Appeal from the United States District Court for the District of New Jersey - Newark, District Judge, Honorable Dickinson Debevoise.
Aldisert, Chief Judge, Sloviter, Circuit Judge, and Mansmann, District Judge*fn*
This case presents a host of issues arising from the prosecution of a number of individuals involved in a large scale narcotics distribution conspiracy. Of the 46 individuals indicted for participation in the conspiracy, ten defendants went to trial before a jury. The jury convicted the eight appellants before us on a variety of charges, including violating 21 U.S.C. § 846 by conspiring to "distribute and possess with intent to distribute quantities of narcotic drug controlled substances and controlled substances," (count 4); participating in a RICO conspiracy and committing a substantive RICO violation (counts 1 and 2); and use of a telephone to facilitate the narcotics conspiracy in violation of 21 U.S.C. § 843(b) (counts 25, 31, 56, and 59).
Appellants raise a multitude of issues on appeal, covering nearly every aspect of the trial. We affirm in all respects, and will address appellants' arguments seriatim.*fn1
The jury convicted the eight appellants of narcotics related charges arising out of a conspiracy operating under the auspices of a purportedly charitable organization, Concern for the Handicapped. The organization was supervised primarily by Nicholas "Nicky Boy" Valvano and his lifelong friend, Stanley Buglione. Although the charity sponsored events that seemingly benefitted the elderly and the handicapped, the main purpose of the organization was the distribution of narcotics.
A social club rented by the organization, at 79 Davenport Avenue, became the clearinghouse for the conspiracy's operations. Appellants, all participants in the organization, trafficked in such drugs as cocaine, speed, and quaaludes. The chain of distribution stretched through several counties in New Jersey and into New York State. Appellants participated in the conspiracy in several ways, including directly buying and selling drugs for the organization, acting as middlemen in the sale of drugs to Concern for the Handicapped, and themselves supplying drugs to the organization.
The primary evidence introduced by the government at trial included transcripts of numerous narcotics-related telephone conversations obtained through wiretaps. The government also relied on the testimony of two key members of the conspiracy, Buglione and Albert "Moose" Suppa. On the basis of this evidence, the jury convicted all eight appellants. We now turn to the contentions raised by appellants in this appeal.
Appellants' main contention is that the district court erred in admitting into evidence the statements of Valvano, a coconspirator. They contend that the government failed either to demonstrate the unavailability of the coconspirator or produce him at trial, as required by the confrontation clause, and therefore the statements could not be admitted. Because resolution of the issue involves the interpretation and application of legal precepts our standard of review is plenary. Universal Minerals vs. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981).
At the outset, we note that the district court correctly determined that to admit the coconspirator's statements, it must rule both that the statements have the required indicia of reliability, see United States v. Ammar, 714 F.2d 238, 256 (3d Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983), and that the coconspirator is unavailable. DiDonato App. at A183. The district court, however, based its finding of unavailability on the government's assertion that Valvano would not testify truthfully if he took the stand. Id. at A184. The credibility of a witness is not a proper ground for finding him to be unavailable for purposes of the confrontation clause. Notwithstanding this ruling, we still must affirm the judgment of the district court if the decision is correct, regardless of the correctness of the reasoning leading to that decision. Myers v. American Dental Association, 695 F.2d 716, 725 n. 14 (3d Cir. 1982), cert. denied, 462 U.S. 1106, 77 L. Ed. 2d 1333, 103 S. Ct. 2453 (1983). A careful examination of the record in this case convinces us that the government did meet the unavailability requirement.
United States v. Inadi, 748 F.2d 812 (3d Cir. 1984), established the constitutional requirements for the admission of statements of a coconspirator. Inadi requires that the coconspirator must be unavailable or be produced at trial, but permits the government to prove unavailability in a number of ways. Id. at 819. One of the ways in which a coconspirator may become unavailable is by claiming his fifth amendment privilege. This is precisely what Valvano did. Although Valvano did not take the witness stand in open court, he did appear before the court in chambers, in the presence of government and defense lawyers. A reporter present recorded the entire proceedings except when Valvano and his lawyer conferred privately. Valvano's lawyer participated by speaker phone, and at the direction of the court, entered his appearance in the case as Valvano's lawyer.
