United States v. Dinapoli

8 F.3d 909 (2d Cir. 1993)

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Nature of the Case

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Facts

This is a RICO prosecution. against several Ds accused of participating in a bid-rigging scheme in the concrete construction industry in Manhattan. There was evidence that six concrete construction companies from 1980-1985 rigged the bids for concrete superstructure work on nearly every high-rise construction project in Manhattan involving more than $ 2 million of concrete work. Members of the Genovese Crime Family orchestrated the scheme and enforced adherence to the bid allocations. The first indictment alleged the essential aspects of the conspiracy and named all Ds as defendants. The grand jury investigation continued. The grand jury called DeMatteis and Bruno as witnesses. Both testifying under grants of immunity, denied awareness of a bid-rigging scheme. The prosecutor was highly skeptical of the denials. In order not to reveal the identity of then undisclosed cooperating witnesses or the existence of then undisclosed wiretapped conversations that refuted DeMatteis's denials, the prosecutor refrained from confronting him with the substance of such evidence. The prosecutor called to DeMatteis's attention the substance of only the one relevant wiretapped conversation that had already become public. Bruno testified and lied as well. Bruno was briefly excused from the grand jury room. Upon his return, after the prosecutor had consulted with the grand jury, he was told by the prosecutor of the grand jury's 'strong concern' that his testimony had 'not been truthful.' Four days later, Bruno's lawyer wrote the prosecutor stating that many of Bruno's answers had been inaccurate. The lawyer suggested that the prosecutor should resubmit his questions to Bruno in writing and that Bruno would respond by affidavit. During the trial, Ds called DeMatteis and Bruno as witnesses. Both invoked the privilege against self-incrimination. Ds then offered the testimony they had given to the grand jury. The court refused to admit the grand jury testimony as prior testimony under Rule 804(b)(1). Judge Lowe ruled generally that the 'motive of a prosecutor in the investigatory stages of a case is far different from the motive of a prosecutor in conducting the trial' and hence the 'similar motive' requirement of Rule 804(b)(1) was not satisfied. The appeals court reversed the convictions and ordered a new trial on the ground that it was error to exclude the witnesses' grand jury testimony. The panel ruled that the 'similar motive' requirement of Rule 804(b)(1) need not be met because the witnesses were 'available' to the prosecution at trial through a grant of immunity. The Supreme Court reversed the panel's reversal of the convictions. It ruled that all of the requirements of Rule 804(b)(1) must be met, including the 'similar motive' requirement. The Court remand the case for further consideration' of that issue.