Appeal from a final judgment of the United States District Court for the Southern District of New York (Conner, Judge,), after a jury trial, convicting appellants Cicale, Spector and DeSimone of conspiracy in violation of 21 U.S.C.§ 846 and appellant Cicale of a substantive offense in violation of 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1) (A) and 18 U.S.C. § 2, and raising as grounds for reversal claims regarding the admission of certain hearsay evidence under Fed. R. Evid. 801(d) (2) (E), sufficiency of the evidence and particular individual claims as well. Affirmed.
Kaufman and Winter, Circuit Judges, and Ward, District Judge.*fn* Ward, District Judge, concurring in part and dissenting in part.
Paul Spector, Frank DeSimone, and Peter Cicale appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, after a 13-day jury trial before Judge William C. Conner. Cicale, Spector and DeSimone were found guilty of conspiracy to distribute heroin and to possess it with the intent to distribute in violation of 21 U.S.C. § 846 (1976). In addition, Cicale was convicted of a separate count of heroin distribution and possession with intent to distribute based on acts taking place on March 23, 1981, in violation of 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1) (A) (1976) and 18 U.S.C. § 2 (1976). Appellants assert essentially four grounds of error. First, each contends that hearsay evidence was improperly admitted against them under the co-conspirator exception to the hearsay rule, Fed. R. Evid. 801(d) (2) (E). Second, each claims that the evidence was insufficient to prove his guilt beyond a reasonable doubt. Third, Cicale contends that he was improperly denied the right to counsel of his own choosing by the trial court's refusal to grant a continuance. Fourth, DeSimone asserts that Judge Conner improperly commented upon his failure to testify.
Because the factual context is important to our decision, we set it forth in some detail.
On October 29, 1980, DEA Agent Eloy Garcia was introduced to John Messina on a Manhattan street corner. The two discussed Garcia's desire to secure regular supplies of heroin for a "customer" in Chicago. Through a DEA informant, Messina had already given Garcia a sample of heroin in exchange for mannite, a substance used to dilute heroin, and, at this October meeting, Garcia supplied Messina with a second token of good faith, an orange plastic bag containing a pound of quinine, another dilutant. In turn, Messina assured Garcia he could sell him a half kilogram of heroin every 10 days and quoted a series of prices for the drug. After complaining about the quality of the mannite, Messina announced that he wanted his "man," who was "waiting for [him] down the street," to test the quinine. Messina then drove seven blocks to the corner of York Avenue and 79th Street where DeSimone, his brother-in-law, was waiting. DeSimone got into the car, which Messina drove back up York Avenue to 86th Street. DeSimone got out of the car and carried the orange bag into a grocery store. He returned a few minutes later holding a brown paper bag of about the same size. He then travelled downtown to an office building on 47th Street by a combination of bus and foot.
On November 14, 1980, Garcia again met with Messina. This time Messina sold Garcia an eighth of a kilogram of heroin for $30,000.*fn1 After the sale was completed, Messina indicated his eagerness to continue doing business with Garcia. Messina asked Garcia when he would be ready to purchase more heroin and whether he would be willing to "double" -- to buy twice the amount of a half kilogram -- the next time. On December 11, 1980, the pair met again. They discussed the possibility of further purchases and Messina asked Garcia to supply him with another two pounds of quinine, explaining that he had all the heroin he needed but did not have enough dilutants to prepare the drug for distribution. On December 16, Garcia called Messina and the two met for lunch. Garcia gave Messina the quinine but explained that he was unable to purchase more heroin until he was certain that he would receive regular deliveries. Messina told him not to worry and bragged of having "five different sources of supply." The two then went to Messina's home in the Bronx for dinner where Messina showed Garcia a kilogram of heroin and offered to let him have it on a promise of later payment. Garcia refused, indicating that he was not in the market for isolated purchases.
Garcia and Messina met again for lunch in Manhattan on January 15, 1981. Garcia suggested that he give Messina's most reliable source $75,000 for heroin worth $50,000. The source could either keep the remaining $25,000 if Garcia were unable to order a further delivery of heroin within the week, or apply the money to subsequent drug purchases. Messina said he would "go talk with the guy," a source he was going to meet right away. Within the hour, Messina and Peter Cicale were observed together in Messina's Cadillac. The two spent the entire afternoon together; indeed, Messina met with no one else during the four and one-half hours he spent with Cicale. However, late in the afternoon, Cicale left Messina alone inside Bloomsbury's Restaurant, took Messina's car and drove to a nearby apartment building where he met with an unidentified man. He then returned to the restaurant and spoke briefly with Messina.
The next day, January 16, 1981, Garcia met Messina to carry out the deal. Garcia had $75,000 with him and Messina, for his part, was carrying a quarter kilogram of heroin. However, Garcia refused to continue when he saw that Messina's source had not accompanied him; Messina attempted to make excuses but Garcia remained firm, insisting he was interested only in a permanent relationship and not in spot purchases.
In early March, Garcia and Messina began to see each other frequently, embarking on an odyssey which took them regularly to a racquetball court in Fort Lee, New Jersey, and numerous restaurants, coffee shops, and bars throughout the New York area. On March 3, after a game of racquetball, Garcia pressed Messina for a commitment to supply the "Chicago customer" with a half kilogram of heroin each week. Messina promised to talk to "a couple of sources the next day" to determine if he could arrange to do that type of continuous business. On March 4, the next day, Messina met with Anthony Todisco, a convicted narcotics dealer. Also on that day, a wiretap of Messina's home telephone revealed that he spoke to Cicale and arranged a meeting for the next day, which snow prevented. According to another intercepted conversation, Messina also had planned to meet appellant Paul Spector on the fourth but for unexplained reasons that meeting fell through as well.
