Michael London - Page 34

                                       - 34 -                                         
             a response may not be compelled unless it is "'perfectly                 
             clear, from a careful consideration of all the                           
             circumstances in the case, that the witness is mistaken,                 
             and that the answer(s) cannot possibly have such tendency'               
             to incriminate."  Hoffman v. United States, supra at 488                 
             (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1880)).                
                  In these cases, Mr. London's attorney argues that his               
             client's fears of incrimination are reasonable.  He notes                
             the fact that the Government chose not to prosecute the                  
             gambling count of the second superseding indictment.  He                 
             also argues that any testimony by Mr. London about his                   
             activities during 1983 through 1985 could be used as a                   
             predicate in a RICO prosecution for a later period.  We                  
             cannot say that Mr. London's position is clearly mistaken.               
             See Hoffman v. United States, supra at 486.  Accordingly,                
             we agree with petitioners that Mr. London was unavailable                
             at trial due to his assertion of the Fifth Amendment                     
             privilege against self-incrimination.  We also agree that                
             Mr. London's deposition in the wrongful levy suit                        
             constitutes "former testimony" described by rule 804(b)(1)               
             of the Federal Rules of Evidence.  Therefore, Mr. London's               
             deposition in the wrongful levy suit is hereby accepted                  
             into evidence.                                                           

Page:  Previous  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  Next

Last modified: May 25, 2011