Appeal from judgments of the United States District Court for the Southern District of New York, John M. Canella, Judge, convicting, after a jury verdict, appellants of conspiring to possess and distribute heroin in violation of 21 U.S.C. § 846, and additionally convicting appellant D'Amato of possession and distribution of 487.27 grams of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) & 841(b)(1)(A).
Friendly, Hays and Oakes, Circuit Judges.
Appellants were the subjects of a two-count indictment, count one charging a conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 846, and count two charging possession and distribution of 487.27 grams of heroin on February 20, 1973, in violation of 21 U.S.C. §§ 812, 841(a)(1) & 841(b)(1)(A).*fn1 After a five-day jury trial, all appellants were convicted on the conspiracy count. Appellant D'Amato was also convicted on the substantive count; that count was dismissed as against appellant Abramo, and the jury failed to return a verdict on that count with respect to appellant Zito. Appellants challenge their conviction on various grounds: that the evidence was insufficient to sustain the convictions under the conspiracy count; that they were deprived of a fair trial by the trial court's refusal to compel the Government to reveal the name of a paid, registered informant of the Bureau of Narcotics and Dangerous Drugs (BNDD), as of July 1, 1973, the Federal Drug Enforcement Administration (FDEA), so that he could be called as a witness; that the introduction into evidence of deceased coconspirator Frank Burdieri's statements was reversible error because of insufficient indicia of reliability and because those statements were generally not made in furtherance of the conspiracy charged; and that the medical condition of one of the jurors, discovered during the jury's deliberation, entitled them to a new trial or, in the alternative, to a full hearing with regard to the nature of that illness and its effect on the entire proceedings. Appellant Zito further asserts that count two should have been dismissed as to him by the district court. After careful consideration of these arguments, we reject them and affirm the convictions.
I. SUFFICIENCY OF THE EVIDENCE.
A brief statement of the facts adduced at trial is required. On January 31, 1973, special agent McElroy of the BNDD, acting in an undercover capacity, went to a Manhattan bar accompanied by a paid BNDD informant, who introduced McElroy to the late Frank Burdieri. Burdieri, according to McElroy's testimony, said that he had connections through which heroin could be purchased, one such being appellant D'Amato. D'Amato, said Burdieri, was "very big" in the heroin business, having taken over the heroin operations of one Vinnie Pappa. At the end of this meeting, Burdieri agreed to contact McElroy when he had lined up some heroin.
On February 16, Burdieri informed McElroy that the latter could purchase 1/2 kilogram of heroin for $13,000, which included a commission of $500 for Burdieri. McElroy told Burdieri that it would take a few days to obtain the money and agreed to meet Burdieri on February 20. On that day, prior to the meeting, McElroy placed $12,900 in a plain white envelope which had been marked for later identification. McElroy, Burdieri and the informant met at noon, at which time Burdieri told McElroy that the money had to be advanced before receipt of the heroin. McElroy refused to "front" the money in this fashion, and Burdieri agreed to find out whether delivery could be effected without the "front" of the money. Later, telling McElroy that he was going to meet "his people," Burdieri exited McElroy's automobile and motioned over to the curb a black 1973 Oldsmobile driven by a person later identified as appellant Zito and carrying a passenger identified as appellant D'Amato. Burdieri spoke through the passenger window to D'Amato and Zito for five to ten minutes, returned to McElroy's automobile and told McElroy that he had just talked to "his people" and that the buy could be made within the next 30 minutes without the moneys being "fronted." Burdieri departed in a taxi to pick up the heroin and was observed some 35 minutes later walking down a sidewalk carrying a brown paper bag in a newspaper followed by the Oldsmobile containing D'Amato and Zito. Burdieri walked to a coffee shop where he met McElroy; they then went to McElroy's automobile, where Burdieri gave McElroy the bag containing slightly less than 1/2 kilogram of heroin in exchange for the envelope containing $12,900. Burdieri asked McElroy to drop him off at a specific place because Burdieri had "to meet his people right away to give them the money." At that place, Burdieri was dropped off and immediately picked up by the same Oldsmobile, Burdieri getting into the back seat. The Oldsmobile was followed by other FDEA agents, and they retrieved the marked envelope which was thrown from the automobile by D'Amato. Burdieri was dropped off shortly thereafter. At a meeting on February 23, again with the informant present, McElroy asked Burdieri whether he had taken the money directly to his people on February 20; Burdieri responded in the affirmative.
At a meeting on March 26, Burdieri and McElroy negotiated relative to the purchase of more heroin. Burdieri said that "his people" usually dealt only in four or five kilo quantities of heroin but would sell a half kilo for $12,500 and replied affirmatively to a question by McElroy as to whether they were "the same people" who had furnished the February 20 heroin. They met, after several telephone calls and another meeting on the afternoon of March 27, once again on March 27 at 8:10 p.m., to consummate the purchase of a kilogram in their second transaction at a price of $28,000, Burdieri saying "I've got to meet my people at 9 o'clock" that evening. After McElroy gave him the money and drove Burdieri around for a while so that he could count it, Burdieri was dropped at 23rd Street and Second Avenue. He left and then took a taxi, under considerable observation, to 36th Street and Third Avenue, where he entered a coffee shop at the southwest corner. At this point, a 1972 blue Lincoln Continental, registered to Mrs. Abramo, which had been waiting down the block, pulled up slowly along 36th Street going east toward the coffee shop and stopped on the opposite side of 36th Street from the shop. Appellant Abramo was driving the Continental, with D'Amato as his passenger. At exactly nine o'clock Abramo and D'Amato got out of the automobile. Burdieri came out, joined them, and the three of them entered the automobile.
