The opinion of the court was delivered by: SWEET
Before the court is a series of pre-trial motions in a four count narcotics indictment. Count One of the indictment charges Frank Cafaro, Anthony "Tony" Farrell, Howard Summers, Benjamin Moratti and Patricia Kelly with conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). Count Two charges Moratti with distribution of an unlawful substance in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1) (A). Count Three charges Farrell and Summers with attempt to distribute a Schedule II controlled substance in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846 and 18 U.S.C. § 2. Count Four alleges that Cafaro used a telephone to facilitate a conspiracy to distribute narcotics in violation of 21 U.S.C. § 843.
Following a guilty plea by Cafaro to Count I of the indictment, and his waiver of all alleged constitutional violations during the Government's investigation of the crime, the following motions remain to be decided:
1. Farrell's motion to dismiss Count Three of the indictment.
2. Motions by Kelly, Moratti and Summers for severances under Rule 14, Fed.R.Crim.Proc.
3. Motions by Kelly, Farrell and Moratti for discovery and bills of particulars.
4. Kelly's motion to exclude tape recordings of telephone conversations with Government agents recorded on June 28, 1979 as hearsay.
5. Moratti's motion to suppress a telephone conversation with Cafaro recorded on June 28, 1979.
6. Moratti's motion to dismiss Counts One and Two of the indictment.
The Government alleges that the five defendants conspired to purchase narcotics from Frank Elman with intent to distribute them. Elman was arrested on June 5, 1979 and began a course of cooperation with the Government. On June 6, Farrell is alleged to have negotiated over the telephone to purchase narcotics from Elman for $ 10,000 and to bring the $ 10,000 to Elman's apartment that evening. Federal agents arrested Farrell with $ 10,000 in his briefcase in the lobby of Elman's apartment.
The Government alleges that on June 6, Summers stated that he was participating in the purchase of narcotics by Farrell, and provided $ 100 to Farrell toward Farrell's attempted purchase of narcotics.
On June 6, according to the Government, Elman also had a telephone conversation with Cafaro in which Cafaro asked to purchase methamphetamine (desoxyn) from Elman. On June 27, 1979, Elman had further telephone conversations with Cafaro which implicated Cafaro in the alleged conspiracy. Agents of the Drug Enforcement Agency ("DEA") arrested Cafaro on the evening of June 27. The DEA agents questioned Cafaro and he agreed to cooperate with the Government. Cafaro's subsequent guilty plea and waiver of all possible violations of Constitutional rights arising out of the arrest and questioning eliminates such issues. DEA agents accompanied Cafaro back to his apartment, where he placed a recorded telephone call to Moratti at 1:30 a.m. on June 28. Cafaro also placed a very brief call to Kelly.
On June 28, 1979, Government agents, posing as Cafaro's mother, placed two telephone calls to defendant Kelly. During the conversations Kelly made certain incriminating statements.
I. Farrell's Motion to Dismiss Count Three
Defendant Farrell has moved to dismiss Count Three of the indictment which charges him with attempt to distribute and to possess a controlled substance in violation of 21 U.S.C. § 846. He contends that evidence of the June 6 telephone calls with Elman and transportation of $ 10,000 to the lobby of Elman's apartment is not sufficient to prove attempt to possess a controlled substance. He claims that because he was arrested before he ever received possession of the controlled substance, or indeed before he ever saw the controlled substance so that possession was imminent, his actions cannot be construed as an attempt.
To prove the crime of attempt it is necessary for the Government to show: (a) that the defendant intended to achieve the illegal substantive offense; and (b) that he took a "substantial step" toward culmination of the substantive offense. United States v. Jackson, 560 F.2d 112 (2d Cir.), Cert. denied, 434 U.S. 941, 1017, 98 S. Ct. 434, 736, 54 L. Ed. 2d 301, 762 (1977); United States v. Stallworth, 543 F.2d 1038, 1040 (2d Cir. 1976).
In this case the Government need not show that the defendant was in possession of a controlled substance or that he was imminently prepared to take possession of a substance he believed to be a controlled substance. Rather it must prove beyond a reasonable doubt that he intended to take possession of a controlled substance with intent to distribute and that he "engaged in conduct which constitutes a substantial step toward commission of the crime, conduct strongly corroborative of the firmness of the defendant's criminal intent." United States v. Stallworth, supra at 1040.
