USCA1 Opinion

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

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

______________
Goldsmith
_________

and

Hrones & Garrity

__________________

were

Court, with whom Michael

_______
on

consolidated

brief

appellants.
Timothy Q. Feeley, Assistant
__________________

United States

Attorney, with

Donald K. Stern, United States Attorney, and James F. Lang, Assist

________________
_____________
United

States Attorney,

were on

consolidated brief

States.

____________________

for the

Uni

January 23, 1997

____________________

BOUDIN, Circuit Judge.

______________

Burton Ferrara

and Sohiel Omar

appeal

from

their

convictions

laundering and conspiracy.

district court

erred

objection, grand

prior to the

in

for

the hearsay exception

larceny,

The single issue

excluding,

jury testimony

trial.

bank

The issue

over

of a

money

is whether the

the

defendants'

witness who

had died

turns on the application

for "former testimony."

of

Fed. R. Evid.

804(b)(1).

On

March

27,

1991,

Brinks

armored

truck

deliveries in Boston was robbed of about $900,000.

making

The truck

was found in nearby Somerville with the money missing and the

driver, Burton Ferrara, handcuffed

Ferrara told

compartment.

police that he had been hijacked in Boston by a

gunman who, while

the return

in the rear

of

Ferrara was parked on

messengers,

stuck

a gun

the street awaiting

through

portal

(actually a

gunport) in the driver's

compartment and forced

Ferrara to open the door.

After

an

extensive

concluded that the

robbery had been

and his friend Sohiel

years

Ferrara

after

the

and Omar,

laundering the

investigation,

Omar.

robbery,

charging

In February 1994,

a federal

them with

18 U.S.C.

-2-2-

authorities

carried out by

grand

Ferrara

almost three

jury

indicted

bank larceny,

stolen funds, and conspiracy

substantive offenses.

the

money

to commit those

371, 1956(a)(1)(B)(i),

2113(b).

The defendants were tried by a jury

in October and

November of 1994.

At trial,

with

the government's evidence

one exception,

testified that

friends and

was extensive but,

largely circumstantial.

prior to the

former co-workers

Its witnesses

robbery, Ferrara and

at an

Omar were

automobile dealership.

In 1990, they had sought to renovate a house in South

but had

fallen into financial difficulties,

Boston

and were unable

to pay their contractors.

Brinks

accompanied

him to

deliver

the

cash from

the

The robbery occurred about three weeks later.

The government

also offered

through which the assailant's

evidence that

the messengers had

shown that

portal cover--easily

the

inside--could

be opened

and effort.

Two

from

the portal,

gun had allegedly been thrust,

was closed when

tools

driver and began work in March 1991 on a regular run;

messengers

truck.

Ferrara then obtained a job as

left the truck.

controllable from

the outside

witnesses said

scratch-marks outside the portal.

It was

only with

that there

The jury could

the

time,

were no

thus have

regarded Ferrara's version of events as doubtful.

More

damaging

beginning soon

was

testimony

from

contractors

after the robbery, Ferrara and

that

Omar began to

pay them

with large

cash and

new

bills,

sequential order.

sums--the first payment

some

with serial

was $5,200--in

numbers

almost

in

Much of the money was shown to derive from

-3-3-

Federal

Reserve

shipments to

the

bank whose

cash

was in

Ferrara's

truck

on

robbery, Ferrara

the day

of

the

robbery.

also bought money orders

After

the

and made payments

to others.

One of the contractors testified

he

preferred to

installments

be

with

paid

checks

by

check;

drawn

on

Services, a defunct trash hauling firm.

bookkeeper for

Lee Services.

with Raymond Femino, who

and a friend

especially

of Omar.

damning

and

that he told Omar that

Omar

paid

the

account

of

next

Lee

Lee Najarian was the

In 1991, Najarian

was the proprietor of

Najarian's evidence at

led

the

directly to

the

was living

Lee Services

the trial was

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

Femino

night of the robbery, and that

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

bank

she had put some

account and

written

of the money in

the Lee Services

checks to

and one

Omar

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

-4-4-

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

any

occasion, Najarian had generally denied

pertinent knowledge of

the Brinks

robbery and

had not

disclosed Omar's delivery of

entering

into

government,

January

written

cash or his admissions.

immunity

Najarian testified

1994.

This time

agreement

again to the

she gave testimony

After

with

the

grand jury in

similar to her

later trial testimony.

As part of its own case, the defense sought to undermine

Najarian's

Femino's

testimony

grand jury

about 10 to

November

testimony.

20 minutes at an

1991.

There,

aspects of the case,

money

further by

from Omar,

introducing

Femino

portion of

had testified

for

earlier grand jury session

while being

questioned

he briefly but flatly

either in

a trash

bag or

on

in

other

denied receiving

otherwise, and

denied putting cash for Omar into bank accounts.

