
    UNITED STATES of America, v. Charles CARNEGLIA, Defendant.
    No. 08-CR-76.
    United States District Court, E.D. New York.
    March 5, 2009.
    
      Amy Legow Cohn, Cristina Marie Posa, Daniel D. Brownell, Joey Lipton, Marisa M. Seifan, Mitra Hormozi, Roger Anson Burlin-game, Evan M. Norris, United States Attorneys Office, Brooklyn, NY, for United States of America.
    Chad D. Seigel, Tacopina & Siegel, PC, Emily Regina Daniel, Emily R. Daniel, Esq., Curtis Jordan Farber, Curtis J. Farber, Esq., Sarita Kedia, Law Offices of Sarita Kedia, Richard B. Lind, Richard B. Lind, Esq., Laura A. Oppenheim, Marshall Mintz, Mintz & Oppenheim LLP, Diarmuid White, White & White, Gerald J. McMahon, Law Office of Gerald J. McMahon, Robert Bloss-ner, Martin L. Schmukler, Law Offices of Martin L. Schmukler, P.C., Jonathan Samuel Konovitch, Moskowitz & Book, Saul Warren Bienenfeld, Bienenfeld & Wertman, David G. Ironman, Vincent J. Licata, Attorney at Law, Kristin M. Lasher, Fasulo, Shalley & Dimag-gio, LLP, John J. Rapawy, The Law Offices of Louis Grandelli, Eric P. Franz, Law Offices of Eric Franz PLLC, New York, NY, Kelley J. Sharkey, Attorney at Law, Susan Gail Kellman, Jean Marie Graziano, Law Offices of Jean Marie Graziano, Brooklyn, NY, James R. Froecaro, Port Washington, NY, Michael Hughes, Bernard V. Kleinman, Law Office of Bernard V. Kleinman, White Plains, NY, Robert M. Beecher, New Providence, NJ, Mark O. Wasserman, Wasserman & Enoksen, Jericho, NY, Randy Scott Zelin, Randy Scott Zelin P.C., Westbury, NY, Matthew R. Kachergus, William Sheppard, Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, FL, for Defendant.
   MEMORANDUM & ORDER ADMISSION OF STATEMENTS OF MURDER VICTIM

JACK B. WEINSTEIN, Senior District Judge.

Contents

I. Introduction...............................................................369

II. Facts.....................................................................370

A. Out-of-Court Statements...............................................370

B. In-Court Testimony at State Court Proceeding............................370

III. Law......................................................................371

A. Rule 802..............................................................371

B. Rule 804(b)(6).........................................................371

C. Rule 804(b)(1).........................................................372

D. Rule 403..............................................................372

IV. Application of Law to Facts.................................................373

A. Oul^of-Court Statements...............................................373

1. Rule 804(b)(6).....................................................373

2. Rule 403 ..........................................................373

B. In-Court Testimony at State Court Proceeding............................374

1. Rule 804(b)(1).....................................................374

2. Rule 804(b)(6).....................................................376

3. Rules 401-403 ..................................................... 376

V. Conclusion................................................................376

VI. Appendix A: 1975 State Court Transcript of Abert Gelb’s Testimony.............376

I. Introduction

As part of a RICO prosecution, defendant is charged with conspiring to murder and murdering Abert Gelb, who was shot and killed on March 11, 1976, more than thirty years ago. The government offered statements made by Gelb prior to his death through: (1) testimony by two friends of Gelb who heard what he said outside of court; and (2) Gelb’s testimony at a February 10, 1975 state court preliminary hearing on criminal charges stemming from a physical confrontation between Gelb and the defendant. See Gov’t Mastrangelo Mot. at 3, Feb. 3, 2009, Docket Entry (“D.E.”) No. 1798; Gov’t Mem. Law Supp. Mot. Limine (“Gov’t Mem.”), Jan. 14, 2009, D.E. No. 1716. Defendant objected. See Trial Tr. 1016-19, Feb. 4, 2009; Mem. Law Opp’n Gov’t Mot. (“Def.Mem.Opp’n”), Jan. 16, 2009, D.E. No. 1729.

For the reasons stated below, witnesses were permitted to testify to out-of-court statements made by Gelb. See Trial Tr. 1014-19, Feb. 4, 2009; Trial Tr. 1374-87, Feb. 5, 2009. Aso admitted was Gelb’s testimony from the state court preliminary hearing of February 10, 1975. See Trial Tr. 1427-28, Feb. 5, 2009; Hr’g Tr. 3-28, Jan. 20, 2009. The law allows the victim to rise from the grave, confronting his murderer in court with incorporeal testimony, preventing the criminal from frustrating justice through his wrongdoing.

II. Facts

A. Out-of-Court Statements

Lynn Fantauzzi, a close friend of Gelb, was with him at the Esquire Diner in Queens, New York when the defendant and Gelb had an altercation. Gelb, a New York State court officer, had observed a gun tucked into the defendant’s belt when the defendant, who had been seated near Gelb, rose. Fantauz-zi’s proposed testimony was:

On February 10, 1975, Gelb told the friend [Fantauzzi] who accompanied him to the Esquire Diner that: (1) he was going to ask the defendant if he had a permit for his gun and shortly return, (2) he learned after the arrest of the defendant’s criminal history, and (3) he attempted to speak to the defendant prior [to] the defendant’s arraignment, at which time the defendant threatened to kill Gelb for embarrassing him, telling Gelb that he was “a dead man.”
In the 13 months between Gelb’s arrest of the defendant and Gelb’s murder, Gelb informed this same friend that (1) Gelb received numerous telephone calls from the defendant threatening him with death, the frequency of which escalated as the defendant’s trial approached, (2) Gelb believed that he would be killed by the defendant and his associates prior to the trial, and (3) Gelb would not go to the police or attempt to flee because he said that the defendant and his associates would simply find him or hurt someone close to him.

