Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:93-cv-00531-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) AMBASE CORPORATION AND ) CARTERET BANCORP, INC., ) ) Plaintiffs, ) ) and ) ) FEDERAL DEPOSIT INSURANCE ) CORPORATION, ) ) Plaintiff-Intervenor, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Civil Action No. 93-531C (Judge Loren Smith)

PLAINTIFFS' MOTION TO SUBMIT PARTY ADMISSIONS OF JOHN RYAN AS SUBSTANTIVE EVIDENCE In anticipation of the Defendants' Rule 52(c) motion, and pursuant to FED. R. EVID. 801(d), Plaintiffs AmBase Corporation and Carteret Bancorp, Inc. ("AmBase"), hereby move for leave to file excerpts of John E. Ryan's deposition testimony, taken on May 25, 1999, for use as substantive evidence in this case. Specifically, AmBase wishes to submit the following portions of Mr. Ryan's deposition (attached hereto as Ex. A): 12:20-14:1; 51:18-52:4; 53:21-54:13; 125:17-126:16; 128:2-128:4; 128:20-128:23; 132:5-132:25. Because Mr. Ryan was an employee of the federal government at the time of his deposition, his testimony is admissible as an admission of a party opponent under FED. R. EVID. 801(d)(2)(D).

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DISCUSSION I. Under this Court's Rules, the Motion is Timely On December 21, 2007, AmBase moved to designate the deposition testimony of several government officials under Fed. R. Evid. 801(d). The testimony qualified as admissions of a party opponent, and the Court granted AmBase's motion. See Doc. 250. This Court's rules, however, did not require all deposition designations to be submitted at that time. See RCFC Appendix A, ¶15(b) ("Any party intending to present substantive evidence by way of deposition testimony, other than as provided by Fed. R. Evid. 801(d), shall serve and file a separate motion for leave to file the transcript of such testimony.") (emphasis added). See also Globe Sav. Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 96 (2004) (noting that "this Court's case management procedures . . . specify that a separate motion be filed for admission of a deposition pursuant to RCFC 32(a) but not under Fed. R. Evid. 801(d)(2)"); Order Granting-In-Part Plaintiff's Motion to Admit Deposition Testimony as Substantive Evidence at 2-4, Anchor Sav. Bank v. United States, No. 95-39C (Fed. Cl. May 17, 2005) ("Anchor Order") (attached to Doc. 267 as Ex. B) ("Paragraph 15 by its own terms does not apply to deposition testimony that is presented at trial pursuant to Fed. R. Evid. 80 1 (d), i.e., deposition testimony that is characterized as non-hearsay . . . ."); Glendale Fed. Bank, FSB v. United States, 39 Fed. Cl. 422, 425 (1997) (admitting expert witness' deposition testimony "as admissions against the Defendant" pursuant to Fed. R. Evid. 801(d)(2)(C) without referring to RCFC 32(a)). Accordingly, in its December 21 motion, AmBase provided notice that it might seek to introduce additional party admissions at a later point. See Pls.' Mot. to Designate Dep. Test. for Trial (Doc. 244) at 7 n.1("AmBase nevertheless reserves the right to move for leave to designate additional deposition testimony that may be admissible under FED. R. EVID. 801(d).").

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II.

The Requirements for Admissibility Under Rule 801(d)(2)(D) FED. R. EVID. 801(d) provides, in relevant part: (d) Statements which are not hearsay. A statement is not hearsay if-- .... (2) Admissions by party-opponent. The statement is offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . .

Deposition testimony satisfying the requirements of this rule need not "fall within a provision of RCFC 32 to be admissible," for "Fed. R. Evid. 801(d)(2) provides an independent ground for admission of deposition testimony." Globe, 61 Fed. Cl. at 95-96 (quotation marks omitted). See also RCFC 32(a)(1) ("Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence.") (emphasis added); Anchor Order at 4-6. Thus, so long as AmBase can demonstrate that designated deposition testimony satisfies the requirements of Rule 801(d)(2), it may be admitted as evidence at trial. See Long Island Sav. Bank, F.S.B. v. United States, 63 Fed. Cl. 157, 163-65 (2004); Globe, 61 Fed. Cl. at 94-97; Anchor Order at 4-6. "It is a widely accepted rule that admissions of a party-opponent under Rule 801(d)(2) are accorded generous treatment in determinations of admissibility." Globe, 61 Fed. Cl. at 96 (quotation marks omitted). Thus, deposition testimony may be used at trial as the admission of the United States as party opponent under Rule 801(d)(2)(D) so long as it meets three requirements. First, the testimony must be "offered against a party, in this case the United States" and consist of "statements by the party's agent or servant." Long Island Sav. Bank, 63 Fed. Cl. at 164 (quotation marks omitted). Such statements need not be "against interest" or "inculpatory," however. Globe, 61 Fed. Cl. at 97.

