Petition for Writ of Certiorari — Mannino v. United States

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Supreme Court, U.S"

—~ FILED

90-1721 | AR 24 1991

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1990

GRACE PULITANO MANNINO,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN M. APICELLA

Attorney for Petitioner Grace Pulitano

Mannino

186 Joralemon Street

Brooklyn, NY 11201

(718) 935-9226

THE REPORTER COMPANY, INC., 30 Vesey St, New York, NY 10007—1991

NYC 212-732-6978 Westchester 914-681-1322 Long Island 516-222-0221

(6288—LC3-467)

QUESTIONS PRESENTED FOR REVIEW

Whether the Government's failure to

contemporaneously minimize intercepted

communications or to inform the Court

during the wiretaps that minimization

would have to wait precluded their ad-

mission into evidence?

LIST OF ALL PARTIES TO THE PROCEEDING

IN THE THIRD CIRCUIT COURT OF APPEALS*

United States of America, Appellee

Francesco Gambino, Appellant in No. 89-2087

Ignazio Antonino Mannino, Appellant

in No. 89-2088

Emannuele Salvatore Mannino, Appellant

in No. 89-2089

Grace Pulitano Mannino, Appellant in

No. 89-2090

Enzo Varisco, Appellant in No. 90-1034

* Petitioner anticipates that co-defendants

will also petition for a Writ of Certiorari

Pursuant to Rule 19.4. Petitioner joins in

the petitions of her co-defendants.

iii

TABLE OF CONTENTS

Questions Presented For Review..... ése0 i

List of All Parties Below...... eee |

CPM MORO s ccc ccc ccc seccccoreccere seve 1

PURSBESCCAOR sc occ cccce rrr ss a oe cooun 2

Constitution and Statutes Involved..... 2

United States Constitution

CE EO Se eee 2

Title 18 United States Code

De DUE Pecccccececcece o66.08 3

Statement of the Case........... ceeeess |

Reasons for Granting the Writ:

Point I - Wiretapped conversations

not contemporaneously minimized

without good cause must be

suppressed in their entirety...... 10

we Sy Pere rer Te eee 25

TABLE OF CONTENTS iv

APPENDIX: PAGE

A - Opinion of the Third Court

denying Petitioner's motion

to suppress........... ecccecccce la

B - Opinion of the Third Circuit

ee 9a

Cases Cited

Andresen v. Maryland, 427 U.S. 463,

482 nN. 11 (1976). eoeeeeeeeee eoeeeeeve 11

Berger v. New York, 388, U.S. 41,

62, CROET pees ewenes eoeeeeeee eoeeeeeeen Zhe 13,

Grimes v. United States, 423 U.S.

996 (1975), and sub. nom.......... 20

Hackett v. United States, 429 U.S.

837 i274 5 eee eeeeee eoeeeeveee eee 20

Krulewitch v. United States, 336

U.S. 440, 457, 69 S.Ct. 716,

wo 2S ee, Se). freee 25

Light v. United States, 414 U.S.

846 Pics ) eer rrerrrTrT rer eeeeveve 24

People v. Brenes, 42 N.Y.2d 41,

49-50, 396 N.Y.S. 2d 629 CEST Ee Pees 21

Scott v. United States, 436 U.S.

ABO CASTE ceases erry Ty Te ree eae 16, 18,

State v. Cantania, 85 N.J. 418,

G26, Gor A.B. BSF CAPS Jc ccccccees 21

United States v. Adamita, 88 Cr.

aif, ee * Ae e*eee#ee#e#ee#e#e#ee#ee#e#e# e*ee#seeee#e# 10, 25

United States v. Armocida, 515

Pie ae, Ge CSRS GEE. AST O hs access > Pe.

TABLE OF CONTENTS Vv

PAGE

United States v. Curreri, 363

F.Supp. 430, 437 (D. Md. 1973).... 20

United States v. Eduardo Franco,

885 F.2d 1003, 1011 (2nd Cir.

SOOO RAKES HER OEECOHRE EROS OH ERE OCHRE 26

United State v. Focarile, 340

F.Supp. 1033, 1047 (D.Md.),

ee, Ms Ms ccc cet sw sscenrevees Zae af

United States v. Giordano, 469

F.2d 522 (4th Cir. 1977), aff'd

on other grounds, 416 U.S. 505.... 21

United States v. Gambino, 728

F.Supp. 1150 (E.D. Pa., 1989)..... 1

United States v. Heldt, 688 F.2d

> Fae > — Be Pm. ee te Pe 15, 24

United States v. Hyde, 574 F.2d

856, 869 5th cir., reh. and reh.

en banc den., (5th Cir. 1978)..... 20

United States v. King, 335 F.Supp.

523, 544-545 (S.D. Cal. 1971),

aff'd in part, rev'd. in part on

other grounds, 478 F.2d 494

(9th Cir.) cert. den. sub. nom.... 24

United States v. Lanza, 349 F.Supp.

929, 932 (M.D. Fla. 1972Z)...ccccee 20

United States v. Leta, 332 F.Supp.

1357, 1360 n. for (M.D. Pa.

4), ee re ear ee eee eee 20, 23

United States v. Santora, 600 F.2d

1317, 1320 (9th Cir.), modified,

609 F.2d 433 (9th Cir. 1979)...... 20

TABLE OF CONTENTS

United States v. Scott, 331 F.Supp

233, 248 (D.C. Cir. 1971)

vacated on other grounds, 504 F.2d

Be Cee GEE: FETE eee ccccavsces

United States v. Suquet, 547 F.Supp

1034, 1039 (N.D. Ill. 1982).......

United States v. Turner, 528 F.2d

143, 156 (9th Cir.), cert. den.

BUM. MMe ccccccccccece Cen eseseceecs

United States v. Webster, 473

F.Supp. 586, 598 (D. Md. 1979)

aff'd in part, rev'd. in part on

other grounds, 639 F.2d 185 (4th

Cir. 1982), cert. den. 456 U.S.

WED CEPME ho shee ecsetecesesecesese

PAGE

TABLE OF CONTENTS vii

PAGE

United States Constitution Cited

lg eee eee 2

Statutes Cited

18 U.S.C. Section 2510 et. seq.......... 11

iS U.6.6. BOSCsOn Beae CS)i i. cvrcescvsaees 12

In The

SUPREME COURT OF THE UNITED STATES

Term, 1990

GRACE PULITANO MANNINO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the District Court

in certain pre trial matters was pub-

lished as United States v. Gambino, 728

F.Supp. 1150 (E.D. Pa., 1989).

The opinion of the Trial Court con-

cerning the issue of minimization appears

in Appendix Al et seq.

The opinion of the Court of Appeals

captioned as United States of America v.

Gambino, F.2d [aeG@ Caz. 1991),

appears in Appendix B7, et seq.

JURISDICTION

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. Section

1254(1). The Third Circuit Court of

Appeals affirmed Petitioner's conviction

and Sentence on March 4, 1991. (A7)

CONSTITUTION AND STATUTES INVOLVED

UNITED STATES CONSTITUTION

AMENDMENT IV - SEARCHES AND SEIZURES

The right of the people to be secure

in their persons, houses, papers and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon proba-

ble cause, supported by Oath or affirma-

tion, and particularly describing the

place to Fs searched, and the persons or

things to be seized.

TITLE 18 UNITED STATES CODE SECTION

2518(5) and (6)

(5) No order entered under this

section may authorize or approve the in-

terception of any wire or oral communica-

tion for any period longer than is neces-

sary to achieve the objective of the

authorization, nor in any event longer

than thirty days. Extensions of an order

may be granted, but only upon application

for an extension made in accordance with

subsection (1) of this section and the

court making the findings required by

subsection (3) of this section. The

period of extension shall be no longer

than the authorizing judge deems neces-

sary to achieve the purposes for which

it was granted and in no event longer

than thirty days. Every order and exten-

sion thereof shall contain a provision

that the authorization to intercept shall

be executed as soon as practicable, shall

be conducted in such a way as to minimize

the interception of communications not

otherwise subject to inteceeption under

this chapter, and must terminate upon

attainment of the authorized objective,

or in any event in thirty days.

(6) Whenever an order authorizing

interception is entered pursuant to this

chapter, the order may require reports

to be made to the judge who issued the

order showing what progress has been made

toward achievenent of the authorized ob-

jective and the need for continued inter-

ception. Such reports shall be made at

such intervals as the judge may require.

STATEMENT OF THE CASE

Petitioner, Grace Pulitano Mannino,

was charged with conspiracy to import

heroin, 21 U.S.C. sec. 963, conspiracy

to distribute heroin, 21 U.S.C. sec. 846,

conspiracy to distribute cocaine, 21

U.S.C. sec. 846, and money laundering,

18 U.S.C. sec. 1956(a) (1).

Petitioner was tried to a jury with

co-defendants, Francesco Gambino, Ignazio

Antonino Mannino (her husband), Emanuele

Salvatore Mannino, Enzo Varisco and Carlo

Fodera, before the Honorable Louis C.

Bechtle, U.S.D.C.J., from July 21, 1989,

through September 7, 1989. Petitioner

was convicted of conspiracy to import

heroin and money laundering.

On December 13, 1989, Petitioner was

sentenced to concurrent terms of one year

and one day on counts one, two and seven,

and a 15 year period of supervised re-

lease. Additionally, the Court imposed a

fine of $10,000. The Trial Court granted

Petitioner bail pending appeal.

On March 4, 1991, the Court of

Appeals affirmed her conviction. She is

on bail and the Court of Appeals has

stayed the mandate pending disposition of

her Petition provided same is filed by

April 24, 1991.

Petitioner lived with her husband in

Pennsylvania. Pursuant to an FBI invest-

igation, their home telephone was tapped.