Gov’t Mastmngelo Mot. at 3.

Gerald Beyrer was a court officer who worked alongside Gelb. His prospective testimony of Gelb’s statements relating to a request for special parking arrangements at the courthouse was summarized as follows:

Prior to his murder, Gelb asked a fellow court officer [Beyrer] who worked at the Queens County Supreme Court to see if he could arrange for Gelb to receive a parking spot outside the courthouse when he testified at the trial of the man he arrested in the diner. Gelb stated that he wanted to be close to the courthouse to avoid any problems. He said that the last time he went to court on that case, the defendant’s family threatened him outside the courthouse, telling Gelb that he was a court officer, not a cop, and that he should shut his mouth. The fellow court officer arranged for Gelb to receive a parking spot as requested.

Id. The government argued that this testimony demonstrated Gelb’s ongoing concerns about threats made against him by the defendant. See id. at 2-3.

Beyrer could also testify that Gelb told him that he had been threatened by the defendant’s mob associates. A police report memorialized Beyrer’s statement to law enforcement shortly after Gelb’s murder:

Around the Christmas holidays the deceased [Gelb] came and visited [Beyrer] at the court and told him that the fellows who were with the fellow who was arrested threatened] him outside of court. The deceased didn’t give [any] further details about the incident other than to say that they told him he wasn’t a Policeman but a [Court] Officer and should forget the incident.
Three weeks [before the murder] the deceased visited [Beyrer] again at the court at which time he asked about the threats. He said that thing[s] were dying down and that he wasn’t having a problem at this time.

Gov’t Ex. 3500-GB-l, ¶¶ 2-3.

B. In-Court Testimony at State Court Proceeding

State court records reveal that in the early morning of February 10, 1975, the defendant and Gelb were involved in a physical conflict at a diner in Queens. Observing the defendant carrying a gun, Gelb confronted him, inquiring whether he was a law enforcement officer. When Gelb attempted to arrest the defendant, a struggle ensued. Following the arrival of police, Gelb arrested the defendant, who was charged with illegal gun possession and resisting arrest.

Later the same day, at a preliminary hearing before a Queens Criminal Court judge, Gelb gave sworn testimony about the altercation. See Preliminary Hr’g Tr., Feb. 10, 1975, attached as Appendix A. Gelb was questioned by the Assistant District Attorney and cross-examined by William Erlbaum, a well-known and experienced attorney, who had been retained as counsel for the defendant. The proceeding was transcribed by an official court reporter. On March 11, 1976, four days before Gelb was to testify at defendant’s trial for illegal gun possession and resisting arrest, Gelb was shot and killed.

Based on overwhelming evidence, this court found by a preponderance that the defendant murdered Gelb to prevent his testifying at the state trial. The defendant’s ploy worked. On appeal, his conviction was reversed based on what were considered erroneous jury instructions in view of evidence “that Gelb may have mistakenly ascribed to defendant a personal and disparaging remark which in fact was uttered by a third party, and that Gelb, overreacting to the remark, unjustifiably accosted the defendant.” People v. Carneglia, 63 A.D.2d 734, 405 N.Y.S.2d 298, 299 (N.Y.App.Div.1978).

III. Law

A. Rule 802

An “out-of-court statement [is] generally inadmissible when ... offered to prove the truth of its contents.” Rosenfeld v. Basquiat, 78 F.3d 84, 89 (2d Cir.1996); see also Fed.R.Evid. 802. In precluding hearsay, Rule 802 “seeks to eliminate the danger that evidence will lack reliability because faults in the perception, memory, or narration of the declarant will not be exposed.” 5 Margaret A. Berger et al., Federal Evidence, § 802.02[3] (Joseph M. McLaughlin, Matthew Bender 2d ed. rev. 2008). Rule 802 is “shaped by its exceptions” explicated elsewhere in the Federal Rules of Evidence. Id. at § 802.02[l][a].

B. Rule 804(b)(6)

Statements of an unavailable declarant are not excluded as hearsay when offered against a party who “has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed.R.Evid. 804(b)(6). This exception applies both to out-of-court statements and to in-court testimony. See id. The Court of Appeals for the Second Circuit has noted that:

... the district court may admit hearsay evidence as to statements by an unavailable declarant if it finds by a preponderance of the evidence that (a) the “party against whom the out-of-court statement is offered[] was involved in, or responsible for, procuring the unavailability of the de-clarant through knowledge, complicity, planning or in any other way,” and (b) that party “acted with the intent of procuring the declarant’s unavailability as an actual or potential witness.”

United States v. Stewart, 485 F.3d 666, 670-71 (2d Cir.2007) (quoting United States v. Dhinsa, 243 F.3d 635, 653-54 (2d Cir.2001) (citation omitted)). See also United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir.1982) (establishing a preponderance of the evidence standard for the court’s determination of whether the defendant forfeited confrontation clause rights to hearsay statements by causing the declarant’s unavailability).

This prophylactic rule deals with deliberate and wrongful behavior “which strikes at the heart of justice itself.” Mastrangelo, 693 F.2d at 273. See also id. at 272-73 (“Where a defendant has silenced a witness through ... murder, admission of the victim’s prior statements at least partially offsets the perpetrator’s rewards for his misconduct”); United States v. Cherry, 217 F.3d 811, 815 (10th Cir.2000) (“To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause.”).

Where a party has intentionally procured a declarant’s unavailability as a witness, Rule 804(b)(6) allows the declarant’s hearsay statements to be offered against that party at future proceedings. “A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant’s statements at ... any subsequent proceeding.” Stewart, 485 F.3d at 672 (quotation and citation omitted) (emphasis added).

