Flight 758 and returned to John F. Kennedy Airport.
The Government then called Agent Donn Jerri Miller of the DEA. The agent testified that on December 15, 1972, at approximately 7:30 a.m., he was stationed on the listening post of the wiretap when Licata called Fresta on the telephone and requested that the latter bring two suitcases to 904 Christian Street. After overhearing the conversation, Agent Miller proceeded to the vicinity of the 9th and Christian Streets where he observed Fresta and Licata placing the suitcases in the trunk of Licata's Thunderbird automobile.
Licata was then followed to the Franklin Square Apartments in Glendora, New Jersey. At this location, the suspect was joined by a woman later identified as Gino Russo. Licata and the woman then drove directly to New York City where agents from the New York and Newark offices of the DEA assumed the surveillance responsibilities.
The agents subsequently established surveillance at the Sheraton-Mt. Royal Hotel in Montreal, Canada, where Licata was observed entering and leaving the hotel on various occasions. Agents involved in the investigation maintained constant surveillance over Licata during his stay in Canada. On one occasion in particular, Officer O'Neal Pouliot, of the RCMP, observed Licata open the passenger side of his automobile, push forward the front seat, and arrange something on the back seat or floor of the car. Shortly thereafter, Licata and Miss Russo left the hotel in which they were staying and proceeded toward the Canada-Vermont border.
On December 18, 1972, just before the couple crossed over the border into the United States, the vehicle was intercepted by the RCMP. Twenty (20) bags of heroin concealed under the back seat were removed from the car.
Gaetano Licata was arrested and detained in Montreal. On his person, the Canadian police found a receipt from the Sheraton-Mt. Royal Hotel, an automobile driver's license, and a Social Security card -- all under the name Louis Fresta. In addition to the heroin, two suitcases identified as belonging to Louis Fresta were found in the car.
Admissions of Hearsay Declarations of the Defendant's Co-conspirators
Defendant argues that the trial court erred in permitting testimony to be given as to hearsay statements made by co-conspirators during the course of and in furtherance of the conspiracy. The law is well settled that once the prosecution establishes the existence of the conspiracy by clear and substantial evidence independent of the hearsay declarations and, further, establishes the defendant's participation therein, the hearsay statements of the co-conspirators are admissible against the defendant. Glasser v. United States, 315 U.S. 60, 74, 62 S. Ct. 457, 86 L. Ed. 680; United States v. De Cavalcante, 440 F.2d 1264, 1272 (3rd Cir. 1971); United States v. Weber, 437 F.2d 327, 336 (3rd Cir. 1970).
The defendant has raised the issue of the sufficiency of the evidence necessary to connect him with the conspiracy. Fresta contends that the Government must present substantial evidence of the defendant's membership in the conspiracy, exclusive of the hearsay statements, before the statements are admissible in evidence. Although both the existence of the conspiracy and the defendant's participation therein must be established by evidence independent of the hearsay, once the conspiracy is established by clear and substantial evidence, slight evidence is sufficient to connect the defendant with such conspiracy and to permit the admission of the hearsay statements of the alleged co-conspirators. United States v. De Cavalcante, supra ; United States v. Weber, supra ; United States v. Cohen, 197 F.2d 26, 29 (3rd Cir. 1952).
This Court is convinced that the Government established by substantial evidence, independent of the hearsay, the existence of the conspiracy to import heroin into the United States from Canada. The Government presented evidence of Licata's three vehicular excursions to New York City and the final, eventful trip to Canada which terminated abruptly when Canadian authorities intercepted the vehicle and uncovered therein twenty-one pounds of heroin. There was testimony as to Licata's association with Pasquale Falcone in connection with the two flights to Canada via Air Canada, only one of which actually resulted in a flight to Montreal, Canada. The Canadian police officer testified concerning the meeting of Licata, Falcone, and Dasti in the Montreal bar just a few days before Licata was apprehended with the heroin in his possession. The Government showed by uncontradicted evidence that Fresta furnished Licata with two suitcases, his driver's license, and Social Security card before Licata left for Canada. In addition, the fact of the frequent telephone contacts between Fresta and Licata and between Licata and Falcone (exclusive of the hearsay content of such calls) points out the close confederacy of these persons. When all the evidence is viewed in conjunction, the existence of the conspiracy is clearly established.
Similarly, the Government introduced sufficient evidence to connect Fresta to the unlawful venture. As indicated above, Fresta supplied Licata with the driver's license, Social Security card, and suitcases to enable Licata to travel in Canada. These two individuals were in each other's company and conversed over the telephone frequently during the brief period in which the events now under scrutiny occurred. Finally, certain of the incriminating statements made by Fresta over the telephone (e.g., "I'm going to try to sell it for $.09"; "See if they sing a song Lil, you know what I mean"; "I don't think the guy is going to want to go there"; "I mean, you know, how is it if my floor -- I mean, is it?") are examples of Fresta's own admissible conduct indicating his involvement in the enterprise. The defendant's own conversations were, without exception, couched in terms that bordered between code and a cautious awareness that his participation could be viewed as being incriminating. For example, it is perfectly plain that the defendant's own statements in conversations in which he took part establish that at the heart of his communication with Licata was some kind of profit-making business transaction, as opposed to a social, recreational or other objective. Further, the fact that reference to a 50-piece band to play before 50,000 people at $25 a head was intended to convey information in respect to the purchase of a quantity of heroin at a certain rate per kilo is evidence in the conversation of December 2, 1972, at 5:28 p.m. where Fresta and Licata dropped their guard in respect to their code-type of conversation by referring to the alleged musical enterprise in terms of "quantity." The excerpt in question, which was a statement that Licata made to Fresta and in respect to which Fresta acceded, reads as follows:
"They could but they don't want to because they're getting ah for that kind of quantity for that many people they should put out for less money for tickets." (Emphasis added.)