UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1271
UNITED STATES OF AMERICA,
Appellee,
v.
SOHIEL OMAR, a/k/a SAM OMAR,
Defendant, Appellant.
____________________
No. 95-1272
UNITED STATES OF AMERICA,
Appellee,
v.
BURTON A. FERRARA,
Defendant, Appellant.
____________________
ERRATA SHEET ERRATA SHEET
The opinion of this court issued January 23, 1997, should be
amended as follows:
On page 9, line 6, replace "(1990)" with "(1st Cir. 1990)".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1271
UNITED STATES OF AMERICA,
Appellee,
v.
SOHIEL OMAR, a/k/a SAM OMAR,
Defendant, Appellant.
____________________
No. 95-1272
UNITED STATES OF AMERICA,
Appellee,
v.
BURTON A. FERRARA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges ______________
____________________
Stephen Hrones, by Appointment of the Court, with whom Michael A. ______________ __________
Goldsmith and Hrones & Garrity were on consolidated brief for _________ __________________
appellants.
Timothy Q. Feeley, Assistant United States Attorney, with whom __________________
Donald K. Stern, United States Attorney, and James F. Lang, Assistant ________________ _____________
United States Attorney, were on consolidated brief for the United
States.
____________________
January 23, 1997
____________________
BOUDIN, Circuit Judge. Burton Ferrara and Sohiel Omar ______________
appeal from their convictions for bank larceny, money
laundering and conspiracy. The single issue is whether the
district court erred in excluding, over the defendants'
objection, grand jury testimony of a witness who had died
prior to the trial. The issue turns on the application of
the hearsay exception for "former testimony." Fed. R. Evid.
804(b)(1).
On March 27, 1991, a Brinks armored truck making
deliveries in Boston was robbed of about $900,000. The truck
was found in nearby Somerville with the money missing and the
driver, Burton Ferrara, handcuffed in the rear compartment.
Ferrara told police that he had been hijacked in Boston by a
gunman who, while Ferrara was parked on the street awaiting
the return of messengers, stuck a gun through a portal
(actually a gunport) in the driver's compartment and forced
Ferrara to open the door.
After an extensive investigation, the authorities
concluded that the robbery had been carried out by Ferrara
and his friend Sohiel Omar. In February 1994, almost three
years after the robbery, a federal grand jury indicted
Ferrara and Omar, charging them with bank larceny, money
laundering the stolen funds, and conspiracy to commit those
substantive offenses. 18 U.S.C. 371, 1956(a)(1)(B)(i),
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2113(b). The defendants were tried by a jury in October and
November of 1994.
At trial, the government's evidence was extensive but,
with one exception, largely circumstantial. Its witnesses
testified that prior to the robbery, Ferrara and Omar were
friends and former co-workers at an automobile dealership.
In 1990, they had sought to renovate a house in South Boston
but had fallen into financial difficulties, and were unable
to pay their contractors. Ferrara then obtained a job as a
Brinks driver and began work in March 1991 on a regular run;
messengers accompanied him to deliver the cash from the
truck. The robbery occurred about three weeks later.
The government also offered evidence that the portal,
through which the assailant's gun had allegedly been thrust,
was closed when the messengers had left the truck. It was
shown that the portal cover--easily controllable from the
inside--could be opened from the outside only with time,
tools and effort. Two witnesses said that there were no
scratch-marks outside the portal. The jury could thus have
regarded Ferrara's version of events as doubtful.
More damaging was testimony from contractors that
beginning soon after the robbery, Ferrara and Omar began to
pay them with large sums--the first payment was $5,200--in
cash and new bills, some with serial numbers almost in
sequential order. Much of the money was shown to derive from
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Federal Reserve shipments to the bank whose cash was in
Ferrara's truck on the day of the robbery. After the
robbery, Ferrara also bought money orders and made payments
to others.
One of the contractors testified that he told Omar that
he preferred to be paid by check; Omar paid the next
installments with checks drawn on the account of Lee
Services, a defunct trash hauling firm. Lee Najarian was the
bookkeeper for Lee Services. In 1991, Najarian was living
with Raymond Femino, who was the proprietor of Lee Services
and a friend of Omar. Najarian's evidence at the trial was
especially damning and led directly to the ruling that
provoked this appeal.