C. Rule 804(b)(1)

Rule 804(b)(1) permits cross-examined, sworn testimony of an unavailable witness to be admitted as an exception to the hearsay rule. See Fed.R.Evid. 804(b)(1). Where a declarant is unavailable as a witness, the declarant’s “[tjestimony given ... at ... a different proceeding [shall not be excluded as hearsay] 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.” Id.

Former testimony will not be excluded as hearsay when: (1) the declarant is now unavailable; (2) it was given at a formal legal proceeding; (3) at the time it was given the party against whom it is now offered had the opportunity to adequately develop it by direct, cross, or redirect examination; and (4) at the time it was given the party against whom it is now offered had a similar motive to develop it. See id.

A declarant is unavailable to testify when he is “unable to be present ... at the hearing because of death.” Fed.R.Evid. 804(a)(4). Testimony given at a state preliminary criminal hearing under oath or affirmation with a verbatim transcription meets the Rule 804(b)(1) requirement that the former testimony was given at a formal proceeding. See United States v. Salerno, 937 F.2d 797, 805 (2d Cir.1991), vacated on other grounds sub nom. United States v. DiNapoli, 8 F.3d 909 (2d Cir.1993).

The requirement that the party had an opportunity to develop it “is generally satisfied when the defense [was] given a full and fair opportunity to probe and expose [the] infirmities [of the testimony] through cross-examination.” United States v. Salim, 855 F.2d 944, 954 (2d Cir.1988) (quotation and citation omitted).

A motive to develop testimony is “sufficiently similar” for purposes of Rule 804(b)(1) when the party now opposing the testimony would have had, at the time the testimony was given, “an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue” now before the court. DiNapoli, 8 F.3d at 914-15. “The nature of the two proceedings ... and, to a lesser extent, the cross-examination at the prior proceeding ... [are] relevant though not conclusive on the ultimate issue of similarity of motive.” Id. at 915. The rigor of a preliminary hearing’s cross-examination may support a finding of a “sufficiently similar” motive to what one would expect at a subsequent criminal trial.

Similarity of motive does not imply that the charges facing the defendant at the prior and current proceedings must be identical. “Where ... both cases involve[ ] serious felonies with substantial potential punishments, and the conduct to be proven by the prior testimony in the first trial is identical to that to be proven by the testimony in the second trial, a defendant’s motive [is] sufficiently similar to justify admission.” United States v. Taveras, No. 04-156, 2006 WL 1875339, at *16 (E.D.N.Y. July 5, 2006).

D. Rule 403

Hearsay statements that fall under one or more hearsay exceptions are not automatically admitted. “[A]fter the district court finds by a preponderance of the evidence that the hearsay statement is admissible under Fed.R.Evid. 804(b)(6), it must still perform the balancing test required under Fed.R.Evid. 403.” Dhinsa, 243 F.3d at 655. The “fact that prior testimony meets the criteria set by [Rule 804(b)(1) ] and hence is not excludable on the ground that it is hearsay ... does not make it admissible.” Li v. Canarozzi, 142 F.3d 83, 88 (2d Cir.1998). Based on other evidentiary rules, the trial court retains discretion to exclude admissible hearsay evidence. Id.

Under Rule 403, the court may exclude evidence that has “probative value ... substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. Evidence presents a danger of unfair prejudice when “it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence,” such as “prov[ing] some adverse fact not properly in issue or unfairly ... excit[ing] emotions against the defendant.” United States v. Quattrone, 441 F.3d 153, 186 (2d Cir.2006) (citations omitted). Rule 403 requires the court to assess the “probative value of the proffered item as well as the harmful consequences that might flow from its admission.” 5 Berger, et al., Federal Evidence § 403.02[1]. “Relevant evidence may be excluded if its probative value is not worth the problems that its admission may cause.” Id.

IV. Application of Law to Facts

A. Out-of-Court Statements

1. Rule 804(b)(6)

By a preponderance of the evidence, based on hearings held outside the presence of the jury as well as evidence already introduced at trial, this court found that, for purposes of determining the admissibility of Gelb’s hearsay statements under Rule 804(b)(6), “the defendant killed Gelb ... in order to prevent him from testifying in the then forthcoming [state] trial and in any ... proceeding in the future.” Trial Tr. 1014, Feb. 4, 2009. The defendant has therefore “forfeit[ed] the right to object on hearsay grounds to the admission of [the] declarant’s prior statement [because the defendant’s] deliberate wrongdoing ... procured the unavailability of the declar-ant as a witness.” United States v. Williams, 443 F.3d 35, 46 (2d Cir.2006) (quotation and citation omitted). Gelb’s out-of-court descriptions of what he had observed— made directly to Fantauzzi and Beyrer — are admissible hearsay, subject to other applicable evidentiary limitations.

2. Rule 403

Despite the general admissibility of Gelb’s statements made to Fantauzzi and Beyrer, exclusion was warranted for portions of their respective testimony that otherwise constitute inadmissible hearsay or are inadmissible under Rule 403.

Fantauzzi’s testimony regarding what happened to Gelb following his arrest of the defendant was restricted to what she herself observed and what Gelb himself told her directly. See Fed.R.Evid. 802; Trial Tr. 1378-87, Feb. 5, 2009. She was permitted to testify about Gelb’s statements informing her that he had received threatening phone calls from the defendant. See Trial Tr. 1378-81, Feb. 5, 2009. Since prospective testimony that was derived from what she heard from those other than Gelb constituted inadmissible hearsay, she was not permitted to report what other individuals, such as Gelb’s roommate, told her. See Fed.R.Evid. 802; Trial Tr. 1373-87, Feb. 5, 2009.

