United States v. Omar

Opinion

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),


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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


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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


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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


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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).


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                                         -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


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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


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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.



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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.


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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


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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-
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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 .


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. . 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.
                 ________


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