United States v. Omar

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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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).

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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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