On direct examination, Fantauzzi testified to specific statements Gelb had made to her about the threats he was receiving from the defendant and the defendant’s mob associates. They were admitted under Rule 804(b)(6) because Gelb himself could not testify to the threats, having been killed by the defendant to prevent his testimony:

Q [Mr. Burlingame, for the government]: What, if anything, happened ... to Gelb related to the incident at the diner? ...
A [Ms. Fantauzzi, the witness]: Once I was at [Gelb]’s apartment with my husband, and his roommate was there, and they had a phone call, and it turned out to be some of the — either one of or two of the people that were—
The Court: What did you hear?
A: That the individual who had been at the diner that night was on the phone threatening him, his life, again.
The Court: Did you hear the person threaten?
The Witness: No. I did grab the phone, though, and yelled at them to leave him alone, and I hung up on them.
Q: Did you have conversations with Gelb during that period about telephone calls he was receiving?
A: Numerous.
Q: Did he say that he was receiving telephone calls from Charles Carneglia, the man at tjie diner that night?
A: Numerous calls.
Q: Did Albert Gelb tell you that he was receiving telephone calls from the defendant?
A: Yes, he did____
Q: What did Gelb tell you was the content of those calls?
A: That they were telling him-he was being told by this individual that they would be killing him, they were going to remove him.
Q: When you say “this individual,” you are talking about Charles Carneglia?
A: Yes.
Q: So, your testimony is that Gelb was receiving phone calls from Charles Car-neglia saying that they were going to kill him?
A: Yes.
Q: As the trial date approached, what, if anything, did Gelb tell you about the death threats he was receiving from Charles Carneglia?
A: They were increasing. They were more frequent.
Q: Did Gelb tell you or did you observe how he responded when he would receive these calls?
A: He told me that he tried to reason with the individual, and at this point in his life, he was studying with Jehovah’s Witnesses, and he was trying to encourage this man to look into the scriptures himself.
Q: You said you were present when he received one of these calls?
A: Yes, I was.
Q: Can you explain — can you tell us about that incident?
A: I don’t remember everything about it, but I know he was on the phone again. I know that A1 was trying to talk with him in a calm voice, and I know I got angry and yelled at them.

Trial Tr. 1378-81, Feb. 5, 2009.

Beyrer was permitted to testify that Gelb “came and visited [him] at the court and told [him] that the fellows who were with ... [Carneglia] threatened [Gelb] outside of court.” Id. at 1461.

Testimony by Beyrer as to Gelb’s request for a special parking arrangement “close to the courthouse to avoid any problems” was excluded under Rule 403. See id. at 1456-58. The testimony would have invited the jury to draw the somewhat questionable inference that the request was a result of threats made by this defendant and his mob associates. Introduction of this testimony, with its limited probative value, would tend to confuse and mislead the jurors and cause waste of time in the course of the jury’s deliberations on the already sprawling evidence presented at trial. See Fed.R.Evid. 403.

B. In-Court Testimony at State Court Proceeding

1. Rule 804(b)(1)

Gelb’s testimony from the February 10, 1975 preliminary hearing meets the requirements of the Rule 804(b)(1) “former testimony” hearsay exception. It is admissible, subject to other evidentiary limitations. Gelb was unable to testify at the trial because of his death. See Fed.R.Evid. 804(a)(4). The testimony was given at a hearing under oath and transcribed by an official court reporter. See Appendix A. For purposes of Rule 804(b)(1), his state in-court statements constitute “testimony given as a witness at ... a different proceeding.”

The defendant urged that the lower burden of proof applied at the state preliminary hearing, as compared to the burden at the instant trial, weighed against a finding of “similar motive” for purposes of Rule 804(b)(1). See Def. Mem. Opp’n at 2. The argument is unpersuasive. The relative burden of proof did not bear on the motive of, or on the opportunity afforded to and taken by defense counsel. The February 10, 1975 state preliminary hearing was conducted under rules and procedures only slightly different from those governing the current federal criminal trial. They did not hobble defense counsel.

It was defendant’s submission that his current counsel would have had a greater incentive to discredit Gelb’s testimony through more rigorous cross-examination in the present trial than defendant’s then-counsel had in 1975. Unconvincing is the argument that defendant had a lesser motive in conducting cross-examination in 1975 because the charges he then faced were “far less serious” than those which now confront him. See Def. Mem. Opp’n at 2. There is no support for “basing a decision to exclude prior testimony on the grounds that the penalty faced by the defendant was greater in the second proceeding than in the first.” Taveras, 2006 WL 1875339, at * 16. In both 1975 and 2009, the defendant was charged with “serious felonies with substantial potential punishments.” Id.

Under Rule 804(b)(1), “ ‘similar motive’ does not mean ‘identical motive.’” Salerno, 505 U.S. at 326, 112 S.Ct. 2503 (Blackmun, J., concurring). Determining whether a motive is sufficiently similar is a “factual inquiry, depending in part on the similarity of the underlying issues and on the context.” Id.

Defense counsel was under no obligation to cross-examine Gelb at the state preliminary hearing, which occurred at the time of arraignment. The decision to cross-examine was tactical: questioning a witness at a preliminary hearing potentially “locks” the witness into particular testimony prior to that witness’s opportunity to more fully prepare with the assistance of prosecutors. The decision to cross-examine a prosecution witness at a preliminary hearing is generally made only when defense counsel is prepared, because a witness at a preliminary hearing may later be unavailable to testify at trial, making the preliminary hearing testimony admissible and highly consequential to the defendant’s case. In conducting a cross-examination at a preliminary hearing, defense counsel thus has reason and motive to question an adverse witness comprehensively.

There does not appear to have been any reason, such as a trap to be sprung by surprise at trial, that would cause counsel at the 1975 hearing to hold back an unrestrained attack. Gelb’s credibility was subject to reattaek at the instant trial. See Fed.R.Evid. 806 (attacking or supporting credibility of declarant).