The telephone calls between Farrell and Elman in which Farrell sought to purchase methaqualone coupled with the appearance of Farrell in the lobby of Elman's building carrying $ 10,000 constitute sufficient allegations to defeat Farrell's motion. The Government need not wait until the alleged offense is complete, or even nearly complete, before intervening to prevent commission of the crime. United States v. Jackson, supra; United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974), Cert. denied 419 U.S. 1114, 95 S. Ct. 792, 42 L. Ed. 2d 812 (1975); United States v. Heng Awkak Roman, 356 F. Supp. 434 (S.D.N.Y.), Aff'd, 484 F.2d 1271 (2d Cir. 1973), Cert. denied, 415 U.S. 978, 978, 94 S. Ct. 1565, 39 L. Ed. 2d 874 (1974).
Farrell's reliance upon United States v. Quijada, 588 F.2d 1253 (9th Cir. 1978), and United States v. Korn, 557 F.2d 1089 (5th Cir. 1977), is misplaced. Quijada involved a claim of factual impossibility, since the substance actually transferred to the defendant was not a controlled substance. The claim was denied. Similarly, in Korn, the court reversed the district court's dismissal of an indictment since it rejected defendant's claim of factual impossibility.
Neither case indicates that the Government can not prove attempt to distribute narcotics by a method other than actual transfer to a defendant of a substance he believes to be controlled, but which is not in fact controlled. Certainly, the "substantial step" required to prove an attempt can occur long before the defendant actually takes possession of the substance he intends to distribute. So long as the Government proves each element of the offense beyond a reasonable doubt, it is free to select the means of proof.
For these reasons, Farrell's motion to dismiss Count Three is denied.
II. Motions for Severance Under Rule 14
Defendants Summers, Kelly and Moratti have moved for severance of the counts against them pursuant to Rule 14, Fed.R.Crim.Proc. The Government opposes all requests. Moratti, Summers and Kelly contend that the indictment and the particulars fail to set forth a joint conspiracy among all five defendants, but allege separate conspiracies between each defendant and Frank Elman, a pharmacist and alleged co-conspirator. Defendants contend that they will be prejudiced by presentation to the jury of evidence relating to activities in which they were not involved.
The decision to grant or deny a severance pursuant to Rule 14 rests in the sound discretion of the court. See Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 99 L. Ed. 101 (1954); United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), Cert. denied, 429 U.S. 998, 97 S. Ct. 523, 50 L. Ed. 2d 608 (1976); United States v. Projansky, 465 F.2d 123, 138 (2d Cir.), Cert. denied, 409 U.S. 1006, 93 S. Ct. 432, 34 L. Ed. 2d 299, 93 S. Ct. 433, 93 S. Ct. 443, 93 S. Ct. 444 (1972). The burden is on the moving defendants to show that if severance is not granted, they will be so severely prejudiced as to be denied a fair trial. See United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), Cert. denied, 401 U.S. 946, 91 S. Ct. 963, 28 L. Ed. 2d 229 (1971).
The indictment in this case charges a conspiracy to distribute controlled substances commencing on or before June 6, 1979 and continuing until June 28, 1979. The Government has set forth four overt acts tending to connect Farrell, Cafaro and Summers with a single scheme to purchase methaqualone (quaalude) tablets and desoxyn from Elman. The first overt act is a June 6 recorded telephone conversation from Elman to Cafaro in which Cafaro asked to buy desoxyn and implicated Farrell. The second overt act is a series of telephone conversations recorded on June 6 between Elman and Farrell in which Farrell asked to purchase methaqualone and indicated involvement with Cafaro. The third overt act is Farrell's bringing of $ 10,000 to Elman's apartment building, and the fourth overt act is Summers' statement to a DEA agent and to Deena Glanzberg that he was participating in Farrell's purchase of methaqualone and his delivery of $ 100 to Farrell.
The Government's bill of particulars and the discovery to date reveals further evidence of a joint conspiracy. The bill of particulars alleges that Moratti sold hydromorphone tablets to Ilene Stern on June 7, 1979 for approximately $ 100. The Government has disclosed the transcript of a telephone call from Cafaro to Moratti on June 28, during which Moratti revealed knowledge of facts that could indicate his involvement in a joint scheme. The Government has also disclosed transcripts of the two recorded ...