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July 21, 1986


The opinion of the court was delivered by: WEXLER

WEXLER, District Judge

Plaintiff Vincent Pacelli, Jr. commenced this action for damages against the Nassau County Police Department and former police detectives Matthew Bonora, Roger Walker, and Conrad Robinson, pursuant to 42 U.S.C. § 1983, for acts in violation of Pacelli's civil rights. The defendants have moved in limine to preclude the testimony of a Barry Lipsky. After argument on that mction, the Court directed the defendants to file a motion for summary judgment. For the reasons stated below, defendant's motions are granted, the Complaint is to be dismissed, and judgment is to be entered for all defendants.


 Because plaintiff has not put forth any affidavits of exhibits, the following constitutes defendants' version of the facts as derived from exhibits attached to their moving papers. Plaintiff Pacelli, acting in concert with Barry Lipsky, murdered Patricia Parks in Nassau County, New York during the early morning hours of February 4, 1972. After the body had been disposed of in Nassau County, Pacelli and Lipsky drove to New Rochelle in Westchester County, New York where Pacelli's apartment was located. On their way to the apartment, Pacelli indicated that he wanted to dispose of the murder weapon, which was a folding metal pocket knife with a four inch blade and model number K55. They drove to a marina in New Rochelle and Pacelli told Lipsky that he wanted the knife thrown in the water. Pacelli then handed the knife to Lipsky. While Pacelli remained in the car, Lipsky walked to the end of the dock and flipped the knife approximately twenty feet out into the water. Lipsky and Pacelli then returned to Pacelli's apartment in order to clean the victim's blood from the car.

 After spending a few days in the New York area, Lipsky flew home to Florida. He remained there until March 2, when he returned to New York and was arrested at the airport by Nassau County Police Officers. In a statement given to Nassau County detectives Book and Walker early the following morning, Lipsky confessed to the murder and implicated Pacelli. Lipsky described how Pacelli had given him the knife to be thrown in the water at the New Rochelle Marina. On the basis of Lipsky's confession, the Nassau County Police Department immediately mounted a search for the knife. Detectives Book, Wilson, and Lannon accompanied Lipsky to the Cameron Marina in New Rochelle and Lipsky showed the officers where he had thrown the knife. Approximately two or three days later, then Deputy Commander Short was assigned by then Sgt. Bonora to recover the knife from the marina. After a search of approximately one week, a knife was recovered on March 13, 1972 by defendants Robinson and Walker. Contemporaneous notes made by policemen indicate that the knife was found shortly after low tide, which occurred that day at about 3:55 p.m. The knife was buried in seven inches of mud approximately eighty-five feet from the end of the dock. The knife matched the description given by Lipsky in his confession. Short recalls that the knife was located through the efforts of 15 or 20 members of the Nassau County Police Department, working in shifts for four or five days each during the period from March 3 and March 13, 1972. Tests later revealed the presence of blood on the blade.

 Pacelli was later indicted for federal civil rights violations in connection with the Parks murder and Lipsky testified at the trial on behalf of the government. The knife and evidence relating to its discovery were introduced to support Lipsky's testimony. After a retrial Pacelli was ultimately convicted in 1975 and sentenced to life imprisonment.

 Several years later, in 1982, Lipsky testified on behalf of the government in a criminal narcotics prosecution of Albert Perez. During cross-examination by Paul Goldberger, Perez's attorney, Lipsky was asked a series of leading questions about his involvement in the Parks murder. Lipsky admitted to his role in the crime, substantially as he had confessed to the Nassau County Detectives ten years earlier. As part of Goldberger's questioning, Lipsky was specifically asked whether he had helped dispose of the knife. Lipsky answered "We threw the knife away in Nassau County." Goldberger asked no further questions about the knife and, without pause, moved on to question Lipsky about his departure to Florida after the murder, apparently not realizing that Lipsky's answer "We threw the knife away in Nassau County" contradicted Lipsky's prior testimony that the knife had been thrown into the water in New Rochelle, which is in Westchester County. The knife was not mentioned again during the Perez trial by either party.

