
USCA1 Opinion

	




                            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),                                         -2-                                         -2-            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                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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).                                         -6-                                         -6-                 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                                         -7-                                         -7-            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                                         -8-                                         -8-            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.                                         -9-                                         -9-            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.                                         -10-                                         -10-                 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                                         -11-                                         -11-            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).                                           -12-                                         -12-            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 .                                         -13-                                         -13-            . . 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.                 ________                                         -14-                                         -14-