On March 6, Garcia and Messina played racquetball again. Garcia tried to hurry things along by stating that his Chicago customer would be stopping in New York to meet him on his way home from Miami. Messina said he had not yet spoken to his source but that he had plans for a meeting that night. He also gave Garcia detailed instructions concerning the use of the telephone, explaining that he was anxious about wiretaps. That night Messina met with John Beneducci and Vito Demicolo, two more known narcotics dealers.
On March 7, Garcia and Messina met at a barbershop and then went to lunch. Messina reported difficulties securing the kind of commitment Garcia was demanding but promised to speak to another source that same evening. In the late afternoon, he called Paul Spector and arranged to see him on the eighth. Messina then went to a family birthday party at LeChantilly Restaurant in Manhattan at which DeSimone was present.
The next day, Garcia called Messina to report that he would be meeting with his Chicago contact that afternoon. Shortly afterward, Messina received a cryptic call from Spector postponing their meeting in order to pick up "this thing" -- "thing" being underworld jargon for heroin.
On March 9, Spector called Messina in the morning and they met at a Yonkers restaurant. An undercover agent at the next table overheard Spector complaining, "I don't want to do it that way. I would rather not do it that way. I don't want to. I would rather not." Messina replied, "Whatever you want to do." A few hours later Messina met Garcia in a Fort Lee diner and Messina reported that he had "spoken to a guy that morning, but the guy was wavering," and "wasn't sold on the idea of having to meet anyone else." Garcia then stated that he recognized he would have to do business with Messina on an ad hoc basis and asked Messina to get him a price list. Messina agreed. That night, Messina visited DeSimone and also telephoned Spector to arrange a meeting for the morning of the tenth.
On March 10, Spector and Messina played racquetball in the morning and Messina then met Garcia at a Manhattan restaurant. Messina said he had played racquetball with one of his sources that morning but the source was unwilling to meet Garcia. Messina reported, however, that he had been able to get a price list which he furnished to Garcia. Messina then remarked that he had another source he could contact. At 10:00 p.m., Messina called Cicale and arranged to meet him the next day.
On March 11, Messina and Garcia again met to play racquetball and have lunch. This time they set up firm arrangements for a sale. Messina was to supply Garcia with three and a half kilograms of heroin at a price of $770,000. On Friday, March 13, Spector visited Messina at his apartment and, while he was there, Garcia called to arrange an immediate meeting with Messina at the Plaza Diner in Fort Lee. Messina set the meeting with Garcia for 7:00 p.m. and then called Cicale to warn him that he would call again that evening between 6:30 and 7:00 p.m. At 6:30 p.m., Messina left home, drove to Cicale's apartment building, which was near the diner, and went into the lobby. After departing, he drove to the Plaza Diner where Garcia was waiting. Garcia requested an eighth of a kilogram of heroin for his Chicago customer who was coming into town. Messina said his personal supply was inaccessible until Monday but he would try one of his sources who lived nearby, and, if unsuccessful, he would call Garcia with a coded message to meet him on Monday. Messina then left for an apparently fruitless drive around the northern New Jersey suburbs, first to DeSimone's house in Palisades Park, then to the home of another narcotics dealer in Englewood Cliffs, and finally to Cicale's apartment in Fort Lee. He called Garcia to say he would see him on Monday.
Over the weekend, Messina met or spoke with each of the appellants. On Saturday, Messina spoke to Cicale three times. After the first call, Messina drove to Fort Lee, picked up Cicale and they then drove into New York City together. Later that afternoon, Cicale called Messina and urged, "Don't mis-shoot whatever you do . . ." Then, around dinnertime, Spector called Messina and stated, "that thing is not, is a little bit of a problem." Messina cut him off, saying, "Why don't you just see me. All right?" and the two agreed to meet the next day. Immediately afterward, Messina telephoned DeSimone and arranged a tentative meeting for the next day. A short while later, Messina telephoned Cicale. Cicale agreed to come to Messina's home and, a half-hour later, he arrived for a ten minute visit.
On Sunday, Messina called Spector at 1:00 p.m. and the two set up an evening meeting. Messina then visited DeSimone and Cicale, leaving Cicale's apartment building at 8:00 p.m. to drive to the nearby home of another known drug dealer. Messina spent half an hour there and then returned to Cicale's house. The two then drove to the Tre Amici Restaurant in Manhattan. Cicale left Messina inside the restaurant while he drove to 137 East 36 Street -- the address Cicale had visited on January 15 prior to the aborted January 16 sale of heroin to Garcia. Messina, meanwhile, was observed sitting with Spector in the restaurant. Cicale returned, inquired as to the whereabouts of a "Jimmy," and was directed to Messina's table. He joined Messina and Spector for ten minutes. The meeting broke up with Messina telling Spector to telephone him the next morning.
On Monday morning, March 16, Messina met with DeSimone. Early in the afternoon, Messina drove to Cicale's apartment building to look for him, and failing that, went to look for DeSimone. He then returned to Cicale's building and met Cicale in the lobby. The two held a brief conversation. Several hours later, Cicale telephoned Messina who told him, "Took a ride. Made a stop out there . . . And now I'm back to let you know that I could really shake 'em down." Cicale, in turn, remarked, "You remember Saturday night? . . . Remember I talked to you about . . . Is that still there?" At about 9 p.m., Messina went to a public phone and placed a call. After returning to his home, he then spoke to Spector and arranged to meet the next morning. A little later, Cicale called to inquire whether Messina's "friend ever came over." When Messina replied negatively, Cicale asked to be informed if the friend should stop by.
On Tuesday morning, March 17, Spector and Messina met in Yonkers as arranged. Afterwards, Spector drove toward White Plains trailed by an entourage of DEA surveillance officers. Spector visited several banks; the next day he told ...