It is instructive to compare testimony from the preliminary hearing at which Gelb was a witness, which went to the merits of the case, to testimony given at a proceeding which does not address a defendant’s culpability. At a suppression hearing, for example, a defendant does not have a motive to comprehensively cross-examine witnesses in order to east doubt upon the defendant’s guilt. See United States v. Gomes, 387 F.3d 157, 161 (2d Cir.2004) (“Because the primary issue at [defendant’s] suppression hearing was [an issue other than the defendant’s guilt or innocence], [defendant] may have lacked the motive to cross-examine ... witnesses as to facts primarily relevant to his guilt or innocence.”); Wingate, 520 F.2d at 316 (“The issue at the suppression hearing ... was not whether [the defendant] was guilty or innocent----[There was] therefore ... no meaningful opportunity to cross-examine [the witness].”). At the 1975 preliminary hearing, held on the date of arraignment, the focus was squarely on the defendant’s involvement and culpability. When cross-examining at such a hearing, defense counsel has a motive to probe deeply into all issues bearing on the defendant’s guilt.

A review of the content of the 1975 testimony demonstrates the rigor of the cross-examination. Defense counsel sought to develop in a way unfavorable to Gelb several aspects of the incident related to the crimes charged. See Appendix A 5-27. Gelb was pressed for precise details on critical features of the encounter, setting the stage for later impeachment. See, e.g., id. at 7-8. Skilled defense counsel elicited responses from Gelb that east a favorable light on the defendant’s behavior:

Q. When this Defendant you say struggled with you in the bathroom and there came a time you say you were temporarily out of possession of your gun, is that right?
A. Yes.
Q. He never threatened you with your gun did he, sir?
A. No.
Q. In words or in substance, is that right, sir?
A. Right.
Q. And just for clarification it was you who pulled your gun on him, is that correct, sir?
A. Yes.

Id. at 40.

The cross-examination succeeded in identifying several limitations of Gelb’s testimony. Gelb, for example, admitted that he was unsure whether the defendant’s gun was loaded. Id. at 25. The transcript makes evident that the defendant was given a full and fair opportunity to probe and expose infirmities of Gelb’s testimony. See Salim, 855 F.2d at 954.

When cross-examining Gelb on February 10, 1975, the defendant had a substantial interest in challenging the veracity of Gelb’s version of the altercation and ensuing arrest. DiNapoli, 8 F.3d at 914-15. All requirements of Rule 804(b)(1) were met.

2. Rule 804(b)(6)

Gelb’s testimony was admitted under Rule 804(b)(1). See Trial Tr. 1430-53, Feb. 5, 2009. At the time of admission, the court had already found, for the purpose of its preliminary ruling, by a preponderance of the evidence that the defendant killed Gelb to prevent him from testifying against him. See Part IV.A.l, supra. Rule 804(b)(6) would thus also support the court’s determination that Gelb’s testimony was admissible. Id.

3. Rules 401-403

No exclusion of portions of Gelb’s testimony as irrelevant or prejudicial was warranted. See Fed.R.Evid. 401, 402, 403. The complete transcript was admitted except for colloquy among court and counsel. See Trial Tr. 1427-28, Feb. 5, 2009; Hr’g Tr. 3-28, Jan. 20, 2009; Appendix A.

Y. Conclusion

Gelb’s statements to Lynn Fantauzzi and Gerald Beyrer were admissible with minor limitations. See Part IV, supra. The February 10, 1975 state court testimony of Gelb was properly admitted and read to the jury.

SO ORDERED.

VI. Appendix A: 1975 State Court Transcript of Albert Gelb’s Testimony

Appendix A

CRIMINAL COURTS OF THE CITY OF NEW YORK

PART 1-F: COUNTY OF QUEENS The People of the State of New York on the complaint of

-against-

Hearing CHARLES CARNEGLIA, Defendant.

Docket: Q 5034

Robbery

February 10,1975 Queens, New York

BEFORE: HON. MORRIS GOLDMAN, Judge

APPEARANCES:

GENE CIMINI, ESQ., Assistant District, Attorney For the People

LYONS & ERLBAUM, ESQS. By: WILLIAM ERLBAUM, ESQ., 123-60 83RD Avenue, Kew Gardens, New York, For the Defendant

JOHN QUINN Court Officer

John J. McSherry Official Court Reporter

Court Officer Gelb — For the People — Direct

COURT OFFICER: 47, Q503467, Charles Carneglia. Officer Gelb. Ready Hearing.

MR. ERLBAUM: Ready for a Hearing, your. Honor, Lyon and Erlbaum, by William Erlbaum, 123-60 83RD Avenue, Kew Gardens, New York.

MR. WERFEL: David Werfel, Assistant District Attorney. People ready.

UNIFORMED COURT OFFICER ALBERT L. GELB, shield 708, Criminal Courts of the City of New York, called to the stand on behalf of the People, upon having been first duly sworn by the Court, testified as follows:

COURT OFFICER: Name, shield number and assignment?

THE WITNESS: Albert L. Gelb, Uniformed Court Officer,

Criminal Court, Kings County, Shield’ 708.