Because

Femino died

in

1993, he

was unavailable

for

trial.

testimony

The

defense sought

under Fed.

R.

to offer

his prior

Evid. 804(b)(1)

grand jury

which--where

the

-5-5-

declarant is unavailable--permits

as evidence in a

criminal

trial prior

[t]estimony given
at

another

proceeding .

[by the declarant]

hearing
. .

of

if

similar

motive

same

the party

testimony is now offered

and

the

as a witness
or

different

against whom

. . . had an

to develop

the

opportunity

the

testimony by

direct, cross, or redirect examination.

The district court excluded

the

ground

that the

Femino's grand jury testimony on

government

did

not have

"similar

motive" in November 1991 to develop Femino's testimony.

The jury

counts.

48

ultimately convicted

Ferrara and Omar

The district court later sentenced each defendant to

months in prison, three

years of supervised release, and

restitution in the amount of $908,750.

has

been

on all

ably

briefed by

presented is whether

it was

both

On this appeal, which

sides,

error and,

the

if so,

only question

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,

not

but

available.

we

think

that

this

course

is

readily

Whether a mistaken evidentiary ruling is harmless

depends, in

the ordinary

case, primarily on

that it did or did not affect

both upon the

evidence at

other evidence in the case.

the jury.

issue and
___

the likelihood

This in turn hinges

on the

weight of

See Rossetti v. Curran, 80

___ ________
______

1, 6-7 (1st Cir. 1996).

-6-6-

the

F.3d

It

is true,

in the

government's favor,

that Femino's

grand jury testimony was not especially credible.

piece

of

the

testimony

contradicted

Najarian

detail

highly

and

immunity).

was

drug

making

that

helped

the

was brief,

lacking

self-serving

(since

Other testimony

addicted, an

defendants

his boilerplate denials

and a

and

in corroborative

Femino

at trial suggested

alcoholic,

That small

seller

in the grand

had

no

that Femino

of drugs,

jury even less

likely to be credited.

On

the other

circumstantial.

may

not

making

government's case

was largely

Najarian's testimony about the

bag of cash

have been

the

The government says

it

case fit

the money was

testified to

Najarian

essential, but

circumstantial

describing how

also

hand, the

was very

together

helpful in

tightly,

conveyed to Femino.

Omar's alleged

by

Najarian

incriminating admissions.

that the defendants were able to impeach

with her own

original grand jury

testimony; but a

little thought suggests that this argument cuts both ways.

A fairly strong case

been

much

disbelieved.

weaker

Of

if

against both defendants would have

Najarian's

course, Najarian's

testimony

had

been

testimony

had

other

support

while Femino's

self-serving.

grand

jury denials

But, together with Najarian's

were brief

and

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

-7-7-

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

of law--how

to construe Rule 804(b)(1)--which

de novo review.
________

rule

to particular

normally tested

favors the

F.3d

But

in considering the

facts,

the district

by an "abuse of

prevailing party.

is subject to

application of the

court's ruling

is

discretion" standard, which

United States v.
_____________

Lombard, 72
_______

170, 187 (1st Cir. 1995), appeal after remand, 102 F.3d
___________________

(1st

Cir. 1996).

And,

the

hearsay, it was the defendants'

of

issue

the

exception

they

evidence in

question being

burden to prove each element

invoked.

Cf.
___

United States
______________

v.

Sepulveda, 15 F.3d 1161, 1180

_________

(1st Cir. 1993), cert. denied,

_____ ______

114 S. Ct. 2714 (1994).

Turning to

exception

Rule 804(b)(1),

for prior

conditions are

government's

testimony

met, to

behest

criminal trial.

we think that

does extend,

grand jury

and

later

testimony

offered

this hearsay

where all

its

taken at

the

against

it

in

A grand jury proceeding can be regarded as a

"hearing," especially in

as well

to depositions.

similar

motive to develop

the context of a

And--assuming

an

exception to the hearsay

the

party against whom the

rule that applies

"an opportunity and

the testimony"--the rationale for

rule is made

out, namely, that

testimony is now offered earlier

-8-

-8-

had

the

opportunity and

testimony, and

similar

so did then whatever

motive

to discredit

it would do

the

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

would

quite

rationale

for

hearsay

different, namely, a kind

motive

exception

of quasi-estoppel.1

be

Arguably, the

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

Whether

did not

or not

apply

at all

this was

stand

against the

later

in United States
______________

There, the Supreme

to

grand jury

dictum, Donlon's
______

Supreme

Court's own

v. Salerno,
_______

Court all

but held

testimony.

statement cannot

decision two

505

U.S. 317

that Rule

years

(1992).

