The opinion of the court was delivered by: LACEY
During the trial of this matter certain evidence rulings were made. The following sets forth the bases of those rulings.
THERE IS AMPLE INDEPENDENT EVIDENCE AS TO THE MEMBERSHIP OF EACH DEFENDANT IN THE CONSPIRACY CHARGED
The proper standard to be applied by the court in determining whether co-conspirator statements may be submitted to the jury is whether the Government has established the existence of the alleged conspiracy, the membership of each defendant with it by a "fair preponderance of the independent evidence," and that such statements were made during the conspiracy and in furtherance of it. United States v. Trotter, 529 F.2d 806, 811 (3rd Cir.1976). See also United States v. DiPasquale, 740 F.2d 1282 (3rd Cir.1984); United States v. Gibbs, 739 F.2d 838 (3rd Cir.1984) (en banc); United States v. Ammar, 714 F.2d 238, 247 (3rd Cir.1983); United States v. Continental Group, 603 F.2d 444, 457 (3rd Cir.1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980); United States v. Trowery, 542 F.2d 623 (3rd Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1132, 51 L. Ed. 2d 555 (1977).
This standard of proof with respect to each defendant has been met by the United States, both at the end of the Government's case and at the end of all the evidence.
On January 17, 1984, the defendants, Rosario Gambino, Anthony Spatola and Giovanni Bosco, met at the Caffe Milano in Brooklyn, New York, and stayed there on and off until approximately 1 a.m. on January 18, 1984, for the purpose of obtaining heroin to sell to undercover agents at approximately 4 a.m. on January 18, 1984. (8 Tr. 1447-49, 9 Tr. 1609-12).
In an intercepted conversation later that day, Anthony Spatola indicated that the heroin would arrive at the Caffe Milano between 11 and 11:30 p.m. (Exhibit 138b). At approximately 11:19 p.m. the Mercedes Benz was again observed at the Caffe Milano, and at 11:29 p.m., it was observed departing. (9 Tr. 1610-1611).
Although this vehicle is registered to Anna Zella, 512 Haddonfield Road, Cherry Hill, New Jersey, the address given for Zella is actually the address of a defunct night club, Valentino's. (10 Tr. 1853-54). The driver's license and insurance policy listed on the registration are false (Exhibit 6d 10 Tr. 1963). This automobile was observed at the residence of Rosario Gambino, and used by him frequently during the course of the investigation. (9 Tr. 1581-82, 10 Tr. 1855).
The defendants, Giovanni Bosco, Anthony Spatola and Antonio Gambino, rented Room 311 at the Caesar's Boardwalk Regency Hotel for the heroin sale of January 18, 1984. (Exhibit 8a). It was in this room that Special Agent Clagg tested and received the heroin purchased that day. (9 Tr. 1729). There was only one telephone call billed to this room during the time the defendants rented it. Approximately 20 minutes prior to the defendants' check out, a call was placed to the residence of Rosario Gambino. (Exhibit 8c). Upon leaving the hotel, Bosco, Spatola and Antonio Gambino drove directly to Rosario Gambino's residence in Cherry Hill, New Jersey. (8 Tr. 1343-46, 10 Tr. 1857). Prior to their arrival, at 9:30 p.m. the only vehicle parked in the Rosario Gambino residence was the above-described Mercedes Benz, N-J registration number 228-VIF. (10 Tr. 1852).
At the end of the Government's case, the jury could have inferred, and for 801(d)(2)(E) purposes I find, that this visit was made so that the three, Bosco, Spatola and Antonio Gambino, could report to Rosario Gambino on the success of their mission and to pay him part or all of the money received. On the defendants' case, Rosario Gambino and Anthony Spatola testified about this visit. Their explanation was that it was nothing more than a visit to wish Rosario Gambino well before he entered the hospital later that morning. Their testimony was undercut, however, by evidence consisting of English language transcripts of Sicilian language telephone conversations between Antonio Gambino and Erasmo Gambino's wife, and later, between Antonio Gambino and Rosario Gambino. Both calls, fairly read, readily yield the inference that Antonio Gambino was not aware of the fact that Rosario Gambino was going to be hospitalized; therefore, the defendants' version of the purpose of the visit by Bosco, Spatola and Antonio Gambino to Rosario Gambino's home was discredited.
