Wednesday, March 11, 2009
What's My Motivation?: Ninth Circuit Applies Former Testimony Hearsay Exception To Grand Jury Testimony
The recent opinion of the Ninth Circuit in United States v. McFall, 2009 WL 579508 (9th Cir. 2009), addressed an issue that has split the circuits: When, if ever, can grand jury testimony be admitted under the former testimony exception to the rule against hearsay?
In McFall, Monte D. McFall, a former lobbyist and local elected official, appealed from his convictions on nine counts of attempted extortion and conspiracy to commit extortion, six counts of honest services mail fraud, and two counts of attempted witness tampering. Those convictions resulted from alleged corrupt profiteering among a group of state and local officials in San Joaquin County, California, including McFall and Neat Allen Sawyer, a former prosecutor in the San Joaquin County District Attorney's Office. For instance, evidence was adduced at trial that:
In late 2001, the state [Office of Criminal Justice Planning (OCJP)] awarded a $400,000 grant to the Digital Angel Corporation...to fund a pilot project whereby the California Department of Corrections would utilize the company's electronic tracking devices. In January 2002, Sawyer and McFall met with Robert Levy, a lobbyist for Digital Angel, in Sacramento to discuss potential collaboration. Digital Angell was seeking additional funding from OCJP, and Sawyer indicated that McFall could be of assistance.
A few weeks after the meeting, Levy received a draft memorandum of understanding ("MOU") from McFall's daughter proposing an agreement between Digital Angel's parent company and the Stagecoach Corporation (an entity McFall created and controlled). Under the proposed MOU, Digital Angel would pay a $100,000 fee to a consultant that Stagecoach would later name. Levy complained about the agreement to Sawyer, who urged him to work with McFall and, according to Levy, stated that OCJP funding would not materialize without McFall's help. Digital Angel did not agree to the terms of the MOU and had no further dealings with McFall. The indictment charged that McFall's and Sawyer's conduct amounted to conspiracy to commit extortion under color of official right.
Well, at least that was the account given by Levy. McFall denied these allegations in his testimony. Sawyer also denied these allegations, testifying that the notion that he and McFall conspired to deny state grant funds to Digital Angel unless the company paid a consulting fee to McFall's daughter-the crux of the charge against McFall-was "ridiculous." But Sawyer only provided this testimony before the grand jury; when McFall called him at trial, he invoked his Fifth Amendment right against self-incrimination.
The question thus became whether McFall could introduce Sawyer's grand jury testimony under Federal Rule of Evidence 804(b)(1), which provides an exception to the rule against hearsay for:
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if 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.
The district court answered that question in the negative, finding, inter alia, "that that the motive for obtaining Mr. Sawyer's testimony before the Grand Jury was completely different from what it would be today." On McFall's subsequent appeal, the Ninth Circuit noted that there was some authority to support the district court's conclusion. To wit, in United States v. DiNapoli, 8 F.3d 909, 913 (2nd Cir. 1993), the Second Circuit found that the motive to develop a witness' testimony before the grand jury is not similar to the motive to develop his testimony at trial (making Federal Rule of Evidence 804(b)(1) inapplicable), declaring that
because of the low burden of proof at the grand jury stage, even the prosecutor's status as an "opponent" of the testimony does not necessarily create a motive to challenge the testimony that is similar to the motive at trial. At the grand jury, the prosecutor need establish only probable cause to believe the suspect is guilty. By the time the exonerating testimony is given, such probable cause may already have been established to such an extent that there is no realistic likelihood that the grand jury will fail to indict. That circumstance alone will sometimes leave the prosecutor with slight if any motive to develop the exonerating testimony in order to persuade the grand jurors of its falsity.
But the Ninth Circuit noted that there is a split on this issue, with some courts taking the Second Circuit's "comparison of motives at a fine-grained level of particularity" and other courts comparing "respective motives at a high level of generality." For instance, the Ninth Circuit cited to United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990), where the D.C. Circuit found that the prosecution's motive to develop the testimony of an alleged co-conspirator was similar to its motive to develop his testimony at trial (making Federal Rule of Evidence 804(b)(1) applicable) because the testimony of the unavailable co-conspirator "was to be directed to the same issue-the guilt or innocence" of the defendants.
The Ninth Circuit:
agree[d] 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.
The Ninth Circuit thus found that the district court abused its discretion by exclude Sawyer's testimony and found that the error was not harmless because:As a result of the grand jury testimony's exclusion (and Sawyer's Fifth Amendment invocation at McFall's trial), the jury heard only two versions of the disputed events-Levy's and McFall's. Sawyer's excluded grand jury testimony would have largely corroborated McFall's account.
In the end, I'm not sure which I approach I prefer, and perhaps that is because of the unique facts of McFall. As the Ninth Circuit noted,the unique circumstances of this case present an additional reason why the district court's refusal to permit McFall to introduce Sawyer's grand jury testimony was an abuse of discretion. Under Sawyer's plea agreement, the government had the right to require Sawyer to testify pursuant to the agreement's cooperation clause. Thus, Sawyer was unavailable only to the defendant, McFall. Once Sawyer's grand jury testimony was read to the jury, the government could have called Sawyer in its rebuttal case to testify and pursued whatever line of impeachment or any other legitimate line of questioning it desired.