APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before: WEIS, SLOVITER and BECKER, Circuit Judges
These are consolidated appeals from judgments of conviction arising out of a conspiracy for the importation and distribution of heroin. After full consideration of the numerous arguments raised by appellants, we affirm the judgments below in all respects.
The indictment named nine defendants and two unindicted coconspirators. Three of the named defendants, Ibraham Ammar, Abedeen Ammar, and Naim Dahabi, were fugitives at the time of trial; two other defendants, Charles Rossi and Michael Dugan, pleaded guilty and testified for the government; the remaining four defendants, Ghassan Ammar, Judith Ammar, Marshall Stillman, and Roger McFayden, stood trial, were convicted by the jury and now appeal. The unindicted coconspirators were John Welkie and Gilbert Bunner, both of whom testified at the trial.
The conspiracy spanned the period from January 1980 to October 1980. It involved the importation of heroin from Lebanon through Toronto and New York, and was centered on Ghassan Ammar, who lived with his wife Judith in Erie, Pennsylvania, where they had a leather importing business. The Lebanese sources of the heroin were Ghassan's father, Ibraham, his uncle, Abedeen; and Naim Dahabi.
Briefly summarized, the evidence at trial, viewed in the light most favorable to the government, showed the following: In January 1980, at a meeting between Ghassan, Judith and Welkie, Ghassan told Welkie that his father and uncle could supply heroin for importation into the United States. In May 1980, Ghassan and Judith, together with Dugan and Welkie, drove from Erie to the Toronto airport where they met Ghassan's uncle, Abedeen Ammar, with whom they returned to Erie transporting heroin in hollowed-out chair legs in Abedeen's luggage. In early June 1980, Judith, Ghassan, and their infant son, together with Dugan and Rossi, flew from New York abroad to Amsterdam, where Dugan and Rossi remained while the Ammars flew on to Beirut. Shortly thereafter, Ghassan and his father, Ibraham Ammar, rejoined Dugan and Rossi (Judith stayed behind in Beirut), and the four flew to New York with heroin again concealed in hollowed-out chair legs. From New York, the four men drove to Rossi's home in Chester, Pennsylvania. Ghassan, Ibraham, and Rossi flew on to Detroit, where Ghassan met with Marshall Stillman, and then returned to Erie. During the next week, they made two additional trips to Detroit, where Ghassan again met with Stillman and transferred heroin to him. In early July 1980, Ghassan flew to Beirut, where he rejoined Judith; the two returned to New York on July 4, carrying heroin concealed on Judith's person and in their baby's diaper, and were met by Rossi, Welkie, and Ibraham. In mid-July, at Ghassan's suggestion, Rossi flew to Beirut, where he was met by Ibraham and Abedeen, and acquired additional heroin from them. Later in July, Ghassan, Welkie and Bunner travelled to Detroit where Ghassan met with Stillman and sold him heroin. After receiving a phone call from Judith, the three returned to Erie, and together with Judith drove to Toronto, where they met Naim Dahabi, who had arrived in Canada with heroin concealed in hollow-out chair legs. They then drove to Detroit, where Ghassan, Dahabi and Welkie met with Stillman. On this occasion, Welkie delivered some heroin to a friend of Stillman's pursuant to Stillman's instructions.
During the same period, Ghassan and McFayden were involved in sales of heroin to McFayden's friend "Frank," who was in fact Francis Schmotzer, an undercover agent of the Drug Enforcement Administration. Ghassan and McFayden sold heroin to Schmotzer twice in May 1980. In late June, after their return from Detroit, Ghassan and Rossi met McFayden and Schmotzer and discussed additional heroin sales. On July 31, Ghassan, McFayden, Welkie and Bunner arranged a third sale to Schmotzer. McFayden and Bunner were arrested immediately. Welkie fled by car, but surrendered several days later in Philadelphia. Ghassan, who was not present at the sale, surrendered August 1. On August 29, a four count indictment was returned against Ghassan, McFayden and Welkie, also named Bunner as an unindicted coconspirator.
