APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 74-368)
Van Dusen and Weis, Circuit Judges and Stern, District Judge.
Appellant Martin Trowery appeals from a judgment of conviction entered after jury trial on a one-count indictment charging him with the distribution of heroin. The Government proved in its direct case that another jury had convicted Trowery of similar offenses some months before, and introduced certain out of court statements by an absent co-defendant. Finding no reversible error, we affirm.
Appellant, a Pittsburgh resident, and one Richard Golden were arrested at San Francisco International Airport on September 11, 1974 upon their arrival from Japan. In appellant's possession were two suitcases containing 1,150 grams of 94% pure heroin. Both men were charged in an indictment returned in the Northern District of California on September 18, 1974. Appellant was named in three of the five counts. One count charged him with the importation of heroin, another with possession of heroin with intent to distribute, and the last with conspiracy. The objects of the conspiracy were alleged to be the importation, possession with intent to distribute, and distribution of all of the heroin found in the possession of both men. After trial by jury, appellant was convicted on all counts on December 5, 1974, and sentenced to concurrent terms of 15 years imprisonment on each count. The court also imposed a special parole term of 20 years on each count and fined appellant $10,000 on the importation count.
One day before the jury in the Northern District of California rendered its verdict, appellant and one Pernell Green were indicted in the Western District of Pennsylvania for the distribution of heroin. We review the conviction resulting from that indictment.*fn1
At trial in Pennsylvania, the Government presented the testimony of Burton Lund, Robert Maffett and Robert Dreisbach, agents of the Drug Enforcement Administration. They testified that on September 22, 1974, 11 days after Trowery had been arrested in San Francisco, Lund was working undercover in Pittsburgh and was introduced to one Pernell Green by an informant. Green told Lund that he had a heroin connection, that his "brother" was involved in narcotics, and that he could procure heroin which Lund could resell in Philadelphia. In an apparent effort to convince Lund that the heroin would be of high quality, Green explained that his "brother" had been arrested coming into San Francisco with two kilos of heroin. According to Green, another white man had successfully passed through customs with six pounds of heroin, and Lund's "buy" would be from that six pounds. Green then told the agent that the "brother" to whom he had referred was Martin Trowery.
On September 25, 1974, a sale of heroin from Green to Lund was planned to take place at a shopping center that evening. Surveillance agents saw Green enter appellant's residence at about 4:20 P.M. Appellant entered the house shortly after Green. While the two were together in the house, Lund received a telephone call from Green scheduling the heroin transaction for 5:30 P.M. They met and the sale was made. Appellant was not seen in the vicinity where the purchase took place.
A second sale was arranged for the evening of October 16, 1974 at the same location. On this occasion surveillance agents observed appellant across the parking lot from the location where Green and Lund were to meet. Green and appellant were seen to enter a hardware store for a few minutes, have a conversation inside, and then emerge together. Appellant was observed handing Green an object. Lund arrived, and Green pointed toward Lund, while looking at appellant. Appellant nodded his head, and Green then approached Lund. Appellant went to a green truck parked in the shopping center parking area, and entered the cab. He adjusted the sideview mirror and angled it toward Green and Lund. Green concluded his transaction with Lund, during which he told Lund that further transactions might be possible "because his brother needed money for lawyer's fees for his bust in California." (App. 57). Green then ran in a bent-over position and hurriedly got into the truck in which appellant had been waiting. The truck soon left the parking lot.
On October 21, 1974, Green telephoned Lund to ask to borrow money. During the course of the conversation, Green told Lund that "my brother Martin" had traveled with Green to and from the shopping center on October 16 and had seen Lund.
The final contact between Green and Lund was on October 22, 1974, when Green telephoned again. Another narcotics buy was scheduled for that night but Green failed to appear at the rendezvous. Green and appellant were arrested on October 30, 1974. At the time of trial Green was a fugitive.
The Government's direct case closed with the introduction into evidence, over the defendant's objection, of the judgment and commitment order establishing the California conviction. The court also permitted the introduction of the California indictment, although at the defendant's request it did not allow that document to be shown to the jury. The evidence of Green's statements about Trowery and the introduction of Trowery's California conviction were significant factors in the outcome of the case, and appellant challenges the admission of both pieces of evidence.
The trial court admitted Lund's testimony repeating Green's statements as being within the "concert of action" exception to the hearsay rule. In effect, the court treated Green's statements as those of a co-conspirator even though there was no conspiracy charged in the indictment. The absence of a conspiracy count, however, is without legal significance in determining whether Green's statements were admissible against Trowery. The Government need only prove a conspiracy in fact between Green and Trowery to make the words of one, spoken in furtherance of some joint purpose, the words of the other as well. United States v. Alsondo, 486 F.2d 1339 (2d Cir. 1973), rev'd on other grounds sub nom. United States v. Feola, 420 U.S. 671, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975); United States v. Talbot, 470 F.2d 158 (6th Cir. 1972); United States v. Mendoza, 473 F.2d 692 (5th Cir. 1972).
The distinction should be noted between "conspiracy" as a crime and the co-conspirator exception to the hearsay rule. Conspiracy as a crime comprehends more than mere joint enterprise. It also includes other elements, such as a meeting of the minds, criminal intent and, where required by statute, an overt act. When these elements are established, the crime of conspiracy is proved.
The co-conspirator exception to the hearsay rule, on the other hand, is merely a rule of evidence founded, to some extent, on concepts of agency law. It may be applied in both civil and criminal cases. FEDERAL RULE OF EVIDENCE 801(d)(2)(E); IV WIGMORE ON EVIDENCE § 1079 (Chadbourn rev. 1972). (Cf. 4 WEINSTEIN'S EVIDENCE P801(d)(2)(E), at 801-141 (1975)). Its rationale is the common sense appreciation that a person who has authorized another to speak or to act ...