On January 30, 1984, Special Agent Glass spoke to Antonio Gambino at approximately 4:20 p.m. Pursuant to ongoing heroin negotiations, Antonio Gambino advised Special Agent Glass that a half kilogram of heroin would be available for sale on the following day. They agreed to meet that evening at 9 p.m. to discuss the deal further. (4 Tr. 548).
At approximately 6:29 p.m. on that date the toll records for Rosario Gambino's residence telephone reflected a call to the Caffe Milano in Brooklyn (Exhibit 201). At approximately 7:25 p.m., Anthony Spatola called Rosario Gambino pursuant to Gambino's request. In that conversation, Rosario Gambino stated, "I called over there . . . and there's a half (unintelligible) empty for tomorrow." He advised Spatola, "within this week," that there was a "white leaf" for tomorrow but that "if there should be," he would call Spatola. (Exhibit 160b).
Immediately after this telephone conversation, calls were intercepted from Anthony Spatola to co-conspirators Antonio Gambino and Giovanni Bosco. (Exhibits 161b, 162b). That evening when the undercover agents met with Antonio Gambino and Anthony Spatola, they were advised that despite Antonio Gambino's assurance at 4:20 p.m. that afternoon, the heroin would not be definitely available on Thursday. (4 Tr. 571). The information given to the agents at this time as to the availability of heroin was substantially a repetition of the information conveyed by Rosario Gambino to Anthony Spatola in Exhibit 160b.
On February 20, 1984, undercover agents purchased a second half kilogram of heroin from Antonio Gambino and Anthony Spatola for $120,000. (Exhibit 174b). Copies of the actual bills used to purchase this heroin were made and maintained. (5 Tr. 697). Following the sale, defendant Anthony Spatola telephoned Giovanni Bosco at the Spatola residence at approximately 7:35 p.m. (Exhibit 175b). At approximately 7:49 p.m., an incoming telephone call from Giovanni Bosco was intercepted over Rosario Gambino's telephone. In this call, Bosco was advised by Rosario Gambino's wife that Gambino had instructed her to tell Bosco that, as the Government argues, and I find, he could see Rosario Gambino at the Caffe Milano on the following day. (Exhibit 176b). Giovanni Bosco was observed on the following day at the Caffe Milano. (8 Tr. 1529-30).
On the date of his arrest, March 16, 1984, Rosario Gambino's residence was searched pursuant to a search warrant. Two of the $100 dollar bills used to purchase heroin on February 20, 1984, in this case were recovered.
Immediately after Special Agent Glass telephoned Antonio Gambino on December 30, 1983, to inform him that he was authorized to negotiate the purchase of one kilogram of heroin, concentrated efforts were made by Anthony Spatola to reach Erasmo Gambino (Exhibits 105b-110b). In a call intercepted on January 2, 1984, Antonio Gambino asked to meet with Erasmo Gambino and there was the following exchange:
"ERASMO GAMBINO: Tell me something, is this to waste time or not?
ANTONIO GAMBINO: Not to waste time!
ERASMO GAMBINO: Not to waste time?
ANTONIO GAMBINO: No! We can marry this girl.
ERASMO GAMBINO: She can be married?
ERASMO GAMBINO: Did he like her?
ANTONIO GAMBINO: Yes. He like her but, we have to talk.
ERASMO GAMBINO: I understand.
ANTONIO GAMBINO: It can be done!
ERASMO GAMBINO: But she's tasty, she's never been out with anyone else.
ANTONIO GAMBINO: I know, but you know how it is, they always have something to say, like they say her mouth is too big. They always have something to say, you know women are?"