At her trial, the Government introduced

telephone calls made to her house and the

testimony of co-conspirators who had

agreed to plead guilty and cooperate with

the Government by testifying against her

in return for reduced sentences. Signi-

ficantly, when the Government adduced

testimony from its cooperating witnesses

no testimony was given by them concern-

ing Petitioner. They had no conversa-

tions with her and indeed were unaware

of her existence. The theory of the

Government's case against her was that

she acted as a clearing house for mes-

sages from various co-conspirators to

her husband. In its attempt to prove

this theory, the Government introduced

recordings of wire tapped conversations

made by various people to the Mannino

home. Since petitioner is a housewife

with three children, and at the time

had a newborn, she was always at home

and aways answered the phone when it

rang.

The wire tapped conversations of

Petitioner were in the Sicilian dialect

of the Italian language. The Mannino

wiretap was extended several times and

lasted about six months. Most, if not

all of the intercepted conversations were

minimized after the fact. No Judge was

ever advised during the course of the in-

terceptions in any of the Court ordered

seven day reports that there was any

problem concerning contemporaneous mini-

mization using Sicilian fluent transla-

tors.

A hearing was conducted to determine

if the statutory requirement of minimiza-

tion had been violated. The FBI case

agent testified that the investigation

was code named Iron Tower. It targeted

narcotics trafficking by alleged members

and associates of the Sicilian Mafia.

The case was initiated in March of 1986.

Despite the fact that it was anticipated

that many conversations would be in the

Sicilian dialect only one translator was

employed. No attempt was made to hire

additional translators until a point had

been reached where additional resources

would be needed. Therefore, the Govern-

ment conceded that most, if not all con-

versations were minimized after the fact.

The agent was responsible for pre-

paring seven day reports submitted to

the Court in conjunction with electronic

interception. He admitted that he did

not advise the Court with regard to the

interceptions that no simultaneous min-

imization was occurring. Ultimately, it

was stipulated by the Government that no

Judge was advised in any seven day re-

port of any problem with regard to

Sicilian translators.

: 10

REASONS FOR GRANTING THE WRIT

POINT I

WIRETAPPED CONVERSATIONS NOT CONTEMPOR-

ANEOUSLY MINIMIZED WITHOUT GOOD

CAUSE MUST BE SUPPRESSED IN THEIR

ENTIRETY. \

From its inception, this investiga-

tion targeted Sicilian speaking and bi-

lingual alleged members and associates

of the Sicilian Mafia. Therefore, it was

reasonably foreseeable that many conver-

sations would be spoken in Sicilian. In

United States v. Adamita, 88 Cr. 217

S.D.N.¥., the Honorable John Sprizzo,

presented with similar facts, ordered the

suppression of a number of tapes because

of a failure to minimize. Yet, applying

the same statute to virtually identical

facts, the Court in the instant case

failed to suppress!

It has been stated that the require-

ments of the Fourth Amendment can not be

forgiven in the name of law enforcement.

Berger v. New York, 388 U.S. 41, 62

(1967). Few threats to liberty exist

which are greater than that posed by the

use of eavesdropping devices. Although

Title III of the Omnibus Criminal Con-

trol and Safe Street Act of 1968 (18

U.S.C. Sec. 2510 et. seg.) authorizes a

Court to order the interception of wire

and oral communications, responsible

officials, including judicial officers,

must take care to insure that searches

are conducted in a manner that minimizes

unwanted intrusions upon privacy. Andre-

sen v. Maryland, 427 U.S. 463, 482 n. 11

(1976).

Title III as amended by the passage

of Pub.L. 99-508. Section 106(c) added

provisions relating to minimization

where the intercepted communication is in

code or foreign language. Specifically,

the Amendment provides that where an ex-

pert in that foreign language or code is

not reasonably available during the in-

terception period, minimization may be

accomplished as soon as practicable after

such interception. 18 U.S.C. sec. 2518

(5).

The Third Circuit had stated in pre-

vious cases, that the minimization re-

quirement is satisfied if, on the whole,

the Government has shown a high regard

for the right of privacy by doing all

that they reasonably could to avoid un-

necessary intrusion. United States v.

Armocida, 515 F.2d 29, 42 (3rd Cir. 1975).

In the instant case, the Government

exhibited no regard for the privacy

rights of Petitioner as evidenced by the

lack of candor the Government displayed

to the supervising court. It was stipu-

lated, at the close of the suppression

hearing, that the Trial Court had never

been advised of the lack of minimization

occurring in this case. The Agent who

was responsible for drafting the seven

day reports submitted to the Court dur-

ing the course of the execution of the

interception orders, never took the time

or the trouble to advise the Court that

translators could not be contacted or

hired to assist in the minimization

process. Instead, the agent assumed

that his conferences with attorneys in

the United States Attorney's Office were

sufficient to demonstrate compliance

with minimization requirements. Obvi-

ously, they were not since the United

States Attorney never informed the Court

either of the lack of contemporaneous

minimization.

The Government took few, if any,

steps to ascertain the availability and

Fee

eligibility of interpreters in the

Sicilian language. Although several

agents testified during the course of the

trial that they had expertise in Sicilian,

these agents were never contacted by the

case agent to ascertain their availabil-

ity to assist in the monitoring of the

numerous wire taps and bugs which had

been placed by the Government. Petition-

er argues that such lack of effort hardly

constitutes substantial compliance with

the minimization requirements of Title

Iii.

Indeed, the Government's conduct in

failing to contemporaneously minimize ig-

nored the mandate of Title III's require-

ments and violated the Fourth Amendment

prohibition against general searches.

The record below established that a high

percentage of the calls which were inter-

cepted were unrelated to, and beyond the

me 15

scope of, the wiretap warrant. Literally

thousands of conversations were inter-

cepted and only about 400 of them were

offered into evidence by the prosecution.

No rationale justified the repeated, in-

tentional, trespassory intrusions into

the Petitioner's constitutionally pro-

tected area of privacy. For example, the

conversations of children were regularly

intercepted during the course of the

implementation of these orders, and non-

pertinent conversations were frequently

referred to in order to assist in identi-

fication. By committing numerous unjus-

tified intrusions into the sanctity of

the Petitioner's privacy, the Government

ignored the specific and unique direc-

tives of the warrants authorizing elec-

tronic surveillance. Berger v. State of

New York, supra.; United States v. Heldt,

688 F.2d 1238, 1253 (D.C. Cir. 1981).

The conduct of the Government herein was

more than mere isolated instances of ex-

cessive monitoring which would clearly

not require suppression. Rather, the

continuous and pervasive acts of over

monitoring and non minimization were a

clear violation of the law. Compare,

Scott v. United States, 436 U.S. 128

(1978) where this Court found execution

of the interception orders to have been

reasonable under the circumstances. See

also, United States v. Armocida, supra.,

515 F.2d 29, 43.

In Armocida, the Court noted

several factors which were relevant to a

determination of whether there had been

substantial compliance with the statute.

Specifically, the Court pointed to the

nature and scope of the criminal enter-

prise under investigation, the Govern-

ment's reasonable expectation as to the

character of, and the parties to, the

conversation and the degree of supervi-

sion by the authorizing judge. United

States v. Armocida, supra., 515 F.2d at

44.

In Petitioner's case, the Govern-

ment was very well aware of the nature

and scope of the criminal enterprise

under investigation at the time it made

its application for the warrants which

were issued in this case. As evidenced

by the early applications in this case,

the Government was relying upon informa-

tion which it had gathered in prior

cases to describe the nature and scope

of the alleged instant conspiracy. fThus,

the Government was able to describe this

case as a widespread narcotics conspir-

acy involving, in part, persons of

Sicilian extraction as well as others.

The Government was able to identify many

targets of the investigation at the point

it applied for these warrants. The

Government knew at the time that it made

its application that many of the individ-

uals in this case would speak in the

Sicilian dialect. Thus, unlike Scott v.

United States, supra., the nature and

scope of the criminal enterprise was al-

ready ascertained by the Government.

And, the Government not only had a reason-

able expectation as to the character of

and the parties to the conversations but

to a great extent knew the identities of

many of the parties to the conversations

and thought it knew the character of

those conversations. Finally, it is

conceded by the Government that, with

regard to the minimization requirement,

there was utterly no supervision by the

Court below.

Petitioner submits that the Govern-

ment failed to meet its burden of prov-

ing its conduct avoided unnecessary in-

trusions and that its conduct resulted

in no greater invasion of privacy than

was necessary under the circumstances.

United States v. Armocida, supra., 515

F.2d at 43. The Government's flagrant

and willful disregard of the Fourth

Amendment Rights of Petitioner demanded

suppression of all evidence seized as a

result of the execution of the wire

tapped orders, and any evidence deriva-

tively obtained.

Although this Court in Scott v.

United States, supra., 436 U.S. 128,

specifically declined to define the

scope of suppression for failing to min-

imize, many Courts have agreed that

total suppression of all intercepted

conversations is mandated when the

violation of statutory requirements of

minimization is flagrant. See, United

States v. Santora, 600 F.2d 1317, 1320

(9th Cir.), modified, 609 F.2d 433 (9th

Cir. 1979); United States v. Hyde, 574

F.2d 856, 869 5th Cir., reh. and reh. en

banc den., (5th Cir. 1978); United States

v. Turner, 528 F.2d 143, 156 (9th Cir.),

cert. den. sub. nom., Grimes v. United

States, 423 U.S. 996 (1975), and sub.

nom., Hackett v. United States, 429 U.S.

837 (1976); United States v. Suquet, 547

F.supp. 1034, 1039 (N.D. Ill. 1982);

United States v. Webster, 473 F.supp.