804(b)(1)

could

embrace grand jury testimony; and on remand the Second

____________________

1The

advisory committee

the matter in confusion.

as archaic but
the

note on Rule

It describes the estoppel rationale

then, instead of flatly

discussion to

804(b)(1) leaves

the proposition

rejecting it, shifts

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.

-9-9-

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

proceedings

difficult

have

grand

In

for defendants

satisfy the

reasons

in mind.

fact,

offering grand

"opportunity and

why this is

jury testimony.

(7th Cir.),

likely

to be

jury testimony

similar motive" test;

so probably underlie

expressed as to whether

1453, 1462

it is

grand jury

very

to

and the

the doubts courts

the rule should

ever apply to

E.g., United States v. Dent, 984 F.2d

____ _____________
____

cert. denied, 510

____________

U.S. 858

(1993).

But the government concedes that

and

(yielding to Salerno) we
_______

it could in principle apply

agree, if and

when the quoted

condition is met.

This concession

stretch very far.

the

prosecution

proceeding have

by the United

States is not

meant to

The government's bedrock position is that

ordinarily

does

not
___

in

grand

jury

the kind of motive to develop testimony that

it would in an ordinary trial or that is required to meet the

express

in

test and rationale of Rule 804(b)(1).

this case the prosecutor

at the grand

And, it says,

jury stage lacked

the requisite "similar motive" as to Femino's testimony.

agree

provisionally

with

completely with the latter.

the

former

proposition

We

and

-10-10-

In an ordinary trial, the positions

a- vis

of the parties 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

the witness.

witness

side

If a new trial

with

later becomes necessary and the

proves unavailable, it may be a fair guess that each

has already

party

trial as a last chance

would do if

done at

the original

trial all

the declarant were now

that the

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.

witness

is rarely

In particular, discrediting a grand jury

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,

the

"opportunity and

we think that it is fair

similar motive"

test to

to apply

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.

-11-11-

And our

main

concern

government

is

whether,

(the

in

party against

the

prior

proceeding,

the

whom

the

testimony is

now

offered) had "an opportunity and similar motive" to undermine

it.

There

is

no indication

evidence available

in November

and contradict Femino

the defendants.

the

that

the

government had

1991 with which

any

to confront

when he denied receiving the cash from

Najarian was still denying

matter in August 1993

Not until November 1994,

in her own

any knowledge of

grand jury testimony.

in an interview with an

FBI agent,

did

it

Najarian change her story and begin to cooperate.

is

arguable

that

the

government

had

no

Thus,

meaningful

opportunity to discredit Femino at the time.2

In any case,

do so.

If

evident motive to

the government had had Najarian's

1991, it could

Femino.

it certainly lacked any

well have

preferred to keep

The prosecutor might

witness for the time

armed with a

cooperation in

it secret

have wished to

being or to bargain later

perjury charge

against him.

from

protect a key

with Femino,

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

made clear by the rule or advisory committee note.

is not

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.
34 F.2d 1416, 1427

Compare United States v. Koon,

_______ _____________
____

(9th Cir. 1994), rev'd on other grounds,

_______________________

116 S. Ct. 2035 (1996).

-12-12-

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

the government

of belief.

called Femino to elicit

other points; the prosecutor

from

or to

make

grand jury,

testimony on several

seems to have asked about

the defendants simply to

position

In the

clear

lock the witness

to

the

grand

cash

into a firm

jury

that

all

reasonable questions had been asked.

An

outcome

argument

here

statement.

can certainly

would

be

His grand jury

defendants on this

to

be

admit

made

Femino's

testimony was

issue; it was

that the

fairest

exculpatory

important to

pure happenstance that

the

he

died and was not

refused

available at trial (although he

to testify).

And while

his

might have

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.

ruling is ad hoc, it is hard to implement

______

outcomes.

If

every

policy and predict

And rules themselves are debatable:

one respected

evidence code proposed that "hearsay . . . is admissible if .

-13-13-

. . the declarant . . . is unavailable."

Evidence Rule 503

________

with

a broad

"circumstantial

(1942).

But our own

catch-all exception

guarantees of

ALI, Model Code of

_____________

federal rules

for hearsay

stop

supported by

trustworthiness."

Fed.

R.

Evid. 803(24), 804(b)(5).

In

this

case,

exception, probably

the

defendants

did

not

believing that they could

Femino's self-serving denials were trustworthy.

invoke

this

not show that

Thus viewed,

the defendants were deprived of helpful but not very credible

evidence

which--for this

been given great weight

evidence

tending to

events,

the exclusion

Rule 804(b)(1).

Affirmed.
________

very

reason--might well

by the jury, quite apart

corroborate Najarian's

of the

evidence was

not have

from other

story.

In all

consistent with

-14-14-