Grand jury testimony of cooperator, who was not called by the government at trial, admissible under FRE 804(b)(1)
Monte McFall, a local California lobbyist and ex-officio staffer for an elected official, was charged in a Hobbs Act conspiracy for allegedly coercing a state contractor into paying McFall a fee in exchange for McFall's assistance in securing funding. The co-conspirator, a lawyer and crony named Sawyer, had earlier testified at length in the grand jury, producing a 120-page transcript; in the testimony, Sawyer had exculpated McFall. After indictment, Sawyer pled guilty and cooperated. When the government decided not to call Sawyer at trial, and he invoked the Fifth Amendment when called by the defense, McFall sought to admit Sawyer's grand jury testimony under FRE 804(b)(1) (former testimony of unavailable witness). The district court excluded the transcript, and the Ninth Circuit reversed. United States v. McFall, 558 F.3d 951 (9th Cir. 2009).
Under FRE 804(b)(1), the earlier-taken testimony must be from a witness who is "unavailable" at trial. Clearly, the court of appeals held, a witness who has invoked the privilege is "unavailable." Id. at 961. The Rule further requires that the party against whom the testimony is now offered must have had an "opportunity and similar motive" to develop the testimony in the earlier proceeding. While the district court concluded that the government's motive in examining Sawyer in the grand jury was dissimilar from its hypothetical motivation in questioning him at trial, the Ninth Circuit disagreed.
The court of appeals noted that the Second Circuit, in United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993), had placed a gloss on the Rule requiring a showing that the opposing party had a substantially similar degree and intensity of interest in both proceedings, not merely that it was on the same side of the same general issue. Id. at 962. For example, the government might not be as motivated to explore details of testimony in the grand jury where defendants had already been indicted; where the grand jurors had expressed skepticism about the testimony's accuracy, vitiating the need for immediate impeachment of it; or where the prosecutors might not wish to risk disclosing other evidence which would be revealed by an impeachment line of questioning. Id. at 962-63 (citing DiNapoli, 8 F.3d at 915).
The Ninth Circuit, however, rejected this gloss on the Rule, which looked to the detailed, comparative intensity of motive in questioning in the two contexts, in favor of a comparison only of the government's fundamental and more general motives. Here, the government intended in the grand jury to elicit testimony from Sawyer to support its theory of a conspiracy with McFall, the same motive it would have at McFall's trial. Id. at 963 (citing with approval United States v. Miller, 904 F.2d 65 (D.C. Cir. 1990) for the general motive test). Thus, the Rule was satisfied, the trial court abused its discretion, and the conviction was reversed.
