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91-872.ZS
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1993-11-06
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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. SALERNO et al.
certiorari to the united states court of appeals for
the second circuit
No. 91-872. Argued April 20, 1992-Decided June 19, 1992
The respondents were indicted on a variety of federal charges, including
fraud and racketeering in connection with the allocation of construc-
tion contracts among a so-called ``Club'' of companies in exchange for
a share of the proceeds. Witnesses DeMatteis and Bruno, owners of
the Cedar Park Construction Corporation, testified before the grand
jury under a grant of immunity that neither they nor Cedar Park
had participated in the Club. At trial, however, the United States
used other evidence to show that Cedar Park was a Club member.
The respondents subpoenaed DeMatteis and Bruno, but they invoked
their Fifth Amendment privilege against self-incrimination and
refused to testify. The District Court denied the respondents' request
to admit the transcripts of DeMatteis' and Bruno's grand jury testi-
mony pursuant to Federal Rule of Evidence 804(b)(1)-which permits
admission of an unavailable declarant's testimony from a former
hearing if the party against whom it is now offered had a ``similar
motive to develop the testimony by direct, cross, or redirect examin-
ation''-reasoning that a prosecutor's motive in questioning a witness
before the grand jury is different from his motive in conducting the
trial. The respondents were convicted, but the Court of Appeals
reversed, holding that the District Court had erred in excluding the
grand jury testimony. It ruled that, to maintain ``adversarial fair-
ness,'' Rule 804(b)(1)'s similar motive element should evaporate when
the government obtains immunized testimony in a grand jury pro-
ceeding from a witness who refuses to testify at trial.
Held:
1.Former testimony may not be introduced under Rule 804(b)(1)
without a showing of ``similar motive.'' Nothing in Rule 804(b)(1)
suggests that a court may admit former testimony absent satisfaction
of each of the Rule's elements. The respondents err in arguing that
the Rule contains an implicit limitation permitting the ``similar
motive'' requirement to be waived in the interest of adversarial
fairness. Also rejected is the respondents' argument that the United
States forfeited its right to object to the testimony's admission when
it introduced contradictory evidence about Cedar Park. Here, the
United States never revealed what DeMatteis and Bruno said to the
grand jury, but, rather, attempted to show Cedar Park's involvement
using other evidence. In addition, the respondents mistakenly argue
that adversarial fairness prohibits the suppression of exculpatory
evidence produced in grand jury proceedings. Dennis v. United
States, 384 U.S. 855, distinguished. Pp.3-7.
2.This case is remanded for consideration of whether the United
States had a ``similar motive.'' Since the Court of Appeals erroneous-
ly concluded that the respondents did not have to demonstrate such
a motive, it did not consider fully the parties' arguments on this
issue. Pp.7-8.
937 F.2d 797 and 952 F.2d 623, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and White, Blackmun, O'Connor, Scalia, Kennedy, and
Souter, JJ., joined. Blackmun, J., filed a concurring opinion.
Stevens, J., filed a dissenting opinion.