Meanwhile, in early August, Rossi returned from Lebanon with heroin, and was met by Dugan. Rossi and Dugan were arrested on August 12 after attempting to arrange the sale of a portion of the heroin to a state undercover agent in order to raise Welkie's bail.Rossi was released, but continued to attempt to sell the heroin, and was arrested again on October 2. Welkie also was released after agreeing to cooperate with the government, and on September 19, at the instigation of the government, had a conversation with Judith who asked him to sell some heroin to raise bail for Ghassan's release. Judith was subsequently arrested. Finally, Stillman was arrested in Detroit on October 15.
On October 10, a superseding eight-count indictment was returned in the Western District of Pennsylvania. Count I charged the nine defendants (Ghassan, Judith, Ibraham, Abedeen, McFayden, Dahabi, Rossi, Dugan, and Stillman) and the unindicted coconspirators (Weklie and Bunner) with conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Count II charged all defendants with conspiracy to import heroin into the United States, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). Counts III, IV and V charged Ghassan and McFayden with three substantive violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 based on their sales of heroin to Schmotzer on May 2, May 20, and July 31. Count VI charged Rossi and Dugan with a substantive violation of 21 U.S.C. § 952(a) based on their importation of heroin in June 1980 from Amsterdam. Count VII charged Abedeen, Ghassan, Judith, and Dugan with a substantive violation of 21 U.S.C. § 952(a) based on their importation of heroin from Toronto in May 1980. Count VIII charged Ghassan, Judith, and Dahabi with a substantive violation of 21 U.S.C. § 952(a) based on their importation of heroin from Toronto in July 1980.
Rossi and Dugan pleaded guilty to Count I and testified on behalf of the government. Welkie and Bunner, the unindicted coconspirators, pleaded guilty to a conspiracy charge in a related indictment, and also testified for the government. Of the four defendants who were tried, Ghassan, Judith, McFayden and Stillman, only Judith testified. All were found guilty as to each count in which they were named. Ghassan received seven concurrent fifteen-year sentences, a total fine of $30,000, and concurrent three-year special parole terms on all but Counts I and II. Judith received four concurrent five-year terms. McFayden received five concurrent eight-year sentences. Stillman was sentenced to concurrent twelve-year terms on the two conspiracy counts, and was fined $10,000.
Appellants in their briefs have made some fifty separate claims of trial error, which are set out in the Appendix to this opinion. We have considered each claim, many of which we find to be patently without substance, and have determined that none warrants reversal of the judgments below. We examine separately only those issues which we believe merit further discussion.*fn1
ADMISSIBILITY OF COCONSPIRATOR STATEMENTS
One of the principal contentions of error concerns the admission of the testimony of out-of-court statements made by members of the conspiracy. The court permitted Rossi, Welkie, and other witnesses to testify about statements made by the other conspirators on the theory that these were coconspirator statements admissible under Fed. R. Evid. 801(d)(2)(E).*fn2
A coconspirator statement may be admitted under Fed. R. Evid. 801(d)(2)(E) if it meets three conditions: (1) there must be independent evidence establishing the existence of the conspiracy and connecting the declarant and defendant to it; (2) the statement must have been made in furtherance of the conspiracy; and (3) it must have been made during the course of the conspiracy. See, e.g. United States v. Perez, 658 F.2d 654, 658 (9th Cir. 1981). Because appellants claim these requirements were not met as to at least some statements, we consider each requirement in turn.
INDEPENDENT EVIDENCE OF CONSPIRACY
1. Necessity of an in limine hearing.
In United States v. Continental Group, Inc., 603 F.2d 444, 457 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 62 L. Ed. 2d 668, 100 S. Ct. 703 (1980), we held that as a prerequisite for the submission of conconspirator statements to the jury, the court must determine that the government has "established the existence of the alleged conspiracy and the connection of each defendant with it by a clear preponderance of the evidence independent of hearsay declarations."*fn3 This determination is to be made by the court before the conconspirator statements are submitted to the jury. See United States v. James, 590 F.2d 575, 581 (5th Cir.) (in banc), cert. denied, 442 U.S. 917, 61 L. Ed. 2d 283, 99 S. Ct. 2836 (1979).
