Opinion
17603-13 17614-13
11-03-2022
VINCENT J. FUMO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
ALBERT G. LAUBER, JUDGE
These cases were called for trial at the Court's Philadelphia, Pennsylvania, Special Trial Session on October 3, 2022. The parties attached to their Second Supplemental Stipulation of Facts, filed March 4, 2020, the transcripts of the testimony of 108 witnesses who testified at petitioner's criminal trial. These transcripts bear exhibit numbers 410-J through 517-J, inclusive. Respondent has filed several motions in limine seeking to have certain of these transcripts admitted into evidence over petitioner's reserved hearsay objections.
By order dated August 14, 2020, we granted respondent's first motion in limine, ruling that Exhibit 513-J, the transcript of the testimony of Frank Wallace, an individual who had died following the criminal trial, would be admitted into evidence under Federal Rule of Evidence (FRE) 804(a) and (b)(1) as the testimony of an unavailable witness. On September 7, 2022, respondent filed a second motion in limine, seeking admission of Exhibits 423-J, 425-J, 451-J, 459-J, 473-J, 485-J, 493-J, 501-J, and 505-J, on the ground that those witnesses were likewise unavailable because they had died. On September 13, 2022, respondent filed a third motion in limine, seeking admission of Exhibit 479-J on the ground that the witness was unavailable because he suffers from a disabling condition.
On September 16, 2022, the Court issued an order sealing the motion and directing respondent to re-file it with confidential portions redacted. Respondent re-filed the motion with confidential portions redacted on September 23, 2022.
Petitioner agrees that the additional witnesses whose prior testimony is referenced in the preceding paragraph are "unavailable." For the same reasons discussed in our August 14, 2020, Order, we conclude that the prior testimony of these 10 witnesses is admissible into evidence under FRE 804(a) and (b)(1). Petitioner does not dispute that the basic analysis set forth in our prior Order is similarly applicable here.
On September 26, 2022, respondent filed a fourth motion in limine addressed to the remaining 97 transcripts. In that motion respondent withdrew his request for admission of 21 transcripts, but sought admission of the remaining 76 transcripts under FRE 807, the so-called "residual hearsay exception." Having heard argument on this motion at the outset of trial, we reject respondent's broad request to have all these transcripts admitted into evidence. Respondent made no showing that these witnesses are all "unavailable," and we ruled from the bench that the residual hearsay rule is not properly used to admit prior testimony where the specific requirements of FRE 804(a) and (b)(1) are not met. We thus rejected respondent's blanket request for admissibility set forth in his fourth motion in limine.
During the trial, however, petitioner withdrew his hearsay objections to the prior testimony of certain witnesses, and we admitted with both parties' consent the transcripts of their testimony from the criminal trial. In one instance, we admitted the prior testimony of a witness whose in-person trial testimony we found hostile and contumacious. Our denial of respondent's fourth motion in limine does not affect our trial rulings on the admissibility of those particular transcripts.
On October 4, 2022, respondent filed a fifth motion in limine, seeking admission of Exhibit 435-J, which contains the transcript of the prior testimony of Dorothy Egrie-Wilcox. The parties subsequently agreed that Ms. Egrie-Wilcox's prior testimony may be admitted into evidence, and we admitted it. We have accordingly denied respondent's fifth motion in limine as moot.
For these reasons and those stated more fully in the transcript of the proceedings, it is
ORDERED that respondent's Motion in Limine, filed September 7, 2022, is granted. Exhibits 423-J, 425-J, 451-J, 459-J, 473-J, 485-J, 493-J, 501-J, and 505-J to the Second Supplemental Stipulation of Facts are admitted as testimony of unavailable witnesses. It is further
ORDERED that respondent's Motion in Limine, filed September 13, 2022, is granted. Exhibit 479-J to the Second Supplemental Stipulation of Facts is admitted as testimony of an unavailable witness. It is further
ORDERED that respondent's Motion in Limine, filed September 26, 2022, is denied, except as otherwise stated in this Order.