586, 598 (D. Md. 1979) aff'd. in part,

rev'd. in part on other grounds, 639 F.2d

185 (4th Cir. 1982), cert. den. 456 U.S.

935 (1982); United States v. Curreri, 363

F.Supp. 430, 437, (D. Md. 1973), United

States v. Lanza, 349 F.Supp. 929, 932

(M.D. Fla. 1972); United States v. Leta,

332 F.Supp. 1357, 1360 n. for (M.D. Pa.

1971). Some Courts have gone further

and required the total suppression of

all communications whenever the minimi-

zation requirement is violated. United

States v. Focarile, 340 F.Supp. 1033,

1047 (D.Md.), aff'd. sub. nom., United

States v. Giordano, 469 F.2d 522 (4th

Cir. 1977), aff'd. on other grounds, 416

U.S. 505; United States v. Scott, 331 F.

Supp. 233, 248 (D.C. Cir. 1971), vacated

on other grounds, 504 F.2d 194 (D.C.

Cir. 1974); People v. Brenes, 42 N.Y.2d

41, 49-50, 396 N.Y.S. 2d 629 (1977);

State v. Cantania, 85 N.J. 418, 426, 427

A.D. 537 (1981).

The reasons requiring total suppres-

sion in this case are manifest. First,

is the need for an effective detriment

to the unlawful conduct of wire taps.

Congress recognized the need to articulate

the prohibition of the use of any oral

communication intercepted in violation

of Title 3. See, U.S.C. sec. 2515.

Second, when Courts fail to suppress,

they ignore the exceptional dangers in-

herent in electronic surveillance.

Berger v. New York, supra. Third, is the

traditional reluctance of any court to

accept as evidence material seized in

direct disregard of the statute. Fourth,

were Courts to suppress selectively on an

item by item basis, it would make minimi-

zation requirements under the statute

illusory. As stated in United States v.

Focarile, supra.:

"In this Court's opinion

the minimization requirement

of Section 2518(5) would be

illusory if it were enforced

on an item by item basis by

means of suppressing unauth-

orized seizures at trial after

interception is a fait accompli.

Minimization as required by the

statute must be employed by the

law enforcement officers

during the wire tap, not by

the Court after the wire

tap ... Knowing that only

"innocent" calls would be

suppressed, the Government

could intercept every con-

versation during the entire

period of a wire tap with

nothing to lose by doing so

since it would use at trial

only those conversations

which had definite incrimin-

ating value anyway, thereby

completely ignoring the min-

imization mandate of Title

III. A conversation once

seized can never truly be

given back as could a physi-

cal object. The right of

privacy protected by the

Fourth Amendment has been

more invaded when a conver-

sation which can never be

returned has been seized then

where a physical object which

can be returned has been

seized."

See, United States v. Scott, 33l,

F.Supp. 233, 246-249 (B.D.C. 1971);

United States v. Leta, 332 F.Supp. 1357,

1360 note for (M.D. Pa. 1971).

Fifth, the purpose of the minimiza-

tion requirement is to prevent a wire tap

from turning into a "general search and

wholesale invasion of privacy." United

States v. King, 335 F.Supp. 523, 544-545

(S.D. Cal. 1971), aff'd. in part, rev'd.

in part on other grounds, 478 F.2d 494

(9th Cir.), cert. den. sub. nom., Light

v. United States, 414 U.S. 846 (1973).

The overhearing of telephone conversa-

tions by interception, like a search of

documents, poses an inherent danger of

turning into a general search, due to the

difficulty of ascertaining the relevance

of the item to be "seized." Where dis-

regard of a warrant’s limitations is fla-

grant and entire, the otherwise valid

Warrant may become a general one, in

which case the fruits of the search must

be suppressed. United States v. Heldt,

669 F.2d 1238, 1259 (D.C. Cir. 1981);

See, United States v. Sequet, 547 F.Supp.

1034, 1039-1043 (N.D. Ill. 1982); United

States v. Adamita, 88 Cr. 217 (S.D.N.Y.

1989).

Failure to minimize in the instant

case violated Petitioner's Fourth Amend-

ment Rights. The decision below by the

Third Circuit ignored its own precedent

as well as that of other circuits. As

such, its departure calls for an exer-

cise of this Court's power of supervi-

sion. Moreover, the refusal of the Third

Circuit to reverse the District Court on

minimization is in conflict with this

Court's decision in Scott v. United

States, supra., 436 U.S. 128.

CONCLUSION

As Justice Jackson once wrote,

"There is, of course, strong temptation

to relax rigid standards when it seems

the only way to sustain convictions of

evildoers." Krulewitch v. United States,

336 U.S. 440, 457, 69 S.Ct. 716, 725, 93

L.Ed. 790 (1949) (Jackson, J., concur-

ring). This is especially true where the

conviction is for a narcotics violation

at a time when the country is engaged in

a "war on drugs". However, a courtroom

is not the proper place in which to fight

such a "war." A defendant charged with a

narcotics violation is presumed like

every other defendant to be innocent

until proven guilty beyond a reasonable

doubt after a fair trial.

United States v. Eduardo Franco, 885

F.2d 1003, 1011 (2nd Cir. 1989).

This Court should grant this peti-

tion for certiorari because the Third Cir-

cuit Court of Appeals has incorrectly

decided an important question of federal

law (whether failure to contemporaneously

minimize wire tapped conversation and so

iat caine eae leainaeaeatital lin tenia laiaeaennmnetiinnel

inform the supervising court violated 18

U.S.C. 2518(5)) which requires resolu-

tion by this Court, particularly as the

decision below directly conflicts with

applicable decisions of this Court.

See R. 17.i(c).

Respectfully submitted,

John M. Apicella

Attorney for Petitioner

186 Joralemon Street

Brooklyn, New York 11201

SUPERSEDING MEMORANDUM ORDER DENYING MOTION TO

SUPPRESS INTERCEPTED COMMUNICATIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA H CRIMINAL

Vv. :

FRANCESCO GAMBINO

No. 89-00003-01

and

IGNAZIO ANTONINO MANNINO : -03

and

EMANUELE SALVATORE MANNINO : -04

and

ENZO VARISCO 4 -09

and

CARLO FODERO 3 ~-10

and

GRACE PULITANO MANNINO : -13

MEMORANDUM ORDER

AND NOW, TO WIT this 28th day of August,

1989, presently before the court is the motion

of defendant Francesco Gambino to suppress

electronic surveillance evidence for failure

to comply with the minimization requirements

of 18 U.S.C. Section 2518(5). For the reasons

stated herein, defendant's motion is denied.1l

i. This Memorandum Order supersedes the

court's prior Memorandum Order dated July 19,

1989 insofar as it replaces the reference in

footnote 2, redesignated footnote 3, to

Salvatore Caruso with Simone Zito, the proper

target of the government intercept.

Additionally, this Memorandum Order hereby

applies to all defendants in this case, as

requested by counsel at the hearing of July 7,

1989. Consequently, all references in the

text to defendant Francesco Gambino are deemed

to apply to all of the above-captioned

defendants.

Title III of the a Crime Control and

Safe Streets Act, 18 U.S.C. Section 2510, et

seg., permits the government to conduct

limited electronic surveillance of the target

of an investigation after judicial

authorization based on a showing: (a) that

probable cause exists to believe that the

person whose communication will be intercepted

has committed, is committing, or is about to

commit a crime; (b) that probable cause

exists to believe that incriminating

communications will be intercepted; (c) that

less intrusive investigative techniques have

failed, probably would fail, or are too

Gangerous; and (d) that probable cause exists

to believe that the place to be monitored is

used or is about to be used or is leased to,

or listed in the name of, or commonly used by

the suspect. 18 U.S.C. Section 2518(3). One

restriction on the wholesale use of

wiretapping is the "minimization" requirement

found in 18 U.S.C. Section 2518(5), which

reads, inter alia,:

Every order [authorizing electronic

interception] and extension thereof

shall...be conducted in such a way

as to minimize the interception of

communications not otherwise subject

to interception under this

chapter....In the event the inter-

cepted communication is in a code

or a foreign language, and an

expert in that foreign language or

code is not reasonably available

during the interception period,

minimization may be accomplished as

soon as practicable after such

interception....

The United States Supreme Court has recognized

that the minimization requirement under 18

U.S.C. Section 2518(5) manifests a balancing

between the government's investigative needs

and the individual's right to privacy under

the Fourth Amendment. See Scott v. United

States, 436 U.S. 128, 130 (1978).

Defendant Francesco Gambino claims that the

government violated its obligations under

U.S.C. Section 2518(5) by conducting "post-

interception minimization",2 despite the fact

that the government knew that most of the

2. "“Post-interception minimization” consists

of the recording of all Sicilian

conversations. The tapes are then turned over

to a government-approved translator, in this

case Federal Bureau of Investigation Agent

Steven Salvo, where only conversations

pertinent to the investigation are translated.

This procedure is juxtaposed to simultaneous

minimization, where a Sicilian language

specialist would monitor conversations

contemporaneous with their interception and

would simply deactivate the listening device

during nonpertinent conversations. At a

hearing on defendant's motion conducted on

July 7, 1989, Agent Salvo, and F.B.I. Agent

Paul Hayes, testified that both post-

interception and simultaneous minimization

were conducted during the investigation of

defendant Gambino.

potential intercepted conversations would be

wn the Sicilian dialect of the Italian

Language.3 Defendant contends that this

knowledge required the government to have

Sicilian translators monitor all conversations

simultaneous to their interception. The court

does not agree.

