United States v. DiNapoli

Six concrete construction companies (defendants) were accused of bid-rigging in the bids for concrete superstructure work in New York City between 1980 and 1985. A grand jury investigating the matter returned indictments of all six defendants on March 20, 1986 on RICO charges. The grand jury continued the investigation to identify additional defendants and additional projects that may have been subject to bid-rigging. In this phase of the investigation, the grand jury called Frederick DeMatteis and Pasquale Bruno as witnesses. DeMatteis testified on three occasions and denied awareness of the bid-rigging scheme. The prosecutor was skeptical of the denials and asked DeMatteis a few questions in the nature of cross-examination, but in order not to reveal the names of undisclosed cooperating witnesses or the existence of undisclosed wiretapped conversations, did not reveal evidence that refuted DeMatteis’s denials. Bruno testified once before the grand jury. Bruno also denied awareness of the bid-rigging scheme. After a break, Bruno was told by the prosecutor that the grand jury was concerned that his testimony had not been truthful. The prosecution also did not counter Bruno’s testimony with evidence that would have revealed the names of undisclosed cooperating witnesses or the existence of undisclosed wiretapped conversations. At trial, the defendants attempted to call both DeMatteis and Bruno, who both invoked their Fifth Amendment rights against self-incrimination. The defendants then offered DeMatteis’s and Bruno’s grand jury testimony under Federal Rule 804(b)(1). The district court ruled it inadmissible. The defendants were convicted and appealed.