- 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.
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