Testifying at trial under a grant of immunity, Najarian
told the jury that she remembered Omar bringing a large green
trash bag to her home on the night of the robbery, and that
Femino later showed her that the bag was filled with stacked
bundles of cash. She testified further that Omar had
regularly returned during the spring of 1991 to retrieve cash
and that she had put some of the money in the Lee Services
bank account and written checks to Omar and one of his
contractors.
Finally, Najarian testified that she had heard Omar
boasting that he had worn a ski mask and had stuck a gun into
the truck and had taken the money out of the truck and thrown
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it in his car. According to Najarian, Omar also said that he
had buried some of the money. Najarian also said that Omar
had implicated "Burt"--a likely reference to Ferrara--in the
robbery.
In cross-examining Najarian, the defense brought out the
fact that she had given contrary testimony to a grand jury in
August 1993; on that occasion, Najarian had generally denied
any pertinent knowledge of the Brinks robbery and had not
disclosed Omar's delivery of cash or his admissions. After
entering into a written immunity agreement with the
government, Najarian testified again to the grand jury in
January 1994. This time she gave testimony similar to her
later trial testimony.
As part of its own case, the defense sought to undermine
Najarian's testimony further by introducing a portion of
Femino's grand jury testimony. Femino had testified for
about 10 to 20 minutes at an earlier grand jury session in
November 1991. There, while being questioned on other
aspects of the case, he briefly but flatly denied receiving
money from Omar, either in a trash bag or otherwise, and
denied putting cash for Omar into bank accounts.
Because Femino died in 1993, he was unavailable for
trial. The defense sought to offer his prior grand jury
testimony under Fed. R. Evid. 804(b)(1) which--where the
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declarant is unavailable--permits as evidence in a criminal
trial prior
[t]estimony given [by the declarant] as a witness
at another hearing of the same or different
proceeding . . . if the party against whom the
testimony is now offered . . . had an opportunity
and similar motive to develop the testimony by
direct, cross, or redirect examination.
The district court excluded Femino's grand jury testimony on
the ground that the government did not have a "similar
motive" in November 1991 to develop Femino's testimony.
The jury ultimately convicted Ferrara and Omar on all
counts. The district court later sentenced each defendant to
48 months in prison, three years of supervised release, and
restitution in the amount of $908,750. On this appeal, which
has been ably briefed by both sides, the only question
presented is whether it was error and, if so, prejudicial
error, to exclude Femino's grand jury testimony.
If the exclusion of Femino's testimony clearly could not
have made a difference, we would dispose of the case on that
ground, but we think that this course is not readily
available. Whether a mistaken evidentiary ruling is harmless
depends, in the ordinary case, primarily on the likelihood
that it did or did not affect the jury. This in turn hinges
both upon the evidence at issue and on the weight of the ___
other evidence in the case. See Rossetti v. Curran, 80 F.3d ___ ________ ______
1, 6-7 (1st Cir. 1996).
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It is true, in the government's favor, that Femino's
grand jury testimony was not especially credible. That small
piece of the testimony that helped the defendants and
contradicted Najarian was brief, lacking in corroborative
detail and highly self-serving (since Femino had no
immunity). Other testimony at trial suggested that Femino
was drug addicted, an alcoholic, and a seller of drugs,
making his boilerplate denials in the grand jury even less
likely to be credited.
On the other hand, the government's case was largely
circumstantial. Najarian's testimony about the bag of cash
may not have been essential, but it was very helpful in
making the circumstantial case fit together tightly, by
describing how the money was conveyed to Femino. Najarian
also testified to Omar's alleged incriminating admissions.
The government says that the defendants were able to impeach
Najarian with her own original grand jury testimony; but a
little thought suggests that this argument cuts both ways.
A fairly strong case against both defendants would have
been much weaker if Najarian's testimony had been
disbelieved. Of course, Najarian's testimony had other
support while Femino's grand jury denials were brief and
self-serving. But, together with Najarian's own grand jury
perjury (one of her two versions was false), Femino's denials
could have helped to raise a reasonable doubt for the jury as
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to both defendants. In sum, the exclusion of the grand jury
testimony was not clearly harmless; whether it was error is a
different matter.
