United States v. Salerno

505 U.S. 317 (1992)

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Nature of the Case

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Facts

The seven respondents, Anthony Salerno (D), Vincent DiNapoli, 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 Genovese Family of La Cosa Nostra (Family) in New York City. In 1987, a federal grand jury in the Southern District of New York indicted the respondents and four others on the basis of these activities. They were charged with a variety of federal offenses, including 41 acts constituting a 'pattern of illegal activity' in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(b). Frederick DeMatteis and Pasquale Bruno testified before the grand jury under a grant of immunity. They repeatedly stated that neither they nor Cedar Park Concrete Company had participated in the Club. At trial, however, the United States attempted to show that Cedar Park had belonged to the Club by calling two contractors who had taken part in the scheme and by presenting intercepted conversations among the respondents. The United States also introduced documents indicating that the Family had an ownership interest in Cedar Park. Ds subpoenaed DeMatteis and Bruno as witnesses in the hope that they would provide the same exculpatory testimony that they had presented to the grand jury. When both witnesses invoked their Fifth Amendment privilege against self-incrimination and refused to testify, the respondents asked the District Court to admit the transcripts of their grand jury testimony. Although this testimony constituted hearsay, (Rule 801(c)), Ds argued that it fell within the hearsay exception in Rule 804(b)(1) for former testimony of unavailable witnesses. The District Court refused to admit the grand jury testimony. Rule 804(b)(1) permits admission of former testimony against a party at trial only when that party had a 'similar motive to develop the testimony by direct, cross, or redirect examination.' The District Court held that the United States did not have this motive, stating that the 'motive of a prosecutor in questioning a witness before the grand jury in the investigatory stages of a case is far different from the motive of a prosecutor in conducting the trial. The United States Court of Appeals for the Second Circuit reversed, holding that the District Court had erred in excluding DeMatteis' and Bruno's grand jury testimony. It concluded that 'the government's motive in examining the witnesses . . . was irrelevant.' It decided that, in order 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.