The opinion of the court was delivered by: BECHTLE
Louis Anthony Fresta, Jr., was tried and found guilty by a jury on each of three counts of an indictment charging him with conspiracy to manufacture and distribute and dispense a controlled substance, 21 U.S.C. § 841(a) (1); conspiracy to import a controlled substance into the United States, 21 U.S.C. § 952(a); and aiding and abetting an individual traveling in interstate commerce in furtherance of an illicit enterprise, 18 U.S.C. §§ 2 and 1952. The defendant has filed a motion for a new trial and motion for judgment of acquittal, in which several points of error are cited in support of the respective motions. The principal contention advanced by the defendant is that the trial court committed error in permitting testimony as to the hearsay declarations of the defendant's alleged co-conspirators made in the course of and in furtherance of the conspiracy. A detailed examination of the entire record, including the briefs and memoranda submitted by the Government and defense counsel, has convinced the Court that the various grounds raised by the defendant do not constitute a sufficient basis for the granting of the relief requested. Accordingly, defendant's motions for a new trial and judgment of acquittal will be denied.
The thrust of the Government's case was that Fresta, together with Gaetano Licata
and two other unindicted co-conspirators
did combine and conspire to import into the United States from Montreal, Canada, large quantities of heroin for the purpose of distribution and sale in this country. In order to establish the existence of such conspiracy and the active participation of Fresta therein, the Government introduced the following evidence at trial:
On November 30, 1973, Judge John Morgan Davis of the United States District Court, Eastern District of Pennsylvania, signed a court order authorizing the installation of an electronic listening device ("wiretap") on the telephone registered as number (215) 923-3162, located at 904 Christian Street, Philadelphia, Pennsylvania. Pursuant to the aforesaid court order, agents of the Drug Enforcement Administration ("DEA") overheard and intercepted conversations conducted over the telephone during the period of November 30, 1972, to December 18, 1972. Various incriminating statements and conversations between Fresta and Licata and between Licata and Pasquale Falcone were overheard by the DEA Agents assigned to the investigation of this case. Recordings of the conversations were played during the trial and interpreted by Agent Vincent Di Stefano of the DEA. The intercepted messages included references to such things as "a 50-piece band at $25 a head," "a tune named Lil," "brown floor tile at $.07 a block," "a four-piece group," and other obscure and secretive topics. Agent Di Stefano, the supervising agent in connection with this case, testified that the above terminology was actually code or "street talk" customarily utilized by those engaged in illicit narcotics activity in order to avoid detection by law enforcement authorities. Based on his prior experiences in the investigation of narcotic offenses and specifically from the investigation of the conspiracy in question, Agent Di Stefano further testified that "a 50-piece band at $25 a head" meant 50 kilos of heroin at $25,000 a kilo, that "a tune named Lil" was a reference to a female distributor of the controlled substance methamphetamine, and that "brown floor tile at $.07 a block" described the purchase of heroin at $700 an ounce.
Conversations between Fresta and Licata contained numerous references to "going up there," "traveling over there," and the quality of the "tile." During one conversation, Fresta stated that he intended to sell the "tile" for "$.09 a block." There was also a series of conversations in which the use by Licata of Fresta's driver's license while "up there" was discussed. Without describing in detail the content of all the conversations intercepted by the wiretap and played back at trial, suffice it to say that the conversations among the co-conspirators were replete with references to obscure, furtive, and, when viewed in conjunction with all of the surrounding circumstances, drug-related activity.
The Government produced Agent Robert Walker, also of the DEA, who testified that on December 7, 1972, he followed Licata, who was driving a 1972 Thunderbird automobile, from 904 Christian Street in Philadelphia to the Gulf and Western Building in New York City, New York.
On December 13, 1972, Licata made a second trip to the Gulf and Western Building in New York City. On this trip, he was initially followed by Agent Di Stefano, who gave way to Agent Walker as Licata proceeded north on the New Jersey Turnpike. Testimony revealed that Licata entered the Gulf and Western Building, exited the building approximately ten minutes later accompanied by Pasquale Falcone, and that the two men proceeded by automobile to the John F. Kennedy Airport in New York City.
Agent Michael Campbell of the New York Office of the DEA testified that he was stationed at the ticket counter of Air Canada Airlines when he observed Licata and Falcone approach the counter. The two men were informed that their scheduled flight to Montreal, Canada, had been canceled. At approximately 12:45 p.m. on December 13, 1972, Licata and Falcone departed the airport, entered Licata's 1972 Thunderbird, and drove back to the Gulf and Western Building.
The following day, the two men returned to the John F. Kennedy Airport and flew to Montreal, Canada, on Air Canada Flight 749, landing at Dorval International Airport. Licata's reservations on the flight were under the name Louis Fresta.
While in Montreal, Canada, Falcone and Licata met with Frank Dasti in the Smith-duPont Bar in downtown Montreal. As discussed earlier in this opinion, Dasti was under investigation at this time by the Royal Canadian Mounted Police ("RCMP") as a suspected heroin trafficker.
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 ...