## Facts

- The United States prosecuted several defendants for RICO conspiracy and substantive RICO offenses based on an alleged Manhattan concrete-construction bid-rigging scheme tied to organized crime.
- During an ongoing grand jury investigation, witnesses Frederick DeMatteis and Pasquale Bruno testified and denied knowledge of the bid-rigging scheme.
- The prosecutor asked some skeptical questions but intentionally avoided using certain impeaching information to protect secrecy interests, including undisclosed cooperators and wiretapped conversations.
- At the later criminal trial, DeMatteis and Bruno were called by the defense but invoked the Fifth Amendment and were unavailable to testify.
- Defendants sought to introduce the witnesses’ grand jury denials as former testimony under Federal Rule of Evidence 804(b)(1).
- The district court excluded the grand jury testimony for failure to satisfy Rule 804(b)(1)’s “similar motive” requirement; defendants were convicted.
- On remand for reconsideration in light of intervening Supreme Court authority, the en banc Second Circuit addressed only the Rule 804(b)(1) admissibility question and returned remaining issues to the merits panel.

## Issues

1. Whether, under Federal Rule of Evidence 804(b)(1), the prosecution had an opportunity and a similar motive at the grand jury proceeding to develop DeMatteis’s and Bruno’s testimony such that defendants could introduce it at trial after the witnesses became unavailable.

## Decision

- The en banc court held the government did not have a similar motive at the grand jury proceeding to develop the witnesses’ testimony as it would have had at trial.
- Because Rule 804(b)(1)’s “similar motive” requirement was not met, the district court properly excluded the grand jury testimony offered by the defendants.
- The court resolved only the evidentiary question and remitted the appeal for consideration of other issues.

## Legal Principles

- Rule 804(b)(1) permits admission of an unavailable witness’s prior testimony only if the party against whom it is offered had both (a) an opportunity and (b) a similar motive to develop the testimony by examination.
- “Similar motive” is assessed functionally and depends on whether the party previously had an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.
- The inquiry considers the nature of the two proceedings, including what is at stake and the applicable burden of proof, and may also consider examination strategy and the thoroughness of prior questioning.
- A grand jury investigation and a criminal trial commonly generate different prosecutorial incentives; investigative secrecy and source protection can reduce the government’s reason to confront or impeach a witness as it would at trial.
- The “similar motive” requirement is not satisfied merely because the testimony concerns related subject matter or because the party had a formal opportunity to question the witness.

## Conclusion

The Second Circuit held that defendants could not use DeMatteis’s and Bruno’s grand jury denials as former testimony at trial because, given the grand jury’s investigative posture and the government’s secrecy interests, the prosecution lacked a trial-like motive to develop or undermine the testimony under Rule 804(b)(1).


United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en banc)