After pulling away from the curb, the Continental, followed by a veritable cavalcade of four or five surveillance vehicles, proceeded on a course and at such speeds as to warrant, if not compel, the inference that the surveillance had been detected and that an attempt was being made to escape from it. For example, the car squared two blocks in the mid-fifties, slowing down and speeding up, drove to the vicinity of Sutton Place, suddenly speeded up again and went by way of the East River Drive and Triborough Bridge to Roosevelt Raceway where Burdieri was let out. The chase then assumed proportions of "The French Connection," for while doing 75 miles per hour on the extreme left lane of the Meadowbrook Parkway towards Queens, a last-second swerve by Abramo across three lanes to the exit for the Long Island Expressway left all but one surveillance vehicle in the lurch. The occupants of that stout automobile observed the dropping off of D'Amato at a telephone booth in Queens, from which he walked 1.3 miles to his home. After twice squaring a three or four block area near the phone booth, Abramo returned his wife's automobile to Manhattan. On March 29, Burdieri explained to McElroy that he had not returned with the package (of heroin) because "agents" had followed him to and during the meeting with "his people."
A. D'Amato and Zito. The sufficiency of the overall evidence against D'Amato and Zito, given the facts adduced at trial and condensed above, cannot be subject to serious doubt. The contention that the Government's proof with respect to the February 20 transaction was fatally deficient in that Burdieri was not under surveillance for some 35 to 45 minutes, during which time he might have picked up the 1/2 kilogram of heroin from a source other than the Zito automobile, is not in the least persuasive. The inference apparently drawn by the jury was that Burdieri did in fact obtain the brown package from D'Amato and Zito, and that inference was clearly permitted by the evidence. The jury obviously chose to disbelieve D'Amato's own version of these dealings to which he testified. Examining the record, we also conclude that independent evidence as to the February 20 transaction was sufficient, under the standards enunciated by this court, to permit the introduction of Burdieri's statements through McElroy's testimony as statements made by a coconspirator in furtherance of the conspiracy. These statements were, of course, admitted subject to connection; the mere physical activities of both D'Amato and Zito, as well as the non-hearsay testimony of FDEA agents, establish by a fair preponderance that Burdieri, D'Amato and Zito were in fact coconspirators. United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970). See United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), slip op. at 5607. The question whether appellants were denied their sixth amendment rights of confrontation as a result of the admission of McElroy's testimony as to Burdieri's statements will be dealt with in Part II, infra.
Appellant D'Amato's contention that the evidence with respect to the substantive count was insufficient as a matter of law to convict him is frivolous.
B. Abramo. In Abramo's case, the sufficiency of the evidence independent of Burdieri's hearsay statements presents us with a considerably more difficult decision. The independent evidence with respect to the March 27 transaction, viewed simplistically, shows only that after Burdieri had driven around in McElroy's automobile, counting the money that McElroy had brought with him, between 8:10 p.m. and 8:50 p.m., Burdieri took a taxi to a coffee shop, which was approached by Abramo in his wife's car and then on foot and from which Burdieri exited to join Abramo and D'AMATO in Abramo's automobile, the roundabout chase ensuing, with Abramo ultimately dropping off Burdieri and D'Amato.
We say "viewed simplistically," because the foregoing represents an examination of the evidence without reference to any declaration of Burdieri whatsoever, and treats all of his declarations as inadmissible hearsay. Once we recall, however, that verbal acts--contemporaneous utterances explaining nonverbal conduct or its tenor--are not hearsay in the true sense, since they do not constitute an assertion to evidence the truth of a fact asserted, 6 Wigmore, Evidence § 1772, at 191 (3d ed. 1940), we can separate those declarations of Burdieri admissible for purposes of establishing the existence of a conspiracy for the sale of heroin and Abramo's membership therein, from those inadmissible to show his membership. See United States v. Costello, 352 F.2d 848, 853-55 (2d Cir. 1965), rev'd on other grounds sub nom., Marchetti v. United States, 390 U.S. 39, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968); United States v. Annunziato, 293 F.2d 373, 376-77 (2d Cir.), cert. denied, 368 U.S. 919, 7 L. Ed. 2d 134, 82 S. Ct. 240 (1961); Shapiro v. United States, 166 F.2d 240, 242 (2d Cir.), cert. denied, 334 U.S. 859, 92 L. Ed. 1779, 68 S. Ct. 1533 (1948); see also Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 236 (1922).
Burdieri's declarations that the price was $12,500 for one-half a kilo and $25,000 for a kilo help to explain his conduct in riding around in McElroy's car counting the money before he left for 36th Street and Third Avenue, as relating to the very transaction at issue; they give that conduct legal significance and they accompanied it. See cases cited in 6 Wigmore, supra, § 1777, at 204 n. 9; Terry v. United States, 51 F.2d 49 (4th Cir. 1931).*fn2 From the previous transaction in which D'Amato, Zito and Burdieri were involved, together with the verbal acts of Burdieri in the negotiations for the sale of heroin, it may fairly have been inferred that there was on March 27, 1973, a conspiracy the object of which was the sale of heroin. On this point, certainly the Government was entitled to prove that Burdieri and McElroy were engaged in a transaction involving the sale and purchase of heroin which Burdieri was to obtain from someone and/or some place other than at 23rd Street and Second Avenue. Thus considered, that portion of his utterances to McElroy limited to establishing that a sale of heroin was to take place that evening may be considered as an item of circumstantial evidence in determining whether the preponderance test was met as to Abramo's membership in the conspiracy, even while Burdieri's declaration that he was going to meet "his people" was for purposes of that determination inadmissible hearsay. Given the existence of a conspiracy to sell heroin in which Burdieri was a participant, we must try then, in measuring the role of Abramo, "to perform the ...