaw
addition, the respondents mistakenly argue that adversarial fairness prohibits the suppression of exculpatory evidence produced in grand jury proceedings. Dennis v. United States, 384 U. S. 855, distinguished. Pp. 320-324.
2. This case is remanded for consideration of whether the United States had a "similar motive." Since the Court of Appeals erroneously concluded that the respondents did not have to demonstrate such a motive, it did not consider fully the parties' arguments on this issue. Pp. 324-325.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 325. STEVENS, J., filed a dissenting opinion, post, p. 326.
James A. Feldman argued the cause for the United States.
With him on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson.
Michael E. Tigar argued the cause for respondents. With him on the brief was Gustave H. Newman. *
JUSTICE THOMAS delivered the opinion of the Court. Federal Rule of Evidence 804(b)(1) states an exception to the hearsay rule that allows a court, in certain instances, to admit the former testimony of an unavailable witness. We must decide in this case whether the Rule permits a criminal defendant to introduce the grand jury testimony of a witness who asserts the Fifth Amendment privilege at trial.
The seven respondents, Anthony Salerno, Vincent DiN apoli, Louis DiNapoli, Nicholas Auletta, Edward Halloran, Alvin O. Chattin, and Aniello Migliore, allegedly took part in the activities of a criminal organization known as the
*Jed S. Rakofffiled a brief for the New York Council of Defense Lawyers as amicus curiae urging affirmance.cralaw