In Scott v. United States, supra, the

Supreme Court adopted the holding of the

United States Court of Appeals for the

District of Columbia that "an assessment of

the reasonableness of the _ efforts at

minimization [ ] requires an evaluation of

the reasonableness of the actual interceptions

in light of the purpose of the wiretap and the

totality of the circumstances...” 436 U.S. at

131. At the hearing on defendant's motion,

Federal Bureau of Investigation Agent Paul

Hayes, the case agent in this investigation,

“ssa ee eee ee Oe eee eee ee -— eee eH

3. Defendant Gambino challenges orders of

April 16 and May 16, 1986 authorizing

interception of the home telephone = and

automobile of Simone Zito, an order of July 9,

1987, authorizing the interception of the home

telephone of co-defendant and fugitive Simone

Zito, and an order of September 15, 1986

authorizing audio and visual interception at

Leo's Pizza Palace in Pitman, New Jersey, an

establishment owned by defendant Gambino.

testified that all government personnel

monitoring the surveillance were given both

oral and written instructions on minimization

and that all conversations in English were

simultaneously minimized. In addition,

Special Agent Steven Salvo of the F.B.I., the

government's expert translator and a native

Sicilian speaker, testified that he conducted

simultaneous minimization on ninety percent

(90%) of the conversations intercepted from

the automobile of Salvatore Caruso.

Consequently, defendant Gambino's motion is

limited to the remaining interceptions4 where

simultaneous minimization was, at most, de

minimis.

Agent Salvo testified that he conducted

post-interception minimization on each

intercepted communication. He stated that he

would listen to the intercepted conversations

on reel-to-reel tapes. Conversations which he

deemed pertinent to the investigation would be

translated into English and transcribed. When

Agent Salvo encountered a conversation which

4. See supra note 2.

he believed was not authorized by court order,

he would fast forward the tape to the next

conversation, using the tape's counter as a4

guide. This procedure was recorded on entry

logs indicating which conversations were

translated and which were minimized. Agent

Hayes testified that this procedure was

necessary to allow Agent Salvo to translate

numerous other intercepts authorized under

this broad investigation into international

narcotics trafficking.5 Given the

government's limited resources in this area,

the court believes that the government

sustained its burden under 18 U.S.C. Section

2518(5).

To begin with, it must be noted that

Section 2518(5) does not "prohibit the

interception of all nonpertinent

conversations; rather it requires the

government to conduct the wiretap so es

5S. Agent Hayes testified that the government

contacted language schools in the Philadelrhia

area in an attempt to hire additional persons

fluent in both English and Sicilian. These

efforts were unsuccessful. Consequently,

Agent Salvo was the only full-time Sicilian

translator assigned -to this investigation,

which eventually resulted in a nineteen

defendant, twenty-one count indictment.

to minimize the interception of such calls."

United States v. Armocida, 515 F.2d 29, 42 (3d

Cir.), cert. denied, 423 U.S. 858 (1975)

(emphasis in original). See also Scott,

supra, 436 U.S. at 140. Moreover, the statute

itself provides for post-interception

minimization where conversations are conducted

in code or in a foreign language and where "an

expert in that foreign language...is not

reasonably available during the interception

period." 18 U.S.C. Section 2518(5).

Defendant contends that this provision is

limited to unanticipated and extemporaneous

instances where foreign language conversations

are intercepted. Although this is certainly

one of the examples contemplated by the

statute, it is certainly not the only one.

The court believes that the government's

testimony outlining their inability to procure

additional Sicilian language translators who

were willing to cooperate in the investigation

and who could pass the requisite security

Clearances, in combination with the latitude

extended to the government where the purpose

of the wiretap was to investigate a large

scale drug conspiracy involving multiple

parties whose identities were uncertain, and

where the conversants frequently spoke in a

foreign language and code and the range of

activity included apparently legitimate

business calls, see, e.g., Scott, supra, 436

U.S. at 140-42; United States v. Chavez, 533

F.2d 491, 494-95 (9th Cir.), cert. denied 426

U.S. 911 (1976), established that simultaneous

minimization was “reasonably unavailable” and

that the government's efforts were sufficient

to meet their burden of minimization under the

totality of the circumstances. The post-

interception minimization procedures used by

Agent Salvo were thorough, and limited the

government's intrusion into Mr. Gambino's

privacy to both 4 statutory and

constitutionally acceptable degree.

Defendant's motion to suppress is therefore

denied.

SO ORDERED

LOUIS C. BECHTLE, J. /S

Filed March 4, 1991

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 89-2087, 89-2088, 89-2089,

89-2090 and 90-1034

oe ant

UNITED STATES OF AMERICA

FRANCESCO GAMBINO,

Appellant in No. 89-2087

IGNAZIO ANTONINO MANNINO,

Appellant in No. 89-2088

EMANUELE SALVATORE MANNINO,

Appellant in No. 89-2089

GRACE PULITANO MANNINO,

Appellant in No. 89-2090

ENZO VARISCO,

Appellant in No. 90-1034

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Nos. 89-00003-01, 89-00003-02,

89-00003-04, 89-00003-12 & 89-00003-08)

Argued September 17, 1990

Before: SCIRICA, ALDISERT and

HIGGINBOTHAM*", Circuit Judges

(Filed March 4, 1991)

* Since the date of argument Judge Higginbotham has assumed

senior status.

10a

JOEL A. BRENNER, ESQ. (Argued)

76 Tompkins Street

East Northport, New York 11731

Attorney for Appellant

Francesco Gambino

CHARLES F. CARNESI, ESQ.

186 Joralemon Street, Suite 1003

Brooklyn, New York 11201

Attorney for Appellant

Ignazio Antonino Mannino

F. EMMETT FITZPATRICK, ESQ.

926 Public Ledger Building

Sixth and Chestnut Streets

Philadelphia, Pennsylvania 19106

Attorney for Appellant

Emanuele Salvatore Mannino

JOHN M. APICELLA, ESQ.

186 Joralemon Street, Suite 1003

Brooklyn, New York 11201

Attorney for Appellant

Grace Pulitano Mannino

STANLEY A. TEITLER, ESQ. (Argued)

299 Broadway, Room 1410

New York, New York 10007

Attorney for Appellant

Enzo Varisco

ANDREW LEVCHUK, ESQ. (Argued)

United States Dept. of Justice

Criminal! Div., Appellate Section

P.O. Box 899

Ben Franklin Station

Washington, D.C. 20044-0899

lla

MICHAEL L. SEIGEL, ESQ.

Philadelphia Strike Force

615 Chestnut Street, Suite 700

Philadelphia, Pennsylvania 19106

Attorneys for Appellee

United States of America

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Defendants appeal their jury convictions of

conspiracy to import and distribute heroin (21

U.S.C. §§ 963, 846) and money laundering (18

U.S.C. § 1956(a)(1)). We will affirm.

Francesco Gambino supervised the importation

and distribution of heroin from Italy to the New

York-New Jersey area from 1985 to 1988. The

scheme was coordinated by Antonio (“Tony”)

Mannino and Simone Zito, with assistance from

Tony Mannino’s brother Salvatore (“Sal”) Mannino,

Tony Mannino’s wife Grace Mannino, and Simone

Zito’s brother Stefano Zito. Enzo Varisco was one

of the conspiracy’s cocaine distributors.’

Before addressing defendants’ contentions, it is

necessary to recite the facts in some detail and in

particular the background and role of William

1. Francesco Gambino, Tony Mannino, Sal Mannino, and

Grace Mannino were convicted of conspiring to import and

distribute heroin (21 U.S.C. §§ 963, 846), Sal and Grace

Mannino were convicted of money laundering (18 U.S.C.

§ 1956(a)(1)), and Enzo Varisco was convicted of conspiring

to distribute cocaine (21 U.S.C. § 846).

12a

Kane, an FBI informant and the government's most

significant witness. Kane ran an illegal video poker

business in New York City with Giuseppe “Joe”

Gambino, and operated out of the Cafe Giardino

in Brooklyn, owned by Joe Gambino. Through his

illegal business, Kane became involved with the

defendants in this case.

In October 1986, however, Kane became a

confidential informant for the FBI. In 1986 and

1987, Kane was introduced to Simone Zito and

Tony Mannino, and later to Simone Zito’s brother,

Stefano Zito. Stefano Zito and Kane became

friends. In 1987, Stefano told Kane that he, his

brother Simone Zito, and Tony Mannino were

members of the Mafia and that they were

importing heroin into the United States. Stefano

told Kane that Tony’s brother Sal Mannino was

then in Sicily, arranging for an exchange of heroin

for cocaine. FBI interceptions of telephone

conversations confirmed that Sal Mannino was in

Sicily at the time.

Working with the FBI, Kane began to participate

in the conspirators’ illegal activities. Because

neither Simone nor Stefano Zito had any legitimate

source of income, Kane carried them on the payroll

of his video game company and arranged financing

for their automobiles. Kane soon moved on to more

direct involvement in the conspiracy.

In October, 1987, Simone Zito told Kane that he

wanted to purchase a townhouse, as an

investment and as a place to cut heroin, but that

all his money was tied up in heroin. After first

discussing a possible loan, Simone agreed, in a

tape-recorded conversation, to sell Kane seven

ounces of heroin for $25,000. That conversation

also revealed some of the details of Simone Zito's

relationship with Tony Mannino. Kane mentioned

Piieiiciticrics. ee

by Caavet its a).

LEE Nee Sent os uae ar ee 8

13a

that he did not want anyone to know about the

transaction, not even Tony Mannino. Zito

responded that “me and Tony’s the same person.”

Simone Zito delivered the heroin to Kane later

that evening. The next day, Kane paid Simone Zito

the $25,000. Tony Mannino accompanied Zito to

that meeting, and afterwards Kane, Mannino and

Zito discussed further heroin sales. In the course

of these discussions, Kane mentioned that his boss

in the drug trade was Joe Gambino. Mannino

responded that his and Simone Zito’s boss in the

drug trade was Francesco Gambino.

