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UNITED STATES v. GAMBINO

November 9, 1989

UNITED STATES OF AMERICA
v.
FRANCESCO GAMBINO



The opinion of the court was delivered by: BECHTLE

 Presently before the court is the motion of defendant Francesco Gambino for judgment of acquittal pursuant to Fed.R.Crim.P. 29. For the reasons set forth herein, defendant's motion will be denied.

 I. BACKGROUND

 Defendant Francesco Gambino was indicted on three counts of conspiracy to violate the federal narcotics laws. Count one charged a broad conspiracy to import multi-kilogram quantities of heroin from Sicily, Italy to the United States from in or about January 1984 to December 1, 1988 in violation of 21 U.S.C. § 963. Count two charged a conspiracy to distribute the heroin during the same period in violation of 21 U.S.C. § 846. Count three charged a conspiracy to distribute multi-kilogram quantities of cocaine from in or about January 1985 to December 1, 1988 in violation of 21 U.S.C. § 846. Gambino was tried before a jury with six codefendants and found guilty on counts one and two. *fn1"

 At the close of the government's case, defendant Gambino made a motion under Fed.R.Crim.P. 29 for judgment of acquittal on all counts. *fn2" Defendant alleged that hearsay testimony provisionally admitted under the coconspirator declaration exception to the hearsay rule set forth in Fed.R.Evid. 801(d)(2)(E) was inadmissible since the government had failed to prove by a preponderance of the evidence that Gambino was a member of the conspiracies outlined in the indictment. Defendant further argued that if the hearsay declarations were inadmissible, the government lacked sufficient evidence to sustain a conviction. The court denied the motion without prejudice to renew at the close of all the evidence.

 At the close of the evidence, defendant renewed his motion under Rule 29. The court granted the motion and entered judgment of acquittal on count three, but reserved ruling as to counts one and two until the post-verdict stage. *fn3" The case against Francesco Gambino was then sent to the jury on counts one and two and a verdict of guilty was returned on both counts. *fn4" Defendant Gambino now moves the court to revisit his motion under Rule 29.

 A. Admissibility of Coconspirator Declarations

 Federal Rule of Evidence 801(d)(2)(E) states, "A statement is not hearsay if . . . the statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Steeped in principles of agency law, the exception was rooted in the proposition that:

 
When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a "partnership in crime". What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all.

 Van Riper v. United States, 13 F.2d 961, 967 (2d Cir.), cert. denied, 273 U.S. 702, 71 L. Ed. 848, 47 S. Ct. 102 (1926) (L.Hand, J.), quoted in, 4 J. Weinstein & M. Berger, Weinstein's Evidence para. 801(d)(2)(E)[01], at 801-233 (1988). See also United States v. Trowery, 542 F.2d 623, 626-27 (3d Cir. 1976) (per curiam), cert. denied, 429 U.S. 1104, 51 L. Ed. 2d 555, 97 S. Ct. 1132 (1977).

 Prior to the enactment of the Federal Rules of Evidence in 1975, this coconspirator declaration exception to the hearsay rule required proof aliunde, or independent evidence apart from the hearsay statement itself, sufficient to establish that both the declarant and the defendant were members of the alleged conspiracy and that the statement was made in its course and in furtherance of its goals. See Glasser v. United States, 315 U.S. 60, 74, 86 L. Ed. 680, 62 S. Ct. 457 (1942). The requirement of independent proof stood guard against the unbridled use of vicarious admissions in conspiracy cases, lest the hearsay "lift itself by its own bootstraps to the level of competent evidence." Glasser, 315 U.S. at 75. See also United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974).

 In Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987) the Supreme Court found that the enactment of the Federal Rules of Evidence fundamentally changed the law in this area. After establishing that it is the province of the court to determine by a preponderance of the evidence whether the defendant and the declarant were members of the alleged conspiracy and whether the hearsay statement was made during its course and in furtherance of its goals, Chief Justice Rehnquist's opinion for the Court went on to hold that Federal Rules of Evidence 104(a) *fn5" and 1101(d)(1) *fn6" overruled Glasser's requirement of proof aliunde as a strict condition of admissibility. 107 S. Ct. at 2780-82. The Court stated that "Rule 104 . . . allows the court to make the preliminary factual determinations relevant to Rule 801(d)(2)(E) by considering any evidence it wishes, unhindered by considerations of admissibility." 107 S. Ct. at 2780 (emphasis added).

 The Bourjaily Court confronted Glasser's bootstrapping argument on two distinct levels. First, the Court stated that it was bound by conventional methods of statutory interpretation:

 
It would be extraordinary to require legislative history to confirm the plain meaning of Rule 104. The Rule on its face allows the trial judge to consider any evidence ...

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