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Second, the agent or servant's statement "must concern[] a matter within the scope of the agency or employment." Long Island Sav. Bank, 63 Fed. Cl. at 164 (quotation marks omitted) (alteration in original). This requires only "that the subject matter of the admission match the subject matter of the employee's job description." Id. (quotation marks omitted). Finally, the deponent's statement must have been made "during the existence of [his] relationship with the United States." Id. at 164-65 (quotation marks omitted). "There is no requirement," however, "that the particular agency at which a deponent was employed at the time of the deposition match the subject matter of the admissions," for "[t]he party-opponent is the United States, not a particular agency." Id. at 165 Thus, as long as the deponent is employed or retained by the United States at the time of the deposition, the deponent's statements may constitute admissions against the United States with respect to the subject matter of any federal capacity in which the deponent was previously retained or employed. Deposition testimony satisfying these requirements is admissible as substantive evidence without further showing. The movant "need not demonstrate that any of the declarants whose deposition testimony it seeks to admit at trial . . . will be unavailable as witnesses at trial." Long Island Savings Bank, 63 Fed. Cl. at 164; accord Globe, 61 Fed Cl. at 95. 1 Rule 801(d)(2) is not

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In response to AmBase's Motion to Designate Deposition Testimony for Trial (Doc. 244), which relied in part on Rule 801(d)(2) and the analyses of that Rule in Globe and Long Island, the government stated that it "respectfully disagree[d] with the[se] cases . . indicating th[at] Fed. R. Evid. 801(d)(2)(D) constitutes an independent basis for admitting deposition testimony as evidence." Doc. 248 at 6 n.1. The government may well disagree with these decisions, perhaps because they force the government to grapple with the implications of its own admissions, but it offered no reasons why the opinions are erroneous under the Rules they interpret. Faced with the cogent analysis of Long Island and Globe, the Government is left to invent nonexistent requirements under the Rules and to appeal to a common law preference for live testimony--a preference, which as explained above, does not even apply to admissions. Long Island, Globe, and the other sources cited in this filing effectively and fully rebut these arguments. In any event, this Court rejected the government's arguments and granted AmBase's motion to designate. See Doc. 250. AmBase respectfully submits that the same course is appropriate here. 4

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a rule of convenience or necessity justified by witness unavailability. Instead, Rule 801(d)(2) recognizes that party admissions have circumstantial guarantees of reliability that substitute for the guarantees of in camera observation, oath, and cross examination. Thus, admissions constitute, and the Federal Rules treat them as, reliable and independent substantive evidence. Accordingly, the concerns that motivated the common law's preference for live testimony are not implicated by designations under Rule 801(d)(2). As this Court has recognized, "admissions of a party opponent are not hearsay. The common law's preference for live testimony has no bearing on the use of party admissions as evidence." Long Island Savings Bank, 63 Fed. Cl. at 163. See also Globe, 61 Fed. Cl. at 94-95 ("As Professor Wigmore explains, admissions `pass the gauntlet of the hearsay rule, which requires that extra-judicial assertions be tested by cross-examination, because the declarant, in the circumstance of making an admission, is "the only one to invoke the hearsay rule and because he does not need to examine himself.'") (quoting 4 John Henry Wigmore, Evidence in Trials at Common Law § 1048, at 4 (James H. Chadbourn ed., 1972)). The Advisory Committee's Note to Rule 801(d) explicitly makes this point: "Admissions by a partyopponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. No guarantee of trustworthiness is required in the case of an admission." Indeed, even if a witness has testified or will testify at trial, his out-of-court admissions constitute admissible substantive evidence. See, e.g., Cmty. Counseling Serv. v. Reilly, 317 F.2d 239, 243 (4th Cir. 1963) ("[I]t is quite immaterial that the adversary is available to testify at the trial or has testified here. Thus applied, the Rule is a restatement of the long recognized rule of evidence that statements of a party which are inconsistent with his claim in litigation are substantively admissible against him.")

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III.

Mr. Ryan's Testimony Satisfies the Requirements of Rule 801(d)(2)(D) Mr. Ryan's deposition testimony satisfies the three requirements of Rule 801(d)(2)(D).

First, the testimony is "offered against a party, in this case the United States," and was tendered by an employee of the United States. Long Island Sav. Bank, 63 Fed. Cl. at 164 (quotation marks omitted). Second, the designated statements fall squarely within the scope of Mr. Ryan's employment. Mr. Ryan served as the Deputy CEO and CEO of the Resolution Trust Corporation, and the designated testimony pertains generally to his "involvement with Carteret" while serving in those capacities, and particularly to the "implementation of the minority owned institution rules." Dep. at 51:18-52:4. Third, Mr. Ryan's statements were made during the existence of his relationship with the United States. At the time of his deposition, Mr. Ryan was the Regional Director of the Atlanta office of the Office of Thrift Supervision. See Dep. at 13:5-13:21. Accordingly, Mr. Ryan's statements qualify as classic admissions by a party opponent and are admissible as substantive evidence at trial. CONCLUSION For the foregoing reasons, AmBase respectfully requests that the Court enter an order admitting the deposition testimony identified herein as substantive evidence at trial.

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Respectfully submitted, /s/ Charles J. Cooper______________ Charles J. Cooper COOPER & KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600 (202) 220-9601 (fax) Counsel of Record Of Counsel: Vincent J. Colatriano David H. Thompson Jesse Panuccio COOPER & KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600 (202) 220-9601 (fax) Dated: February 22, 2008

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of February 2008, I caused to be served by the Court's electronic filing system copies of the foregoing on the following counsel: David Levitt, Esq. U.S. Department of Justice Commercial Litigation Branch Civil Division 1100 L Street, N.W.--Room 12006 Attn: Classification Unit--8th Floor Washington, DC 20530 Andrew Gilbert, Esq. FDIC Legal Division 550 17th Street, N.W. Room 2098 Washington, DC 20429

/s/ Jesse Panuccio Jesse Panuccio

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