U.S. v. Grassi

• Decision Date: 14 May 1980
• Docket Number: No. 79-5415,79-5415
• Citation: U.S. v. Grassi, 616 F.2d 1295 (5th Cir. 1980)
• Parties: 6 Fed. R. Evid. Serv. 196 UNITED STATES of America, Plaintiff-Appellee, v. Dante Angelo GRASSI and Jack Louis Gail, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1295

616 F.2d 1295

6 Fed. R. Evid. Serv. 196

UNITED STATES of America, Plaintiff-Appellee, v. Dante Angelo GRASSI and Jack Louis Gail, Defendants-Appellants.

No. 79-5415.

United States Court of Appeals Fifth Circuit.

May 14, 1980.

Arthur H. Zimmerman, Chicago, Ill., for Gail.

Jacob Kossman, Philadelphia, Pa., for Grassi.

Jody M. Litchford, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before MORGAN, ANDERSON and RANDALL, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Dante Angelo Grassi and Jack Louis Gail appeal from convictions based on their participation in a series of transactions involving controlled substances and unregistered guns. The principal issues presented by this appeal concern the sufficiency of the evidence to prove a conspiracy and the fairness of the joinder of the appellants together with six other defendants in a 21-count indictment.

The indictment charged both Grassi and Gail with conspiring to distribute controlled substances and to possess, transfer and transport unregistered firearms in violation of 18 U.S.C. § 371 (count 1). Grassi was also charged with conspiring to import controlled substances in violation of 21 U.S.C. § 963 (count 2). Gail was charged with shipping firearms in interstate commerce in violation of 18 U.S.C. § 924(b) (count 17). The appellants were convicted as charged. ¹

The evidence against the defendants consists primarily of the testimony of undercover agents and of tape recordings of the agents' conversations with the defendants during the period covered by the indictment. Having assumed the identity of smugglers of firearms and narcotics, agents Ralph Altman and Gary Peacock of the Bureau of Alcohol, Tobacco and Firearms first met with defendant Charles Watson on April 27, 1978 at Watson's place of business in Homestead, Florida. The agents explained that they had a substantial business exchanging guns for drugs with South American sources, and were exploring for new contacts who would help in the landing, off-loading and distribution of a great quantity of marijuana that would be received in the near future. The agents added that they would also be interested in obtaining weapons and pistol silencers for use in their narcotics trade. Watson asked to join in the marijuana venture, and offered to find silencers for two pistols the agents were carrying. Altman and Peacock agreed to accept Watson's help and delivered two .22 caliber pistol barrels to be fitted with silencers.

Watson later introduced the agents to his brother, defendant Carl Watson, and defendant Frank Ammirato, who, Watson explained, could supply the agents with large quantities of automatic weapons, silencers and drugs. The agents met with the Watsons and Ammirato on May 5, 1978 at the construction site of the Ramblewood Middle School in Coral Springs, Florida. Carl Watson and Ammirato gave the agents a sample of pills from a supply of amphetamines they offered to sell. Four days later the agents met with Carl Watson again and purchased 1000 amphetamines for $850. At that meeting, the agents and Carl Watson discussed the details of the pending marijuana importation, Watson's progress in finding supplies of machine guns and pistol silencers, and the possibility that Watson and his associates would offer the agents a supply of quaalude pills.

Appellant Grassi was not introduced to the agents until May 12, 1978 during another meeting at the Ramblewood School. Grassi expressed interest in the agents' marijuana importation scheme, and proposed to work with the agents if they could supply reliable personal references. Peacock gave Grassi two names of people who would vouch for their operation, and Grassi proceeded to conduct a background check.

In the weeks that followed, Ammirato and Watson met regularly with Peacock and Altman to discuss the marijuana importation venture, and to negotiate and consummate various drug and firearms sales. Other defendants were introduced and participated in these deals, but neither Grassi nor Gail were present at any meetings during this stage of the investigations. ²

Gail was not introduced to the agents until early July 1978. At a meeting on July 6 between the agents, Ammirato and Watson, Ammirato informed the agents that he had a contact in Chicago who could supply the agents with silencers. The next evening, Ammirato, Peacock and Altman travelled to Chicago to meet Gail Ammirato's Chicago contact. Gail sold the agents one silencer and offered to begin supplying fifty more per month. During the same meeting, Ammirato explained the various pending drug deals to Gail, and in Gail's presence told the agents that Gail would be interested in purchasing some of the quaaludes the agents were to receive from Ammirato. Gail added that he was also interested in buying cocaine.