Appellants contend that before allowing the introduction of any coconspirator statement the district court should have held a preliminary hearing at which the determination referred to above should have been made.*fn4 In United States v. James, 590 F.2d at 581-82, on which they rely, the Fifth Circuit expressed its preference for requiring the government to establish the existence of the conspiracy and each defendant's participation in it by independent evidence before admitting any coconspirator declarations. Even that court has clarified that while preferable, this is not a mandatory procedure. See United States v. Montemayor, 703 F.2d 109, 116-17 (5th Cir. 1983).
Our approach has not been dissimilar, but we have emphasized that "the control of the order of proof at trial is a matter commmitted to the discretion of the trial judge." United States v. Continental Group, Inc., 603 F.2d at 456; see United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 195 (3d Cir. 1970), cert. denied, 401 U.S. 948, 28 L. Ed. 2d 231, 91 S. Ct. 928 (1971); see also United States v. Perez, 658 F.2d at 658 n.2 ("Unlike the Fifth Circuit, this court [the Ninth Circuit] has declined to express a "preference" for pretrial determination of admissibility of the coconspirator's statement"). In Continental Group, the government had been allowed to introduce coconspirator statements without a prior showing of a conspiracy based on independent evidence, subject to the requirement that the government make such a showing by the close of its case. We held that such a procedure, while it should be "carefully considered and sparingly utilized," was not an abuse of discretion in a complex conspiracy case involving multiple defendants and a "large amount of interrelated testimony." 603 F.2d at 457.
In this case, the district court denied appellants' motion for a pre-trial hearing on the admissibility of coconspirator statements on the ground that it would involve "a mini-trial", but stated,
that at the request of the defendant at any time prior to testimony by a co-conspirator, the court will determine whether there is or is not sufficient threshold evidence of a conspiracy of which defendant was a member of what specifically must still be proved and the government, of course, will be required to submit such further evidence or else suffer the possibility of a mistrial.
The court is of the opinion that Rule 104(b) of the Federal Rules of Evidence does not demand more.
We cannot say that in the circumstances of this case the district court erred or that its refusal to hold a pre-trial hearing under Fed. R. Evid. 104 was an abuse of discretion.*fn5
2. Adequacy of the Trial Court's Findings.
Appellants claim that the court failed to make the determination of a conspiracy in which they participated before submitting the coconspirator statements to the jury. However, in the course of various rulings during the trial, the trial judge stated that he had made such a determination.*fn6 In addition, at the charging conference the judge stated that he had made "the determination that there was threshold evidence of the conspiracy . . . rather early in the case, the second or third day." Tr. 4712. In light of the trial judge's statements, we reject appellants' contention that no such determination was made. Moreover, we have held that even in the absence of explicit findings by the trial court, the necessary threshold determination is implicit in the court's decision to send the case to the jury. Government of the Virgin Islands v. Dowling, 633 F.2d at 665; United States v. Continental Group, Inc., 603 F.2d at 460; see also United States v. Lutz, 621 F.2d 940, 947 (9th Cir.), cert. denied, 449 U.S. 859, 101 S. Ct. 160, 66 L. Ed. 2d 75 (1980); United States v. Green, 523 F.2d 229, 233 n.4 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 47 L. Ed. 2d 84, 96 S. Ct. 858 (1976).
Appellants claim that the court used the wrong standard of proof in making the required threshold determination. We, along with most other circuits, require that "the prosecution must lay a foundation for the admission of conconspirator hearsay by establishing the existence of a conspiracy including the defendant by " a fair preponderance of independent evidence." United States v. Trotter, 529 F.2d 806, 811 (3d Cir. 1976); see Government of the Virgin Islands v. Dowling, 633 F.2d at 665. Accord United States v. Santiago, 582 F.2d 1128, 1133-36 (7th Cir. 1978); United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). But see United States v. James, 590 F.2d at 580-81 (substantial evidence standard); United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir. 1977), cert. denied, 435 U.S. 927 91978, 55 L. Ed. 2d 521, 98 S. Ct. 1494 ) (prima facie standard). See generally 1 Weinstein & Berger, Weinstein's Evidence P104, at 104-52 - 104-55. Appellants contend that the district court used the lesser "prima facie" standard. It would have been error had the district court reduced the burden on the government in this manner. See United States v. Trowery, 542 F.2d at 627; United States v. Trotter, 529 F.2d at 812. However, we believe the trial court was aware of and applied the correct standard, notwithstanding the references to "prima facie" case which the court made on two occasions in this long trial.
