United States v. DiNapoli
Facts
After a grand jury had already returned an indictment alleging a Manhattan concrete bid-rigging scheme, it continued investigating possible additional participants and projects. Two immunized witnesses, DeMatteis and Bruno, who had been principals in Cedar Park, denied knowledge of the "Club" and the two-percent arrangement when they testified before the grand jury. The prosecutor challenged them only briefly and did not confront them with undisclosed wiretaps or cooperating witnesses, in part to avoid premature disclosure of that evidence. At trial, when both witnesses invoked the Fifth Amendment, the defendants sought to introduce their grand jury testimony under Rule 804(b)(1), and the district court excluded it.
Issue
Whether, for purposes of Federal Rule of Evidence 804(b)(1), the prosecution had an opportunity and a similar motive at the grand jury proceedings to develop DeMatteis's and Bruno's testimony comparable to the motive it would have had to challenge that same testimony at trial.
Rule
Under Rule 804(b)(1), similarity of motive is determined by a fact-specific inquiry into whether the party resisting the testimony had at the prior proceeding an interest of substantially similar intensity to prove or disprove the same side of a substantially similar issue. Relevant but not conclusive considerations include the nature of the two proceedings, what was at stake, the applicable burden of proof, and to a lesser extent both the cross-examination that was undertaken and the lines of questioning that were available but forgone.
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Is the former testimony most likely admissible under Rule 804(b)(1) against the government?