 Seizing upon the contradiction in Lipsky's testimony, Pacelli alleges that defendants' manufactured the confession, persuaded Lipsky to sign it, and planted a knife, allegedly the murder weapon, in the waters off New Rochelle in an effort to corroborate Lipsky's confession. In particular, the Complaint alleges that at the time of Lipsky's arrest and interrogation, Sgt. Bonora knew that Pacelli could not be convicted for the Parks murder solely on the uncorroborated testimony of Lipsky. The Complaint further alleges that during Lipsky's interrogation, Bonora concocted the story of the knife being discarded in New Rochelle and persuaded Lipsky to sign a confession to that effect. A team of policemen was dispatched to the New Rochelle marina in order to locate the murder weapon. The Complaint alleges that Bonora then conspired with Robinson and Walker to deposit a knife matching Lipsky's description of the murder weapon in the marina and then "find" it there after an intensive search. The Complaint also alleges that defendants Robinson and Walker "found" the alleged murder weapon on March 13, after twenty police officers had scoured the same spot for five days without success. Finally, the Complaint alleges that this "evidence" was turned over to the United States Attorney's Office when Pacelli was tried for the Parks murder and that the federal prosecutors had no knowledge of the conspiracy to fabricate evidence. Pacelli claims that this conspiracy constitutes a deprivation of his civil rights under 42 U.S.C. § 1983. As proof of this conspiracy, Pacelli points to Lipsky's statement under cross-examination at the Perez trial. Pacelli's theory is that Lipsky's statement "We threw the knife away in Nassau County," was not a misstatement but the truth. Pacelli contends, therefore, that Lipsky's statement at the Perez trial casts considerable doubt on the veracity of Lipsky's signed confession as well as the subsequent "discovery" of the murder weapon in New Rochelle, and tends to indicate the existence of a conspiracy to violate his civil rights.


 Defendants have moved in limine to preclude Lipsky's statement on the grounds that it is hearsay and not admissible under any exception to the hearsay rule. The parties agree that the statement is hearsay. Pacelli argues, however, that the motion is premature, because it is unclear whether Lipsky, who is now in the Witness Protection Program, 18 U.S.C. § 3521, will be unavailable to testify at trial. A subpoena has been served upon the United States Attorney for the Southern District of New York, the United States Marshal, and the Attorney General in order to procure Lipsky's appearance at trial. The jury was selected on June 6 and the trial was scheduled to commence on Monday, July 7, but was adjourned without date.

 The Court does not agree that defendants' motion is premature. The Attorney General has an obligation to ensure that a person in this program is not made immune from civil liability by virtue of their participation, 18 U.S.C. § 3521(d)(1)(F), but that obligation does not require the Attorney General to produce someone in response to a subpoena in a civil suit. The decision whether to disclose the location of a potential witness is solely within the discretion of the Attorney General. 18 U.S.C. § 3521(b)(1)(G). As of July 7, the date on which the trial was to begin, the Attorney General had neither disclosed Lipsky's whereabouts nor moved to quash the subpoena. At this stage of the proceedings it seems highly unlikely that the Attorney General will disclose Lipsky's whereabouts or that Lipsky will testify at the trial. The Court concludes, therefore, that Lipsky will be unavailable as a witness. Rule 804(a)(5), Fed. R. Civ.P.


 Having decided that Lipsky is unavailable, the next issue is whether his testimony at the Perez trial is admissible under an exception to the hearsay rule. Pacelli suggests that the testimony under the former testimony exception to the hearsay rule, Rule 804(b)(1), Fed. R. Evid.

 The former testimony exception to the hearsay rule, though included in Rule 804 along with other hearsay exceptions requiring that of the declarant be unavailable, is generally considered more reliable than other exceptions in Rule 804 because the hearsay statement was given under oath and is usually preserved in writing as part of a trial transcript. J. Weinstein & M. Berger, 4 Weinstein's Evidence § 804(b)(1)[03] (1985). Nevertheless, the guarantee of the statement's reliability rests heavily on the declarant being subject to cross-examination. The mere opportunity to cross-examine is not sufficient. As both Rule 804(b)(1) and McCormick make clear, the opportunity for cross-examination must be "meaningful in light of the circumstances which prevail when the former testimony is offered." McCormick, Evidence § 225 (2d ed. 1972). It is also recognized that Rule 804(b)(1) expanded upon the common law requirement of identity of parties and allows the former testimony to be introduced in the second trial if the party in the first proceeding against whom the statement was made shares a "community of interest" with or was a predecessor in interest to the party in the second trial. Lloyd v. American Export Lines, Inc., 580 ...

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