Kinkle next asserts that the court improperly admitted evidence of acts and statements of alleged co-conspirators which took place after he had withdrawn from the conspiracy.
The law in this circuit on withdrawal is firmly established. Once the government has demonstrated by a preponderance of the evidence that the defendant was a member of a conspiracy, the defendant must do more than show he has ceased contact with other co-conspirators. Instead, he must "present evidence of some affirmative act of withdrawal on his part, typically either a full confession to the authorities or communication to his co-conspirators that he has abandoned the enterprise and its goals." United States v. DePeri, 778 F.2d 963, 980 (3d Cir. 1985) (citing United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978); United States v. Steele, 685 F.2d 793 (3d Cir.), cert. denied, 459 U.S. 908, 103 S. Ct. 213, 74 L. Ed. 2d 170 (1982)).
If the defendant has made a prima facie showing of withdrawal, the government then must rebut this showing either by impeaching the defendant's proof or by offering evidence that the defendant was engaged in conduct in furtherance of the conspiracy after the claimed act of withdrawal. United States v. Steele, 685 F.2d 793, 804 (3d Cir.), cert. denied, 459 U.S. 908, 103 S. Ct. 213, 74 L. Ed. 2d 170 (1982); United States v. Lowell, 649 F.2d 950, 959-60 & n.16 (3d Cir. 1981).
I found and defendant does not seriously controvert that defendant was a member of a quaalude-distribution conspiracy prior to June, 1983. Consequently, the burden was on Kinkle to produce evidence of an affirmative act of withdrawal. In his post-trial motion, defendant attempts to shoulder this burden by pointing to language in three telephone conversations he had with Ponzio.
First, Kinkle relies on his assertion to Ponzio in a June 8, 1983, telephone call that "I don't want you to be involved and I don't wanna be involved." See government transcript no. 4, at 5 (June 8, 1983). Second, he points to another call in the same day, in which he promises to provide Ponzio with his new telephone number but asks Ponzio not to give it to anyone else. Government transcript no. 5, at 2-4 (June 8, 1983). Finally, Kinkle relies on his statement to Ponzio on June 14, 1983, that Ponzio should not tell anyone else that he, Kinkle, was moving to Vero Beach, was "finished," and "just wants to relax." Government transcript no. 7, at 14, 19 (June 14, 1983). Kinkle asserts that these statements mean that he did not want any further dealings in the conspiracy.
Even if these statements are given the meaning that Kinkle now seeks to attribute to them, Kinkle has not made a prima facie showing of withdrawal. In order for a communication of withdrawal to provide a prima facie showing of withdrawal, that communication must be reasonably calculated to reach the withdrawing conspirator's co-conspirators. See United States Gypsum Co., 438 U.S. at 464; United States v. Gillen, 599 F.2d 541 (3d Cir.), cert. denied, 444 U.S. 866, 62 L. Ed. 2d 89, 100 S. Ct. 137 (1979). I cannot find and Kinkle has not explained how these statements, made only to one co-conspirator, were reasonably calculated to reach any other co-conspirators that Kinkle knew.
Moreover, even if these verbal acts are sufficient to demonstrate a prima facie case, the government has proven that Kinkle was still a member of the conspiracy as of June 14, 1983. First, he takes the language upon which he relies out of context. Prior to June, 1983, Kinkle had begun to argue with another co-conspirator, Clifford Shinn. Ponzio had begun to argue with yet another co-conspirator, Steve Malta. Evidently, Malta and Shinn also were feuding at this time. Kinkle's purported withdrawal statements pertain only to his desire to disassociate himself from Shinn and the battle in which Shinn and Malta were engaging. The government's evidence showed Shinn, Malta, Ponzio, and Kinkle were not the only members of this conspiracy.
Therefore, Kinkle's statement expressed at most only the desire not to be personally involved with one and possibly two members of a much larger conspiracy, not to withdraw from the conspiracy itself.
Furthermore, in the very conversations on which Kinkle relies to show withdrawal, Kinkle demonstrates a willingness to consummate additional quaalude transactions with Ponzio. Two days before the June 8, 1983, conversation, Ponzio met Kinkle at the Cove Restaurant in Deerfield Beach, Florida, and told Kinkle that he would be unable to repay Kinkle $20,000 he owed for prior drug deals. N.T. at 14 (May 30, 1985). Kinkle told Ponzio that Ponzio could work off the debt by doing future drug deals, including bootleg quaalude transactions. Id. at 15. During the first telephone conversation of June 8, 1983, Ponzio and Kinkle discuss that they have "business to take care of" and that they will get their "act together." Government transcript no. 4, at 3, 5 (June 8, 1983). In the second conversation on June 8, 1983, they discuss Ponzio's making a payment on the "car," and the possibility of Kinkle's obtaining the "rest of the parts" of the "car." Government transcript no. 5, at 2 (June 8, 1983). Ponzio testified that this meant that he was to make a payment on his balance for prior drug transactions and that he wanted to obtain additional quaaludes from Kinkle. N.T. at 20-21 (May 30, 1985).
On June 14, 1983, Ponzio and Kinkle talk about Ponzio's making a "deduction," which Ponzio interpreted as meaning that he wanted to purchase some additional quaaludes and reduce his balance. Government transcript no. 7, at 1-2 (June 14, 1983); N.T. at 23 (May 30, 1985). In that same conversation, they discuss doing a little "boxing,"which Ponzio testified meant boxes of quaaludes. Government transcript no.7 at 2, 6, 11, 14 (June 14, 1983); N.T. at 23-24, 26, 28-29 (June 14, 1985).
From Ponzio's testimony and the June, 1983, conversations, I conclude that Kinkle wanted to collect money Ponzio owed to him and consummate additional drug deals. Consequently, I find that even if Kinkle made a prima facie showing of withdrawal, the government proved that Kinkle remained a member of the conspiracy.
There was adequate, independent non-hearsay evidence establishing the existence of the conspiracy and connecting the declarants and the defendant to that conspiracy. The statements were made in furtherance of the conspiracy and during the course of the conspiracy. Therefore, it was proper to admit the statements. Similarly, it was not error to have admitted evidence of the acts of co-conspirators that took place after June, 1983.
Finally, Kinkle claims that this district was an improper venue for the telephone count. This argument was rejected prior to trial. See United States v. Kinkle, 624 F. Supp. 629 (E.D. Pa. 1985). The facts upon which my earlier opinion was predicated do not vary from those adduced at trial. Because I believe my pre-trial opinion is correct, Kinkle's venue objection is rejected.
[EDITOR'S NOTE: PAGINATION IN THE HARD COPY SOURCE ENDS AT THIS POINT.]
ORDER AND NOW, this day of March, 1986, defendant's motion for judgment of acquittal or a new trial is hereby denied.
Defendant shall appear for sentencing on April 16, 1986, at 9:30 a.m. in courtroom 6A.