Waterman, Moore and Kaufman, Circuit Judges.
The defendants Carmine Guanti, Arnold Romano, Dominick Romano and Frank Sherbicki appeal from judgments of conviction following a two-week trial before court and jury. The indictment filed in 1964, charged in a single count twelve defendants and sixteen named co-conspirators with conspiracy to violate the Federal Narcotics Laws, 21 U.S.C. §§ 173, 174. The appellants here and two co-defendants were fugitives when the first trial of the indictment took place in 1965. At that first trial four defendants were found guilty and two were acquitted. The judgments were affirmed. United States v. Armone, 363 F.2d 385 (2d Cir.), cert. denied, Viscardi v. United States, 385 U.S. 957, 87 S. Ct. 391, 17 L. Ed. 2d 303 (1966). The four defendants now appealing were apprehended after the conclusion of the first trial. Their trial was in March, 1969.
By way of brief introduction, the government claims that the appellants, together with the co-defendants and co-conspirators, were engaged in a conspiracy from 1956 through 1960 to import huge amounts of heroin into the United States from France and to distribute the drugs after their illicit importation; that the conspiracy had three pairs of exporter-courier links which delivered the heroin to an importer link in New York; that three of the defendants here were involved in the import link -- the Romanos and Sherbicki; and that the defendant Guanti was the receiver link and was more closely tied to the wholesaler link as a messenger for them.
The activities of the import link are most important here since the claim is made that there were two conspiracies and that the Romanos, as members of the so-called Cahill group, either abandoned, or were excluded from, the continuing conspiracy before the statute of limitations cut-off date of September 30, 1959. The government characterizes the importers as a group having a proprietary interest and several assistants. At the core were Joseph Armone, Stephen Grammauta and the defendant Arnold Romano. Dominick Romano and Frank Sherbicki, both defendants here, are said to have been assistants. Three other members of this group would take delivery of the heroin when it entered this country. Initially, the couriers delivered it to Joseph Cahill. Then as the conspiracy progressed, Cahill transferred this function to Charles Hedges and Nicholas Calamaris. Hedges was the chief government witness both at this trial and in the 1965 trial.
The evidence reveals how each of the pairs of export-courier links made initial contact with Cahill and how Hedges was later worked into the deliveries to the import group after his release from prison in the Spring of 1958. As Hedges became more trusted, he was introduced to more of the principals in the conspiracy and became more familiar with their dealings. He went with Cahill to take delivery of the heroin from the couriers; he met the wholesalers and made deliveries to them; he carried money back and forth between various principals; he recounted events which linked each of the defendants here with the conspiracy.
The details of each event and how various deliveries and payments were made during the five-year period involved need not be given in extenso. The relevant facts relating to the claims of error will be considered in the discussion of these claims.
All appellants adopt the arguments of their co-appellants insofar as they may aid their own positions. Since each appellant claims specific reversible errors as to him, they are best dealt with separately.
Arnold Romano (Arnold) for his first point asserts (in his brief) that he was denied his right to counsel because he was "forced to trial in the unexpected absence of his retained counsel" and because he had "an attorney whom he did not desire and who was not prepared to defend him." The many decisions in this Circuit cited by this appellant and by the government are of little assistance in resolving this issue. If any principle is to be gleaned therefrom, it is that every case must be judged upon its own set of facts. Somewhat analogous fact situations are to be found in cases in which similar contentions have been accepted and in others rejected. The proposition that the Sixth Amendment guarantees the right to counsel of one's own choosing is merely the preamble to the many exceptions which the courts have superimposed upon this fundamental privilege. Therefore since the facts seemingly control, we must turn to them.
On October 8, 1964 upon arraignment Arnold appeared by counsel, presumably of his choice, David M. Markowitz, who continued in such capacity at least through 1967.
On April 27, 1965, the date on which the trial was to commence, Mr. Markowitz appeared for Arnold; Arnold did not, preferring to flee and jump his $50,000 bail.
In July 1966 Arnold was reapprehended and thereafter was tried and convicted of bail-jumping. Even then Mr. Markowitz, still his counsel, represented to the Court that "we are prepared to go to trial in the narcotics conspiracy case at any time."
As late as December 27, 1967 Arnold by affidavit averred that his defense was prepared and that he was ready for the narcotics trial.
On October 8, 1968 a New Jersey attorney, Michael A. Querques, filed a notice of appearance for Arnold but Mr. Markowitz was designated therein as local counsel.
On November 20, 1968 Mr. Querques moved on behalf of Arnold to dismiss the indictment, Mr. Markowitz by affidavit still asserting ...