FRIENDLY, Circuit Judge:
Appellants from conspiracy convictions too often remind us of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and of Mr. Justice Jackson's concurrence in Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790 (1949), in instances where the reminder is inapposite. But a few facts will show in what degree the instant case gives point to Mr. Justice Jackson's description of conspiracy as "that elastic, sprawling and pervasive offense," whose development exemplifies, in Judge Cardozo's phrase, the "tendency of a principle to expand itself to the limit of its logic" — and perhaps beyond.
This indictment was filed August 15, 1962. The applicable statute of limitations is five years, 18 U.S.C. § 3282. The conspiracy is alleged to have begun in 1950 and to have lasted until 1959. The only acts of participation proved as to one appellant were in 1951. As to others there was no evidence of participation later than 1955. Two who first appear in 1958 were found to have been in "partnership in crime," Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), with those who, so far as the proof shows, left the stage seven and three years before. Tacitly recognizing inclusion of all the appellants in a single conspiracy to be something of a tour de force, the Government contends in its able brief and argument that the convictions are buttressed by impressive authority and impeccable logic. The conspiracy, it says, was continuous as regards at least some of the principals; each participant is presumed to have been responsible for all that would ever go on, or that ever had; and he could terminate this responsibility only by making a clean breast to the authorities or by informing his colleagues — mostly unknown to him — that he was through. The appeal thus demands an examination of the application of the law of conspiracy to the long continued conduct of an illicit business. We have concluded that the case required a more carefully defined submission to the jury than the Government sought and obtained. For this and other reasons discussed below we reverse the convictions and direct a new trial.
I. The Government's Evidence
The burden of the Government's case was borne by Salvatore Rinaldo, also its principal witness in United States v. Agueci, 310 F.2d 817 (2 Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). His testimony can be summarized as follows, postponing a few matters that will be mentioned where appropriate, and eliminating many details which are not here essential as they relate primarily to members of the conspiracy not involved in this appeal.
In the summer of 1950, Rinaldo met with Rosario and Joe Mogavero and Carmine Locascio, who wished him to travel to Italy to bring back "some junk." The trip was made around the turn of the year; Rinaldo paid $50,000 for the heroin. Rosario and Locascio then hired him to make deliveries, at a fee of $100 per package. Upon instructions from Rosario or Locascio, Rinaldo would pick up heroin at the "plant" — initially a machine shop, later Joe's home — and would make deliveries, typically of two or three kilos, to various wholesalers, including Tantillo, Cinquegrano and Borelli, who made their payments without using the
Business continued much as theretofore. In June, 1954, Locascio introduced Rinaldo to one Jimmy Jerome, who later presented his runner, Mike Sedotto; Rinaldo began making deliveries to Sedotto. Another 1954 development was the deportation of Salvatore Caneba, the local representative of the Italian source of supply. In August, 1954, Locascio and Joe Mogavero introduced Rinaldo to a new connection, appellant David "Pop" Smith, from whom Rinaldo made large pick-ups, followed by deliveries, inter alia, to Borelli, Cinquegrano and Sedotto. The next year, 1955, saw the reestablishment of the Italian source of supply, although Smith also continued to be a provider.
Some of the heroin imported from Italy in the spring of 1955 proved to be impure; it would not dissolve or go through a needle. Sedotto returned a lot that he had picked up for Jerome. A second delivery from Italy in August 1955 was again a mixed batch — some of the heroin was pure, some not. Joe Mogavero and Locascio continued operations with the pure Italian heroin and with supplies obtained from Smith, but 42 kilograms of bad heroin became an albatross around the business' neck. Rinaldo made a trip to Italy to pay the Canebas a reduced price for the impure heroin. Their contention that they were entitled to $50,000 more than Rinaldo's principals were willing to pay led them to insist that any future dealings must be on a cash on delivery basis.
On Locascio's instructions, confirmed by Joe Mogavero, Rinaldo gave the former 20 kilograms of the impure heroin in May, 1956; Joe and Locascio had agreed to "try to get rid of the stuff separately * * * It was too much, anyway, to be keeping in one place." In the ensuing months Joe and Rinaldo labored mightily to purify the 22 kilos of impure heroin which Joe had kept. In June or July, 1957, Joe told Rinaldo he had spent between $100,000 and $150,000 of Rosario's money and wanted to get moving again. In September or October, he explained that he was negotiating with appellant Loiacano for the sale of the 22 kilos; he later confided that Rosario had instructed him not to be sticky about the price. In December, 1957, Joe introduced Rinaldo to Loiacano and the latter's runner, appellant Sancinella, and instructed that deliveries of the impure heroin were to be made to the latter. Rinaldo made about seven such deliveries, the last in March, 1958.
