The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_872/91_872.zd

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SUPREME COURT OF THE UNITED STATES
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No. 91-872
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UNITED STATES, PETITIONER v. ANTHONY
SALERNO et al.
on writ of certiorari to the united states court of
appeals for the second circuit
[June 19, 1992]

  Justice Stevens, dissenting.
  Because I believe that the Government clearly had an
-opportunity and similar motive- to develop by direct or
cross-examination the grand jury testimony of Pasquale
Bruno and Frederick DeMatteis, I would affirm the judg-
ment of the Court of Appeals on the ground that the
transcript of their grand jury testimony was admissible
under the plain language of Federal Rule of Evidence
804(b)(1).  As the Court explains, ante, at 1-2, the grand
jury testimony of Bruno and DeMatteis was totally inconsis-
tent with the Government's theory of the alleged RICO
conspiracy to rig bids on large construction projects in
Manhattan.  Bruno and DeMatteis were principals in Cedar
Park Construction Corporation (Cedar Park), which,
according to the Government, was a member of the so-called
-Club- of concrete companies that submitted rigged bids on
construction projects in accordance with the orders of the
Genovese Family of La Cosa Nostra.  But notwithstanding
the fact that they had been given grants of immunity,
Bruno and DeMatteis repeatedly testified before the grand
jury that they had not participated in either the Club or the
alleged bid-rigging conspiracy.  As the Court of Appeals
explained, Cedar Park was -one of the largest contractors
in the metropolitan New York City concrete industry,- and
it is arguable that without Cedar Park's participation,
-there could be no `club' of concrete contractors.-  937 F. 2d
797, 808 (CA2 1991).  And without the -Club,- the allega-
tions of fraud in the construction industry-which -formed
the core of the RICO charges---simply dissolv[e].-  Ibid.
  It is therefore clear that before the grand jury the
Government had precisely the same interest in establishing
that Bruno and DeMatteis' testimony was false as it had at
trial.  Thus, when the prosecutors doubted Bruno and
Dematteis' veracity before the grand jury-as they most
assuredly did-they unquestionably had an -opportunity
and similar motive to develop the testimony by direct, cross,
or redirect examination- within the meaning of Rule
804(b)(1).
  The Government disagrees, asserting that it ``typically
does not have the same motive to cross-examine hostile
witnesses in the grand jury that it has to cross-examine
them at trial.-  Brief for United States 11.  This is so, the
Government maintains, because (1) cross-examining the
witness might indirectly undermine the secrecy of the grand
jury proceedings, (2) the Government might decide to
discredit the witness through means other than cross-
examination, and (3) the issues before the grand jury are
typically quite different from those at trial.  See id., at
11-14; Reply Brief for United States 9-12.  In my view, the
first two reasons-even assuming that they are true-do
not justify holding that the Government lacks a -similar
motive- in the two proceedings.  And although the third
reason could justify the conclusion that the Government's
motives are not -similar,- it is not present on the facts of
this case.
  Even if one does not completely agree with Wigmore's
assertion that cross-examination is -beyond any doubt the
greatest legal engine ever invented for the discovery of
truth,- one must admit that in the Anglo-American legal
system cross-examination is the principal means of under-
mining the credibility of a witness whose testimony is false
or inaccurate.  For that reason, a party has a motive to
cross-examine any witness who, in her estimation, is giving
false or inaccurate testimony about a fact that is material
to the legal question at issue in the proceeding.
  Of course, the party might decide-for tactical reasons or
otherwise-not to engage in a rigorous cross-examination,
or even in any cross-examination at all.  In such a case,
however, I do not believe that it is accurate to say that the
party lacked a similar motive to cross-examine the witness;
instead, it is more accurate to say that the party had a
similar motive to cross-examine the witness (i.e., to under-
mine the false or misleading testimony) but chose not to act
on that motive.  Although the Rules of Evidence allow a
party to make that choice about whether to engage in cross-
examination, they also provide that she must accept the
consequences of that decision-including the possibility that
the testimony might be introduced against her in a subse-
quent proceeding.
  Thus neither the fact that the prosecutors might decline
to cross-examine a grand jury witness whom they fear will
talk to the target of the investigation nor the fact that they
might choose to undermine the witness' credibility other
than through rigorous cross-examination alters the fact that
they had an opportunity and similar motive to challenge the
allegedly false testimony through questioning before the
grand jury.  Although those might be reasons for declining
to take advantage of the opportunity to cross-examine a
witness, neither undermines the principal motive for
engaging in cross-examination, i.e., to shake the witness'
allegedly false or misleading testimony.  Indeed, other
courts have found the -opportunity and similar motive-
requirement of Rule 804(b)(1) satisfied-and hence the prior
testimony admissible in a subsequent trial-in many
similar situations.
  That leaves the Government's third reason, its contention
that it lacks a similar motive to question grand jury
witnesses because the issues before the grand jury may not
be the same issues that are important at trial.  If that were
true in a particular case, I would agree that the Govern-
ment lacked a similar motive for developing the witness'
grand jury testimony.  Because the scope of questioning is
necessarily limited by the scope of the legal and factual
issues in a given proceeding, a party has little motive, and
indeed may not be permitted, to ask questions about other
issues.  Thus if those other issues become important in a
subsequent proceeding, the testimony from the prior
proceeding may properly be excluded on the ground that the
party against whom it is offered lacked a similar motive for
developing the testimony at the prior proceeding.
  That did not occur in this case, however.  After reviewing
the sealed transcripts of Bruno and DeMatteis' grand jury
testimony, the Court of Appeals concluded that -[v]ery
generally stated, their grand jury testimony denied any
awareness of, let alone participation in,- the -Club- of
concrete contractors, the existence of which was crucial to
the RICO counts dealing with fraud in the construction
industry.  937 F. 2d, at 808.  Moreover, the transcripts
reveal that the prosecutors did challenge some of the
witnesses' denials of knowledge of criminal activity by
questioning which included probing the basis of their
statements and confronting them with contrary statements
from other people.
  I am therefore satisfied that the Government had an
-opportunity and similar motive- to develop the grand jury
testimony of witnesses Bruno and DeMatteis; consequently,
the transcript of that testimony was admissible against the
Government at respondents' trial under Rule 804(b)(1).  For
that reason, I would affirm the judgment of the Court of
Appeals.