In addressing the merits, we begin with a general issue
of law--how to construe Rule 804(b)(1)--which is subject to
de novo review. But in considering the application of the ________
rule to particular facts, the district court's ruling is
normally tested by an "abuse of discretion" standard, which
favors the prevailing party. United States v. Lombard, 72 _____________ _______
F.3d 170, 187 (1st Cir. 1995), appeal after remand, 102 F.3d ___________________
1 (1st Cir. 1996). And, the evidence in question being
hearsay, it was the defendants' burden to prove each element
of the exception they invoked. Cf. United States v. ___ ______________
Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993), cert. denied, _________ _____ ______
114 S. Ct. 2714 (1994).
Turning to Rule 804(b)(1), we think that this hearsay
exception for prior testimony does extend, where all its
conditions are met, to grand jury testimony taken at the
government's behest and later offered against it in a
criminal trial. A grand jury proceeding can be regarded as a
"hearing," especially in the context of a rule that applies
as well to depositions. And--assuming "an opportunity and
similar motive to develop the testimony"--the rationale for
an exception to the hearsay rule is made out, namely, that
the party against whom the testimony is now offered earlier
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had the opportunity and similar motive to discredit the
testimony, and so did then whatever it would do now if the
declarant were on the stand.
It is unclear whether Rule 804(b)(1) is intended to
apply where the present opponent of the evidence had no prior
motive to discredit the testimony but instead sponsored it in
the earlier proceeding as worthy of belief. In such a case,
the rationale for a hearsay exception would be quite
different, namely, a kind of quasi-estoppel.1 Arguably, the
motive to develop would not be "similar" in the second case,
so the rule would not apply. As we will see, even a broader
view of the rule would not alter the result here.
In all events, in United States v. Donlon, 909 F.2d 650, _____________ ______
654 (1st Cir. 1990), this court said that the prior-testimony
exception did not apply at all to grand jury testimony.
Whether or not this was dictum, Donlon's statement cannot ______
stand against the Supreme Court's own decision two years
later in United States v. Salerno, 505 U.S. 317 (1992). ______________ _______
There, the Supreme Court all but held that Rule 804(b)(1)
could embrace grand jury testimony; and on remand the Second
____________________
1The advisory committee note on Rule 804(b)(1) leaves
the matter in confusion. It describes the estoppel rationale
as archaic but then, instead of flatly rejecting it, shifts
the discussion to the proposition that in the case of an
adverse witness, the direct and redirect examination of one's
own witness can be the equivalent of the cross-examination of
an opponent's witness.
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Circuit took the same view of the matter. United States v. _____________
Dinapoli, 8 F.3d 909, 914 (2d Cir. 1993) (en banc). ________ _______
There has been confusion on this issue in the circuits.
No one knows whether the drafters of the rule had grand jury
proceedings in mind. In fact, it is likely to be very
difficult for defendants offering grand jury testimony to
satisfy the "opportunity and similar motive" test; and the
reasons why this is so probably underlie the doubts courts
have expressed as to whether the rule should ever apply to
grand jury testimony. E.g., United States v. Dent, 984 F.2d ____ _____________ ____
1453, 1462 (7th Cir.), cert. denied, 510 U.S. 858 (1993). ____________
But the government concedes that it could in principle apply
and (yielding to Salerno) we agree, if and when the quoted _______
condition is met.
This concession by the United States is not meant to
stretch very far. The government's bedrock position is that
the prosecution ordinarily does not in a grand jury ___
proceeding have the kind of motive to develop testimony that
it would in an ordinary trial or that is required to meet the
express test and rationale of Rule 804(b)(1). And, it says,
in this case the prosecutor at the grand jury stage lacked
the requisite "similar motive" as to Femino's testimony. We
agree provisionally with the former proposition and
completely with the latter.
