U.S. v. Derosa

• Decision Date: 11 January 1977
• Docket Number: No. 76-1642,No. 76-1643,Nos. 76-1642,76-1643,76-1642,s. 76-1642
• Citation: 548 F.2d 464
• Parties: UNITED STATES of America v. Kenny DeROSA a/k/a Pup, Appellant in, et al. Appeal of Brando ROSETTA, in
• Court: U.S. Court of Appeals — Third Circuit

Page 464

548 F.2d 464

UNITED STATES of America v. Kenny DeROSA a/k/a Pup, Appellant in No. 76-1642, et al. Appeal of Brando ROSETTA, in No. 76-1643.

Nos. 76-1642, 76-1643.

United States Court of Appeals Third Circuit.

Argued Oct. 21, 1976.

Decided Jan. 11, 1977.

Robert E. J. Curran, U. S. Atty., E. D. Pa., Jerome M. Feit, William C. Brown, Attys., Dept. of Justice, Washington, D. C., for appellee.

John Rogers Carroll, Philadelphia, Pa., for appellant, Kenny DeRosa.

I. Leonard Hoffman, Philadelphia, Pa., for appellant, Brando Rosetta.

Before STALEY, ^* HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

The government's opening at the start of a criminal trial which charged both conspiracy and substantive offenses consisted in large part of a verbatim reading of certain wiretap transcripts through which the government claimed that it would prove the five substantive counts against appellant DeRosa. During trial, the wiretap evidence was excluded, and the substantive counts to which they related were dismissed. On appeal both appellants contend that the jury's exposure to the inadmissible wiretap transcripts prejudiced their trial on the conspiracy counts, requiring reversal of their conspiracy convictions. We are gravely disturbed by the government's abuse of the opening procedures; nonetheless, we are convinced by the record as a whole that the convictions must be affirmed.

I.

Defendants Kenny DeRosa and Brando Rosetta were indicted for having conspired together and with others to import (Count 1) certain controlled drug substances and with conspiring to distribute (Count 2) methamphetamine, one of those substances. ¹ In addition, DeRosa was charged in Counts 3 through 7 with using a communication facility (a telephone) to facilitate the distribution of methamphetamine. ² DeRosa and Rosetta were tried on these charges before a jury in the United States District Court for the Eastern District of Pennsylvania. The principal issue raised in their appeals stems from the statements of the government at the outset of trial. ³

Jury selection occupied the first day of trial. On the second day, the district court judge opened his remarks to the jury by saying:

Ladies and gentlemen of the jury panel, what you are going to hear this morning is the opening outline of the case of the Government. What you are going to hear counsel tell you when they make opening speeches to you is what the case is about and what they would like you to pay attention to, and what they think is the key part of the case they feel you should be most attentive.

Record at 2-2 (emphasis added).

The government attorney thereafter began his opening statement. First, he referred to the purpose of the opening procedure by stating that that purpose had already been explained by the court. After certain other preliminary remarks, he read Counts 1 and 2 (the conspiracy counts) to the jury.

He then read Count 3 to the jury, and summarized the substance of Counts 4, 5, 6 and 7, all of which pertained solely to DeRosa and charged the substantive offense of using the telephone on different dates to facilitate the distribution of controlled drugs.

He then stated:

That is not evidence. I have not said anything about what the Government's evidence is.

The Government feels it is very important to outline the case as fully as we can without losing you. I know how that can be sometimes.

I would like to go through the evidence now, and I hope everybody will try to remember it. It may be a week from now when you hear the evidence that I am going to relate to you now.

I would like to take the last counts first of the Indictment pertaining to the use of the telephone by the defendant Kenneth DeRosa. The evidence in this will be that in the fall of 1972 the United States Assistant had obtained a wiretap by a court order. In other words, this is electric surveillances. This was on the telephone where somebody was calling Mr. DeRosa. A court order was obtained and a proper tap was made by a technician of the Secret Service. A tap was on the telephone ordered by the Court, and the monitoring station was being run by agents of the Secret Service, and they will testify to the custody they maintained of them and the long for evidence, and how the transcript for certain calls were prepared.

The machine that is used to operate electric surveillances the machine used prints out the time of the call. There will be agents from the Drug Enforcement Administration who will identify the voices of certain people. These voices will be identified by agents who have talked to them in the past. They will identify a person by the name of Donald Tedesco, who is named in the Indictment, and they will identify Kenneth DeRosa as one of the speakers in the telephone call.