During a side-bar conference early in the trial the judge stated:
The Court: I found there was sufficient threshold evidence of a conspiracy. But, nevertheless, that does not permit [sic] other attacks on credibility or showing the conspiracy never existed or anything else. The mere fact I make a determination means a prima facie case.
[Stillman's Attorney]: Has the Court made a determination as a prima facie case without having a 104 hearing?
The Court: I find there is.
Tr. 432g-h (emphasis added).
The only other reference to which appellants have directed our attention appears in the charging conference during a discussion as to the difference between the "preponderance" standard and the "beyond a reasonable doubt" standard, which was relevant to the court's proposal to submit the threshold determination to the jury. The court stated:
As I read this, that preponderance of the evidence is for my thinking when I first make the determination that there was threshold evidence of the conspiracy which I made rather early in the case, the second or third day. I think I told you people that I had considered it and on the basis of things produced up to then, I thought there was prima facie evidence of a conspiracy or threshold evidence of a conspiracy so as to justify the introduction.
I think that is what that has to do with it. But then to go on and say whether an individual defendant is part of the conspiracy is something the jury has to find beyond a reasonable doubt.
Tr. 4712-13 (emphasis added).
These two references to a "prima facie" case, though troubling, do not persuade us that the district court adopted an improper standard. The first reference was made in a context unrelated to the issue of standard of proof and seems to us a slender reed upon which to base a claim of reversible error. The second reference, while imprecise, is insufficient to support the conclusion that the district court employed the wrong standard. When read in full context, it demonstrates that the court understood that it had to find evidence of a conspiracy by the "preponderance" standard. The reference to the "preponderance" standard by both the court and counsel during this colloquy reinforce our view.
We are not prepared to seize on one or two isolated phrases to conclude that the court misunderstood the standard that it was to apply. Appellants' present emphasis on the court's passing remarks seems to us an attempt to invest them with greater significance than they merit or than they were understood to have at the time. Significantly, appellants' attorneys registered neither surprise nor objection to either statement. They did not seek clarification from the court; indeed, Stillman's attorney repeated the phrase "prima facie case" in his response to the first statement. In United States v. Pappas, 611 F.2d 399 (1st Cir. 1979), the First Circuit considered a similar claim or error in a case where the district court had clearly articulated a "prima facie" standard despite the circuit's adherence to a "prepondance" standard. The court held that since counsel had failed to object to the judge's ruling at trial, it could review only for plain error. After noting that "there was more than sufficient evidence to justify a ruling under the proper . . . standard," the court concluded that the failure to apply the correct standard did not rise to the level of plain error, stating that "it is possible -- indeed in the circumstances it seems likely -- that his articulation of an incorrect standard was a slip of the tongue which would have been quickly rectified had the error been brought to his attention." Id. at 405. Even were the trial court in this case to have employed the wrong standard we also would be inclined to view it as harmless error, since we are persuaded that the evidence of conspiracy and each defendant's participation was sufficient to satisfy the "preponderance" standard.
Appellants also claim that it was error to instruct the jury that only after it was satisfied by independent evidence of a defendant's membership in the conspiracy beyond a reasonable doubt could it consider the out-of-court statements of coconspirators. Appellants contend that by giving this charge, the court improperly delegated its responsibility for making the necessary threshold determination to the jury, and so confused the jury as to render its verdict meaningless.
