# Petition for Writ of Certiorari — Mannino v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 1206

## Text

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)

i

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?

ii

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

vi

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

11

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,

12

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

i

13

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

14

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).

16

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

17

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

18

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.

19

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

20

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,

21

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

22

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

23

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

24

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

25

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,

26

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

27

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

ee

la
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.

a

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-

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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.

da

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.

5a
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.

6a
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.

Ja

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

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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

9a
Filed March 4, 1991

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

s-

Nos. 89-2087, 89-2088, 89-2089,
89-2090 and 90-1034

oe ant

UNITED STATES OF AMERICA
v.

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.

I.

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

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NES BPR. Lt

Nin oat

a

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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.

A.

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.

B.

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

Za

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.

A.

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.

B.

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.

C.

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2062%3A1. Public record. Not legal advice.