Now, the first call comes in on October 1, 1972, at 10:52. It was an outgoing call to (215) 534-4758.

Agents which will testify the subject subscriber of the particular number was Kenneth DeRosa of 104 Riverside Avenue, Prospect Park, Pennsylvania.

In this conversation Donald Tedesco asked for Pup, which various people in the trial will testify was the nickname for Kenneth DeRosa.

Record at 2-12 through 2-13. Thereafter, the transcripts were read, word for word. The reading of these transcripts by the government consumed some 22 pages of the trial record. The government's opening as a whole totals 52 pages of the trial record. Hence, almost 50 percent of the time used by the government in its opening was devoted to a verbatim reading of the wiretap transcripts.

Following the reading of these transcripts, and after some cursory explanations concerning the conspiracy charges, the government again read another page and a half of wiretap transcripts involving DeRosa and an informer. This was followed immediately by the government's concluding remarks:

The Government feels that (this last-quoted transcript) is a damaging admission on the part of Mr. DeRosa. He knew he was being investigated and he was trying to keep tabs on who would testify against him.

We feel it is fitting to end our opening statement on that note because we feel that when this proof is offered into evidence, you have heard the live witnesses, and you have heard the wiretap conversations, you will know exactly the type of man that is here and what he has got. We feel we will have met our burden of proof.

Record at 2-55.

At no time did either defense counsel (or the court) interrupt the government's opening or reading of the transcripts. At no time during the opening was an objection made or a sidebar conference requested. At the conclusion of the government's opening no motion for a mistrial was made. In fact, the only statements made by defense counsel appear in the record as:

Mr. Hoffman (Counsel for Rosetta): At this time I would like to reserve my opening speech.

Mr. Carroll (Counsel for DeRosa): The same, sir.

Record at 2-55 through 2-56.

Testimony began the next day. The government presented compelling evidence that the appellants were key links in a methamphetamine distribution network with its source of supply in Canada and its base of operations in and around Philadelphia. One William Ramsey, testified to arranging for the transportation of the drugs from Canada to Philadelphia, while other indicted and unindicted co-conspirators testified as to their roles in the scheme. A pattern emerged: in a typical transaction, DeRosa and Rosetta would arrange to meet with Ramsey and would pay Ramsey for his delivery. The shipment would then be broken down for distribution.

The trial was in its fifth day when the government sought to introduce into evidence the wiretap transcripts which had been read to the jury during the opening. The district judge ruled them inadmissible, because:

(t)he tapes fail to declare any language from which the jury could determine that the narcotics sought to be purchased were illegally imported. In this regard, I don't think a mere expression of possible future wrongdoing is enough to establish (a § 843(b) violation).

Record of November 21, 1975 at 12. ⁴ The government's case had already been completed as to the conspiracy counts. The ruling that the wiretaps were inadmissible ended presentation of the government's case against DeRosa on the "communication" counts.

Both defendants chose to rest without producing evidence. At an in-chambers hearing, the district court judge announced that he would direct a verdict of not guilty on Counts 3 through 7, the substantive "communication" counts in which DeRosa alone was named as a defendant. Proposed points for charge were then considered by counsel and the court. ⁵ Finally, it was time for the closing arguments.

The district court judge, in his remarks preliminary to the closing arguments, charged:

You will hear that what the lawyers tell you is not evidence. It is not evidence. It is merely argument.

Record of November 21 at 10. Then, just before the government began its closing statement, defendants' counsel offered their first and only reaction to the government's opening made four days earlier. The motion and the court's response are recorded as follows:

MR. CARROLL: May I see you for two seconds?

(The following took place at side bar.)

MR. CARROLL: It's a motion for mistrial on the grounds that the Government ran (sic ) in its opening speech at length from wiretaps which the Court has now excluded from evidence, and the jury has heard them from the Government, but they are not in evidence, and I think we are prejudiced by the reading.

MR. HOFFMAN: I join in that motion.

THE COURT: I will deny the motion.

Let's go on, please.

(End of side bar discussion.)

Id.

The closing argument of the government followed. No mention was made of the wiretaps. Similarly, neither of the defendants' closing arguments referred to or even mentioned the transcripts or the failure of the government to produce in evidence the transcripts which it...