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In an ordinary trial, the positions of the parties vis-
a- vis a witness are likely to be clear-cut: the witness is
normally presented by one side to advance its case and cross-
examined by the other to discredit the testimony. Each side
usually has reason to treat the trial as a last chance with
the witness. If a new trial later becomes necessary and the
witness proves unavailable, it may be a fair guess that each
side has already done at the original trial all that the
party would do if the declarant were now present for a new
trial.
Grand juries present a different face. Often, the
government neither aims to discredit the witness nor to vouch
for him. The prosecutor may want to secure a small piece of
evidence as part of an ongoing investigation or to compel an
answer by an unwilling witness or to "freeze" the position of
an adverse witness. In particular, discrediting a grand jury
witness is rarely essential, because the government has a
modest burden of proof, selects its own witnesses, and can
usually call more of them at its leisure.
In the case at hand, we think that it is fair to apply
the "opportunity and similar motive" test to the specific
portion of the testimony at issue; there might be a motive to
develop some testimony of a witness but not other parts. Cf. ___
Williamson v. United States, 114 S. Ct. 2431, 2434-36 (1994). __________ _____________
Here, our focus is upon Femino's exculpatory denial. And our
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main concern is whether, in the prior proceeding, the
government (the party against whom the testimony is now
offered) had "an opportunity and similar motive" to undermine
it.
There is no indication that the government had any
evidence available in November 1991 with which to confront
and contradict Femino when he denied receiving the cash from
the defendants. Najarian was still denying any knowledge of
the matter in August 1993 in her own grand jury testimony.
Not until November 1994, in an interview with an FBI agent,
did Najarian change her story and begin to cooperate. Thus,
it is arguable that the government had no meaningful
opportunity to discredit Femino at the time.2
In any case, it certainly lacked any evident motive to
do so. If the government had had Najarian's cooperation in
1991, it could well have preferred to keep it secret from
Femino. The prosecutor might have wished to protect a key
witness for the time being or to bargain later with Femino,
armed with a perjury charge against him. Given the other
evidence against the defendants, the government surely had no
reason to fear that Femino's terse denials, if he were not
____________________
2Just how equivalent the "opportunity" need be is not
made clear by the rule or advisory committee note. There are
obviously issues of degree and may be other variables (like
fault) that bear upon the answer, which is probably best left
to case-by-case development. Compare United States v. Koon, _______ _____________ ____
34 F.2d 1416, 1427 (9th Cir. 1994), rev'd on other grounds, _______________________
116 S. Ct. 2035 (1996).
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directly confronted, would lead the grand jury to refuse to
indict.
The outcome is the same even if we assume dubitante that _________
a party who previously sponsored a witness could be deemed to
have a "similar motive" when later opposing the testimony.
The government has never had any reason to "develop" Femino's
exculpatory denial as worthy of belief. In the grand jury,
the government called Femino to elicit testimony on several
other points; the prosecutor seems to have asked about cash
from the defendants simply to lock the witness into a firm
position or to make clear to the grand jury that all
reasonable questions had been asked.
An argument can certainly be made that the fairest
outcome here would be to admit Femino's exculpatory
statement. His grand jury testimony was important to the
defendants on this issue; it was pure happenstance that he
died and was not available at trial (although he might have
refused to testify). And while his testimony was self-
serving and suspect, the government's ability to undermine it
at trial, through Najarian, was substantial even without
having Femino to cross-examine.
Conflicts between rule and equity are common. If every
ruling is ad hoc, it is hard to implement policy and predict ______
outcomes. And rules themselves are debatable: one respected
evidence code proposed that "hearsay . . . is admissible if .
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. . the declarant . . . is unavailable." ALI, Model Code of _____________
Evidence Rule 503 (1942). But our own federal rules stop ________
with a broad catch-all exception for hearsay supported by
"circumstantial guarantees of trustworthiness." Fed. R.
Evid. 803(24), 804(b)(5).
In this case, the defendants did not invoke this
exception, probably believing that they could not show that
Femino's self-serving denials were trustworthy. Thus viewed,
the defendants were deprived of helpful but not very credible
evidence which--for this very reason--might well not have
been given great weight by the jury, quite apart from other
evidence tending to corroborate Najarian's story. In all
events, the exclusion of the evidence was consistent with
Rule 804(b)(1).
Affirmed. ________
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