On several other occasions, Simone Zito and

Kane discussed further heroin transactions both

in recorded and unrecorded conversations. In

March or April 1988, the two had a conversation

in the Cafe Giardino which _ significantly

corroborated Mannino’'s earlier statement that he

and Simone Zito worked for Francesco Gambino.

Zito offered to sell Kane a kilogram of heroin on

the spot. Kane, who was not able to purchase

drugs without FBI authorization but did not want

to seem disinterested, countered with a much

lower offer. At that point, Simone Zito walked to

the rear of the cafe, out of Kane's sight, then

returned with the information that the price was

negotiable, and that Kane could take a sample

home to New Jersey. Shortly afterward, Kane

determined that the only two people in the cafe,

other than himself and Simone Zito, were

Francesco Gambino and a bartender.

The government also presented evidence of the

workings of the heroin importation scheme.

Several members of the conspiracy who were

indicted with defendants pled guilty and testified

for the government. Salvatore Allegra testified that

in 1985, he was asked by Tommaso Scalici to hire

l4a

couriers to smuggle heroin into the United States.

Supervised by Simone Zito, Allegra arranged for

couriers who travelled to the United States from

Sicily with packages of heroin hidden on their

bodies. In the United States, the heroin was

delivered to Salvatore Caruso, an associate of

Francesco Gambino. Allegra oversaw _ several

deliveries before he was arrested by Italian

authorities in 1986.

Tony Mannino and Simone Zito also sought

Kane’s assistance in their cocaine distribution

scheme. Salvatore Rina, a friend of Kane's who

lived in Florida, had access to large amounts of

cocaine. Mannino and Zito wanted Kane's help in

obtaining cocaine from Rina.?

Timothy Zepp, another FBI informant, also

testified about the conspiracy’s involvement in the

cocaine trade. According to Zepp, Zito sold cocaine

to Enzo Varisco. Zepp was one of Varisco’s

customers. On one occasion, Zepp arrived at

Varisco’s pizzeria to pick up a cocaine delivery.

Because the cocaine had not yet arrived, Varisco

told Zepp to wait. Soon Simone Zito arrived,

carrying a bag. After Simone and Varisco went

briefly to a back room, Varisco handed Zepp his

cocaine. In a later conversation with Zepp, Simone

Zito revealed that he knew the price Varisco

charged for the cocaine, and offered Zepp a better

price.

Grace Mannino, Tony Mannino’s wife, was also

involved. Because Tony Mannino knew that his

telephone was being tapped, the conspirators

devised an elaborate system of arranging for calls

to and from various public pay telephones to

conduct their drug trade. Typically a conspirator

2. The record does not reveal whether this contemplated

transaction ever took place.

Ce ae eee Ne

ee be

NES BPR. Lt

Nin oat

l5a

would call Grace Mannino and arrange for a

telephone call to the “attorney's office” at a

particular time. At the specified time, Simone Zito

or Tony Mannino would be observed by

government agents picking up a pay telephone.

Many of the telephone calls by conspirators to

the Mannino residence were in halting, guarded

code. For example, on January 5, 1988, Grace

Mannino told Giovanni Angelo Mannino, Tony

Mannino’s brother, to call her husband Tony “at

the same place as two days ago.” Later that day,

Simone Zito called the Mannino residence and told

Sal Mannino to “call your brother . . . not at that

place where you went two days ago... the one

before . . . be careful at what you are doing.” Calls

that were not so cryptic explained when Tony

Mannino would arrive in Brooklyn for his frequent

meetings with Francesco Gambino.

The conspirators laundered their proceeds. ‘In

1987, Tony Mannino, Sal Mannino, Grace

Mannino, and Simone Zito purchased a house to

shelter their drug profits. As we have noted, in

October, 1987, Simone Zito told Kane that he

needed money to buy a townhouse both as an

investment and as a place to cut heroin. The day

after Kane delivered the $25,000 to Simone Zito

and Tony Mannino, $16,000 in cash was deposited

in the bank account of SNT corporation, the

corporate name of a pizzeria owned and operated

by the Manninos. Like the money that Kane

handed Simone, the deposit contained a large

number of one hundred dollar bills. The

government presented evidence at trial suggesting

that the remaining $9,000 was paid into the

account over the next several weeks.

Two other incidents corroborate Francesco

Gambino’s role in the conspiracy. As we have

l6a

noted, Kane helped Stefano and Simone Zito

obtain automobiles. Kane made these

arrangements through Robert Reyers, who was an

automobile dealer in southern New Jersey.

Through these transactions, Reyers became

familiar with Stefano and Simone Zito, Tony

Mannino, and Enzo Varisco. Reyers testified as a

witness for the government at trial. In January,

1988, Robert Reyers told Kane, Simone Zito and

Tony Mannino that Reyers’ wife, a court

in the federal courthouse in Philadelphia, could

obtain names that came before a federal grand

jury sitting in the Eastern District of Pennsylvania.

Soon afterwards, Simone Zito gave Reyers a list of

four names, with instructions to contact him

immediately if any of the names came up in

connection with the grand jury. Those names were

Simone Zito, Tony Mannino, Domenico Mannino,

and Francesco Gambino.

The second incident was recounted by Simone

Ricupa, a former heroin dealer in New York City.

One day in 1985, Ricupa was told by his supplier,

Sal DiMaggio, that DiMaggio’s supplier needed as

much money as possible to send to Italy as soon

as possible. Ricupa gathered about $100,000 from

some of his dealers, placed it in a paper bag and,

as instructed, delivered the money to DiMaggio’s

restaurant. When he arrived at the restaurant,

Ricupa saw Francesco Gambino sitting in a car

parked near the restaurant. Ricupa and DiMaggio

went into the restaurant and DiMaggio went to an

apartment upstairs. While waiting, Ricupa could

see Gambino from his vantage point in the

restaurant. DiMaggio returned downstairs with two

large shopping bags, which he carried out to

Gambino’s car. After a quick discussion with

ee OS eee i RE

2 Be a -

17a

Gambino, DiMaggio placed the bags in the car

and Gambino drove away.

On July 26, 1988, the FBI searched an

apartment in Brooklyn, New York that was rented

in the name of Salvatore Inzerillo. Prior to this

search, Inzerillo, Simone Zito, and Tony Mannino

had been seen going to and from the apartment.

The search turned up a sample quantity of heroin

and approximately $12,000 in cash. Reyers

testified that after the search, Simone Zito said

that if the search had taken place a day later “they

would have caught us with four kilos of heroin.”

As we have noted, following trial, Francesco

Gambino, Tony Mannino, Sal Mannino, and Grace

Mannino were convicted of conspiring to import

and distribute heroin, Sal and Grace Mannino

were convicted of money laundering, and Enzo

Varisco was convicted of conspiring to distribute

cocaine. The townhouse was forfeited to the United

States government pursuant to 21 U.S.C. § 853.°

All of the defendants appeal on various grounds.

For the reasons discussed below, we will affirm

the district court.

Il. Co-conspirator Hearsay

Kane's recounting of Tony Mannino’s assertion

that he and Simone Zito worked for Francesco

Gambino was one of the most compelling pieces

of evidence offered against Gambino. Federal Rule

of Evidence 801(d)(2)(E) exempts from the hearsay

rule “a statement by a coconspirator of a party

during the course of and in furtherance of the

3. Francesco Gambino was sentenced to thirty years’

imprisonment, Tony Mannino, 27 years’ imprisonment, Sal

Mannino, 18 years’ imprisonment, Enzo Varisco, 15 years’

imprisonment, and Grace Mannino, one year and one day in

prison.

18a

conspiracy.” In determining whether the

co-conspirator exception applies in a particular

case, the trial court must determine, by a

preponderance of the evidence, that there was a

conspiracy between the declarant and the party

against whom the evidence is offered; and that the

hearsay statements sought to be admitted were

made during the course of the conspiracy and in

furtherance of its goals. Bourjaily v. United States,

483 U.S. 171, 175-76 (1987). Gambino contends

that there was insufficient evidence of his

participation in the conspiracy, and also that the

hearsay statement should not have been admitted

subject to later connection.

Specifically, Gambino alleges that it was error

for the district court to admit the hearsay

statements prior to determining their admissibility.

We begin with the observation that “the control of

the order of proof at trial is a matter committed

to the discretion of the trial judge.” United States

v. Continental Group, Inc., 603 F.2d 444, 456 (3d

Cir. 1979), cert. dented, 444 U.S. 1032 (1980); see

also United States v. Ammar, 714 F.2d 238, 245-47

(3d Cir.) (upholding admission of co-conspirator

statements subject to later connection), cert.

dented, 464 U.S. 936 (1983); In re Fine Paper

Antitrust Litigation, 685 F.2d 810, 820-21 (3d Cir.

1982) (holding that Continental Group permitted,

but did not require, admission of co-conspirators’

hearsay statements subject to later connection),

cert. dented, 459 U.S. 1156 (1983). We review for

abuse of discretion. Ammar, 714 F.2d at 247.4

4. We have not been able to find in the record a timely

objection. Gambino did not object when the challenged

statement was elicited from Kane at trial. On appeal, Gambino

asserts that he objected to the statement in several pretrial

ee ee

19a

There is a danger that if hearsay statements of

an alleged co-conspirator are admitted subject to

later connection, the court may determine at the

ciose of evidence that the offering party did not

meet its burden of establishing a conspiracy and

the jury would be irremédiably prejudiced.

Therefore we have counseled that the practice of

admitting co-conspirator hearsay statements

subject to later connection “be carefully considered

and sparingly utilized by the district courts.”

