## Facts

- Federal investigators examined an alleged public-corruption scheme tied to efforts to secure favorable official action for Sunlaw Energy Corporation’s proposed power plant at the Port of Stockton.
- Monte D. McFall, a private lobbyist, allegedly worked with public officials and others to use official influence in exchange for payments or benefits, to Sunlaw’s advantage over a competitor.
- A grand jury heard testimony from Allen Sawyer (a county prosecutor) before Sawyer was indicted; that testimony tended to corroborate McFall’s account.
- Before McFall’s trial, Sawyer was indicted and invoked the Fifth Amendment, making him unavailable as a witness.
- McFall sought to admit Sawyer’s grand jury transcript as former testimony under Federal Rule of Evidence 804(b)(1); the district court excluded it for lack of the government’s “similar motive” at the grand jury stage.
- A jury convicted McFall of 17 of 20 charged counts, including attempted Hobbs Act extortion and conspiracy, honest-services mail fraud, and attempted witness tampering.

## Issues

1. Whether Sawyer’s grand jury testimony was admissible under FRE 804(b)(1) as former testimony, requiring that the government had an opportunity and similar motive to develop the testimony.
2. Whether a non-public official can be convicted of conspiracy to commit Hobbs Act extortion “under color of official right,” and what the government must prove when the defendant is a private actor.
3. Whether the Hobbs Act conspiracy instructions and evidence were legally sufficient where the alleged conspiracy included both public officials and private participants.

## Decision

- The Ninth Circuit affirmed the judgment and convictions.
- The court held the district court did not abuse its discretion in excluding Sawyer’s grand jury testimony under FRE 804(b)(1) because the government lacked a sufficiently similar motive to develop that testimony in the grand jury proceeding.
- The court held a Hobbs Act extortion conspiracy under color of official right may include private defendants if they conspire with, or aid and abet, a public official’s misuse of office to obtain property.
- The court upheld the challenged Hobbs Act conspiracy theory and related instructions as legally adequate in a case involving public officials and private intermediaries.

## Legal Principles

- FRE 804(b)(1) requires not only unavailability and prior testimony, but also that the opposing party had an opportunity and a similar motive to develop the testimony in the earlier proceeding.
- The government’s motive in a grand jury investigation (probable-cause and information-gathering) may differ materially from its motive at trial (adversarial testing aimed at proof beyond a reasonable doubt), defeating “similar motive” for FRE 804(b)(1).
- A defendant need not be a public official to be liable for Hobbs Act conspiracy “under color of official right” if the defendant agreed to facilitate, or participated with, a public official’s corrupt obtaining of property tied to official action.
- For an official-right theory involving a private defendant, the government must prove the private defendant conspired with, or aided and abetted, a public official’s conduct constituting extortion under color of official right.

## Conclusion

The Ninth Circuit upheld McFall’s convictions, ruling that exculpatory grand jury testimony from an unavailable witness was properly excluded because the government’s grand jury motive was not sufficiently similar to its trial motive, and confirming that private actors may be convicted for Hobbs Act official-right conspiracy when they join or assist corrupt public officials.


United States v. McFall, 558 F.3d 951 (9th Cir. 2009)