United States v. Salerno

The defendants were alleged to have taken part in the criminal activities of a mafia family in New York. The defendants allegedly participated in a range of organized crimes. Much of the prosecution’s case concerned the affairs of the Cedar Park Concrete Construction Corporation (Cedar Park). Two of the owners of Cedar Park, testified before the grand jury that neither they nor Cedar Park participated in criminal activity.

At trial, the defendants called these witnesses to the stand. However, both of these witnesses invoked their Fifth Amendment privilege against self-incrimination. After both witnesses invoked their right to remain silent, the defendants attempted to introduce their previous testimony to. the grand jury under Federal Rule 804(b)(1). The district court rejected the evidence, arguing that Rule 804(b)(1) permits admission of former testimony against a party at rial only when that party had a similar motive to develop the testimony by direct, cross, or redirect examination. The district court reasoned that the United States did not have a similar motive because the motive of a prosecutor in questioning a witness before the grand jury is far different than the motive of a prosecutor during trial.