As we stated above, the district court made the threshold determination required by Rule 801(d)(2)(E) before allowing the coconspirator statements to go to the jury. Since this determination is for the court, it was unnecessary and inappropriate to instruct the jury that it could only consider the coconspirator declarations if it too determined, based on evidence aliunde, that a given defendant was a member of the conspiracy. Once the coconspirator statements are admitted they should go "to the jury without special instruction." United States v. Trowery, 542 F.2d at 627; United States v. Bey, 437 F.2d 188 (3d Cir. 1977); see also United States v. James, 590 F.2d at 577-80.*fn7
However, while the trial court's instruction was superfluous, we do not believe that it caused appellants any prejudice. In United States v. Continental Group, Inc., 603 F.2d at 459, we rejected a challenge to an almost identical charge, stating:
No court has held, however, that an instruction that gives the jury an opportunity to second-guess the court's decision to admit coconspirator declarations, otherwise inadmissible as hearsay, is reversible eror prejudicing the defendant. To the contrary, it has been generally held that, so long as the court fulfills its responsibility to make the initial determination, such a charge only provides a windfall to the defendant.
Furthermore, defendants did not object to this portion of the charge; at the charging conference Stillman's attorney conceded that the instruction was more favorable to defendants than they were entitled. Tr. 4710. At trial it was the government which objected to the instruction now challenged by appellants. Tr. March 4, 1981 (charge of court), at 54-55. We find that the error in instructing the jury to make a superfluous finding was not prejudicial.
In summary, we are satisfied that the district court understood its obligation to make a finding based on evidence aliunde of the exiswtence of a conspiracy of which each defendant was a member before allowing the jury to consider any coconspirator declarations against that defendant. It would, of course, have been preferable for the court to have more clearly articulated on the record its determination and the bases for them, but we have never made that an absolute requirement. United States v. Continental Group, Inc., 603 F.2d at 457, 460. It is also true that the court was not always as precise or as clear as it might have been. But this was a complex trial, with a record running to several thousand pages. Having reviewed the record as a whole, we are not prepared to conclude that the occasional confusion evidenced in the record was such as to constitute reversible error.
3. Sufficiency of the Evidence Aliunde.
We must still review the evidence to determine if the district court had "reasonable grounds" to make its finding. United States v. Continental Group, 603 F.2d at 460; United States v. Bey, 437 F.2d at 196. We do not understand appellants Ghassan, Judith, and McFayden to seriously challenge the sufficiency of the evidence aliunde to support a finding of their participation in the conspiracy; in any event, we are satisfied that it was more than sufficient to do so. Appellant Stillman, however, does vigorously contest the finding of his participation in the conspiracy. The evidence aliunde as to him is substantially less, but we conclude that it was nevertheless sufficient to support the court's finding.
The threshold evidence offered by the government need not be overwhelming. The preponderance standard simply requires the prosecution to present sufficient proof leading the trial judge to find "that the existence of the contested fact is more probable than its nonexistence." United States v. Trotter, 529 F.2d at 812 n.8. Furthermore, in reviewing the district court's determination of proof of a defendant's participation in a conspiracy by a preponderance of the evidence aliunde, the evidence "must be considered in the light most favorable to the government." United States v. Provenzano, 620 F.2d 985, 999 (3d Cir. 1980).
Both Stillman and the government are in agreement that the strongest independent evidence against him was Welkie's testimony that during the July meeting with Stillman in Detroit, Ghassan told Welkie to get a package from their hotel room which Welkie knew to contain heroin, and that when he returned with the package Stillman told him to deliver it to an unidentified man whom Welkie had previously seen with Stillman and whom Welkie characterized as Stillman's friend. Stillman contends that this was insufficient to permit the trial court to make the threshold determination of Stillman's participation in the conspiracy. He claims that even this testimony could not be properly relied on because Welkie's description of the unidentified man as Stillman's friend was not shown to be based on his personal knowledge. However, the inculpatory aspect off Welkie's testimony lies not in the precise relationship between Stillman and the unidentified man, but rather in the fact that Stillman directed Welkie to deliver a package which Welkie knew to contain heroin to the man. As to that, Welkie's testimony makes clear that he was speaking from personal observation.
