the purity of heroin purchased by each of these defendants, and Samuels' activity as a conduit of money from defendant Friedman to DeAngelis, we disagreed and found them guilty. This brief and perhaps simplified, but nevertheless accurate, description of the defenses presented at trial does not admit to any antagonism.
Moreover, although defendants now claim that we should have granted their motions to sever, defendants have not made any "showing" of prejudice. United States v. Dickens, 695 F.2d 765, 779 (3d Cir. 1982). Indeed, it is difficult to imagine that any such showing could be made in light of the fact that the Court sat as trier of fact; the Court is capable of sorting out conflicting defense strategies. Thus, the DeMaises' unsubstantiated claims of prejudice have little merit.
The DeMaises also complain that we improperly permitted co-conspirator statements to be used against them and that we never specifically "found" that there was sufficient independent evidence to connect them with the conspiracy.
Courts need not, however, make any explicit "finding" that a conspiracy exists and that the defendant was a participant therein. In fact, when a court denies a defendant's Rule 29 motion at trial, it sub silentio determines that a fair preponderance of the independent evidence shows that defendant is a conspirator. United States v. Ammar, 714 F.2d 238, Slip op. at 11 (3d Cir. 1983), quoting, United States v. Trotter, 529 F.2d 806, 811 (3d Cir. 1976).
The government's evidence aliunde of a conspiracy "need not be overwhelming". United States v. Ammar, supra, 714 F.2d at 250. Indeed, the government carries its burden so long as the proof aliunde supports a finding that the "existence of the contested fact is more probable than its non-existence". United States v. Trotter, 529 F.2d at 812. Here again, the government's evidence must be considered in the light most favorable to the government. United States v. Provenzano, 620 F.2d 985, 999 (3d Cir. 1980).
The evidence adduced at trial showed that both Josephine and Louis DeMaise knew of and participated in a conspiracy to distribute heroin. Both demonstrated knowledge that DeAngelis procured the drug from a distant source and that illicit packages arrived on a semi-regular basis at the DeAngelis household. Not surprisingly, the DeMaises worked as a team; each one facilitating the activities of the other. We conclude that the independent evidence, tested under the standards announced in United States v. Ammar, supra, sufficiently proves a conspiracy between the DeMaises and others. Hence, it was not error to introduce co-conspiratorial statements.
The final argument made by the DeMaises is that we erred in denying their Rule 29 motion. We understand this as resurrecting the arguments made on behalf of the DeMaises at trial. The most cogent argument made by the DeMaises at that time was that the government had shown multiple, rather than a single, conspiracy. This is impermissible. Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946); United States v. Camiel, 689 F.2d 31 (3d Cir. 1982). We have reviewed the government's evidence as to a single conspiracy under the standards of United States v. DiPasquale, 561 F. Supp. 1338, 1348-52 (E.D. Pa. 1983) (Ditter, J.), and find that a single, unitary conspiracy was proven. We accordingly deny the DeMaises' post-trial motions.
We now turn briefly to defendant Newell's motion to dismiss the indictment because of alleged improprieties in selecting grand jury forepersons. Newell's specific contention is that females have been systematically under-represented in the position of grand jury foreperson.
Newell's motion to dismiss is supported by the affidavit of Dr. John Lamberth, an associate professor of psychology at Temple University. He swears that women are under-represented as grand jury forepersons in a statistically significant fashion. For example, his calculations reveal that during the relevant time 13.5% of all grand jury forepersons appointed in the Eastern District of Pennsylvania were women. This amounts to an absolute disparity of 40.1% from the percentage of women within the District, and a relative disparity of 74.8%. The probability of these numbers naturally occurring is assertedly less than 1 in 10,000.
Moreover, Dr. Lamberth attests that he has studied small group decisionmaking since 1972. His particular emphasis has been upon jury decisionmaking and he has studied the decisionmaking process in over 100 mock petit jury deliberations. Finally, Dr. Lamberth states that, within the context of his research, the foreperson is the most influential individual in jury deliberations.
This analysis is interesting but not legally compelling. We are not convinced, as a matter of law, that the office of grand jury foreperson is of constitutional significance. United States v. Musto, 540 F. Supp. 346, 361 (D. N.J. 1982). Moreover, the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. does not mandate that grand jury forepersons represent a fair cross-section of the community. United States v. Perez-Hernandez, 672 F.2d 1380, 1385 (11th Cir. 1982). Hence, we deny Newell's motion.
An appropriate order shall issue denying defendants' post-trial motions.
AND NOW, this 9th day of August, 1983, IT IS ORDERED that the post-trial motions of Josephine and Louis DeMaise to dismiss are DENIED.
IT IS FURTHER ORDERED that the motion of John Newell to dismiss for grand jury foreperson selection improprieties is DENIED.