APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Staley,*fn* Hunter and Garth, Circuit Judges.
The government's opening at the start of a criminal trial which charged both conspiracy and substantive offenses consisted in large part of a verbatim reading of certain wiretap transcripts through which the government claimed that it would prove the five substantive counts against appellant DeRosa. During trial, the wiretap evidence was excluded, and the substantive counts to which they related were dismissed. On appeal both appellants contend that the jury's exposure to the inadmissible wiretap transcripts prejudiced their trial on the conspiracy counts, requiring reversal of their conspiracy convictions. We are gravely disturbed by the government's abuse of the opening procedures; nonetheless, we are convinced by the record as a whole that the convictions must be affirmed.
Defendants Kenny DeRosa and Brando Rosetta were indicted for having conspired together and with others to import (Count 1) certain controlled drug substances and with conspiring to distribute (Count 2) methamphetamine, one of those substances.*fn1 In addition, DeRosa was charged in Counts 3 through 7 with using a communication facility (a telephone) to facilitate the distribution of methamphetamine.*fn2 DeRosa and Rosetta were tried on these charges before a jury in the United States District Court for the Eastern District of Pennsylvania. The principal issue raised in their appeals stems from the statements of the government at the outset of trial.*fn3
Jury selection occupied the first day of trial. On the second day, the district court judge opened his remarks to the jury by saying:
Ladies and gentlemen of the jury panel, what you are going to hear this morning is the opening outline of the case of the Government. What you are going to hear counsel tell you when they make opening speeches to you is what the case is about and what they would like you to pay attention to, and what they think is the key part of the case they feel you should be most attentive.
Record at 2-2 (emphasis added).
The government attorney thereafter began his opening statement. First, he referred to the purpose of the opening procedure by stating that that purpose had already been explained by the court. After certain other preliminary remarks, he read Counts 1 and 2 (the conspiracy counts) to the jury.
He then read Count 3 to the jury, and summarized the substance of Counts 4, 5, 6 and 7, all of which pertained solely to DeRosa and charged the substantive offense of using the telephone on different dates to facilitate the distribution of controlled drugs.
That is not evidence. I have not said anything about what the Government's evidence is.
The Government feels it is very important to outline the case as fully as we can without losing you. I know how that can be sometimes.
I would like to go through the evidence now, and I hope everybody will try to remember it. It may be a week from now when you hear the evidence that I am going to relate to you now.
I would like to take the last counts first of the Indictment pertaining to the use of the telephone by the defendant Kenneth DeRosa. The evidence in this will be that in the fall of 1972 the United States Assistant had obtained a wiretap by a court order. In other words, this is electric surveillances. This was on the telephone where somebody was calling Mr. DeRosa. A court order was obtained and a proper tap was made by a technician of the Secret Service. A tap was on the telephone ordered by the Court, and the monitoring station was being run by agents of the Secret Service, and they will testify to the custody they maintained of them and the log for evidence, and how the transcript for certain calls were prepared.
The machine that is used to operate electric surveillances - the machine used prints out the time of the call. There will be agents from the Drug Enforcement Administration who will identify the voices of certain people. These voices will be identified by agents who have talked to them in the past. They will identify a person by the name of Donald Tedesco, who is named in the Indictment, and they will identify Kenneth DeRosa as one of the speakers in the telephone call.
Now, the first call comes in on October 1, 1972, at 10:52. It was an outgoing call to (215) 534-4758.
Agents which will testify the subject subscriber of the particular number was Kenneth DeRosa of 104 Riverside Avenue, Prospect Park, Pennsylvania.
In this conversation Donald Tedesco asked for Pup, which various people in the trial will testify was the nickname for Kenneth DeRosa.
Record at 2-12 through 2-13. Thereafter, the transcripts were read, word for word. The reading of these transcripts by the government consumed some 22 pages of the trial record. The government's opening as a whole totals 52 pages of the trial record. Hence, almost 50 percent of the time used by the government in its opening was devoted to a verbatim reading of the wiretap transcripts.
Following the reading of these transcripts, and after some cursory explanations concerning the conspiracy charges, the government again read another page and a half of wiretap transcripts involving DeRosa and an informer. This was followed immediately by the government's concluding remarks:
The Government feels that [this last-quoted transcript] is a damaging admission on the part of Mr. DeRosa. He knew he was being investigated and he was trying to keep tabs on who would testify against him.
We feel it is fitting to end our opening statement on that note because we feel that when this proof is offered into evidence, you have heard the live witnesses, and you have heard the wiretap conversations, you will know exactly the type of man that is here and what he has got. We feel we will have met our burden of proof.
At no time did either defense counsel (or the court) interrupt the government's opening or reading of the transcripts. At no time during the opening was an objection made or a sidebar conference requested. At the conclusion of the government's opening, no motion for a mistrial was made. In fact, the only statements made by defense counsel appear in the record as:
Mr. Hoffman [Counsel for Rosetta]: At this time I would like to reserve my opening speech.
Mr. Carroll [Counsel for DeRosa]: The same, sir.
Record at 2-55 through 2-56.
Testimony began the next day. The government presented compelling evidence that the appellants were key links in a methamphetamine distribution network with its source of supply in Canada and its base of operations in and around Philadelphia. One William Ramsey, testified to arranging for the transportation of the drugs from Canada to Philadelphia, while other indicted and unindicted co-conspirators testified as to their roles in the scheme. A pattern emerged: in a typical transaction, DeRosa and Rosetta ...