UNITED STATES V. SALERNO
505 U.S. 317 (1992)
NATURE OF THE CASE: This was a dispute over the interpretation of Federal Rule of
Evidence 804(b)(1) relating to the interpretation of the requirement that the government had
an opportunity and similar motive to develop the testimony by direct, cross, or redirect
examination.
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, in fact, 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 'evaporat[e]' when the Government
obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify
at trial.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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