The case concerns conspiracy under the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), against several defendants
accused of participating in a bid-rigging scheme in the concrete
construction industry in Manhattan.
Construction Bid Rigging Scheme
The trial evidence indicated the existence of a "Club" of six
concrete construction companies that during 1980-1985 rigged the
bids for concrete superstructure work on nearly every high-rise
construction project in Manhattan involving more than $ 2
million of concrete work.
Organized Crime Family
Organized crime figures, notably members of the Genovese Family,
orchestrated the scheme and enforced adherence to the bid
Returned First Indictment.
Alleged the essential aspects of the criminal activity.
Named all of the appellants as Dfs.
DeMatteis and Bruno
Testified under immunity.
Denied awareness of bid rigging scheme.
DeMatteis Javits Project
Denied questions to the Javits bidding questions.
Prosecutor called his attention to the substance of the
Brunos conflicting Answers
His defense wrote the prosecution and said his answer were
They could resubmit by affidavit.
The thirteen-month trial
out of 11 convicted.
DeMatteis and Bruno invoked the privilege against
District Court Judge refused to admit the grand jury testimony
as prior testimony under Rule 804(b)(1).
Similar motive was not satisfied.
She ruled generally that the "motive of a prosecutor . . . in
the investigatory stages of a case is far different from the
motive of a prosecutor in conducting the trial" and hence the "similar
motive" requirement of Rule 804(b)(1)
was not satisfied.
Determine how similarity of motive at two proceedings will be
determined for purposes of Rule 804(b)(1).
The test must turn not only
on whether the questioner is on the
same side of the same
issue at both proceedings,
but also on whether the questioner had a
substantially similar interest
in asserting that side of the issue.
Where both trials where same matter is disputed
It will normally be the case that the side opposing the version
of a witness at the first trial had a motive to develop that
witness's testimony similar to the motive at the second trial.
The opponent at the first trial normally has a motive to dispute
the version so long as it can be said that disbelief of the
witness's version is of some significance to the opponent's side
of the case.
The motive at the second trial is normally similar.
The prosecutors motives at the grand jury and at trial are
almost always dissimilar.
District Courts View
The prosecutors motives in both proceedings are always similar.
Rejects both views.
Where both trials contained different issues
The prosecution would not be able to use the former testimony
for the second case in for an issue that was different in the
The proper approach, in assessing similarity of motive under
The Court must consider whether the party resisting the offered
testimony at a pending proceeding had at a prior proceeding an
interest of substantially similar intensity to prove (or
disprove) the same side of a substantially similar issue.
The nature of the two proceedings
Both what is at stake and the applicable burden of proof
Cross-examination at the prior proceeding
Both what was undertaken and what was available but forgone --
will be relevant though not conclusive on the ultimate issue of
similarity of motive