the government adequately sustained its burden. The government's evidence established that defendant Zavod was in custody only a few hours, that he was repeatedly warned of his rights, that he made a telephone call to Philadelphia and that he executed a waiver of rights form prior to his giving the statement in question. This was clearly sufficient to permit the question to go to the jury. All that Agent Gibbs' testimony could add would be a cumulation and repetition of that already adduced.
Defendants also contend that the introduction of testimony concerning defendant Zavod's statement was a denial of their Sixth Amendment right of confrontation, Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), in spite of the government's cautious efforts to avoid injecting these problems into the case.
The government did not introduce the signed confession into evidence, but had the Secret Service Agent to whom the statement was given testify as to the substance of its contents. The testimony carefully avoided any possible implication of or reference to the other two co-defendants and directed the incrimination against Zavod alone.
The defendants nevertheless contend that the procedure employed by the government with respect to defendant Zavod's statement in some way inferentially implicated and incriminated the other two co-defendants and thereby denied them of their right of confrontation. The court disagrees.
Since it is quite clear that in a joint trial it is proper to admit into evidence an incriminating statement which inculpates only the declarant, United States v. Lipowitz, 407 F.2d 597 (3d Cir. 1969); White v. United States, 415 F.2d 292 (5th Cir. 1969), there was no denial of their Sixth Amendment right of confrontation.
9. Excision of the statement of the government witness, James E. Heavey, and the refusal to permit defense counsel to play the "Wuensche -- Reifler" phone conversation to the jury.
This final matter involves two related incidents which occurred at trial. During the examination of Secret Service Agent James E. Heavey, defense counsel was supplied with his statement pursuant to 18 U.S.C. § 3500. A portion of this statement had been excised by counsel for the government, and defense counsel requested that he be furnished with the excised portion. The court granted this request and directed government counsel to produce the entire statement. The excised portion of the statement referred to a telephone conversation between Edward Wuensche and Lionel Reifler that Agent Heavey had monitored and recorded apparently with the prior consent of Mr. Wuensche. This was the first time that defense counsel learned of the existence of this recording. Counsel for the government offered to make the recording available to defense counsel for whatever purpose counsel deemed appropriate. However, counsel for the government informed both the court and defense counsel that they did not intend to offer the tape recording into evidence because it was hearsay and contained incriminating statements as to the defendants. Defense counsel indicated his desire to have this evidence presented to the jury. It was suggested at that time that if defense counsel desired to introduce the tape recording, an offer should be made during the defendants' case in chief. Both the government's offer and this suggestion were apparently unacceptable to defense counsel who moved for a mistrial. The court denied defense counsel's motion and directed the case to proceed. During the cross-examination of a subsequent Secret Service Agent, defense counsel inquired into the existence of a tape recording of a "Wuensche -- Reifler" telephone conversation. Upon receiving an affirmative response, defense counsel requested leave to play the tape recording to the jury. The government objected and the court sustained the objection.
Defense counsel now contend that the government's action in excising the "Jencks Act" statement and withholding the additional recorded telephone conversation, and the court's refusal to permit the jury to hear this recorded conversation were so violative of the defendants' rights as to require a new trial. The court must once again disagree.
First, since this communication was lawfully monitored and recorded under 18 U.S.C. § 2511(2)(c) and did not involve statements or admissions of the defendants, a serious question exists as to whether the defendants were properly entitled to discover this recording. However, the court need not address itself to that question since the government made the tape recording available to defense counsel during the course of the trial for whatever use counsel deemed appropriate. The Court did not permit defense counsel to play this recording to the jury at the time that the request was made because it was clear that this was another attempt by defense counsel to affirmatively introduce evidence under the guise of cross-examination in order to preserve the opportunity of making the final closing argument to the jury. Even if this recording had been affirmatively offered by defense counsel as defendants' evidence, with the result, of course, being that the defendants would be bound by its contents, the question would nevertheless remain as to whether this recording fell within one of the recognized exceptions to the hearsay rule and therefore could properly be admitted into evidence. Far from being precluded from introducing evidence, defense counsel cautiously guarded against it. As such, defense counsel cannot now challenge the obvious result of a deliberate choice of trial strategy.
After carefully reviewing the entire record in light of the foregoing considerations, the court concludes that the defendants received a fair trial and accordingly will deny their motion for new trial.
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