We find similarly unpersuasive Stillman's contention that Welkie's testimony must be discounted because the trial court improperly limited his impeachment of Welkie and generally failed to consider Welkie's credibility in making its "preponderance" finding. While Stillman's cross-examination of Welkie was limited in some respects, there was ample cross-examination as to the two principal matters Stillman relies on as impeaching, i.e., Welkie's prior inconsistent statements to government officials and to the grand jury and his use of drugs. Since these matters were placed in evidence, we believe that any additional cross-examination by Stillman would have been merely cumulative.We find no support for Stillman's suggestion that the trial court failed to consider Welkie's credibility in making its determination based on a preponderance of the evidence.We will not assume that the court ignored a portion of the evidence before it simply because its ultimate determination was unfavorable to appellant.
In addition to Welkie's testimony as to the delivery of the package there was additional independent evidence, albeit largely circumstantial, of Stillman's participation in the conspiracy. This evidence included testimony of the repeated meetings between Stillman and various members of the conspiracy coinciding with the heroin importations, Rossi's testimony that on one of the trips to Detroit for a meeting with Stillman he saw heroin in the trunk of Ghassan's car, and Welkie's testimony that on another trip to Detroit, Ghassan obtained some heroin from Welkie, then met with Stillman, and was shortly thereafter seen by Welkie with between $30,000 and $35,000 in cash in his hotel room. Mere association with those who have conspired cannot alone support a conviction for conspiracy. United Stes v. Torres, 519 F.2d 723, 725-26 (2d Cir.), cert. denied, 423 U.S. 1019, 96 S. Ct. 457, 46 L. Ed. 2d 392 (1975). On the other hand, the timing and circumstances of a meeting or series of meetings may be sufficiently suspicious to permit a reasonable inference of complicity in the criminal enterprise. See United States v. Gonzalez, 700 F.2d 196, 203 (5th Cir. 1983); United States v. Baldarrama, 566 F.2d 560, 565 (5th Cir.), cert. denied, 439 U.S 844, 58 L. Ed. 2d 145, 99 S. Ct. 140 (1978); United States v. Torres, 519 F.2d at 726. Moreover, the issue before us is not whether the evidence aliunde was sufficient to support a judgment of conviction beyond a reasonable doubt, but rather whether the government has satisfied the far lesser burden to make a threshold showing of conspiracy by a preponderance of the evidence.
The only independent exculpatory evidence to which Stillman directs our attention is his impeachment of Welkie. In United States v. Provenzano, supra, appellant similarly argued that the only evidence aliunde against him came from "a biased liar." We rejected that contention on the ground that, on appellate review, the witness's statements "must be accepted as true for the purpose of determining the sufficiency of evidence." 620 F.2d at 999. We concluded that "[a]lthough the evidence is not overwhelming, and while it comes from only one witness whose veracity was certainly open to question, it was sufficient to establish a conspiracy and to tie [appellant] to that conspiracy." Id. at 1000. In this case, we have not only Welkie's testimony, but substanbtial circumstantial evidence based on the testimony of Rossi and others. We therefore conclude that the district court could reasonably have found Stillman's participation in the conspiracy by a preponderance of the evidence aliunde.
IN FURTHERANCE OF THE CONSPIRACY
The second requirement for the admission of out-of-court statements by coconspirators is that they be made in furtherance of the conspiracy. Appellants claim that the district court failed to observe this requirement as to a number of statements.
The most sweeping challenge on this ground is Stillman's contention that virtually all of the out-of-court declarations attributed to Ghassan were inadmissible as coconspirator statements because Ghassan was acting as a government informant when he made the statements, and hence they were not in furtherance of the conspiracy. It is undisputed that Ghassan, both prior to and during the period of the conspiracy, had acted as a confidential informant for both the DEA and Pennsylvania authorities. In fact, the basis of Ghassan's defense was that he had been acting as a government agent when he engaged in the action charged in the indictment. The government contended that as to the events charged in the indictment. Ghassan was acting on his own. The trial court was aware of Ghassan's theory of defense at the inception of the trial.*fn8 Thus, when it admitted Ghassan's statements, it implicitly rejected Stillman's claim that Ghassan's statements were not in furtherance of the conspiracy.*fn9 The jury reached a similar conclusion under the higher beyond a reasonable doubt standard since its verdict reflected its rejection of Ghassan's informant defense.*fn10
Stillman makes a similar challenge to the admission of a taped telephone call which Rossi placed to Ibraham at the instigation of the government shortly after Rossi's initial August 12 arrest. Its purpose was apparently to lure Ibraham back to the United States from Beirut. Stillman argues that since Rossi was concededly acting on behalf of the government at the time he placed the call, the conversation did not meet the in furtherance requirement of Rule 801(d)(2)(E). The trial court instructed the jury that because Rossi was acting as a government agent at the time he made the phone call, Rossi's statements could not be considered as evidence against any of the defendants and should be disregarded, but that Ibraham's statements, or anything said by Rossi and adopted by Ibraham, could be considered.