DIRECT EXAMINATION BY MR. CIMI-NI:

Q Officer Gelb, on the — February 10th, 1975, approximately 3:15 a.m., were you in the vicinity of 107' Avenue and Cross Bay Boulevard in the County of Queens?
A. Yes, I was.
Q. Did you see the Defendant at that time and place?
A. Yes, I did.
Q. Will you please tell this Court what you saw of what happened with respect to this Defendant.
A. I was in the diner. I was having a bite to eat and I was at the last table in the row which is directly alongside the staircase that leads to the basement and the rest rooms. I saw the Defendant stand up and start to walk dawn the stairs. Protruding out of a slit in the back of his coat was what — was a revolver. I put down my hamburger and started to walk down the stairs and I spoke to the Defendant in the bathroom. I asked him, “Do you have a tin.” He looked at me. He said, ‘Why? What for,” or something to that effect. At that point I realized that the Defendant was not a Police Officer. I held out my badge. I said, “Please put your hands up against the wall and don’t move.” At that point I saw the Defendant reach for where the gun was. reached for my weapon. He grabbed for my gun with his two hands and a struggle ensued. The struggle became loud and his friends who were at the booth ran down. At this time—
Q. How many people did you observe run down and join the involvement you were in with the Defendant?
A. Well, to my recollection I didn’t see anyone come but they were immediately upon me out in the corridor or the area that’s outside the two rest rooms right by the telephones—
Q. How many people are you talking about?
A. Four, I believe. And they were each clutching for my gun as was the Defendant. I told them all, “I’m a Peace Officer, I’m a Court Officer.” And I told them again, “You are under arrest.” They still clutched for my gun. The Defendant got the gun from my hands. I grabbed it back and eventually I suppose we all realized that it was a stalemate because I had the gun and I wasn’t able to shoot it and they were overpowering me. The idea to call the Police came up. I agreed or they agreed to my idea. I was— well, and we went back upstairs. They did not call the Police. The person who I was with snuck away from the people who were with him and called the Police because numerous times before this she had tried to call the Police and she was stopped by the defendant’s friends. The Police had come. They entered the diner, a lieutenant, I believe, he said, “What’s going on here.” I said, “I’m a Court Officer.”
THE COURT: Don’t tell us what you told the Police, what happened next?
A. I pointed out the Defendant as the man who had the gun. The Defendant was arrested. A .357 Colt magnum and a 5 shot Smith and Wesson revolver which are vouch-ered at the 106 Precinct, were recovered from a car outside the diner.
Q. Had you ever seen either of those guns before?
A. Yes, I saw the magnum sticking out of the back of the Defendant’s coat.
Q. Did you voucher those guns into the precinct yourself? A. No. Police Officer Pon-tile badge is 1649 of the 101 Precinct responded with the captain. Vouche those guns.

CROSS-EXAMINATION BY MR. ERIB-AUM:

