Opinion
17603-13 17614-13
09-28-2022
VINCENT J. FUMO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
ALBERT G. LAUBER, JUDGE
These consolidated cases are calendared on the Court's October 3, 2022, trial session in Philadelphia, Pennsylvania. 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. To date, respondent has filed four motions in limine seeking to have all 108 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 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 23, 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. We have directed petitioner to file written responses to the motions filed September 7 and 23, 2022, respectively.
On September 26, 2022, respondent filed a fourth motion in limine addressed to the remaining 97 transcripts. Respondent seeks admission of 76 transcripts under FRE 807, the so-called "residual hearsay exception," and indicates that he will withdraw the other 21 exhibits. With respect to the 76 transcripts, respondent represents that he may be able to show that some of these witnesses are now deceased or physically or mentally disabled.
The Court will hear argument at the start of trial on the three outstanding motions in limine. The Court is tentatively inclined to deny the fourth motion in limine to the extent respondent relies on the residual hearsay exception. The Court is tentatively inclined to grant respondent's motions to the extent he can establish that the witnesses are deceased or physically or mentally disabled. The Court invites the parties to address the question whether other witnesses may be considered "unavailable" within the meaning of FRE 804(b)(1) to the extent respondent can show that he was unable to serve them with trial subpoenas. See, e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F.Supp. 1190, 1249 (E.D. Pa. 1980) ("In civil cases, it has long been the rule that inability to procure attendance by 'process or other reasonable means' is satisfied by demonstration of inability to serve a subpoena [citations omitted]. We have found nothing to indicate that the adoption of the Federal Rules of Evidence altered this long-standing rule."), rev'd on other grounds sub nom. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983).
In consideration of the foregoing, it is
ORDERED that the parties shall be prepared to present argument at the outset of trial on respondent's motions in limine filed September 7, 23, and 26, 2022.