specifically identified jurors was proper, in light of the speculative nature of the possibility of actual bias, and that the necessity for further interviews was not indicated by the responses of those jurors.
This is also not a situation in which bias should be implied. We do not consider it an uncommon occurrence when a defendant looks at jurors intently during the course of a criminal trial. Nor do we doubt that many jurors feel self-conscious when so scrutinized by the individual whose guilt or innocence they are asked to judge. If this phenomenon were enough to raise a presumption of prejudice, it would be extremely difficult to conduct jury trials in their present form. Nor do we believe the sequestered status of this jury is of any significance. Frumento's contention that the sequestration order was viewed by the jurors as arranged by the Government for their protection from the defendants is totally without foundation. The jury was informed that the Court had determined sequestration was necessary after consultation with all counsel. Moreover, there was no mention by any of the three jurors interviewed that their sudden sequestration had raised fears in them concerning the defendants. We do not believe that any implication of jury prejudice or fear influencing the verdict would be justified in this case.
Wade Testimony About the Sills-Millhouse-Frumento Meeting
Unindicted coconspirator Wade testified that sometime during the month preceding the arrest of Harold Sharp on March 13, 1972, there was a meeting held at Democratic City Committee headquarters between Sills, Millhouse and Frumento. After the meeting, Millhouse and Frumento joined Wade in an automobile. Wade's testimony continued: "I asked him what happened and Andy [Millhouse] told me that John Sills told him that the chairman said, 'Just get out of the cigarette business.'" [N.T. 8-43.] The "chairman" referred to in Wade's testimony was the head of the Democratic City Committee, the local party organization in Philadelphia.
Defendants argue that the admission of this testimony by Wade was erroneous both on the grounds that it was hearsay and that its probative value was outweighed by its potential for undue prejudice. We disagree.
Initially, we note that the Government offered the testimony as evidence of information being passed along by Sills to his alleged coconspirators, while the conspiracy was in progress, for the purpose of avoiding detection. [N.T. 8-39, 8-46.] The evidence was intended to demonstrate that Sills had an interest in alerting Frumento and Millhouse to the possibility that an investigation into the activities of the conspiracy was underway. It would thus be corroborative of the existence of the conspiracy and of Sills' knowledge of, and confederation with, its members.
While the testimony to which objection was made has the appearance of triple hearsay, several basic evidentiary propositions belie this notion. Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted. Anderson v. United States, 417 U.S. 211, 219, 41 L. Ed. 2d 20, 94 S. Ct. 2253 (1974). Evidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement. Id. at 220 n.8. Finally, a well-recognized exception to the hearsay rule permits the introduction of out-of-court declarations of one conspirator against another if the declaration was made during the course of and in furtherance of the conspiracy charged. Id. at 218.
As regards the testimony in question, only the statement by Millhouse to Wade was offered to prove the truth of its content. Sills' statement was offered not for its truth but only for the fact that it was made by Sills. The chairman's statement was simply contained within the statement of Sills and was offered only as having been made. Thus, only the statement of Millhouse was actually hearsay when related to the jury by Wade, but it was admissible under the exception for coconspirator declarations. See Fed.R.Evid. 801(d)(2) (E). The Court's ruling at trial was consistent with this analysis. The Court admitted only the Millhouse statement to Wade to prove the truth of its content. The other statements referred to in Millhouse's statement were simply received to prove that they were made.
The Court's suggestion that cautionary instructions be given to the jury concerning the basis upon which the testimony was being received [N.T. 8-46] was rejected by defense counsel. Their position was that only a mistrial would cure the prejudice resulting from the jury's hearing of this testimony. [N.T. 8-48.] Believing a mistrial unjustified, the Court simply let the testimony stand without further comment to the jury. The evidence of Sills' statement to Millhouse was clearly relevant to the conspiracy charge contained in the indictment. It was a link in the chain of evidence connecting Sills to the cigarette smuggling scheme. The only question raised is whether the jury improperly used Wade's testimony and drew an inference from the alleged statement of the chairman to Sills that the chairman in fact knew that Sills and others were involved in cigarette smuggling. In light of all three defendants' opposition to cautionary instructions at the time the testimony was received and the subsequent exploration of this same area during the cross-examination of defendant Sills [N.T. 11-103 to 11-106], this Court does not believe the speculative misuse of Wade's testimony by the jury requires the granting of a new trial.
Defendant Sills argues that the Court erred in not granting his motions for severance made both prior to and during the joint trial resulting in his conviction.
In a Memorandum reported at 409 F. Supp. 143 (E.D.Pa. 1976), this Court fully explained its denial of Sills' pretrial motion for severance based upon the contention that a joint trial would deprive him of the opportunity to call codefendants Frumento and Millhouse and have their exculpatory evidence offered in his behalf. Our position remains unaltered after consideration of the subsequent decision in United States v. Sica, No. 75-2411 (3d Cir. Oct. 20, 1976), which we believe is factually distinguishable from the present case. In that case, the appellate court concluded that the exculpatory testimony of a codefendant which would have contradicted the version offered by the Government's sole witness of the sole meeting involving Sica might have produced a different verdict. The denial of his severance motion served to deprive Sica of the testimony of the one witness who could impeach the one Government witness upon whom the case against him depended. Accordingly, Sica's judgment of conviction was reversed.
The Government's case here against defendant Sills was not comparably thin. In addition to the testimony of unindicted coconspirators Sharp and Wade, there was undisputed corroborative evidence that Sills interceded on behalf of Frumento to obtain Frumento's appointment as an investigator for the Bureau, that Sills accompanied Sharp to Millhouse's office at the time Sharp applied for a cigarette stamping agent's license, that Sills received a $2,500 check from Sharp in January, 1972, and that Sharp, Frumento, Millhouse and Sills vacationed together in Puerto Rico in February, 1972. The inferences to be drawn from this corroborative evidence were hotly contested, but there is no question that the jury had much more evidence upon which to base a verdict against Sills than merely the testimony of the chief Government witness. We remain unconvinced that a severance was justified to permit Sills to call his codefendants as defense witnesses.
Sills also contends that a severance should have been granted due to the disparate quanta of evidence offered against Frumento and Millhouse as compared to him and the inability of limiting instructions to prevent the jury's improper use against him of evidence admitted only against Frumento or Millhouse. We disagree. In United States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976), petitions for cert. filed sub nom. Valentine v. United States and Diaco v. United States, 45 U.S.L.W. 3204-3205 (U.S. Aug. 5, 1976) (Nos. 76-158 and 76-159) and Dansker v. United States, 45 U.S.L.W. 3282 (U.S. Sept. 3, 1976) (No. 76-334), it was recently stated:
A defendant is not entitled to a severance merely because the evidence against a codefendant is more damaging than that against him. If that were the case, a joint trial could rarely be held. Rather, in determining whether disparate proofs require a severance, the proper inquiry is whether the evidence is such that the jury cannot be expected to "compartmentalize" it and then consider it for its proper purposes. United States v. DeLarosa, 450 F.2d at 1065.