In having had an opportunity to develop testimony of the deponents in the underlying actions with respect to negligence and/or recklessness, the Archdiocese had no motive to develop it with respect to the Archdiocese’s subjective knowledge because the issue of negligence and/or recklessness did not depend on what the Archdiocese actually or constructively intended; consideration of its subjective state of mind was completely inapposite. As a matter of law, the Archdiocese had no motive to develop the deponents’ testimony as to the Archdiocese’s subjective knowledge and, accordingly, Interstate cannot be permitted to enter the deposition testimony for its truth because it cannot show that Fed. R. Evid. 804(b)(1)(B) has been satisfied. -9 That the Deposition Transcripts cannot, as a matter of law, advance Interstate’s special defenses is especially true for the Truncated Exhibits.

Even worse than in Carpenter I, where the government used at least 18 references to “gambling,” see Carpenter, 405 F. Supp. 2d at 101, in Carpenter II the government’s references to “loss” exceed 25 instances. All of this loss evidence and argument also provided Mr. Carpenter with a substantially different motive to cross-examine under FRE 804(b)(1). 17 Case 1:04-cr-10029-GAO Document 319 Filed 08/08/2008 Page 17 of 19 government’s proof at trial that he failed to make such disclosures is paradigmatic of a constructive amendment.

-1200 (415) 772-7400 (fax) David M. Rody (drody@sidley.com) SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax) Bradford A. Berenson (bberenson@sidley.com) (Admitted pro hac vice) SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 (202) 736-8711 (fax) Attorneys for Douglas F. Whitman Case 1:12-cr-00125-JSR Document 97 Filed 08/13/12 Page 7 of 8 CERTIFICATE OF SERVICE I hereby certify that on this 13th day of August, 2012, I caused a true and correct copy of (1) Notice of Defendant Douglas F. Whitman’s Motion to Introduce Prior Testimony of Sunil Bhalla Under Federal Rule of Evidence 804; (2) Memorandum of Law in Support of Defendant Douglas F. Whitman’s Motion to Introduce Prior Testimony of Sunil Bhalla Under Federal Rule of Evidence 804; and (3) a Declaration of Bradford A. Berenson in Support of Defendant Douglas F. Whitman’s Motion to Introduce Prior Testimony of Sunil Bhalla Under Federal Rule of Evidence 804, and accompanying exhibits; to be served by hand and via ECF filing notification on the following counsel of record: Jillian Berman, AUSA Christopher LaVigne, AUSA United States Attorney’s Office Southern District of New York One Saint Andrew’s Plaza New York, NY 10007 Dated: August 13, 2012 /s/ David L. Anderson David L. Anderson (dlanderson@sidley.com) (Admitted pro hac vice) SIDLEY AUSTIN LLP 555 California Street San Francisco, CA (415) 772-1200 (415) 772-7400 (fax) Attorneys for Douglas F. Whitman Case 1:12-cr-00125-JSR Document 97 Filed 08/13/12 Page 8 of 8

Nor can the Zambrano declaration qualify as a statement against interest under Rule 804(b)(3). Statements that are against a declarant’s “pro- prietary or pecuniary interest” are admissible under the theory that “a reasonable person in the declarant’s position would have made [the statement] only if the person believed it to be true be- cause, when made, it . . . had so great a tendency . . . to expose the declarant to civil or criminal liability.” Fed. R. Evid. 804(b)(3); U.S. v. Persing, 436 Fed App’x 13, 21 n.21 (2d Cir. 2011). There is nothing in Zambrano’s declaration that rises to the level of a statement against interest.3 3

A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. FRE 804(b)(3). The declarant’s alleged statements describing the terms of a business deal and the conditions under which he would do business with Plaintiff hardly satisfy the requirements of this rule to quality as a statement against interest.

Additionally, Plaintiff also avers that the travel burdens from Knoxville to Chattanooga via automobile do not inconvenience Dr. Bolt to the level allowed by the rule when it was promulgated in the 18th century. Accordingly, Dr. Bolt should be required to attend the trial and give his testimony in person because the Defendant is not unable to procure his attendance as discussed in by Federal Rule of Evidence 804. This Rule and Rule 32 exist for situations where live testimony is impractical because of great distance and exceptional circumstances—and only in that instance should deposition testimony be utilized in lieu of live testimony.

The rule ap- plies to all parties, including the government. (Fed.R.Evid. 804(b)(6) advisory committee note [emphasis added].) Therule, as enunciated by the high court, is based on two broad equitable princi- ples: (1) “[t]he rule has its foundation in the maxim that no oneshall be permitted to take advantage of his own wrong”; (2) “but if a witness is absent by [a party’s] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.”

Under FRE 804(b)(3), if a witness is unavailable, his statement against interest is not excluded under the hearsay rule. FRE 804(b)(3) defines a statement against interest as one: Which was at the time of its making so far contrary to the declarant’s pecuniary or propriety interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true... The statements of Mr. Xu Long Huy were contrary to his pecuniary interest, since by making the statements, he deprived himself of making a large profit by purchasing used rail, used to make steel, from Wen Chiang to generate this large profit for him. In addition, Xu Long Huy would not have made these statements unless he believed the statements to be true.

If the government had attempted to incarcerate Mr. Gupte as a material witness instead of seeking to depose him, that incarceration would have lasted nearly seven months -- twice as long as the period deemed inappropriately long in Rivera. Mr. Gupte is unavailable within the meaning of Fed. R. Evid. 804, and his deposition testimony is therefore admissible. Respectfully submitted, BENTON J. CAMPBELL United States Attorney Eastern District of New York By: /s/ Andrew E. Goldsmith Assistant U.S. Attorney (718) 254-6498 cc: Karina Alomar, Esq. (by facsimile and ECF) Mildred Whalen, Esq. (by hand and ECF) Case 1:08-cr-00288-SJ Document 95 Filed 11/08/09 Page 4 of 4

Here, defendants propose to offer deposition testimony of Rita Holt who is a current employee and, therefore, available to defendants. Accordingly, Lead Plaintiffs request that the Court prohibit defendants from offering deposition testimony of the following witnesses who are not unavailable within the meaning of Fed. R. Evid. 804(b)(1): Tom Corona, William Drummond, James Matthew Harding and R. Riley Sweat, Pam Mason and Rita Holt.1 Dated: September 8, 2008 Respectfully submitted, BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP s/ Timothy A. DeLange TIMOTHY A. DeLANGE BLAIR A. NICHOLAS TIMOTHY A. DeLANGE BRETT M. MIDDLETON MATTHEW P. JUBENVILLE 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Tel: (858) 793-0070 Fax: (858) 793-0323 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP TOR GRONBORG JONAH H. GOLDSTEIN DAVID W. MITCHELL TRIG SMITH NATHAN W. BEAR 655 West Broadway, Suite 1900 San Diego, CA 92101 Tel: (619) 231-1058 Fax: (619) 231-7423 1 Should the Court deny this motion, Lead Plaintiffs reserve their right to submit a charge to the jury regarding missing witnesses. Case 2:03-cv-02216-BBD-gbc Document 435 Filed 09/08/08 Page 3 of 4 3 Co-Lead Counsel for Plaintiffs Louisiana School Employees’ Retiremen