The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge
On April 27, 1982 defendant, Richard Mastrangelo, was convicted of conspiracy to possess, with intent to distribute, controlled substances, importation of controlled substances and obstruction of justice. As a result of this conviction, Mastrangelo was sentenced to a total of nine years imprisonment and was fined $20,000.00. In addition, a special parole term of ten years was imposed.
On appeal, Mastrangelo sought reversal of his conviction on the ground that this Court had improperly admitted into evidence the grand jury testimony of James Bennett, a government witness who was murdered on the morning he was scheduled to testify at Mastrangelo's first trial before Chief Judge Weinstein.
The United States Court of Appeals for the Second Circuit remanded the case for an evidentiary hearing on the issue of whether Mastrangelo effectively waived his rights under the confrontation clause of the sixth amendment through complicity in the murder of the principal witness against him. The Court of Appeals instructed that:
If the District Court finds that Mastrangelo was in fact involved in the death of Bennett through knowledge, complicity, planning or in any other way, it must hold his objections to the use of Bennett's testimony waived. Bare knowledge of a plot to kill Bennett and a failure to give warning to appropriate authorities is sufficient to constitute a waiver.
United States v. Mastrangelo, 693 F.2d 269, 273-74 (2d Cir. 1982). The Court of Appeals directed that evidence of Mastrangelo's complicity in the murder of Bennett should be evaluated under the "preponderance of the evidence" standard of proof, as well as the "clear and convincing evidence" standard in order to expedite further proceedings. Id.
Pursuant to the Court of Appeals' mandate, an evidentiary hearing was held before this Court beginning December 20, 1982 and continuing through December 23, 1982. The evidence included, inter alia, (a) the testimony of Joseph Bennett (the nephew of the murdered witness James Bennett), Nicholas Berardi, and Assistant United States Attorney Walter Mack; (b) the prior grand jury testimony and other written statements of Joseph Bennett and Nicholas Berardi, and (c) the prior proceedings and exhibits in the case, including a February 1, 1979 tape-recorded conversation between Mastrangelo and James Bennett.
Based upon this evidence, as discussed below, I find that the Government has established by a preponderance of credible evidence that Mastrangelo had prior knowledge of a plot to murder James Bennett and failed to warn the appropriate authorities. I find, however, that the Government has not established Mastrangelo's prior knowledge of the murder plot by "clear and convincing" evidence.
Additionally, for the reasons developed below, the motion filed by Mastrangelo at the conclusion of the evidentiary hearing for an order, pursuant to Fed. R. Cr. P. 33, granting him a new trial is denied.
The Government's first witness was Joseph Bennett, a participant in the federal witness protection program with a substantial criminal record. Transcript ("Tr.") at pp. 21-26. Bennett, the nephew of the murdered witness, James Bennett, testified that he met Mastrangelo in late 1975, Tr. at p. 32, and that he and Mastrangelo subsequently engaged in approximately 12 to 15 drug transactions. Tr. at p. 41.
Bennett testified that in January, 1978 Mastrangelo offered him $10,000 to assist in the unloading of a large shipment of marijuana. Tr. at pp. 42-43. Bennett refused the offer because "I had jumped bail again and I really didn't want to get involved in it." According to Bennett, Mastrangelo twice renewed this offer and Bennett, for the same reason previously given, rejected it on both occasions. Tr. at pp. 44-45.
Shortly after this, Bennett learned that federal officers had seized a large shipment of marijuana in the Jamaica Bay area of Queens, New York. Bennett concluded "that Richie [Mastrangelo] lost a lot of grass." Tr. at p. 46.
A few months later Bennett met Mastrangelo at the Canarsie Bar in Brooklyn at Mastrangelo's request. According to Bennett, Mastrangelo told him at this meeting that Mastrangelo was concerned that James Bennett would implicate him in the Jamaica Bay drug conspiracy. Tr. at p. 49. Mastrangelo asked Bennett to intercede with James Bennett in an attempt to dissuade him from testifying against Mastrangelo before the grand jury. Tr. at p. 49. Bennett refused this request, suggesting instead that Mastrangelo offer James Bennett a $100,000 bribe. Tr. at pp. 49-50. According to Bennett, Mastrangelo responded as follows:
BENNETT: He [Mastrangelo] said that I shouldn't be concerned about what he would do to stop my uncle from testifying, that he would -- that I should be sure that he wouldn't take the stand against him or words to that effect. I don't recall the exact language that was spoken.
QUESTION: But words to the effect that you shouldn't worry about it?
QUESTION: That your uncle would never take the stand against him; is that your testimony?
BENNETT: Yes, I don't know if those were the exact words. . . . The substance was that -- that he wouldn't stand for my uncle testifying against him, that that wouldn't happen . . . .
When asked if Mastrangelo had divulged the existence of a plan to prevent James Bennett from testifying, Bennett responded as follows:
BENNETT: Well, I don't recall a word blank [sic] used. He seemed to have something in mind. I don't -- I didn't explore what it was that he had in mind. I just didn't want to be involved in whatever he had in mind.
QUESTION: Why do you say he seemed to have something in mind, Mr. Bennett?
BENNETT: He just -- I just left with the impression that he had something in mind.
QUESTION: Did Mr. Mastrangelo indicate to you whether he had already spoken to Mr. Bennett?
BENNETT: Yes, he told me that he had spoke to him and that he didn't think that he got across to him, how serious he was about him not testifying against him.
QUESTION: Did Mr. Mastrangelo tell you in substance that there was no way that that man was going to take the stand against him?
BENNETT: Yes, in substance that's what I understand what he said.
The Government next called Nicholas Berardi, also a participant in the federal witness protection program, Tr. at p. 210, who, like Joseph Bennett, has a substantial criminal record. Tr. at pp. 211-212. Berardi met Mastrangelo in August, 1981 at the Metropolitan Correctional Center in New York where both men were incarcerated. Tr. at p. 214. Berardi and Mastrangelo became friends and talked on a regular basis. Tr. at p. 215.
The most significant portion of Berardi's testimony related to a conversation he had with Mastrangelo in November, 1981 concerning the killing of James Bennett. Tr. at p. 222. The pertinent portion of Berardi's direct examination follows:
QUESTION: All right. Now did you have a specific conversation with Mr. Mastrangelo regarding the death of James Bennett?
QUESTION: What did you tell him about the timing of James Bennett [sic]?
BERARDI: I had mentioned something, you know, his friends, just, idle talk, that his friends are doing no favor by whacking out this guy on ...