Continental Group, 603 F.2d at 457.

At the same time, we have _ consistently

recognized that “the order-of-proof problem

confronting the trial judge is a particularly difficult

one where the government is attempting to prove

the participation of multiple defendants in a

continuing conspiracy.” Id. at 456 (quoting United

States v. American Radiator & Standard Santtary

Corp., 433 F.2d 174, 195 (3d Cir. 1970) (upholding

the district court’s decision to admit co-conspirator

statements subject to later connection)). In

Continental Group, we upheld the district court’s

decision to admit co-conspirator hearsay subject

to later connection because “given the large

amount of interrelated testimony to be considered

in this case, we believe that alternative approaches

may have been unduly complex and confusing to

the jury or to the court.” Id at 45,. Similar

difficulties confront the trial judge in many

large-scale conspiracy cases.

motions, and provides three citations to the record. We have

examined his citations, but none of the cited materials raise

this objection. Gambino also asserts that the defendants

repeatedly requested findings on the admissibility of

co-conspirator statements during trial, but offers no record

citations. Therefore we could review this, and the other

challenges to the admission of Kane's statement that he

worked for Gambino, under a plain error standard.

20a

This case is no exception. The government's

proof consisted of a large amount of interrelated

testimony. Except for Kane, most of the

government's witnesses testified only to discrete

corners of the conspiracy. Only Kane provided a

common thread linking virtually all the

conspiracy’s actions. Therefore the conspiracy

became clearly defined only after the testimony of

several witnesses. For these reasons, we find that

the district court's decision to admit the testimony

subject to later connection was not an abuse of

discretion.

Gambino also contends that timing aside, the

government did not adequately establish his

connection to the conspiracy. As we have noted,

the trial court must determine, by a preponderance

of the evidence, whether the defendant and the

declarant were members of the alleged conspiracy,

and whether the hearsay statements were made

during the course of the conspiracy and in

furtherance of its goals. Bourjaily, 483 U.S. at

175-76 (1987). Before the adoption of Fed. R. Evid.

104(a), proof of a conspiracy required evidence

external to the hearsay statement itself. This rule

was premised on the belief that a statement should

not be able to “lift itself by its own bootstraps to

the level of competent evidence.” Glasser v. Untted

States, 315 U.S. 60, 75 (1942). Bourjaily made

clear, however, that the adoption of Fed. R. Evid.

104(a) changed the earlier rule, and that the

co-conspirator’s hearsay statement could be used

to establish the existence of a conspiracy.

In Bourjatly, the Court expressly declined to

decide whether a trial court could rely “solely upon

[the declarant’s] hearsay statements to determine

2la

that a conspiracy had been established by a

preponderance of the evidence.” Bourjaily, 483 U.S.

at 181. Here there is sufficient evidence external

to the hearsay statement itself, so we need not

address that issue today.®

5. We note that every United States court of appeals that has

addressed this issue has required some independent evidence.

The pre-Bourjaily requirement of proof allunde was premised

on the presumptive unreliability of co-conspirator hearsay. See

483 U.S. at 179; Davenport, The Confrontation Clause and the

Co-Consptrator Exception tn Criminal Prosecutions: A Functional

Analysis, 85 Harv. L. Rev. 1378, 1387 (1972) (coconspirator

statements may suffer from “exclusively self-serving motives

and possibly faulty memories"); Levie, Hearsay and

: A Reexamination of the Co-Consptrators’ Exception

to the Hearsay Rule, 52 Mich. L. Rev. 1159, 1165-66 (1954)

(‘The conspirators interest is likely to lie in misleading the

listener into believing the conspiracy stronger with more

members (and different members) and other aims than in fact

it has.”). ‘

The Court did not alter that presumption, but held that

the ways in which it could be rebutted had been expanded

by the adoption of Fed. R. Evid. 104(a). “[A] piece of evidence,

unreliable in isolation, may become quite probative when .

corroborated by other evidence. . . . [Tirial courts must be

permitted to evaluate these statements for their evidentlary

worth as revealed by the particular circumstances of the

case.” 483 U.S. at 180 (emphasis added). In the absence of

any evidence to the contrary, however, the presumption of

unreliability controls; and the hearsay statement cannot serve

as the basis for establishing the declarant’s connection to the

conspiracy. United States v. Garbett, 867 F.2d 1132, 1134

(8th Cir. 1989) (“It is generally agreed that ‘an otherwise

inadmissible hearsay statement cannot provide the sole

evidentiary support for its own admissibility.) (quoting

Bourjally, 483 U.S. at 184 (Stevens, J., concurring)); United

States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988) (“[A]

co-conspirators out-of-court statement, standing alone, is

insufficient to establish that the defendant had knowledge of

and participated in a particular conspiracy.”); United States

v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988) (“[T]here must

be some evidence, aside from the proffered statements, of the

22a

The district court assumed a need for some

external evidence, and found that Gambino was a

member of the conspiracy, and that the hearsay

statement to Kane was made during the course of

and in furtherance of that conspiracy. We review

the district court's determination under a clearly

erroneous standard. United States v. Cruz, 910

F.2d 1072, 1081 n.11 (3d Cir. 1990), cert. dented,

—. U.S. _., 111 S.Ct. 709 (1991).

The following independent evidence indicates

that Gambino was involved in the conspiracy to

import and distribute narcotics. First, there is the

March, 1988 discussion in the Cafe Giardino

between Kane and Simone Zito. After some

bickering about the price of heroin, Simone Zito

left for another area of the cafe, and upon

returning Zito told Kane that the price was

negotiable, and that he could have a sample of the

heroin. Shortly thereafter, Kane observed that

Francesco Gambino and a bartender were the only

other people in the cafe. It was a permissible

inference that Zito went to Gambino for authority

to negotiate price.

Francesco Gambino was also strongly implicated

through the compromise of confidential grand jury

proceedings. Simone Zito provided Reyers with a

list of four names, and asked Kane to inform him

if any of the names were mentioned in grand jury

proceedings. Gambino’s name was on that lst,

along with the names of Simone Zito, Tony

Mannino, and fugitive codefendant Domenico

existence of the conspiracy and the defendant's involvement.”);

United States v. Zambrana, 841 F.2d 1320, 1344-45 (7th Cir.

1988) (observing that some independent evidence is

necessary); United States v. Daly, 842 F.2d 1380, 1386 (2d

Cir.) (assuming that some independent evidence is necessary),

cert. dented, 488 U.S. 821 (1988).

ee: eee oem Co

Mannino. It was a permissible inference that these

individuals were linked in the drug trade.

Filippo Ricupa’s testimony also tied Gambino to

the conspiracy. In the 1985 money drop described

in Part I, Gambino was in a car in front of the

restaurant, and received the bags that DiMaggio

brought downstairs. Furthermore, _ electronic

surveillance revealed regular telephone calls

between Gambino and Tony and Grace Mannino,

many of which involved when Tony Mannino would

arrive in Brooklyn for his frequent meetings with

Gambino. When viewed in light of the other

evidence they corroborate Gambino’s involvement.

Finally, a series of FBI surveillance photographs

showed Gambino in the presence of many of the

co-conspirators, in particular Tony Mannino and

Simone Zito, during “key periods of the

conspiracy.” United States v. Gambino, 728 F.

Supp. 1150, 1155 (E.D. Pa. 1989). Mere

association “cannot alone support a conviction for

conspiracy. United States v. Torres, 519 F.2d 723,

725-26 (2d Cir.), cert. dented, 423 U.S. 1019

(1975). On the other hand, the timing and

circumstances of a meeting or series of meetings

may be sufficiently suspicious to permit a

reasonable inference of complicity in the criminal

enterprise.” Untied States v. Ammar, 714 F.2d 238,

250 (3d Cir. 1983). In Ammar, we held that

evidence of repeated meetings with other members

of the conspiracy coinciding with heroin

importations appropriately could be considered in

determining whether the co-conspirator exception

to the hearsay rule was applicable. Here, also,

consideration of the photographs was appropriate.

To this evidence we now add the hearsay

statement sought to be admitted. According to

Kane, Tony Mannino directly asserted to Kane that

alienate aaa aaa naan nailed

24a

Gambino was Mannino’s and Zito’s boss in the

drug trade. The district court, which heard the

testimony, concluded that all of this evidence,

taken together, established by a preponderance of

the evidence Tony Mannino and Simone Zito’s

membership in a conspiracy with Gambino. This

determination was not clearly erroneous.

Ill.

All of the defendants challenge the admission

and use of several witnesses’ guilty pleas.

At trial, the government presented several

witnesses who were co-conspirators and who had

pled guilty. While on the stand, the government

elicited testimony about their guilty pleas.

Defendants contend that these references to the

co-conspirators’ gulit were prejudicial and deprived

them of a fair trial.

Defendants did not object during the witnesses’

testimony. Therefore, we review this matter under

a plain error standard. See Fed. R. Evid. 103(a)(1)

(requiring a “timely objection . . . stating the

specific ground of objection, if the specific ground

was not apparent from the context”); Untted States

v. Pungitore, 910 F.2d 1084, 1125-26 (3d Cir.

1990) (reviewing for plain error statements to

which defendants did not object), petition for cert.

filed, Dec. 6, 1990 (No. 90-6472).° Under the plain

6. Some of the testimony was objected to on other grounds.

For example, defendants objected to the admission of Zepp’s

guilty plea on the ground that Zepp’s discussion of the plea

agreement included a reference to the protection the

government was providing him. That did not preserve the

objection that is currently before us. See, e.g., United States

v. Fleld, 875 F.2d 130, 134 (7th Cir. 1989) (“Neither a general

objection to the evidence nor a specific objection on other

grounds will preserve [an] issue on review.”).

