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April 1, 1983


The opinion of the court was delivered by: MOTLEY


Mariano Ingoglia (Ingoglia) was tried before this court on one count of conspiracy to violate 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) and one count of distribution or possession with intent to distribute heroin in violation of 21 U.S.C. §§ 821, 841(a)(1) and 841(b)(1)(A) on March 21-23, 1983. *fn1"

 At the close of the Government's case, Ingoglia moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). Ingoglia contended that there was no direct evidence of his involvement in the crimes charged, and that a certain hearsay statement attributed to defendant and alleged co-conspirator Francisco Solimene (Solimene) *fn2" was inadmissible as against Ingoglia, because there was insufficient evidence independent of the hearsay statement to link Ingoglia to the alleged conspiracy. On March 22, 1983, the court denied Ingoglia's motion on the record and found that the statement attributed to Solimene could be submitted to the jury. *fn3" In this opinion, the court will amplify its ruling on Ingoglia's contentions with respect to the hearsay statement.

 [T]he judge must determine, when all the evidence is in, whether in his view the prosecution has proved participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances.

 United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 25 L. Ed. 2d 539, 90 S. Ct. 1276 (1970). This determination is commonly known as a Geaney finding.

 The court found that the Government in this case had introduced sufficient evidence of Ingoglia's involvement in the alleged conspiracy independent of the statement attributed to Solimene to satisfy the Geaney standard.On the basis of the court's findings, the statement was admitted for consideration by the jury.

 The following is a summary of pertinent testimony elicited by the Government at trial from three agents of the Drug Enforcement Administration (DEA).

 Special Agent (Agent) Gerald Franciosa testified that he negotiated with Solimene to purchase one-eighth of a kilogram of heroin for $31,000. *fn4" (Tr. at 34.) At about 7:30 p.m. on the night of August 4, 1982, Agent Franciosa met Solimene at the Latineers Club, a private social club located at the corner of Broome and Mott Streets in downtown Manhattan. (Tr. at 34-35, 38.) After about forty-five minutes, Solimene and Agent Franciosa left the club, and proceeded on foot to a restaurant on Kenmare Street. (Tr. at 35-36.) The two ordered dinner at the restaurant.

 During the course of the meal, Solimene told Agent Franciosa that Solimene's "guy" had said "[the "guy's"] connection was coming at 10:00 o'clock and that everything would be okay." (Tr. at 37.) *fn5" Solimene and Agent Franciosa left the restaurant at approximately 9:00 or 9:30 p.m., and went to a coffee shop called the Cafe Roma, which was located on the same block as the Latineers Club (the Latineers Club was at the corner of Broome and Mott, and the Cafe Roma was at the corner of Broome and Mulberry). (Tr. at 38.) After a short period of time, Solimene told Agent Franciosa to wait in the cafe, that Solimene was "going to see the guy." (Tr. at 39.) Solimene informed the agent that he was "going to get the heroin." (Id.)

 Agent Franciosa testified that he and Solimene then left the cafe. Agent Franciosa waited at the corner of Mott and Broome. Solimene walked east on Broome, toward the Latineers Club. "Just as [Solimene] approached the Latineers . . . Club," he met with defendant Albert LaRocca (LaRocca). (Tr. at 40.) Solimene and LaRocca conversed for about five minutes, and then both entered the Latineers Club. (Id.) Agent Franciosa then reentered the Cafe Roma. About fifteen minutes later, Solimene rejoined Agent Franciosa at the cafe. (Tr. at 41.)

 Solimene informed Agent Franciosa that "everything was okay, it will be maybe another ten minutes," because "Solimene's guy was waiting for his guy to come." (Tr. at 4l.) Solimene and Agent Franciosa again lift the Cafe Roma. Solimene returned to the Latineers Club, and Agent Franciosa waited on the corner. (Tr. at 42.)

 "Shortly thereafter," Agent Franciosa observed LaRocca leaving the Latineers Club. LaRocca waited "on the sidewalk by the street." (Tr. at 42.) Franciosa testified that, at about 10:00 p.m., he observed Ingoglia pull up in front of the Latineers Club in a blue and white Lincoln Continental automobile. *fn6" He testified that LaRocca entered the car, which then pulled away, stopping at the corner for a red light. (Tr. at 42-43, 46.) As the car was stopped for the light, Agent Franciosa observed LaRocca seated in the back seat, "leaning over the front seat engaged in a conversation with the driver of the vehicle." *fn7" (Tr. at 44.) Agent Franciosa identified Ingoglia as the driver. (Tr. at 45-46.) There was an unidentified passenger in the car, in addition to LaRocca and Ingoglia. (Tr. at 44.) Agent Franciosa then testified that, as he stood on the streetcorner looking at the car, Ingoglia "turned around and looked directly at me," for about fifteen seconds. (Tr. at 44-45.) Agent Franciosa testified that he went back into the Cafe Roma after the Lincoln Continental pulled away.(Tr. at 46.)

 Special Agent (Agent) Arthur W. Reed testified that he was on duty "approximately at Broome Street and Mott." (Tr. 83.) At about 10:30 p.m., he observed the Lincoln Continental return to the Latineers Club. LaRocca exited the car, and went directly into the club. (Tr. at 88.) According to Reed, the time period between the arrival of the Lincoln Continental at the Latineers Club and its return to the club was about twenty or twenty-five minutes. (Id.) About "five to ten minutes later," Agent Reed say Solimene leave the Latineers Club and walk in the direction of the Cafe Roma. (Tr. at 89.)

 Agent Franciosa testified that Solimene then rejoined him in the Cafe Roma and said: "Let's go. Everything is okay." (Tr. at 47.) Solimene and Agent Franciosa left in the Agent's car for a DEA undercover apartment on 170th Street in Manhattan, so that the ...

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