The opinion of the court was delivered by: TROUTMAN
Defendants Louis and Josephine DeMaise, moving for a new trial and/or judgment of acquittal, assert generally that their convictions are not supported by record evidence, that antagonistic defenses between themselves and co-defendants deprived them of a truly fair trial, that statements made by co-conspirators were improperly admitted against them and that we erred in denying their motions for judgment of acquittal at the close of the government's case. We will deny these motions for the reasons set forth below. We will also deny defendant Newell's motion to dismiss the indictment because of the purported under-representation of women from the office of grand jury foreperson.
Whether the DeMaises are entitled to a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) requires reference to the evidence adduced at trial and consideration of whether all the inferences drawn therefrom, when viewed in the light most favorable to the government, support the finding of guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978); Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942), United States v. Joseph, 526 F. Supp. 504, 506 (E.D. Pa. 1981). Cf., United States v. Dixon, 658 F.2d 181, 188 (3d Cir. 1981). (This same standard, deferential to the verdict winner, is employed by appellate courts when reviewing the decision to grant a defendant's Rule 29(c) motion).
Motions for a new trial, pursuant to Fed. R. Crim. P. 33, are, on the other hand, broadly committed to our "sound discretion". United States v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982); United States v. Friedland, 660 F.2d 919, 931 (3d Cir. 1981), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1283, 102 S. Ct. 2268 (1982); United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976). This rule is "especially" true where, as here, the court sat as the factfinder. United States v. Jacobson, 236 F. Supp. 577, 578 (E.D. Pa. 1964).
A review of the record as to Josephine DeMaise demonstrates she was charged in Count I of a fifty-eight count indictment. In that count, it was charged that Josephine DeMaise conspired, along with thirteen others, to distribute heroin in violation of Title 21 U.S.C. § 846. The Court found Josephine DeMaise guilty of the charged offense after a bench trial which ended in early June of this year.
The evidence adduced against Josephine DeMaise reveals that defendant Anthony DeAngelis was receiving packages of heroin in this mail from defendant Avrim Weiner. DeAngelis conspired to distribute this heroin through his co-defendants, one of which was Josephine DeMaise. Her involvement in the scheme generally revolved around making appointments for her husband, Louis, who purchased heroin from DeAngelis.
Specifically, the evidence adduced by the government proves that on October 14, 1981, Josephine DeMaise called DeAngelis and was advised in a coded, but understood way, that heroin had just arrived at the DeAngelis household. At that time, she made an appointment for her husband to purchase the drug. (Tape 7, Log 19).
Three days later, on Saturday, October 17, 1981, Josephine DeMaise again called DeAngelis. Inquiring in a knowing manner and on behalf of her husband, she asked whether anything was "happening", i.e., whether an additional package of heroin had arrived. DeAngelis responded in the negative but suggested that she call back on Monday. (Tape 10, Log 17). Josephine DeMaise complied with this instruction and called back on Monday, October 19, 1981. (Tape 12, Log 10). DeAngelis was not at home; Josephine spoke with DeAngelis' girlfriend, defendant Linda Peck. Josephine then stated that she would call DeAngelis back in half an hour. Half an hour later she called back and again spoke with Peck. (Tape 12, Log 13). Thereafter, Louis DeMaise spoke with DeAngelis who advised that the anticipated heroin-laden package should arrive at four-thirty.
These conversations prove that Josephine DeMaise acted as a knowing and willing participant in the distribution scheme as alleged in the indictment. Most critically, they demonstrate that she had foreknowledge and could anticipate when heroin shipments would arrive from defendant Weiner. Accordingly, we conclude that her motion for judgment of acquittal is properly denied.
Louis DeMaise's involvement in Count I parallels Josephine's. Indeed, much of Josephine's activities with regard to the conspiracy were in aid of Louis' conspiratorial conduct. However, Louis DeMaise's involvement is broader than that of his wife. For example, the evidence establishes that on October 23, 1981, DeAngelis was suffering from a dwindling heroin supply. (Tape 16, Log 10). On that same day, Louis DeMaise spoke with DeAngelis. Louis DeMaise asked DeAngelis whether he was "still happening", i.e., whether DeAngelis had any heroin to distribute. DeAngelis responded that he was out of heroin and that he, DeAngelis, had called Louis DeMaise "to find out how long it is going to be". (Tape 16, Log 18). During this conversation, which also forms the basis of Count 44,
Louis DeMaise told DeAngelis that he, DeMaise, would be able to meet with DeAngelis on the following Monday, October 26, 1981. During the interim, October 24-25, DeAngelis was virtually out of heroin. (Tape 18, Log 3).
The next Monday, October 26, 1981, DeAngelis and Louis DeMaise met at the DeMaise household; Louis DeMaise conveyed heroin to DeAngelis at that time.
The evidence also demonstrates that the DeMaises had planned to make the trip from their Cinnaminson, New Jersey, home to the DeAngelis residence in Boyertown, Pennsylvania, on October 26, 1981. While enroute, however, they experienced car trouble. DeAngelis met them at a gas station and drove them back to their house. The evidence established that after DeAngelis met with Louis DeMaise, he, DeAngelis, once again had heroin for sale.
At trial, the government contended that Louis DeMaise conveyed heroin to DeAngelis on October 26. The transaction occurred while the two men were at the DeMaise household. The government's proofs were largely circumstantial. Specifically, the government argued that DeAngelis had a dwindling heroin supply during the relevant time and sought to obtain heroin from Louis DeMaise. After the pre-arranged meeting between the two men, ...