Oe Nee EL OC ae

25a

error standard (Fed. R. Crim. P. 52(b)), we can

correct “only particularly egregious errors, those

errors that seriously affect the fairness, integrity

or public reputation of judicial proceedings.”

United States v. Thame, 846 F.2d 200, 204 (3d

Cir.) (quoting United States v. Young, 470 U.S. 1

(1985)), cert. dented, 488 U.S. 928 (1988).

There are strong considerations against using a

co-conspirator’s guilt as substantive evidence of

another defendant's guilt. “The foundation of [this]

policy is the right of every defendant to stand or

fall with the proof of the charge made against him,

not against somebody else. . . . The defendant

ha[s] a right to have his guilt or innocence

determined by the evidence presented against him,

not by what has happened with regard to a

criminal prosecution against someone else.”

Bisaccta v. Attorney General of New Jersey, 623 _

F.2d 307, 312 (3d Cir.) (quoting United States v.

Toner, 173 F.2d 140, 142 (3d Cir. 1949)), cert.

denied, 449 U.S. 1042 (1980). In Bisaccia, a

habeas corpus proceeding, we held that a

prosecutor's use of a co-conspirator’s guilty plea

to establish another defendant's guilt was error,

and remanded for a determination of whether the

error was harmless.

This specter is not implicated when a guilty plea

is introduced not to establish a co-conspirator’s

guilt, but for some valid purpose. For example, in

United States v. Inadi, 790 F.2d 383, 384 n.2 (3d

Cir. 1986), we upheld the admission of a

co-conspirator’s guilty plea “in order to rebut

defense counsel's’ persistent attempts on

cross-examination to raise an inference that the

co-conspirators had not been prosecuted, and that

Inadi was being singled out for prosecution.”

26a

In any criminal trial, the credibility of the

prosecution's witnesses is central. By eliciting the

witness’ guilty plea on direct examination, the

government dampens attacks on credibility, and

forecloses any suggestion that it was concealing

evidence. Such disclosure is appropriate. See

United States v. Casto, 889 F.2d 562, 567 (5th Cir.

1989) (“Because it was reasonable for the

prosecution here to believe that [defendant's]

counsel would attempt to impeach [a testifying

co-conspirator’'s] implicating testimony by

questioning her about her guilty plea, it was also

reasonable for the prosecutor to adduce this fact

during her opening examination of [the testifying

co-conspirator]."), cert. denied, _. U.S. _., 110 S.

Ct. 1164 (1990); United States v. Dworken, 855

F.2d 12, 30 (lst Cir. 1988) (“[T]he fact of [a] guilty

plea and the plea agreement properly may be

elicited to dampen the effect of an anticipated

attack on the witness’ credibility.”); United States

v. Louts, 814 F.2d 852, 856 (2d Cir. 1987) (“Proper

purposes [for co-conspirators’ guilty pleas] include

disclosure of matters damaging to the credibility

of a witness and contradiction of any inference

that the government is concealing a witness’

bias."); see also 2 J. Weinstein & M. Berger,

Evidence { 410[07}, at n. 3 (1990) (If a co-offender

who appears as a witness has pled guilty, “the

trier must know about the plea’s existence in order

to evaluate the witness’ testimony.”). In this case,

the defendants began their attack on the

credibility of the government's witnesses in their

opening statements to the jury. Yet even in the

absence of this attack, the elicited testimony was

proper here.

At the same time, it is important that the jury

understand the limited purposes of a

27a

co-conspirator’s guilty plea. Here, in its final

charge, the district court properly instructed the

jury that the guilt of any one person was not

substantive evidence of the guilt of any other

person. We also note that the guilty pleas were

not emphasized by the prosecutor during direct

examination, and were not inappropriately

emphasized during closing argument. We believe

that the appropriate uses of the pleas were clear.

The references to the pleas were not an abuse of

discretion, let alone plain error.

Defendants level a special attack on the

testimony of Robert Reyers. He started the trial as

a defendant but pled guilty on the twelfth of

twenty-six days of trial and became a witness for

the prosecution. During the government's case in

chief, Reyers corroborated some of Kane's

testimony through his own recollection of events,

and also testified that Kane had told him about

many of the incidents Kane mentioned at trial.

Defendants timely objected to Reyers’ testimony

on the grounds that it would impermissibly

suggest the guilt of the remaining defendants. We

review the district court's decision to admit Reyers’

testimony for abuse of discretion. See United

States v. Pungitore, 910 F.2d 1084, 1151 (3d Cir.

1990), petition for cert. filed, Dec. 6, 1990 (No.

90-6472).’

7. Defendants raise two further objections to Reyers’

testimony. First, they contend that the district court should

have declared a mistrial even before the jury was apprised of

Reyers’ plea during his testimony, because the mere fact of

his disappearance strongly implied his guilt, and in turn

implicated the other defendants. Any such inference was

foreclosed by the court's clear instruction to the jurors,

28a

As we have noted, guilty pleas are properly

elicited on direct examination to dampen

subsequent attacks on credibility, and to foreclose

any suggestion that the party producing the

witness was concealing evidence. That conclusion

applies equally to Reyers’ testimony. Reyers’

relationships with the remaining defendants could

have created the possibility for the prejudice that

we warned of in Bisaccia. Here, the district court

avoided those dangers. As we have noted, the

district court properly instructed the jury on the

appropriate uses of guilty pleas, and as with the

guilty pleas of the other co-conspirators, Reyers’

guilty plea was not emphasized by the prosecutor

during direct examination, and was _ not

inappropriately emphasized during closing

argument. We believe that the appropriate uses of

Reyers’ plea were clear, and that the district

court’s decision to admit Reyers’ testimony and to

allow mention of his guilty plea was not an abuse

of discretion.

This case is factually similar to United States v.

Kilrain, 566 F.2d 979 (5th Cir. 1978), cert. dented,

439 U.S. 819 (1978). In that case, one of the

defendants pled guilty in the middle of trial and

became a government witness. The remaining

defendants, who were convicted, contended that

the defendant who pled guilty had been privy to

their defense strategy, and therefore they were

immediately after they entered the courtroom on the first day

following Reyers’ plea, that they were not to infer anything

- from Reyers’ absence. At that point in the trial, we find no

prejudice to the other defendants. Second, defendants

contend that Reyers’ testimony impermissibly bolstered Kane's

credibility as a witness, because the jury might infer that

Kane's testimony was one of the reasons Reyers pled guilty.

We deal with this objection below.

29a

deprived of a fair trial. The Court of Appeals for

the Fifth Circuit upheld the convictions, observing

that the remaining defendants needed to

demonstrate some “actual prejudice resulting from

[the witness’'] supposed knowledge of defense

strategy, or that [the witness] communicated such

knowledge to the government.” 566 F.2d at 983.

In this case, defendants have not alleged any

specific prejudice. Although the Sixth Amendment

claim raised in Kilrain is different than the claim

raised here, Kilrain lends support to our result

today.

Defendants also object to remarks made by the

prosecution during closing arguments. Before

discussing the challenged remarks, we must place

them in context. A central focus of defendants’

closing arguments — indeed much of thzir defense

at trial — was Kane's lack of credibility. Counsel

for Tony Mannino argued that “William Kane, as

[the prosecution] knew before they put him on the

stand, is a perjurer. Simple. He's got a history of

it. . . . He told you he’s a gangster, he’s a

wiseguy, he’s a thug who goes around threatening

people with a gun. . . . You decide: murderer or

liar? Either way, his testimony isn't worth

anything. William Kane is a cold, calculating

individual who came here and lied even as we sat

Even more telling, counsel for defendant Fodera,

who was acquitted by the jury, pointedly made an

issue oi: Reyers’ lack of belief in Kane. In his

closing argument, he remarked:

This case is unique in the trials of criminal cases

in that this is one of the rare instances that you

30a

will ever see where you will see

government witnesses get on the stan

to you, as happened in this case, that

one is a liar and a perjurer. you remember

Reyers, the fellow who used to sit in that corner

over there, who pled guilty and became a

government witness? Reyers testified in

connection with this case, and Reyers, one of the

things that he said is that Kane, when he

testified in this court, lied. So, you have one

witness characterizing another government

witness as a perjurer.

The reference is to testimony by Reyers, elicited

during cross-examination, recalling a conversation

that Reyers had with Gambino’s attorney before

Reyers pled guilty. Reyers had told Gambino’s

attorney that he believed that Kane was lying on

the stand. Later in his closing, counsel for Fodera

again sounded this refrain:

And Mr. Reyers, who was one of |the

prosecution's] witnesses . . . said [Kane] lied on

the witness stand and he was a lIlar, and I

accuse [Kane] of being a murderer and | accuse

him of being a perjurer, and I submit to you that

it is not fair, it is not just, to try to convict

[Fodera] solely on the testimony of a murderer,

a perjurer, a robber, a burglar, a career criminal.

After these remarks, the prosecution, in its

rebuttal remarks to the jury, suggested that

Reyers’ guilty plea belied his asserted lack of faith

in the veracity of Kane's testimony.

Now [Counscl for Tony Mannino], in talking

about William Kane, told you what a liar he was,

and other attorneys have. But remember this:

Reyers and Joseph Cuffaro thought that he was

Sla

such a liar that, based on his evidence against

them, they pled guilty. . . . You heard Mr.

Cuffaro testify that, as the result of the sale of

15 kilograms of cocaine in Florida, he was

indicted, and the sale was to Bill Kane. He was

indicted and he pled guilty. And you heard Mr.

Reyers, that he pled guilty, and you heard during

the course of this trial that the evidence against

Mr. Reyers came primarily from William Kane.

