In United States v. Tannehill, 49 F.3d 1049, 1057 (5th Cir. 1995), the Fifth Circuit examined whether there was a similar motive for cross-examination when different counsel with different defense theories cross-examined the same Government witness at the defendant's first trial. Tannehill, 49 F.3d at 1057. Tannehill and six others were charged with engaging in a fraudulent real estate scheme. Id. at 1050-51.
All of those charged were originally tried together, but after a mistrial was declared, Tannehill was tried separately. Id. at 1051.
At his second trial, the court admitted, under Rule 804(b)(1), the prior trial testimony of the aforementioned Government witness, who by that time had died, and Tannehill was convicted. Id. at 1051, 1057.
On appeal, Tannehill claimed that the court erred in admitting the testimony of that witness. He explained that "his motive for cross-examining the witness at the first trial was sufficiently different . . . because he was one of seven defendants at that trial, almost all of the cross-examination of the witness was conducted by counsel for his co-defendants, and his strategy at the first trial 'was to disappear into the woodwork and hope for the best.'" Id. at 1057.
Rejecting that argument, the court stated: "Although Tannehill's 1993 trial strategy may have changed because he was being tried alone, his motive for cross-examination was the same as in his first trial: to discredit the witness and separate himself from the other members of the conspiracy." Id.