U.S. v. Fontanez, 79-1608

• Decision Date: 12 August 1980
• Docket Number: No. 79-1608,79-1608
• Parties: 7 Fed. R. Evid. Serv. 211 UNITED STATES of America, Plaintiff-Appellee, v. Alberto Cruz FONTANEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 687

628 F.2d 687

7 Fed. R. Evid. Serv. 211

UNITED STATES of America, Plaintiff-Appellee, v. Alberto Cruz FONTANEZ, Defendant-Appellant.

No. 79-1608.

United States Court of Appeals, First Circuit.

Argued May 5, 1980.

Decided Aug. 12, 1980.

Jose C. Aponte, Jr., Santurce, P. R., by appointment of the court for defendant-appellant.

Justo Arenas, Fernandez, Asst. U. S. Atty., Hato Rey, P. R., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant, Alberto Cruz Fontanez, appeals a jury conviction of conspiring with his brother, ¹ Anibal Cruz Fontanez, and others unknown, to possess and distribute approximately 15,000 grams of cocaine (Count I) and using the telephone to facilitate the distribution ² of about 10,000 grams of cocaine (Count II).

Defendant makes three assignments of trial error: (1) the admission of hearsay statements of the named coconspirator, (2) the admission of testimony of a government witness, and (3) the admission into evidence of a tape recording containing statements by the defendant and the named coconspirator. Defendant also claims that the district court erred in setting aside its own order granting a new trial.

The admission of the coconspirator's hearsay statements is attacked primarily because the court failed to find that a preponderance of the evidence showed "that the declarant and the defendant were members of a conspiracy when the hearsay statement was made and that the statement was in furtherance of the conspiracy." United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). See also United States v. Martorano, 557 F.2d 1 (1st Cir. 1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978). Because of some misunderstanding as to how and when during a trial the Petrozziello rule is to be applied, we have recently explicated the procedure to be followed. United States v. Ciampaglia, et al., No. 79-1269 (1st Cir. July, 1980). Under Ciampaglia, the district court must make a final Petrozziello determination on the record at the close of all of the evidence out of the hearing of the jury. Defendant argues that it was error for the court not to hold either a pretrial hearing or a hearing outside of the presence of the jury to determine whether the government could meet the preponderance of the evidence test before admitting the hearsay statements. We have not held that such procedure is required and did not do so in Ciampaglia. Appellant offers no argument that convinces us that this is a case where a hearing was mandated by the language of Fed.R.Evid. 104 or that the district court abused its otherwise broad discretion in refusing to hold a separate hearing out of the hearing of the jury. This being so, the only questions to be addressed relevant to the coconspirator's statements are whether the court made the findings required Petrozziello and, if it did, whether, taken in the light most favorable to the government, the evidence sufficed to support the determination.

When the statements of the coconspirator were introduced, the court instructed the jury in accord with the pre-Petrozziello rule of United States v. Honneus, 508 F.2d 566, 576-77 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). After discussion with the attorneys and consideration of Petrozziello, the court ruled:

Well, counsel, I believe in my ruling permitting the evidence to be presented, and the fact that I gave limiting instructions to the jury, if not expressly, at least impliedly; there is a ruling on my part that I believe that there is sufficient evidence to show that there is a conspiracy.

Because of continued objections by defense counsel, this ruling was reaffirmed at least three times. Although the ghost of Honneus may still be flitting about, it causes no harm and, as the district court pointed out here, is probably beneficial to a defendant. It is the government, not a defendant, which is haunted. We reiterate what we said in Petrozziello, "The added layer of fact-finding may not be needed, Weinstein's Evidence P 104(05), but it can seldom prejudice a defendant." United States v. Petrozziello, 548 F.2d at 23.

We now turn to the key issue: whether the government proved by a preponderance of the evidence that a conspiracy existed, that the declarant and defendant were members of it at the time the declaration was made, and that the declaration was in furtherance of the conspiracy. Prior to the admission of the hearsay statements, government undercover agent Robert Alvarez had testified to the following effect. On November 8, 1978, he and another paid informant, Alberto Larrain, met with the defendant at Torre de la Reina Restaurant in San Juan. Alvarez was equipped with a device known as a Kel, which could transmit conversation to another agent some distance away. Special DEA Agent Jorge, who had a receiving and recording apparatus, followed Alvarez and Larrain. Alvarez met defendant at the bar in the restaurant and was told that the amount of cocaine to be sold was fifteen kilos, not ten kilos as originally agreed. Alvarez said this posed a problem because he only had enough money for the smaller amount and asked how much more the additional amount would cost. Defendant said that he did not know and would have to ask his brother. He told Alvarez that, after he found out from his brother the exact amount of additional cocaine and the cost, he would contact Larrain and Larrain would convey the information to him. Alvarez was then to make arrangements to get the money and buy the fifteen kilos of cocaine.

The following day, Alvarez and Larrain went to defendant's apartment. Defendant was not there. They were admitted by a man and a woman. The man introduced himself as Anibal Cruz Fontanez, brother of the defendant, and said the woman was his wife. After about an hour of waiting, Anibal left the apartment with Alvarez and Larrain who drove him to a gasoline station so he could use the telephone. All three then returned to the apartment. After waiting in vain three hours for defendant to appear, Alvarez told Anibal that he needed to know the exact amount and price of the cocaine. Anibal wrote the questions down on a napkin. Alvarez and Larrain then left. During this episode, Alvarez was equipped with the Kel transmitter and Agent Jorge was in a car outside the apartment with the receiving and recording apparatus.

After Alvarez returned to the DEA office, Larrain called him and then the defendant came on the line. The telephone conversation between defendant and Alvarez was recorded. Defendant told him that there had...