Friendly, Smith and Feinberg, Circuit Judges.
Geaney's appeal from his conviction after a jury trial before Judge Tyler in the District Court for the Southern District of New York, neatly raises the vexed question of the sufficiency of evidence of conspiracy to warrant the admission of declarations of alleged co-conspirators in furtherance of the conspiracy.
The Government's case was presented primarily through the testimony of Carol McKeever, at whose apartment in the Bronx defendant Lynch, the prime mover in the conspiracy, lived. In June 1968, Lynch told his mistress that he intended to rob a bank; he later identified the branch of Manufacturers Hanover Trust Co. on City Island as the place and the day after Labor Day, September 3, 1968, as the time. Originally McKeever was to act as a decoy to divert the attention of the police to the southern end of the island while the robbers crossed the bridge at the northern end. Later the plan was changed so that the robbers would leave the island by boat and McKeever's role was somewhat reduced.
Early in August Lynch told McKeever that Geaney's job would be to steal a car, another defendant, Donnellan,*fn1 was to get the boat, and Lynch would get the guns. In fact, Geaney had been riding with Lynch and McKeever prior to this conversation but had left them on spotting a double-parked car. Shortly after the conversation he returned without the car, saying that the keys had not been left in it. A few weeks later, on joining Lynch and Geaney near a bar, McKeever was asked by Lynch whether she had seen their truck. Pointing to a yellow-panelled truck bearing the words "Madam Pauline's Laundry and Dry Cleaner," he explained they had stolen it in Queens where they found it double-parked with the motor running.
Another witness, Robert Scott, testified that in mid-August, he had told Donnellan he wished to sell a motor boat; that the two picked up Geaney and drove to Scott's home to inspect the boat; that Donnellan agreed to pay $400 for it; that the three men then brought the boat to the Bronx, picked up Lynch, took the boat to Edgewater Park on the mainland and put it into Eastchester Bay. Having been joined by Lynch's younger brother, they crossed to City Island, paying close attention to the time required.
Taking up the story from there, McKeever testified that she, Donnellan, Geaney, and the two Lynches later took another ride in the boat. The senior Lynch observed in the presence of McKeever, Donnellan and Geaney, that it was much too slow and would never do and that unless it was fixed they would have to get another. All agreed. Lynch cautioned the others not to say anything in front of his younger brother, who was driving the boat, since "I don't want him to know about it." Photographs taken with unwise bravado in McKeever's apartment before the boat ride were received in evidence. Two showed Donnellan and Lynch, respectively, holding a shotgun; the other showed Geaney, Lynch and Donnellan together drinking beer.
Shortly after the second boat ride Lynch reported to McKeever that Geaney "didn't want to do the bank job, because he had just gotten out of jail and he had been arrested, and he was out on bail," but that if Lynch and Donnellan had to act alone, they would do so. McKeever responded that she would be waiting at Edgewater to drive them back to her apartment.
Early on the morning after Labor Day, Donnellan, driving the yellow-panelled truck, picked up Lynch in McKeever's apartment. Later McKeever, on Lynch's instructions, bought two pairs of surgical gloves to be used by the robbers in order to avoid leaving fingerprints. Meeting Donnellan and Lynch at the dock in Edgewater Park, where she saw defendant Novak*fn2 for the first time, she asked "What's he doing here." Lynch responded "that he was going to drive the boat for two hundred dollars and that he was going to take Dennis' [Geaney's] place." Shortly thereafter Donnellan departed for City Island in the yellow-panelled truck and Lynch and Novak in the boat. McKeever was told to remain at the dock with her car for twenty minutes; when these had expired, she returned to her apartment.
Other evidence established Donnellan's and Lynch's robbery of the bank, their departure from it in the truck, their escape in the boat from City Island to Edgewater Park, and their proceeding from there in Lynch's car to McKeever's apartment where they divided the loot.
Geaney claimed that while he had been associating with Lynch, Donnellan and McKeever, he had no knowledge that they planned a robbery and had ridden on the motor boat solely for recreation. He also denied that the photograph of himself drinking beer with Lynch and Donnellan had been taken at the same time as the photographs with the shotgun, despite the identity of Lynch's and Donnellan's costumes.
In dealing with the admissibility of the hearsay declarations of conspirators, we start from the proposition stated in United States v. Renda, 56 F.2d 601, 602 (2 Cir. 1932), with reference to the defendant D'Agostino in that case:
"The declarations of one party to a concerted mutual venture are admitted against the rest on the notion that they are acts in its execution. [Citations omitted.] In so far as they are such, they are authorized by all, and are treated as their admissions. However, obviously the declaration cannot prove the authority any more than that of an agent. The party to be implicated must be shown independently to be in fact a party to the venture; else there is no authority to act for him."
D'Agostino's point was of rather stark simplicity; there was no evidence against him except the alleged coconspirator's declaration, and his conviction was therefore reversed. Later opinions, particularly those by Judge Learned Hand, who was quite obviously the author of Renda, elaborated that it was for the judge to determine whether there was sufficient evidence that the defendant against whom the declarations were offered had engaged in "a concerted mutual venture" with the declarant. United States v. Nardone, 127 F.2d 521, 523 (2 Cir.), cert. denied, 316 U.S. 698, 62 S. Ct. 1296, 86 L. Ed. 1767 (1962); United States v. ...