At the beginning of the proceedings in chambers, the court announced:
The purpose of this is to inquire whether or not Mr. Valvano is available to testify in this case, either on behalf of defendants or on behalf of the government.
In addition, the court later explained:
Let's turn to the problem in hand, which is the question of the extent to which the government's witnesses, Buglione and Suppa, can testify as to conversations of co-conspirators under the evidence rule and under the confrontation clause
Id. at A177-78. Thus, there is no question that the court conducted an inquiry as to the availability of Valvano.*fn2
The trial judge, within the "ambit of discretion" reserved to him, Inadi, 748 F.2d at 820 n. 7, was not required to rule on Valvano's unavailability only after Valvano had taken the witness stand in open court and claimed his privilege. In view of Valvano's appearance before the court in chambers and his assertion to the court that he would not testify -- assertions addressed to the court on the record in the presence of all counsel -- the confrontation clause does not require the futile act of calling Valvano to the stand in open court to testify only to have him refuse.
Nor does the recent case of United States v. Caputo, 758 F.2d 944 (3d Cir., No. 82-1791, Mar. 29, 1985), command a different result. In Caputo, we found the government had not met its burden on the unavailability issue because unavailability was based on the government's assertion that the coconspirator would invoke his fifth amendment privilege. Id. at . Here, however, the coconspirator himself testified at an in chambers hearing that he would claim his privilege. These assertions clearly were sufficient evidence on which the trial court could have found Valvano to be unavailable and thus correctly have admitted his hearsay statements.*fn3
Finally, appellants maintain that because the confrontation clause requires the government to make a "good faith effort" to obtain a witness' testimony, Inadi, 748 F.2d at 819, the government should have granted Valvano use immunity. Not only is this argument without merit, but appellants raise the issue in a tangential manner, never indicating whether the argument was presented to the trial court. See DiDonato Reply Brief at 5 n.3. The decision to grant immunity is reserved to the discretion of the executive branch. See In re Grand Jury Matter, 673 F.2d 688, 696 (3d Cir.)(Sloviter, J., concurring), cert. denied sub nom. United States v. Doe, 459 U.S. 1015, 103 S. Ct. 375, 74 L. Ed. 2d 509 (1982). Moreover, because the trial court had no opportunity to address this issue, we decline to reach it here. See Newark Morning Ledger Co. v. United States, 539 F.2d 929 (3d Cir. 1976).
Appellants moved for a new trial under F.R. Crim. P. 33 based on newly discovered evidence about a prior crime of Stanley Buglione, one of the government's key witnesses. Our standard of review for the denial of a Rule 33 motion is abuse of discretion. United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976).
In moving for a new trial on the ground of newly discovered evidence, appellants must meet a well established five part test:
(a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
Id.; United States v. Meyers, 484 F.2d 113, 116 (3d Cir. 1973). As correctly held by the court below, appellants are not entitled to a new trial because they could meet only the first two parts of the test.
The evidence pertaining to a jewel robbery in which Buglione participated clearly was newly discovered evidence, coming to light only after the conclusion of the trial, and was not available during trial through no fault of appellants. The evidence, however, was merely impeaching and almost certainly would not produce an acquittal. Buglione admitted to a minimum of twenty instances of unsavory conduct, ranging from infidelity to his wife to a conviction of misconduct in office while a public official. Government's brief at 31-32. If this evidence did not convince the jury to doubt Buglione's credibility, evidence of another relatively mundane crime would not be the "straw that broke the camel's back." Even if this evidence could convince the jury to disregard Buglione's testimony, the other evidence in the case was more than sufficient to sustain a finding of guilt.
Additionally, appellants Alongi and Mustacchio base their motion for a new trial on the theory that the government's failure to disclose Buglione's participation in the robbery violated Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). under Brady, a new trial is justified when "the evidence is material either to guilt or to punishment . . . ." Id. at 87. In United States v. Oxman, 740 F.2d 1298, 1313 (3d Cir. 1984), we held that:
Defense counsel has a substantial basis for
claiming the materiality of evidence ...