U.S. v. Martorano, No. 76-1372

• Decision Date: 13 April 1977
• Docket Number: No. 76-1372
• Parties: 2 Fed. R. Evid. Serv. 275 UNITED STATES of America, Appellee, v. James MARTORANO, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 406

561 F.2d 406

2 Fed. R. Evid. Serv. 275

UNITED STATES of America, Appellee, v. James MARTORANO, Appellant.

No. 76-1372.

United States Court of Appeals, First Circuit.

Heard April 13, 1977.

Decided Aug. 24, 1977.

Joseph S. Oteri, Boston, Mass., with whom Oteri & Weinberg, Boston, Mass., Alan M. Dershowitz, Jeanne Baker and Rosenberg, Baker & Fine, Cambridge, Mass., were on brief, for appellant.

Dennis A. Winston, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., Martin D. Boudreau, Sp. Atty., Boston Strike Force, Boston, Mass. and Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

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

COFFIN, Chief Judge.

Having on appellant's petition for rehearing granted leave to file briefs on the issue whether Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), has been partially overruled and having now considered the briefs of the parties submitted on this question, we continue to believe that the viability of Glasser is in some doubt for the reasons we state below. But our further reflections have persuaded us that we need not face this troublesome issue in this case, for we are satisfied that the tapes of the Pagano-Pallotta conversations were properly admitted under Glasser.

Although Glasser confines a district court to the "independent" evidence in deciding whether to admit a statement by a co-conspirator, it has never been the case that statements of the declarant were automatically excluded from consideration. The district court has always been permitted to consider statements by the declarant which are not hearsay or which are admissible in their own right under an exception to the hearsay rule. United States v. Geaney, 417 F.2d 1116, 1120 n. 3, 1121 & n. 4 (2d Cir. 1969); see United States v. Carlarco, 424 F.2d 657, 660 & n. 1 (2d Cir. 1970). After reconsidering these tapes in light of the government's briefs, we are persuaded that many of Pagano's statements were "verbal acts", see Lutwak v. United States, 344 U.S. 604, 617-19, 73 S.Ct. 481, 97 L.Ed. 593 (1953); VI Wigmore on Evidence § 1766; cf. Anderson v. United States, 417 U.S. 211, 219-21, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). These statements, when considered along with the other pieces of independent evidence, provide a solid basis for the conclusion that a conspiracy existed.

The eight Pallotta-Pagano telephone conversations that were admitted into evidence occurred at various times between December 20, 1974 and January 20, 1975. Although many of the statements Pagano made would be most damaging to appellant only if taken as establishing the truth of the matter asserted, e. g., Pagano's assertion that he had supplied appellant with some of the money that had been lent Pallotta or the statements to the effect that Pallotta would be in danger if he went to appellant's nightclub, other statements were significant simply because Pagano had made them. These include: a large number of statements Pagano made indicating his knowledge both of the loan and of Pallotta's delinquent status; see VI Wigmore on Evidence § 1790; and an equally large number of statements which we do not hesitate to characterize as attempts to facilitate and/or to encourage further payments of the loan. ¹

In addition, we note that one of Matera's statements which was admitted into evidence suggests that Pagano was actually in touch with Matera during this period and that Pallotta's situation had been discussed. On January 20, 1975, some twenty minutes after the final call to Pagano, Pallotta telephoned Matera, who answered Pallotta's query with three highly suspicious denials of all knowledge concerning the matter and with the statement "(a)nd don't call that other fellow no more." The most natural inference, given the context, is that the "other fellow" was Pagano and that he had been in contact with Matera concerning Pallotta.

The statements we have referred to could properly be considered by the judge in determining the preliminary question whether Pagano and appellant were members of a common venture. The "independent" evidence thus shows the following. First, there is rather overwhelming evidence that appellant and Matera were members of a common illicit venture. Several pieces of evidence tending to link Pagano to that enterprise are that Matera and appellant were co-conspirators; that Matera and Pagano were long time loan shark partners who, inferentially at least, would be involved in each other's ventures; that Pagano accompanied Matera to collect an interest payment from Pallotta; and that Pagano, in late December, 1974, and early January, 1975, was aware of Pallotta's plight, was willing to take steps to find out Pallotta's situation and to facilitate future payments, and had in fact been in touch with Matera and discussed Pallotta's situation. We thus have no difficulty concluding that it preponderates in favor of the existence of a conspiracy between Pagano and appellant. It is true that each of these items is susceptible to an interpretation other than Pagano's participation in the conspiracy. However, when viewed together, each of them gains color from the others and they satisfy us that Pagano and appellant had associated themselves "in a concerted mutual venture".

Having raised the issue of the continued vitality of Glasser's requirement that the proof of the existence of the conspiracy be independent of the statement seeking admission, we will briefly outline why we think Glassser's survival may be in doubt. Here, the portion of the taped conversation which is relevant to the conspiracy determination is Pagano's statements to the effect that he had put up part of the money appellant loaned Pallotta. Although inadmissible,...