Q. Officer, I’m sorry — withdrawn. At the time — this was a diner, was it not, sir?
A. Yes.
Q. What was the name of this place?
A. The Esquire Diner.
Q. Now, there is a parking lot outside?
A. Excuse me?
Q. There is a parking lot outside that diner?
A. Yes.
Q. Were many ears parked at that hour in the morning?
A. Yes.
Q. You have to answer so the Court Reporter can get your answer down. Now at that time you were in plain clothes, were you not?
A. Yes.
Q. What is your best estimate of the time you first laid eyes on Mr. Carneglia?
A. Between 3, 3:15, I’m not quite sure because I don’t have a watch on.
Q. And, you said that you were not alone at the time?
A. Yes.
Q. You were sitting with someone?
A. Yes, with—
Q. With one or more persons?
A. Yes.
Q. With one person?
A. Yes.
Q. Can you state the name of that person?
A. Lynn Baranello.
Q. Is that a social friend of yours?
A. Yes.
Q. She was also in plain clothes?
A. Yes.
Q. Now, you weren’t wearing any badge or anything at that time, were you?
A. No.
Q. Now, there came a time when you say you saw the accused here?
A. Yes.
Q. And, was he walking or sitting at the time you first saw him?
A. Walking.
Q. You say you saw a revolver, what you’d concluded to be a revolver protruding at that time, is that right?
A. Yes.
Q. Were you — Where on his person, did you see that revolver?
A. I saw protruding from the slit which he — which is on his coat that he has with him at the present time—
Q. Is it one slit or more than one slit?
A. It’s one slit.
Q. One slit?
A. One slit.
Q. Was the gun toward the front of his body or toward the rear of his body?
A. It was sticking out of the dead center of the lumbar region.
Q. Which part of the gun was visible?
A. The butt, the hammer, the trigger housing, the rear sight.
Q. Now, there came a time you say you went after this accused, is that right?
A. Yes.
Q. How much time elapsed from the time that you saw him until the time when you next saw him?
A. I had him in constant sight except for when the bathroom door closed between him and me.
Q. Came a time when you absented yourself from your companion to go to the bathroom, is that right?
A. Yes.
Q. Did you call out to the Defendant at that time or did you address him only after you went to the bathroom?
A. Only in the bathroom.
Q. Now, what did you say to him? Was there anyone else in the bathroom when you went in the bathroom?
A. No, I don’t believe so.
Q. Okay. Now, so that when you went into that bathroom as far as you know, sir, there was you and there was the accused and there was no one else, is that right?
A. Right.
Q. At that time you did not withdraw what you concluded to be a gun, did he, from his belt?
A. No.
Q. And, he didn’t attempt to take what you concluded had been a gun on this person and in any way menace you, is that right?
A. Right.
Q. Did you have a conversation with him at that time?
A. Yes.
Q. What did you say to him and what did he say to you?
A. I asked him if he had a “tin.”
Q. What did he say to you?
A. He said, “Why? What for?”
Q. What did you say?
A. At this point I realized he was not a Police Officer.
Q. What did you say, sir?
A. I said, “Place your hands up against the wall and don’t move.”
Q. What did he say to you?
A. He moved.
THE COURT: Did he say anything?
THE WITNESS: No.
THE COURT: All right, counsel.
Q. All right. You are still alone in the men’s room, is that right?
A. Yes.
Q. Jump ahead of myself for a moment with the Court’s permission. Came a time you said a gun was recovered from an automobile or two guns were recovered, is that right?
A. Yes.
Q. And, those — that automobile is not the automobile of this accused, is it, sir?
A. I don’t know.
Q. Well, as far as you sit here now, sir—
Q. As you sit here now, sir, this is some ten hours or twelve hours after the event you described for his Honor, do you know the owner of the gun — -the owner of the car in which you did — which you found a gun?
Q. Found two guns.
A. No.
Q. You don’t know the owner of that car?
THE COURT: Already said he doesn’t know.
A. I don’t know for certain who the owner of the car is.
Q. You do not know who the owner of that car is now as you sit here now?
A. For certain, no.
Q. Do you have any information that this accused owned that car?
A. No.
Q. In fact you do know as you sit here now that this accused does not own that car, do you not?
A. I was told by an Officer that someone else owns the car but I didn’t check it out myself.
Q. Did this Defendant make any statement to you with respect to the guns in question that you found in that ear?
A. Yes.
Q. What did you say to him and what did he say to you?
A. Well, he told me that he had — that I had the right
‘pea’ but that I looked under the wrong ‘cup’. He made various
insinuations that it was his gun.
Q. Where did this conversation take place?
A. It took place in the 112 precinct.
Q. Now, tell his Honor what did you say to him and what did he say to you?
A. I don’t remember exactly, Counsel.
Q. Did you make — well, can you tell us the substance of what you said to him? In other words, doesn’t, have to be word for word but the substance of what you said to him.
A. He said — I said, “I know you had the gun.” And he kept insisting “What gun?” “What gun.” And eventually I said, “Listen, you are — it was sticking right out of the back of your coat.” He said, “Well,” to me, “you got the right pea but you looked under the wrong cup.”
Q. What did you say when he said, “You got the right pea but you looked under the wrong cup?”
A. I laughed.
Q. Did you say anything else?
A. No.
Q. Incidentally, I noticed during your direct examination and once during your cross you looked at your notes. Did you make any notes or memorandum concerning this incident?
A. Yes.
Q. May I see them, please? Perhaps you want to show it to the District Attorney first. Other than the complaint and arrest, report, did you make any log entries?
A. No.
Q. I take it what the District Attorney holds in his hands is the complete—
A. I — all I have is the complaint, the vouchers in triplicate copy.
Q. Okay. Official Police forms, the complaint and the voucher?
A. Yes.
Q. You made no other memo except this pink form that I hold in my hand?
A. Right, that’s correct.
THE COURT: Is that the arrest report?
THE WITNESS: Yes, Judge.
Q. Now, there came — now, you described for his Honor a conversation at a Police precinct. Was there anything more in that conversation other than what you have testified to already?
A. Well, I had to ask him certain questions to fill the boxes in on that arrest form.
Q. Pedigree information, background information, any other conversation concerning the facts of this case between yourself and this accused. You have to answer for the Court Reporter.
THE COURT: Yes or no?
THE WITNESS: Not that I remember.
Q. Did you ever hear any conversation between this accused in your presence and a brother Officer concerning the facts and circumstances of this case?
A. No.
Q. All right. Now, sir, you were telling us before I jumped ahead of myself about a conversation in the bathroom in which you and this accused were alone. There came a time that you say the accused made a suggestion — he was in plainclothes as well, is that correct?
A. Yes.
Q. And, he made suggestion that the Police be called?
A. I don’t remember who it was who made that suggestion.
Q. Well, in any event there was a discussion between you and you Went along with the idea that the Police should be called, is that right?
A. Yes.
Q. Could you tell his Honor however how much time approximately elapsed from the time that the suggestion was made that the Police be called until the Police actually arrived?
A. A few moments, I’m not quite sure how long.
Q. Can you give us your best estimate?
A. Three to five minutes, I believe.
Q. Three to five minutes. Were you assisted in that three to five minute period by any brother Officer, assisted by any other patron in the bar?
A. No.
Q. And, in that three to five minutes the Defendant did not attempt to flee, is that correct?
A. I don’t know, I didn’t see where he was.
Q. At any rate he was there when the Police arrived some five minutes later, is that right, sir?
A. Yes.
Q. Had you done any drinking earlier that evening?
A. No, I don’t drink.