Defendants timely objected to the prosecution's

statements, and now contend that the reference to

Reyers’ and Cuffaro’s guilty pleas deprived them

of a fair trial. We review the district court’s denial

of a motion for a mistrial on these grounds for

abuse of discretion. See Untted States v. DiLoreto,

888 F.2d 996 (3d Cir. 1989). We will reverse if

“the prosecutor's remarks, taken in context of the

trial as a whole, were sufficiently prejudicial to

have deprived [defendants of their] right to a fair

trial.” United States v. DiPasquale, 740 F.2d 1282,

1297 (3d Cir. 1984), cert. dented, 469 U.S. 1228

(1985).

Defendants raise two related arguments. First,

they contend that the fact of Reyers’ and Cuffaro’s

guilty pleas cannot appropriately be used to

bolster Kane's credibility by suggesting that they,

at least, believed Kane. Second, they argue that

even if the prior guilty pleas are relevant,

mentioning them warrants a mistrial because it

suggests that the remaining defendants are guilty

merely by virtue of their association with those

who pled guilty.

At the outset, we note that the comments by the

prosecutor were proper as a fair and invited

response to the defendants’ vehement attacks on

Kane's credibility. “[Plrosecutorial comment must

be examined in context.” Untted States v. Robinson,

32a

485 U.S. 25, 33 (1988). In Robinson, defendant's

attorney had argued that the government had

unfairly deprived his client, who did not testify at

trial, of an opportunity to explain his actions. In

his closing argument, the prosecutor commented

that the defendant had the opportunity to take the

stand and testify if he so desired. Defendant

claimed that this reference deprived him of his

right to be free from compulsory self-incrimination

under the Fifth Amendment and under 18 U.S.C.

§ 3481 (1988). The Court rejected this claim,

reasoning that the comments were a fair response

to defendant's attacks. Similarly, in United States

v. Pungitore, 910 F.2d 1084, 1120-27 (3d Cir.

1990), petition for cert. filed, Dec. 6, 1990 (No.

90-6472), we held that a prosecutor's summation

reference to his oath of office was a proper

response to a closing argument attack on the

integrity of the prosecution that ranged beyond

any evidence adduced at trial. See also Untted

States v. Arnold, 890 F.2d 825, 830 (6th Cir. 1989)

(prosecutor's mention of codefendants’ guilty pleas

in closing argument appropriate rehabilitation of a

witness’ credibility); Untted States ex rel Paxos v.

Rundle, 491 F.2d 447, 453 (3d Cir. 1974)

(“counsel does have the right to reply to an

argument raised by his opposing advocate™)

(quoting United States v. Casteel, 476 F.2d 152,

155 (10th Cir. 1973)).

The reference to Reyers’ guilty plea was

appropriate as a direct response to a specific

argument made by the defense. See United States

v. Sanchez, 790 F.2d 1561 (11th Cir. 1986). In

Sanchez, defendant was convicted of money

laundering. He was’ involved in_ several

transactions with an investment firm established

by the DEA for the purpose of investigating the

33a

laundering of drug proceeds. Defendant attacked,

on cross-examination, one of the prosecution

witness’ “suitability for federal investigative work.”

790 F.2d at 1564. The Court of Appeals for the

Eleventh Circuit upheld the admission of

testimony by a DEA agent that the witness had

been found reliable in other investigations,

because the testimony was a direct response to

the defendant's attack. See also Fed. R. Evid. 608;

McCormick, Evidence § 49 (3d ed. 1984).

We note that at least one other United States

Court of Appeals has found guilty pleas relevant

and admissible evidence of a witness’ veracity

when invoked as a direct response to a specific

attack. In United States v. Martinez, 775 F.2d 31,

36-38 (2d Cir. 1985), much of the prosecution's

case turned on the testimony of one witness, who

like the defendant was an inmate in a state prison.

The defendant pointed out that the witness had

accused other inmates and guards of committing

crimes, suggesting that the witness had fabricated

these accusations to curry favor with the prison

administration and to procure an early release.

The prosecution rejoined with testimony

establishing that all of the guards accused by the

witness had pled guilty. The Court of Appeals for

the Second Circuit approved, holding that

admission of these other guilty pleas was not an

abuse of discretion. Id. at 38. Cf. United States v.

Lochmondy, 890 F.2d 817, 820-22 (6th Cir. 1989)

(upholding a conviction when the government had,

during closing, observed that one of the

prosecution's witnesses had testified in other cases

that resulted in convictions); Arnold, 890 F.2d at

830.

In this case, defendants made an issue of

Reyers’ belief in Kane in closing arguments. The

3Aa

reference to Reyers’ plea on rebuttal was an

appropriate response. Defendants never specifically

made an issue of Cuffaro’s belief in Kane, so we

find the reference to Cuffaro’s plea more troubling.

Even if we were to find that this was error,

however, it would be harmless, because Cuffaro

did not play a central role in either the conspiracy

or the government's case at trial. In contrast, the

issue of Kane's credibility was constantly revisited,

by all parties, throughout the twenty-six day trial.

Cuffaro’s guilty plea was in an_ unrelated

proceeding, and the role Kane's testimony played

in that plea was, and remains, unclear. The one

reference to Cuffaro’s plea was not, when “taken

in context of the trial as a whole, sufficiently

prejudicial to have deprived [defendants of their]

right to a fair trial.” United States v. DiPasquale,

740 F.2d 1282, 1297 (3d Cir. 1984), cert. dented,

469 U.S. 1228 (1985).

It is significant that the challenged statements

left undisturbed the jury's prerogative to decide all

questions of credibility. If there was any ambiguity,

it was cleared up in the district court's

instructions, in its final charge, that evaluating the

credibility of witnesses was the function of the

jury. Cf. United States v. Hilton, 772 F.2d 783, 786

(llth Cir. 1985) (“When bolstering testimony

suggests to the jury that a witness bears the

responsibility for determining the truth of the

evidence, admission of the testimony may

constitute reversible error.) (citing United States

v. Price, 722 F.2d 88, 90 (5th Cir. 1983)); United

States v. Murray, 445 F.2d 1171, 1176 n.7 (3d Cir.

1971); United States v. DiLoreto, 888 F.2d 996, 999

(3d Cir. 1989) (prosecutorial vouching for the

credibility of a witness improper).

Even if otherwise appropriate, the challenged

references to guilty pleas could still constitute

reversible error if used as substantive evidence of

the defendants’ guilt. As we have noted, such use

poses the threat that a defendant will be found

guilty not on the basis of evidence against him,

but on the basis of a shadow cast by cases against

others. Bisaccia v. Attorney General of New Jersey,

623 F.2d 307, 312-13 (3d Cir.) (quoting United

States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949)),

cert. dented, 449 U.S. 1042 (1980). Therefore we

must determine whether the appropriate use of the

references was sufficiently clear.

As we have noted, there was a direct nexus

between Reyers’ plea and the attacks on Kane's

credibility. This nexus made clear that the pleas

were not offered as substantive evidence of the

defendants’ guilt. Cuffaro’s plea, also, was

mentioned in response to attacks on -Kane'’s

credibility. The connection to Kane's credibility was

far less direct, and therefore the purpose less

clear. As we have mentioned, however, he was not

centrally involved in the conspiracy in this case.

His guilty plea was entered in a different

proceeding, and when he described his plea to the

jury he mentioned only that he had purchased

cocaine from Kane, and did not mention any of

the defendants. Recalling this testimony in closing

argument did not imply that any of the defendants

were guilty of the offenses charged in this case.

Finally, any possible misunderstanding of the

appropriate use of the guilty pleas was cleared up

by the district court's jury instructions. The court

explicitly told the jury that the guilt of any person

was not evidence of any other person's guilt.

Defendants did not object to this charge. We view

this as adequate, because under Fed. R. Crim. P.

30, “[i]f a more specific curative instruction were

thought necessary, counsel should have requested

36a

one before the jury retired.” United States v.

Thame, 846 F.2d 200, 204 (3d Cir.), cert. denied,

488 U.S. 928 (1988).

For these reasons, the prosecutor's remarks did

not deprive defendants of a fair trial, and the

district court’s denial of defendants’ motion for a

mistrial on this ground was not an abuse of

discretion.

IV.

Defendants raise several other grounds for

appeal. First, they challenge the sufficiency of the

evidence supporting their convictions and the

forfeiture of the house. We have reviewed the

record, and find those arguments without merit.

See Burks v. United States, 437 U.S. 1, 16 (1978);

United States v. Pungitore, 910 F.2d 1084, 1128-29

(3d Cir. 1990), petition for cert. filed, Dec. 6, 1990

(No. 90-6472).

Defendants also claim that the district court

improperly admitted Kane’s hearsay testimony

recounting matters about the conspiracy told him

by Stefano Zito. Those statements were admitted

under the co-conspirator exception we have

already discussed. Defendants contend there was

insufficient evidence establishing Stefano Zito’s

membership in the conspiracy; and that the

statements were not in furtherance of the

conspiracy. We _ disagree, and find those

contentions without merit.

Defendants raise several other claims. They

contend that: the district court's instrictions to

the jury were flawed; the prosecutors created or

altered certain critical documents; the prosecutors

improperly referred to charges pending against

Simone Zito and Tony Mannino in Italy during

trial; defendants were prejudiced by the handing

37a

down of a superseding indictment six weeks prior

to trial; the government failed adequately to

minimize intercepted communications; the jury

had available during its deliberations prejudicial

tapes that had not been admitted into evidence;

and the district court erroneously failed to quash

a superseding indictment or order the government

to provide a bill of particulars. We have considered

each of these arguments and find them without

merit.

For the foregoing reasons, we will affirm the

judgments of sentence.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Sor the Third Circutt

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