Later, in the same conversation, there was a reference to when "we" get married. (Exhibit 111b). In light of the subsequent use of the marriage code between Special Agent Glass and Antonio Gambino (Exhibit 115b), and the substance of Special Agent Glass' call on December 30, 1983 (Exhibit 140b), I find that Antonio Gambino was using the marriage code (Exhibit 111b) to inform Erasmo Gambino of the status of his heroin negotiations with Special Agent Glass. In this same conversation, a meeting was arranged for following day. On January 3, 1984, Erasmo Gambino was observed meeting with Anthony Spatola at the Playboy Casino Hotel in Atlantic City. During their meeting, Erasmo Gambino used a public telephone in the lobby, on one occasion to place a call to the Caffe Milano in Brooklyn (Exhibit 2, 8 Tr. 1332), the place later visited by Anthony Spatola to obtain the heroin for the January 18, 1984 sale. (8 Tr. 1447-49, 9 Tr. 1609-12).
On January 13, 1984, Special Agent Glass telephoned Antonio Gambino to advise him that he would return to the Atlantic City area on Monday, January 16, 1984, with the money and everyone necessary for the heroin deal and that the deal could then take place on Tuesday, January 17, 1984 (Exhibit 115b). In this conversation, Antonio Gambino instructed Special Agent Glass in the use of a "new language" which employed codes. Specifically, he used phrases relating to buying a car and marrying a girl as codes for the sale of heroin. Immediately after this conversation, Antonio Gambino called Anthony Spatola and conveyed to him the information he had just received from Special Agent Glass by using the marriage code he had just instructed Special Agent Glass to use. (Exhibit 116b). Anthony Spatola, in turn, called Erasmo Gambino on the same day. Employing the same marriage code as had been used in Exhibits 115b and 116b, Erasmo Gambino and Anthony Spatola discussed Spatola's request to have "this marriage on Tuesday," including his need to "pickup the fiance" on Monday for his "appointment with a father-in-law on Tuesday." (Exhibit 117b). The relationship between Spatola's conversation with Erasmo Gambino in Exhibit 117b and the conversation between Antonio Gambino and Special Agent Glass in Exhibit 115 is obvious.
There was another significant series of telephone calls involving Erasmo Gambino during the course of the preparations for the heroin sale on January 18, 1984. On January 16, 1984, Special Agent Glass spurned Antonio Gambino's offer to do the deal that Thursday, (January 19, 1984) and insisted that the deal be concluded on Tuesday (Exhibit 118b). Immediately after this conversation, Antonio Gambino and Anthony Spatola had a conversation in which they discussed the fact that Special Agent Glass was unwilling to wait until Thursday. In this conversation, Antonio Gambino and Anthony Spatola also discussed necessary steps to take to be able to sell the heroin on the next day, which steps included getting in touch with a certain individual. (Exhibit 119b). Thereafter on that day, Anthony Spatola called the Caffe Milano at 10:42 p.m. (Exhibit 124b) and at 11:51 p.m. (Exhibit 126b) and Erasmo Gambino's residence (Exhibit 125b) asking for "Erasmo." Shortly after midnight, Erasmo Gambino placed a collect call to Anthony Spatola in response to Spatola's efforts to contact him. Spatola told Erasmo Gambino, "I must see you! . . . and early!" When Gambino stated, "it's not like I have it in my pocket . . .," Spatola replied, "then everything is spoiled," adding, "listen to me, we have everything ready . . . everything!" Erasmo Gambino promised to call back in 20 minutes and Spatola implored him, "please, Erasmo, do me this favor?" (Exhibit 128b).
Immediately after this call, Spatola called Antonio Gambino, discussing this call and whether the "quail could be flown." (Exhibit 129b).
Erasmo Gambino called Spatola back as promised. He said that there was "no pizzaiolo for tomorrow," but assured Spatola, "they guaranteed some for around Wednesday or Thursday, for sure." Spatola objected that "the fiance was already here!" When asked for an "exact date," Erasmo Gambino replied, "Thursday." (Exhibit 130b). As was the case with the earlier call, Spatola immediately called Antonio Gambino after this call and discussed the proposed sale of heroin to Special Agent Gambino, making reference to the fact that Special Agent Glass was to call Antonio Gambino at 10:30 a.m. (Exhibit 131b).
When Special Agent Glass called Antonio Gambino the next morning at approximately 10:37 a.m., Antonio Gambino told him that the "champagne" would be ready Thursday (Exhibit 132b), the "exact ...