Q. Now, you mentioned certain individuals and your conclusions that they were friends of the Defendant’s. Can you identify any of those persons by name for his Honor?
A. At this time, no, no.
Q. Had you ever laid eyes on those individuals prior to this time in question?
A. No.
Q. And, had you ever laid eyes on this accused prior to this time in question?
A. No.
Q. Did he have — withdrawn. You testified that he never withdrew the weapon and pointed it at you that you say you saw upon him. Was there a struggle for the gun in the men’s room?
MR. CIMINI: Objection. Which gun?
THE COURT: Which gun are you referring to, Counsel?
MR. ERLEAUM: Well, the gun that this Witness indicated he brought — had with him that men’s room.
Q. You had a gun with you, did you not, sir?
A. Yes.
Q. There was a struggle for that gun, was there not?
A: Right.
Q. Did this Defendant — did there come a time you got back your gun?
A. Yes.
Q. Did this Defendant ever point a gun — ■ other than your gun, did you ever see any other gun in the hands of this accused?
A. No.
Q. All right. Was there any conversation between this accused and the other men you say came into the men’s room?
A. I believe—
Q. What did you say to those men?
A. I’m not sure, no.
Q. So you don’t know the words or the substance, is that right?
A. There were words spoken but I don’t remember what the words were, Counsel.
Q. So just to clarify for the record as you sit here now do I understand your testimony to be that you do not know what this Defendant said, if anything, in words or in substance to the other men who arrived, is that right?
A. That’s right.
Q. Do you have another witness as to any of the events in the men’s room other than yourself?
A. No.
Q. Isn’t it a fact, sir, that this accused insisted that you remain, there until the Police arrived?
A. Yes
Q. He did insist that, isn’t that a fact?
A. I insisted he remain there.
Q. And, he insisted that you remain there, isn’t that right, sir?
A. Yes.
Q. And, isn’t it a fact, sir, that this accused sought to make a complaint against you to the’ Police Officers because of—
Q. Did you sustain any injuries in this case, Officer?
A. Yes.
Q. What injuries?
A. A bloody nose.
Q. Do you know which of the four men gave you the bloody nose?
A. No.
Q. Other than the bloody nose you sustained, any other injuries?
A. Scratches.
Q. Do you know which of those four men gave you the scratches?
A. All of them.
Q. Was the Defendant dressed in a suit and tie at that point?
A. Yes.
Q. In fact didn’t he indicate to you or in your presence to other — to brother Officers, that he had been to a wedding that evening?
A. Yes.
Q. He did indicate that, didn’t he?
A. Yes.
Q. When did he indicate that?
A. A number of times.
Q. Did you make any notes as to his report of his activities earlier in the evening?
A. Why?
Q. I asked you.
THE COURT: Officer, did you or didn’t you make any notes?,
A. No.
Q. Did you ask him where he had gotten the gun from, If he had a gun.
A. He denied having a gun.
Q. He denied it. Did he deny at all times having the gun?
A. No.
Q. Well, when he made that remark which you say, concerning, “You looked under the wrong pea,” or whatever you say he said at that point didn’t you ask him, “What were you doing with a firearm,” sir?
A. No.
Q. Did you ask him who were the other men, sir?
A. No.
Q. Didn’t you ask him to identify the persons who you concluded and stated to his Honor your conclusion as being his friends?
A. No.
Q. Did anyone make any notes at your direction?
A. Excuse me?
Q. Did anyone make any notes as to the Defendant’s representation at your direction. Did you have anyone make any notes as to what this Defendant’s of this was?
A. No.
Q. Did you tell the other Police when they arrived, “I’m a cop, too?”
A. I identified myself as a Court Officer.
Q. How did you do that?
A. I said, “I’m a Court Officer.”
Q. Did you do it in any other way?
A. Well, to the best of my recollection I said, “I’m a Court Officer.”
Q. You didn’t show him any credentials, did you?
A. I don’t remember. I probably showed them the badge.
Q. By the way in the midst of this struggle did you ever place your hands upon this Defendant?
A. Yes.
Q. And, would you tell his Honor what part of your body came into contact with what part of his body.
A. My hands, my feet, my head, my mouth, my toes.
Q. Did you kick this Defendant?
A. I can’t — I don’t know.
Q. Did you punch this Defendant?
A. It was a fight.
Q. And, did you participate in that fight?
A. Yes.
Q. And, in the course of this fight, you— in short, you struck some blows against this accused, too, is that right?
A. Yes.
Q. Did you put out any alarm for the other gentleman?
A. I don’t know who they are.
Q. Did you put out any alarm based on a description?
A. No.
Q. Oh, one thing I did mean to ask you: Did you say where — from where the Defendant had come before he passed your table?
A. I believe it was from the table—
Q. Did you see, sir, I’m not asking you to guess, I’m asking you to testify to your observations upon your oath.
A. Yes.
Q. Where did he came from?
A. The table where the others were.
Q. And, where was that table?
A. There was a table right alongside of mine.
Q. And, did you take any statements from anybody else in that premises other than your social guest?
A. No.
Q. Officer, when you say you saw this accused with a gun, out Of his jacket, you didn’t know at this point that that was a Magnum, did you, sir?
A. Yes.
Q. And, could you tell us, sir, your best estimate of the time when two guns were allegedly found in a car later that morning?
A. I haven’t the faintest idea.
Q. Well, could you give his Honor the approximate time interval between the time of the alleged observation in the diner until the time when the gun was found, just the approximate, interval?
A. 20 minutes.
Q. 20 minutes. And, you don’t know what — you cannot testify of your own personal knowledge, sir, can you, that the gun that was found in a car unconnected to this accused was the same gun you claim was on his person some 20 minutes earlier?
A. I can.
Q. You can say that?
A. Yes.
Q. Can you just for the record identify on the basis of what characteristics?
A. Magnum has a very large handle and this gun has adjustable sights. It has—
Q. Do you see the sights when the gun was — you say in this Defendant’s jacket you saw sights as well?
A. I was very close, yes.
Q. Did you see bullets, too?
A. No.
Q. So that you don’t know at the time that you claim to have seen a gun whether the object that he allegedly had at that time, at that time, was or wasn’t loaded?
A. No.
Q. And, you don’t know what if any— withdrawn. Do you recall during those 20 minutes the Defendant was in the diner, is that right, until during the period the Police came, is that right?
A. Yes.
Q. And, you are — you were not arrested, he was arrested. But he remained on the premises, is that right?
A. I don’t know.
Q. All right. Isn’t it a fact that many cars were searched outside that diner?
A. Yes.
Q. Many cars. Give his Honor the best estimate as to how many cars.
A. Three.
Q. Came a time some guns were found in one of those cars, is that right?
A. Yes.
Q. And then you said, “That’s the gun?”
A. Yes.
Q. And, how did you first identify the gun to, sir?
A. A police Officer.
Q. Will you state his name for the record?
A. I don’t know.
Q. Can you state his shield number for the record?
A. Don’t know.
Q. Do you have memo somewhere reflecting the shield number of the Officer or the name of the Officer to whom you claim you identified that gun?
A. All I have is the Officer who found them. I don’t remember who showed them to me. I was shown them at the Police station.
Q. The fact is, you weren’t even at the premises when the guns were found, isn’t that a fact?
A. Yes.
Q. You were in the Police station some miles away, isn’t that right, sir?
(No response.)
Q. When this Defendant you say struggled with you in the bathroom and there came a time you say you were temporarily out of possession of your gun, is that right?
A. Yes.
Q. He never threatened you with your gun did he, sir?
A. No.
Q. In words or in substance, is that right sir?
A. Right.
Q. And, just for clarification it was you who pulled your gun upon him, is that correct sir?
A. Yes.  