Stillman argues that the evidence was highly prejudicial because it included a statement by Rossi that he had attempted to contact Stillman after learning of the arrest of some of the conspirators, but that Stillman would not talk to him because "it looks like Marshall's [Stillman] scared or something." Stillman claims that the statement created a "false implication of Stillman's consciousness of guilt" because Rossi had never attempted to contact Stillman. Stillman's Brief at 34. To meet that concern, the court specifically called the jury's attention to the fact that Rossi had testified that he had not met or spoken to Stillman.
The primary significance of the Ibraham-Rossi conversation was not the statement on which Stillman focuses but instead was Ibraham's repeated mention off Stillman's name in connection with raising bail money for the arrested conspirators, which suggests his association with them. Since this fact was both relevant and probative, and could not have been considered if Rossi's half of the conversation was excised, the court did not err in admitting it, particularly in view of its cautionary instructions. See United States v. Smith, 623 F.2d 627, 631 (9th Cir. 1980).*fn11
Both Stillman and Judith claim that certain out-of-court statements should not have been admitted because they constituted narratives of past events and thus were not in furtherance of the conspiracy. Judith challenges the admissibility of Ghassan's statements to Welkie and Rossi that when he and Judith returned from Beirut on July 4 they had been checked well at customs, but that the heroin concealed in their baby's diaper and Judith's vagina had not been found. Stillman challenges Ibraham's statement to Ghassan, Judith and Welkie, as recited by Welkie, that Stillman owed them a lot of money for the last shipment of heroin and would have to pay up before he could get another package. Statements between the conspirators which provide reassurance, serve to maintain trust and cohesiveness among them, or inform each other of the current status of the conspiracy further the ends of the conspiracy and are admissible so long as the other requirements of Rule 801(d)(2)(E) are met. See United States v. Mason, 658 F.2d 1263, 1270 (9th Cir. 1981); United States v. Goodman, 605 F.2d 870, 878 (5th Cir. 1979). Such statements are more than "mere narratives" of past events. See United States v. Eubanks, 591 F.2d 513, 520 (9th Cir. 1979). They differ from the statements made in United States v. Provenzano, supra, relied on by appellants, which had been made to non-members of the conspiracy who had no need to know about the matters disclosed.
We are somewhat more troubled by Judith's testimony that when Ghassan was in the Erie County Jail following his arrest, he told her to try to raise money for his bail by contacting Stillman, who owed them $250,000 for heroin, if she could not get an advance from one of their business customers. Stillman contends that because the conversation took place after Ghassan's arrest, it was not in furtherance of the conspiracy. However, the arrest of a conspirator does not necessarily terminate his or her involvement in the conspiracy. See United States v. Killian, 639 F.2d 206, 209 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S. Ct. 3014, 69 L. Ed. 2d 394 (1981). Ghassan's revelation to Judith of his relationship with Stillman was for the purpose of enabling her to collect money owed as a result of the heroin transactions. The infurtherance requirement must be given the same practical interpretation as the pendency requirement. The distribution of the proceeds of a conspiracy is one of its central objectives, and statements which are directed to that purpose must be considered to be in furtherance of the conspiracy. See United States v. Fortes, 619 F.2d 108, 117 (1st Cir. 1980); United States v. Hickey, 596 F.2d 1082, 1089-99 (1st Cir.), cert. denied, 444 U.S. 853, 62 L. Ed. 2d 70, 100 S. Ct. 107 (1979); United States v. Patton, 594 F.2d 444, 447 (5th Cir. 1979).*fn12
DURING THE COURSE OF THE ...