The opinion of the court was delivered by: LEVAL
PIERRE N. LEVAL, U.S.D.J.
The Government offers as part of the testimony of Salvatore Contorno statements made to Contorno by six declarants. The Government contends that each of these six was a member of the conspiracy and that their statements are relevant to the charges. As against the defendants hearsay objections, the Government contends the statements come within recognized exceptions, being either statements made "by a coconspirator of a party during the course and in furtherance of the conspiracy," Fed.R.Evid. 801(d)(2)(E), or as statements of an unavailable declarant that "so far tended to subject him to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." Fed.R.Evid. 804(b)(3).
I directed that an offer of proof be made on the live testimony of Contorno. Contorno's testimony on these declarations was heard.
The declarations at issue are those of Emanuele D'Agostino and Leonardo Greco primarily concerning a meeting at a farmhouse in Sicily at which a shipment of drugs was tested for purity, and statements of Carlo Castronovo, Nunzio LaMattina, Antonino Rotolo and Mimmo Teresi, offering to admit Contorno as a partner in drug deals and describing aspects of their dealings.
Numerous arguments are advanced by defendants against the admission of these statements, including, as to the coconspirator basis under 801(d)(2)(E), that the declarants' membership in the conspiracy with the defendants is not shown by independent evidence, see United States v. Cambindo Valencia, 609 F.2d 603, 631 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 795 (1980), that the statements were not in furtherance of the conspiracy, either because they were merely narrative, see United States v. Lieberman, 637 F.2d 95 102-03 (2d Cir. 1980) or because Contorno was importuning the declarants with pleas for charity and the declarants were not in any realistic sense seeking to advance their conspiracy by including him in it; as to the against penal interest basis, that the declarants are not sufficiently shown to be unavailable as witnesses, that the statements were not within the knowledge of the declarants, see United States v. Lang, 589 F.2d 92 (2d Cir. 1978), and the statements were not against the declarants' penal interest because the circumstances gave the declarants no reason to fear prosecution. Defendants argue further that the receipt of these statements violates the Confrontation Clause of the Constitution by subjecting them to incriminating assertions made by persons not subject to cross-examination. See Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); United States v. Wright, 588 F.2d 31 (2d Cir. 1978), cert. denied, 440 U.S. 917, 59 L. Ed. 2d 467, 99 S. Ct. 1236 (1979), United States v. Puco, 476 F.2d 1099 (2d Cir. 1973).
I have given careful consideration to each of the proffered statements in the context of the numerous arguments made and find that the major part of the declarations are admissible, but that certain portions are not.
D'Agostino and Leonard Greco
According to Contorno's testimony, D'Agostino offered Contorno the opportunity to participate as an investor in D'Agostino's heroin transactions. (The two had in earlier years invested together in cigarette smuggling.) D'Agostino told Contorno he needed 50 million lire to invest in one. half kilo of heroin, that the investment was safe because the drugs were handled by Mafia men and that D'Agostino had a friend, Tanino Mazzara, a Mafia member of the Noce family who handled the transactions in the United States. (The Government alleges this referred to the defendant Gaetano Mazzara.) This matter is admissible whether as a coconspirator's statements in furtherance of the conspiracy or as an admission against penal interest.
D'Agostino's membership in a conspiracy with the defendants is shown by independent proof, including D'Agostino's meeting at the farmhouse with Ganci, Catalano, Mazzara, Castronovo and Salvatore Greco. An invitation of participation as an investor is in furtherance of the purposes of the conspiracy even if Contorno was more eager to join than D'Agostino was to have him.
As to the against penal interest exception, D'Agostino's acknowledgement of his role in drug dealing unquestionably qualified. See Lieberman, supra. 637 F.2d at 103-04. So also does the further extension of the statement in which D'Agostino tells that he sends the drugs to his friend Mazzara, which is equally against D'Agostino's penal interest; it is within his personal knowledge; the circumstances strongly suggest that D'Agostino would not have said it unless it were true. The Court of Appeals made clear in Lieberman, supra, 637 F.2d at 103, United States v. Garris, 616 F.2d 626, 631-32 (2d Cir.), cert. denied, 447 U.S. 926, 65 L. Ed. 2d 1119, 100 S. Ct. 3021 (1980), and United States v. Katsougrakis, 715 F.2d 769, 775 (2d Cir. 1983), cert. denied, 464 U.S. 1040, 79 L. Ed. 2d 169, 104 S. Ct. 704 (1984) and United States v. Stratton, 779 F.2d 820 (1985), that an extension of a declaration against penal interest that shows the guilt of another person (generally a defendant), made on personal knowledge, is admissible as part of the statement if it possesses the degree of reliability ("a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true") that the rule requires, and if its trustworthiness is corroborated by the circumstances. Courts and commentators have recognized the danger that in confessions to law enforcement officers, assertions of the guilt of other persons should be assessed with caution by reason of the declarant's possible motive to fabricate or exaggerate the implication of another for his personal interest. Lieberman, 637 F.2d at 103; Garris, 616 F.2d at 631-32, Lang, 589 F.2d at 97; Advisory Committee Notes to Rule 804(b)(3). That concern has no role here. See Katsougrakis, 715 F.2d at 632 (statement to a friend of declarant sufficiently reliable).
As to the Bagheria farmhouse transaction, the evidence shows that D'Agostino was employing Contorno in furtherance of the transaction. D'Agostino had employed Contorno as a helper on previous occasions. D'Agostino solicited Contorno to drive him to the farmhouse and explained they were going to test a shipment of drugs. D'Agostino knew Contorno was armed, as was his habit. (Contorno testified to the importance of being armed when in the presence substantial quantities of drugs, since anything can happen.) D'Agostino's statements to Contorno along the way that they were going to test a shipment of drugs
and who would be there, is admissible as in furtherance of the conspiracy. D'Agostino was receiving support through the armed presence of Contorno. It was important for Contorno to be aware who was expected and what would happen.
Furthermore, on the way, D'Agostino offered Contorno the opportunity to participate in the venture financially if he could raise the capital. According to Contorno's understanding of D'Agostino's remarks in this connection, Contorno could have been cut into this deal at any time up to the loss of the drugs in Milan. D'Agostino's explanation of details, including the participants, is in furtherance of an offer of participation to a potential investor. See United States v. Perez, 702 F.2d 33, 37 (2d Cir.), cert. denied, 462 U.S. 1108, 77 L. Ed. 2d 1336, 103 S. Ct. 2457 (1983), United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied. 439 U.S. 986, 58 L. Ed. 2d 659, 99 S. Ct. 581 (1978).
The co-conspirator-in-furtherance exception also justifies receipt of the few statements of Leonardo Greco who told D'Agostino that he would send someone to show them where the drugs would be tested and that ...