U.S. v. Annese

• Decision Date: 22 September 1980
• Docket Number: 79-1540,Nos. 79-1539,s. 79-1539
• Citation: 631 F.2d 1041
• Parties: 7 Fed. R. Evid. Serv. 300 UNITED STATES of America, Appellee, v. Jerald ANNESE, Defendant-Appellant. UNITED STATES of America, Appellee, v. Nicholas TAVANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1041

631 F.2d 1041

7 Fed. R. Evid. Serv. 300

UNITED STATES of America, Appellee, v. Jerald ANNESE, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Nicholas TAVANO, Defendant-Appellant.

Nos. 79-1539, 79-1540.

United States Court of Appeals First Circuit.

Argued May 9, 1980.

Decided Sept. 22, 1980.

Angelo P. Catanzaro, Boston, Mass., with whom Richard J. Vita, Boston, Mass., was on brief for appellant, Jerald Annese.

Richard J. Vita, Boston, Mass., for appellant Nicholas Tavano.

Sarah B. Criscitelli, Atty., Dept. of Justice, Washington, D.C., with whom Edward F. Harrington, U.S. Atty., and Martin D. Boudreau, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief for appellee.

Before CAMPBELL and BOWNES, Circuit Judges, DAVIS, ^* Judge, U.S. Court of Claims.

BOWNES, Circuit Judge.

Jerald Annese and Nicholas Tavano, defendants-appellants, appeal a jury conviction of manufacturing methamphetamine ¹ in violation of 21 U.S.C. § 841(a)(1), and conspiring to commit that offense in violation of 21 U.S.C. § 846. Another defendant, Howard Sorofman, was acquitted on both counts.

There are three issues to be considered on appeal: (1) refusal of the district court to suppress evidence; (2) the exclusion of certain testimony; and (3) the district court's ruling and jury instruction on entrapment.

The Suppression Issue

The evidence was that defendants had rented the house of codefendant Sorofman for the weekend. The premises were under surveillance on Saturday and Sunday by D.E.A. agents. On Sunday morning, the agents observed Annese and Tavano dismantling and removing equipment that could be used for the manufacture of methamphetamine. They were arrested as they attempted to drive off with the equipment. Sorofman and his girl friend had returned to the house on Sunday prior to the arrest of defendants. Immediately after the arrest, D.E.A. agents went to the house, knocked on the door, identified themselves and told Sorofman they were there to secure the premises until a search warrant arrived. There was testimony by Agent Ritucci that Sorofman invited the agents inside. Although this was contradicted by Sorofman, it was a sound footing for the district court's finding that the agents were lawfully on the premises. The court also had a firm evidentiary basis for finding that probable cause for issuance of the warrant was independent of the agents' entry into the house. The court, as fact finder, was free to reject Sorofman's uncontroverted testimony that, pending the arrival of the search warrant, the agents roamed through the house, searched a closet and removed items from the house. "We see nothing that would upset the trial court's credibility finding." United States v. DiGregorio, 605 F.2d 1184, 1188 (1st Cir. 1979), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 179, 44 U.S. 983, 100 S.Ct. 489, 62 L.Ed.2d 411 (1980). We evaluate the district court's findings to determine if they were clearly erroneous. United States v. Romano, 583 F.2d 1, 7 (1st Cir. 1978); United States v. Christian, 571 F.2d 64, 66 (1st Cir. 1978).

Moreover, there is, as the district court indicated, a serious question as to whether appellants have standing to contest the search and seizure. They had vacated the premises before the search was made and the person who lived in the house had returned and was occupying the premises at the time of the search. See United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The Exclusion of Testimony

A synopsis of the pertinent evidence is necessary to understand this issue. The chief government witness was a drug dealer-informant, Thomas Busciglio, who lived in Virginia Beach, Virginia. Busciglio testified in detail as to his meetings and dealings with defendants. After the arrangements were made by his business associate Kathy Stokes, Busciglio and she came to Boston in October of 1978 to purchase methamphetamine. They were met by a man named Freedman who took them to the premises of the Hub Tool and Die Company which was owned and operated by Tavano. Busciglio remained in the car while Stokes and Freedman went into the building. After testing a sample brought to him by Stokes, Busciglio authorized the purchase of a quantity of methamphetamine. Busciglio did not meet the defendants at this time, but saw them come out of the building with the sample.

