Opinion
Case No. 4:01 CR 207
February 19, 2002
ORDER GRANTING GOVERNMENT'S MOTION TO ADMIT TESTIMONY AS TO O'NESTI AND CONDITIONALLY GRANTING THE MOTION AS TO DIBLASIO
Before the Court is the government's oral motion to admit Jacqueline Bobby's testimony regarding out-of-court statements of Charles O'Nesti and Henry DiBlasio concerning alleged payments from their Congressional salaries to Congressman Traficant. The defendant objects to the admission of these statements as hearsay. The government seeks to admit these statements under an exception to the hearsay rule. At issue is the defendant's Sixth Amendment constitutional right to confront a witness against him rather than to be relegated to what others may have said the witness said.
Ms. Bobby was Congressman Traficant's Youngstown District Office Manager from 1985 until she resigned in 1998. She had been Traficant's office manager when he was Sheriff from 1981 through 1984. (15 February 2002 Tr. at 458). Mr. O'Nesti, who also worked on Sheriff Traficant's staff from 1981 through 1984, was the Congressman's Youngstown District Director or liaison from 1985 to 1998. He is described by Ms. Bobby as being the "closest" employee to Congressman Traficant. (15 February 2002 Tr. at 468, 469, 470, 537). Mr. O'Nesti died on 29 February 2000, more than a year before the Congressman was first indicted in this case. (15 February 2002 Tr. at 428). His death certificate, tendered as a self-authenticating document, establishes that he is unavailable to testify. Mr. DiBlasio was the Congressman's Administrative Assistant from 1985 to the Fall of 1998. (15 February 2002 Tr. at 539-40). These three, Ms. Bobby, Mr. O'Nesti, and Mr. DiBlasio, were long-time colleagues on the defendant's staff.
There is evidence that DiBlasio, an established attorney, owned an office building until November 1998 from which he and others practiced law at 11 Overhill Drive in Boardman, Ohio. Until about 1996, Congressman Traficant had his main congressional office in Mr. DiBlasio's building. In addition, there is evidence that after a new federal court house was built in Youngstown and the Congressman moved his main congressional office into it, and until 1 April 2000, Congressman Traficant maintained a separate private office in an efficiency apartment above DiBlasio's Overhill building's garage and, in the lower half of the building, office space for some staff, including Bob Barlow, a congressional aide. As Mr. DIBLASIO retired from the practice of law, he sold the Overhill building to the wife of his law partner, Allen Sinclair. At the time, Mr. Sinclair was also on Congressman Traficant's staff, as an administrative assistant or administrative counsel. (13 February 2002. Tr. 66, 70, 77, 79, 95, 114, 147, 148).
During direct examination and a voir dire outside the presence of the jury, Jacqueline Bobby testified to periodic conversations she had with Charles O'Nesti and a single conversation she had with Henry DiBlasio about the men's pay situations.
Ms. Bobby stated that she had periodic discussions with O'Nesti in his office between 1985 and 1998 regarding his pay. (15 February 2002 Tr. at 472). Sometimes, she stated, the conversations included Congressman Traficant's personal secretary, Grace Yavorsky Kavulic, as well. (15 February 2002 Tr. at 472). According to Ms. Bobby, at the times these conversations with O'Nesti occurred, neither she nor O'Nesti were aware of any investigations of Congressman Traficant. (15 February 2002 Tr. at 538). During these conversations, Ms. Bobby testified, O'Nesti "complained because he had to give so much money to the Congressman monthly, and he had . . . to pay the income tax on that money first." (15 February 2002 Tr. at 538).
As to Mr. DiBlasio, Ms. Bobby testified that she had only one conversation with him regarding his pay situation. The conversation took place in the mid 1980's in a restaurant in Niles, Ohio. (15 February 2002 Tr. at 540-41). Ms. Bobby and Mr. DiBlasio were alone. (15 February 2002 Tr. at 541). At that time, she testified, neither she nor DiBlasio were aware of any investigations of Congressman Traficant. (15 February 2002 Tr. at 541). Ms. Bobby stated that during the conversation, Attorney DiBlasio "said that he was supposed to — he has to — or is giving back so much money a month to Jim Traficant from his Congressional salary." (15 February 2002 Tr. at 541-42).
For the reasons that follow, the government's motion to admit Ms. Bobby's testimony regarding Mr. O'Nesti's out-of-court statements will be granted. As to Mr. DiBlasio's out-of-court statement, however, her testimony cannot be admitted at this time.
Analysis
Rule 802 of the Federal Rules of Evidence states that hearsay is not admissible unless it falls under a hearsay exception. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. The out-of-court statements of O'Nesti and DiBlasio at issue are hearsay if no exception applies to them.
Rule 804(b)(3) presents an exception to the hearsay rule: a statement against a declarant's pecuniary, proprietary or penal interest. The exception is triggered "if the declarant is unavailable as a witness," the declarant has first-hand knowledge, and the statement, "at the time of its making . . . [is] so far contrary to the declarant's pecuniary or proprietary interest, . . . or so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Fed.R.Evid. 804(b)(3).
In order for a hearsay statement to fall under the statement against pecuniary, proprietary or penal interest exception, the government must establish to the Court under Rule 804(a) the declarant's unavailability to testify at trial. This Court has found that the government has established Mr. O'Nesti's unavailability. Mr. DeBlasio, through counsel, has notified the Court that he "intends to invoke his Fifth Amendment rights and not testify if called as a witness." (Letter of 5 February 2002 from James M Kersey, co-counsel for Henry A. DiBlasio in Case No. 1:02 CR 003 to AUSA Morford and appearance in court; 15 February 2002 Tr. at 516-529). The Court informed the parties and counsel for Mr. DiBlasio that the letter was insufficient for Rule 804(a)(1) because mere notice is not enough; rather the witness must take the stand, and the privilege cannot be asserted in advance of questions. United States v. Gibbs, 182 F.3d 408, 431 (6th Circuit 1999). Counsel for Mr. DiBlasio and Defendant Traficant have raised also, but have not otherwise supported, an issue of Mr. DiBlasio's illness. See Rule 804(a)(4).
