Federal Evidence Review

Former grand jury testimony of cooperating witness should have been presented to the jury under FRE 804(b)(1); Ninth Circuit adopts broad application of “similar motive” requirement, in United States v. McFall, 558 F.3d 951 (9th Cir. March 9, 2009) (No. 07-10034)

Before the former testimony of a witness who is unavailable may be introduced, the proponent must show that “the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” FRE 804(b)(1). A recent Ninth Circuit case noted a split in the circuits on how this element is applied. After reviewing the issue, the Ninth Circuit adopted a broader application of the element.

In the case, defendant McFall was prosecuted with others for attempted extortion, conspiracy to commit extortion, honest services mail fraud, and witness tampering. The case involved allegations that the defendants promoted their private economic interests through County Supervisor Bedford. About two weeks before trial, three defendants, including Bedford, Sawyer (Chief Deputy Director of the Governor’s Office of Criminal Justice Planning), and Dunn (former Sheriff of San Joaquin County), pled guilty to committing honest services mail fraud. Defendants Dunn and Sawyer agreed to cooperate but the prosecutors decided not to request their testimony at trial.

Defendant McFall tried to call the three co-defendants, Sawyer, Bedford, and Dunn, as defense witnesses, however, each claimed their Fifth Amendment right not to testify. At trial, lobbyist Levy was called by the government and “testified that Sawyer made extortionate threats on McFall’s behalf during a telephone conversation to which Levy and Sawyer were the only parties.” McFall, 558 F.3d at 961. Defendant McFall disputed this version and sought to admit the grand jury testimony of Sawyer under FRE 804(b)(1). Sawyer was unavailable to testify at trial based on his assertion of his Fifth Amendment right not to testify. During his grand jury testimony Sawyer referred to Levy’s explanation as “ridiculous.” The defendant claimed the government’s primary motive in calling Sawyer was to incriminate McFall, which was the same motive at trial. The trial court excluded the grand jury testimony as inadmissible hearsay and as unfairly prejudicial. The defendant was convicted on most of the charged counts. On appeal, he contested the exclusion of the grand jury testimony.

The Ninth Circuit reversed a conspiracy extortion count based on the erroneous exclusion of the grand jury testimony. In doing so, the circuit noted a split in the circuits. As the circuit framed the issue:

“The question is whether the government’s motive in examining Sawyer before the grand jury was sufficiently similar to what its motive would be in challenging his testimony at McFall’s trial. Prosecutors need not have pursued every opportunity to question Sawyer before the grand jury; the exception requires only that they possessed the motive to do so…. As a threshold matter, we must determine at what level of generality the government’s respective motives should be compared, an issue that has divided the circuits.”

At least two circuits, including the D.C. and Sixth Circuits, applied “a high level of generality” in comparing the prior and current motives:

• United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990) (“Before the grand jury and at trial” the testimony of an unavailable coconspirator “was to be directed to the same issue — the guilt or innocence” of the defendants; concluding the government’s motives were similar)
• United States v. Foster, 128 F.3d 949, 957 (6th Cir. 1997) (abuse of discretion in excluding grand jury testimony of unavailable witness who “consistently testified that Foster had not been involved in selling drugs”; citing Miller with approval)

A contrary position has been taken by the Second and First Circuits:

• United States v. DiNapoli, 8 F.3d 909, 912 (2d Cir. 1993) (en banc) (applying a narrower standard; “[W]e do not accept the proposition . . . that the test of similar motive is simply whether at the two proceedings the questioner takes the same side of the same issue.”; applying the similar motive requirement by determining whether the questioner had “a substantially similar degree of interest in prevailing” on the related issues at both proceedings)
• United States v. Omar, 104 F.3d 519, 522-24 (1st Cir. 1997) (noting the government may have different motives in questioning a witness before the grand jury and at trial; “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 resolving this conflict, the Ninth Circuit rejected the narrower view:

“On balance, we agree with the D.C. Circuit’s elaboration of the ‘similar motive’ test and conclude that the government’s fundamental objective in questioning Sawyer before the grand jury was to draw out testimony that would support its theory that McFall conspired with Sawyer to commit extortion — the same motive it possessed at trial. That motive may not have been as intense before the grand jury, but Rule 804(b)(1) does not require an identical quantum of motivation. Although McFall had already been indicted when Sawyer appeared before the grand jury, prosecutors did not obtain the final superseding indictment (which brought the total number of counts against McFall to twenty) until September 9, 2004, almost two years after Sawyer appeared before the grand jury. Moreover, Count 14 is a conspiracy [extortion] charge, and thus depends on proof that McFall and Sawyer cooperated in a scheme to extort money from Digital Angel, providing prosecutors with ample incentive to develop testimony that would incriminate McFall. The district court, therefore, erred in concluding that the government’s respective motives were ‘completely different,’ and the exclusion of Sawyer’s grand jury testimony as hearsay amounted to an abuse of discretion.”

The circuit also disagreed with the alternative basis to exclude the evidence as unfairly prejudicial, under FRE 403. The testimony was probative as it was consistent with the defense position on the extortion charge. Evidence that Sawyer had been charged with perjury and convicted of honest services fraud would have been admissible as impeachment at trial, contrary to the conclusion of the trial court. The government had the ability to call Sawyer as a cooperating witness at trial under the terms of the plea agreement. The defense did not. If the grand jury testimony had been read to the jury, the government could have called Sawyer in rebuttal to clarify the context of his prior statements or “pursue[] whatever line of impeachment or any other legitimate line of questioning it desired.” McFall, 558 F.3d at 964 (footnote omitted). Consequently, the conspiracy extortion count was reversed.

The McFall case presents an interesting issue. The prior grand jury testimony was important to the defense and was consistent with the theory of the defense on the charge. The jury did not hear this testimony. Under the broader Ninth Circuit view, most of the time a witness is called before the grand jury will be to develop incriminating evidence. The application of the rules presents a fact-specific inquiry. As the First Circuit noted in Omar, there may be a variety of reasons why the government requests a witness testify before the grand jury.

Photo: Federal Building and Post Office, 7th & Mission Street, San Francisco, CA in 1905. The Ninth Circuit as well as the U.S. District Court for the Northern District of California was located here before the 1906 San Francisco Earthquake. The building survived the fire, but had to be reconstructed because of structural damage after the 1989 Loma Prieta Earthquake. The building, now headquarters the Ninth Circuit only, was recently designated by Congress as the James R. Browning United States Courthouse, after the Circuit Chief in the 1970s and 80s, Judge James Browning.