Busciglio and Stokes returned to Boston in early November to purchase more methamphetamine. This time he was introduced to defendants by Stokes. The defendants, Stokes, and Busciglio went to Tavano's house where the process of making methamphetamine was discussed. At that time, Busciglio was told by defendants that it was difficult for them to obtain P2P and if he could obtain some, they would work out a deal. P2P, which is the most important precursor ingredient, is mixed with phenyl acetone, mono-methylamine and aluminum to make methamphetamine. After Busciglio returned to Virginia, he bought six five-milligram bottles of P2P ² which he brought with him when he and Stokes returned to Boston in late November of 1978. This was turned over to the defendants on the understanding that there would be a fifty-fifty split of the methamphetamine made from it.

In February of 1979, Busciglio was contacted by a D.E.A. agent who had learned of his prior purchase of P2P. After some preliminary sparring, Busciglio agreed to cooperate with the D.E.A. He returned to Boston on March 6, 1979, apparently without Stokes, and met with D.E.A. agents at their office. At that time, a box containing P2P, furnished by the D.E.A., was given to him. Unknown to Busciglio, a beeper which transmitted radio signals was concealed in the box. Busciglio then went to his motel room accompanied by D.E.A. Agent Burrows and called Tavano. Arrangements to meet defendants were made so that the P2P could be delivered to them. Eventually, the P2P was placed in Tavano's vehicle. The D.E.A. agents kept Busciglio under surveillance until the box of P2P was transferred to Tavano's automobile. Thereafter, the defendants were kept under surveillance through the radio signal transmitted by the beeper.

The chief defense of both defendants was entrapment. Annese took the stand and testified in effect that neither he nor Tavano knew how to manufacture methamphetamine and that it was Busciglio who supplied the formula for making it. Annese claimed that neither he nor Tavano had made any methamphetamine until March of 1979, and that they did so at the instigation of Busciglio and with the P2P supplied them by him. As already indicated, Busciglio's testimony was that Annese and Tavano were already in the business of manufacturing methamphetamine and all he did was supply the P2P.

Defendant Tavano called Stokes as a witness to contradict Busciglio's testimony that it was defendants, not he, who were engaged in the manufacture of methamphetamine. Tavano hoped to prove through Stokes' testimony that Busciglio had entrapped him into making the methamphetamine which precipitated their arrest and indictment. Prior to Stokes taking the stand, the court appointed counsel to advise her of her rights. Her counsel informed the court that she would invoke her fifth amendment right against self-incrimination. A voir dire hearing was held at which Tavano's attorney asked a series of questions, which, if answered as hoped, would have tended to impeach Busciglio's testimony. Stokes refused to answer any questions on fifth amendment grounds. Tavano then asked to be allowed to call his codefendant Annese who had already testified. It was represented to the court that Annese would testify that Stokes had told him that Busciglio had told her that, in order to avoid prosecution for dealing in drugs, he had decided to "set up" the defendants for the "feds." Tavano also represented that Annese would testify to other statements by Stokes, as indicated by the voir dire questions, that impeached Busciglio's testimony. The court refused to allow Annese to testify. Tavano claims that the testimony should have been admitted as an exception to the hearsay rule under Fed.R.Evid. 804(b)(3) as a statement against penal interest.

We preface our analysis by rejecting the government's contention that this was a matter exclusively within the discretion of the trial court. This was not a question of determining the proper scope of cross-examination of a witness for purposes of attacking credibility as in the case relied upon by the government, United States v. Nogueira, 585 F.2d 23, 25 (1st Cir. 1978). The main defense here was entrapment. The key issue was the predisposition of the defendants. If the statement met the requirements of the rule, then it should have been admitted. Fed.R.Evid. 804(b)(3) excludes from the hearsay rule:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In United States v. Barrett, 539 F.2d 244, 249-53 (1st Cir. 1976), we discussed the history and purpose of Fed.R.Evid. 804(b)(3). We concluded that "(a)s finally enacted, Rule 804(b)(3) requires a two-stage analysis: first, do the offered remarks come within the hearsay exception as a 'statement against interest'? and second, if they do, is there sufficient corroboration to clearly indicate trustworthiness?" Id. at 251. See also United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978); United States v. Benveniste, 564 F.2d 335, 341 (9th Cir. 1977).

While it might be debatable whether the purported statements...