To qualify as a statement against interest, from the perspective of the average, reasonable person, the statement must have been truly adverse to the declarant's pecuniary, proprietary or penal interest, considering when it was made. United States v. Alverez, 266 F.3d 587, 592 (6th Cir. 2001). As to penal interest, "Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." Williamson v. U.S., 512 U.S. 594, 599 (1994). In order to determine whether the statement was sufficiently adverse to a declarant's interest so that a reasonable person in the declarant's position would not have made the statement unless believing it to be true, a court must look to the circumstances surrounding the statement. Id. at 603-04; United States v. Tocco, 200 F.3d 401, 415 (6th Cir. 2000); Vincent v. Seabold, 226 F.3d 681, 687 (6th Cir. 2000).
As to Mr. O'Nesti, the government has shown he is unavailable as a witness; that he had first-hand knowledge of the events about which he was speaking; that the statements he made were not blemished by a blame-shifting incentive in the face of known law enforcement involvement; there has been nothing to indicate that his loyalty to the Congressman was in question at the time; and the government has shown that Mr. O'Nesti's pecuniary interest was strongly implicated in the statements. In the mode of analysis of this hearsay exception, the risk of loss of a high paying position incurred by making false accusations about one's boss to a longtime co-worker and the boss's personal secretary is something no reasonable person would prompt if the statements were not true. While Mr. O'Nesti's penal interest may also have been implicated, it may or may not have been his predominant concern during the time period in which the witness says the statements were made, 1985-1998. Thus, Mr. O'Nesti's out-of-court statements concerning alleged payments from his congressional salary to Congressman Traficant are admissible.
As to Mr. DiBlasio, the government has not shown that he is unavailable as a witness. The government has shown that DiBlasio had first-hand knowledge. There is no indication his loyalty to the congressman was in question. The statement was not characterized by any blame-shifting incentive which might arise with law enforcement involvement. During the "mid-eighties", when Ms. Bobby states her conversation with DiBlasio took place in a Niles, Ohio restaurant, the Congressman leased space in DiBlasio's office building for his main congressional offices as well as an efficiency apartment above the garage which has been characterized as a private office. Thus, DiBlasio's proprietary and pecuniary interests were implicated at the time Ms. Bobby says he made the statement to her about paying money monthly to Congressman Traficant from his congressional salary. Moreover, as an attorney, a statement to a longtime co-worker that "he was supposed to — he has to — or is giving back so much money a month to Jim Traficant from his Congressional salary" implicates his penal interest. Such a statement puts at risk the loss not only of a high paying position, but also DiBlasio's rental income from the defendant's congressional offices and his private apartment, and exposes DiBlasio to loss of professional standing. Under these circumstances and the analytical framework of Rule 804(b)(3), a reasonable person cannot be thought to have made such a statement unless the statement were true. Thus, the government has established that the statement by Mr. DiBlasio about alleged payments by him from his congressional salary to Congressman Traficant would fall under the Rule 804(b)(3) exception to the hearsay rule, if the declarant is qualified as unavailable. If Mr. DiBlasio is qualified under Rule 804(a), then such statements would not be considered hearsay and, as such, would be admissible.
In regard to the Confrontation Clause of the United States Constitution, the admission of otherwise admissible hearsay statements does not create a violation if the statement is either an hearsay exception "firmly rooted" in our jurisprudence, or contains "particularized guarantees of trustworthiness" such that adversarial testing of the declarant would be expected to add little, if anything, to the reliability of the statement. The Supreme Court in Williamson v. United States, 512 U.S. 594 (1994), advised that the principle behind the Rule mandates a narrow interpretation of its application. The Court held that only the parts of a statement which are individually self-inculpatory are within the ambit of the hearsay exception. Collateral statements, even neutral ones, and self-exculpatory parts of statements are not within the scope of the statement against interest hearsay exception.
Although the Sixth Circuit previously held that Rule 804(b)(3) was a firmly rooted exception to the hearsay rule for purposes of the Confrontation Clause, Newman v. Rivers, 125 F.3d 315, 319 (6th Cir. 1997), after the United States Supreme Court plurality decision in Lilly v. Virginia, 527 U.S. 116, 134-38 (1999), and U.S. v. McCleskey, 228 F.3d 640, 646 (6th Cir. 2000), this Court has applied the "particularized guarantees of trustworthiness" standard in the analysis above. The Lilly court's plurality reasoned that inculpatory statements made by persons other than criminal defendants — the type of statement at issue here — viewed through federal Confrontation Clause decisions, are not "firmly rooted" and require a demonstration that the context in which the statements are made carry what have come to be called "particularized guarantees of inherent trustworthiness." For the reasons discussed in the above analysis, this Court finds that the government here has satisfied that more rigorous standard as to the circumstances surrounding the statements Ms. Bobby has testified were made in her presence by Mr. O'Nesti and Mr. DiBlasio.
Conclusion
The government's oral motion to admit Jacqueline Bobby's testimony regarding out-of-court statements of Charles O'Nesti about his payments from his congressional salary to defendant Traficant is granted.
The government's oral motion to admit Ms. Bobby's testimony regarding out-of-court statements of Henry DiBlasio concerning his pay situation vis-a-vis defendant Traficant is conditionally granted. The condition is that the government establish Mr. DiBlasio's unavailability under Rule 804(a).
IT IS SO ORDERED.