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February 9, 1982

UNITED STATES of America, Plaintiff,
John MUSCATO, Defendant

The opinion of the court was delivered by: WEINSTEIN


Defendant was found guilty of conspiracy to unlawfully manufacture firearms and of related crimes. He moved for a new trial on a variety of grounds; the only one warranting discussion is a claim that hearsay was improperly admitted. For the reasons stated below, this claim is rejected.

 I. Facts

 The story begins with Walter Gollender, a self-styled part-time talent promotor. Though a fastidious and intelligent man, Gollender had been forced to leave the teaching profession by a psychiatric disability. In need of protection from Newark's dangers, real and imagined, he purchased a small, single shot firearm of simple design, in appearance resembling a large pen.

 Gollender revealed his purchase to an acquaintance named Stanley Szostek, Jr., a former Newark police officer, who assisted his father in operating a neighborhood liquor and food store. In turn, Szostek showed the pen gun to his friend and business partner, Joseph Kirchner, a truck driver who delivered soft drinks to the store. Together, this enterprising pair had contrived to provide their community with a variety of services. They had invested in a rock concert, conducted a desultory loan-sharking business, and sold patent remedies as illicit drugs. Upon observing the simple construction of Gollender's weapon and learning that he had paid $ 40.00 for it, they decided to enter the arms trade.

 Szostek took the prototype to a friend on the Newark police force, the defendant, John Muscato. Despairing of ever making the down payment for a new home on a modest policeman's salary, Muscato was moonlighting as a machinist in his father's basement. Muscato agreed to make copies of the pen gun in commercial quantities.

 One problem with this plan was that it left Gollender defenseless. Accordingly, Muscato temporarily lent Gollender a twenty-five calibre pistol to replace his pen gun. Awed by the complexity and dangers of this new acquisition, Gollender carefully marked the pistol with a gummed label to indicate the safety position and the firing position. After the model pen gun had served its purpose, it was returned to him and he relinquished the pistol to Szostek.

 As Muscato began producing pen guns, Szostek and Kirchner began casting about for markets for their product. They were particularly concerned to sell the guns outside of their home territory, perhaps so as not to embarrass the Newark police force with which they had such close connections. To this end they contacted a business acquaintance, Patrick Monteforte. Monteforte, who worked for one of the food wholesalers that supplied Szostek's store, provided Szostek and Kirchner with stolen food in repayment of high interest loans. He began looking for potential buyers of pen guns on Staten Island.

 As it turned out, the demand for pen guns in this part of the Eastern District of New York was substantial. It was Monteforte's fortune to land as a customer one of the world's major armaments purchasers, the United States Government. Though presenting himself as the representative of a large New York area crime syndicate, the buyer was in fact Special Agent Matthew Raffa of the United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms. As quickly as the basement factory could produce the pen guns, the Treasury Department bought them. Eventually, the government placed an order for 1,000 at $ 20,000.

 Increasing demand made it necessary to step up production. Kirchner, accordingly, hired Steven Kasper, the crippled young grocery clerk who slept above Szostek's store, to serve as Muscato's apprentice. He was instructed to tell people, if the matter came up, that they were working on flashlights. But as Muscato and Kasper labored together they discussed such technical problems as the ballistic requirements of the barrel, and the young trainee never had any doubt that it was guns that the two were fabricating.

 Delivery of the final shipment was arranged to be in neutral territory, a diner in the shadow of the George Washington Bridge, in Fort Lee, New Jersey. Szostek and Kirchner were armed and present. They were accompanied by a new recruit to the conspiracy, another former Newark policeman named Charles McDonald, now a hopeless alcoholic. His role was described as "riding shotgun," i.e., providing extra security. Muscato hid in the background with a high-powered rifle to "watch the deal go down."

 To the surprise of Kirchner, Szostek and McDonald, instead of enriching them by $ 20,000, Raffa and his colleagues arrested them. From McDonald the federal agents recovered a .25 calibre pistol, bearing the remnants of a gummed label at the safety catch.

 Eventually, all of the conspirators were rounded up and Kirchner, Gollender, Kasper and Monteforte agreed to testify for the government. During his debriefing by government officials, Gollender chanced to describe the gun that he claimed he had received from Muscato and returned to Szostek, recalling that he had placed a gummed label at the safety catch. At this point, the government agents retrieved from a safe the pistol found on McDonald. Gollender promptly identified it as the same pistol he had described.

 Muscato did not cooperate with the United States Attorney. He was charged in a six count indictment with conspiracy to unlawfully manufacture and distribute firearms, manufacturing, possessing and transferring the firearms, and endeavoring to influence a witness, Kasper.

 The evidence against Muscato at trial was overwhelming. He was directly implicated by Kirchner, Kasper and Gollender. Their testimony was corroborated by extensive circumstantial evidence, including damaged pen gun parts from the basement arsenal.

 The defense consisted of a denial of criminal intent. The hypothesis suggested to the jury was that Muscato was a law-abiding policeman who had been making the various pen gun parts independently without knowing what they were or how they fit together. As will be seen from the exhibit set out below, after the jury had been exposed to pen guns in assembled and unassembled form over a period of days, they were probably predisposed to reject both Muscato's testimony that he was making parts without knowing their purpose and his attorney's argument that a reasonable policeman-machinist might believe he was helping manufacture pocket flashlights.


 The defense position was, as noted, seriously undercut by the testimony of the other conspirators. Now, if these witnesses were not quite your run-of-the-mill mobsters, neither were they particularly solid citizens, and the defense attacked their credibility on cross-examination with considerable gusto.

 Given Gollender's psychiatric history, he was by no means an ideal witness and the defense attorney had a field day with him on cross-examination. Particularly stressed was Gollender's difficulty in distinguishing reality from fancy and his suggestability. The following exchanges are typical:

Mr. Richman:
Q Now, Mr. Gollender, you are afraid of going to jail, aren't you?
A Yes, I am.
Q But you have been told, have you not, by your attorney that there is a strong likelihood that if you cooperate you will not go to jail. Isn't that right, sir?
A Not in so many words.
Q But not in so many words, but he has conveyed that clearly to you, is that right?
A It has been conveyed.
Q And you have an inordinate fear of changes as has been diagnosed by psychiatrists, isn't that right, sir?
A Y(e)s, that's correct.
Q You have many inordinate fears? ...
A I have had, yes....
Q Is it also correct, sir, that you have-would you bear with me just one moment.
You have strong feelings of inadequacy and a terror that you will lose control of yourself?
A Not ultimate control, but I have feelings like that, similar to those. Not total control, no.
I have some good judgment I think sometimes.
Q And it is true that ... Dr. Howard Davidman, said that you have a great need to be noticed and appreciated which sometimes leads you to bizarre behavior? ...
A It has happened on occasion, yes.
Q And on those occasions you don't know whether you behavior is bizarre or ...

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