Complications soon developed in Gail's plan to provide silencers to the agents. Gail reported that his source for silencers insisted on fitting the silencers on complete pistols so that the silencers could be tested as they were made and fitted. When the agents explained this problem to Ammirato, Ammirato said that he could procure and ship pistols to Chicago as needed.

On July 26, at a meeting at the Ramblewood School, Ammirato showed Peacock and Altman two pistols he had purchased for them. Ammirato explained that he would have one of his men carry the guns to Chicago and deliver them to Gail to be fitted with silencers. Under the observation of agents of the Bureau of Alcohol, Tobacco and Firearms, defendant Alfred Beuf flew to Chicago that day, handed a briefcase to Gail at the airport, and left on a departing flight. Informed by Ammirato that the pistols were ready, Peacock and Altman flew to Chicago two days later and purchased the two silenced pistols from Gail.

Grassi reentered the scene on July 27 when the agents met with Ammirato and Grassi at Ammirato's home. The discussion at this meeting covered the planned marijuana importation as well as the many other completed and proposed illicit transactions. Ammirato told the agents that they would not receive any more pistols or silencers until the marijuana importation was accomplished. Grassi then proposed that if the agents could provide their own planes for the marijuana importation, he would send one of his men to protect them and arrange for a purchase of fifteen to thirty kilograms of cocaine along the way. The conversation then turned to the other illicit deals, and although Grassi listened, it does not appear that he contributed to this discussion or took part in any negotiation.

Further discussions and transactions between the agents and certain defendants followed. ³ The agents' last conversation with Gail before his arrest was at a meeting in Chicago on September 19. Gail stated that he was still interested in obtaining quaaludes, possibly in exchange for pistols and silencers, and asked when the agents thought they would receive their quaaludes from Ammirato.

The eight defendants were arrested in late November of 1978 and joined in a 21-count indictment alleging two conspiracies and nineteen substantive offenses. Only Grassi and Gail resisted their convictions to the conclusion of the jury trial. ⁴

I SUFFICIENCY OF THE EVIDENCE

Following the selection of the jury but prior to the examination of the first witness before the jury, the district court held a hearing to determine the admissibility of certain extrajudicial declarations that the prosecution intended to introduce under the coconspirator rule. Such a hearing is mandated by United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The purpose of the James hearing is to establish the existence, or nonexistence, of the predicates for the admission of a coconspirator's extrajudicial declaration before the declaration is made known to the jury. To be admissible, the extrajudicial statement must have been made (1) by one who conspired with the party against whom the statement is offered, (2) during the course of the conspiracy, and (3) in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). Under James, the responsibility for making these findings rests exclusively with the judge. 590 F.2d at 579-80.

Evidence submitted at a James hearing for the purpose of proving a conspiracy must, of course, be free from hearsay objection; otherwise, a coconspirator's hearsay might bootstrap itself into admissible evidence. Moreover, in order to protect the defendant from the admission of prejudicial hearsay on the basis of threadbare evidence of conspiracy, the judge must decide at the conclusion of the James hearing whether the independent evidence linking the defendant to the conspiracy is substantial. 590 F.2d at 580-81. If a coconspirator's extrajudicial declaration is admitted into evidence, the judge must reconsider its admissibility at the conclusion of the trial. His second decision, however, is to be made by a higher standard: whether the prosecution, through independent evidence, has demonstrated the defendant's participation in a conspiracy by a preponderance of the evidence. If the prosecution has not prevailed on this point, the judge must decide whether a cautionary instruction will cleanse the record of prejudice or whether a mistrial is required. 590 F.2d at 582-83.

Appellants Grassi and Gail contend that the district court failed to apply the standards for proof of conspiracy enunciated in James, and that as a result, inadmissible hearsay was injected into the trial. The appellants further contend that the record as a whole is insufficient to sustain their conspiracy convictions.

At the outset of the James hearing the court urged the prosecution to move quickly and to present no more than the "threshold basis" for the invocation of the coconspirator rule. Had the prosecution...