U.S. v. Omar

• Decision Date: 10 October 1996
• Docket Number: Nos. 95-1271,95-1272,s. 95-1271
• Citation: 104 F.3d 519
• Parties: 46 Fed. R. Evid. Serv. 355 UNITED STATES of America, Appellee, v. Sohiel OMAR, a/k/a Sam Omar, Defendant, Appellant. UNITED STATES of America, Appellee, v. Burton A. FERRARA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 519

104 F.3d 519

46 Fed. R. Evid. Serv. 355

UNITED STATES of America, Appellee, v. Sohiel OMAR, a/k/a Sam Omar, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Burton A. FERRARA, Defendant, Appellant.

Nos. 95-1271, 95-1272.

United States Court of Appeals First Circuit.

Heard Oct. 10, 1996.

Decided Jan. 23, 1997.

Stephen Hrones by Appointment of the Court, Boston, MA, with whom Michael A. Goldsmith and Hrones & Garrity were on consolidated brief for defendants-appellants.

Timothy Q. Feeley, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, and James F. Lang, Assistant United States Attorney, were on consolidated brief for the United States.

Before CYR, BOUDIN and STAHL, Circuit Judges.

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), 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 scratchmarks 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 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 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 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).

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 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...