The next chapter began shortly thereafter. Around April, 1958, Joe Mogavero and Loiacano, now risen to partnership rank, told Rinaldo they would have to get a new source of supply; the contact was to be Charles Di Palermo, a name frequently encountered in cases of this sort, but the place of delivery was uncertain. About May or June, Rinaldo was introduced to appellant Garibaldi whom Joe and Loiacano presented as the "fellow who would pick up the goods that I was getting." In July, Rinaldo was told to go to Miami to take delivery of heroin that was being brought in by ship. Di Palermo was there and sold him seven kilos. Rinaldo returned to New York and delivered these to Garibaldi against payment of $35,000 in small bills, which he took to Joe and Loiacano. Later Rinaldo made pick-ups from a new source of supply, Freddy Eppolito; these also he delivered to Garibaldi. In September, while making further deliveries, Rinaldo complained to Garibaldi about receiving payment in small bills; the latter replied "that was the way he was getting the money from Borelli, and that's the way he was going to give it * * *" to Rinaldo. He also volunteered that it was he who
The last appellant to appear is Castiglia. Described as "Mickey Blair", he was introduced by Joe Mogavero to Rinaldo in November, 1958, as one who in turn would introduce a future deliverer of heroin. On several occasions between December, 1958 and March, 1959, through Castiglia's intercession, Rinaldo took deliveries from one Ralph; he in turn delivered to Garibaldi or Castiglia. The relationship between Rinaldo and his associates terminated in March, 1959, in a quarrel about money. Rinaldo thought he was to be a partner in the operations begun in 1958. Joe repudiated the suggestion, saying he had "spent all the cash that belonged to his brother, Saro, and the only way he could get even is if I [Rinaldo] wanted to work at $200 a kilo * * *" On Rinaldo's questioning whether this harsh attitude to him had Rosario's sanction, Joe said he had talked to Rosario "about this, and his brother gave him the okay to do anything he wanted."
Although the Government supported Rinaldo's testimony with evidence confirming his comings and goings and showing the existence of a secret closet in Joe Mogavero's apartment, the only other directly inculpatory evidence was the testimony of Sierra, relating to Sedotto, and of Ager, relating to Smith. Sierra, who had been in prison since 1957 on a federal narcotics conviction, testified to purchases of heroin in 1955 and early 1956 from Jimmy Jerome, with the deliveries being made by Sedotto. Some of this heroin was impure; consequent unpleasantness led to an interruption of contacts. These were renewed in July and August, 1956, and then again in December, 1956, and Sedotto engaged in several of them. The coincidence of dates and the impurity of part of the heroin afforded some basis for concluding that these deliveries were of heroin emanating from Joe Mogavero or Locascio. Ager, under indictment for a federal narcotics offense, testified that in May or June, 1954, at his father's instance, he received a "16 unit" suitcase from Charles Bourbonnais which he delivered to Smith, who later gave him bags of money. This process was frequently repeated through 1955 and 1956, with Smith making numerous payments of about $40,000 at the rate of $5,000 per unit. Late in 1956, Smith complained of the quality. This led to a gap, but there was another delivery in mid-1957, the last payment for which was made in February, 1958. Ager's deliveries to Smith synchronized with Smith's deliveries to Rinaldo, although apparently they were larger in amount and continued longer. The deliveries Rinaldo received of Smith were generally of sixteen kilograms.
II. "Single" Conspiracy
The indictment alleged a single conspiracy, and the court instructed the jury that if it found "that the government has failed to prove the existence of one conspiracy, you must find the defendants not guilty" and that "proof of several separate and independent conspiracies involving various of the defendants * * * is not proof of the single conspiracy charged * * *" Appellants contend that the evidence showed several conspiracies and, in the alternative, that the judge's failure to furnish the jury with an intelligible criterion for determining the issue of the one versus the many constituted "plain error" correctible under F.R.Crim.Proc. 52(b).
As applied to the long term operation of an illegal business, the common pictorial distinction between "chain" and "spoke" conspiracies can obscure as much as it clarifies. The chain metaphor is indeed apt in that the links of a narcotics conspiracy are inextricably related to one another, from grower, through exporter and importer, to wholesaler, middleman, and retailer, each depending for his own success on the performance of all the others. But this simple picture tends to obscure that the links at either end are likely to consist of a number of persons who may have no reason to know that others are performing a role similar to theirs — in other words the extreme links of a chain conspiracy may have elements of the spoke conspiracy.
The basic difficulty arises in applying the seventeenth century notion of conspiracy, where the gravamen of the offense was the making of an agreement to commit a readily identifiable crime or series of crimes, such as murder or robbery, see Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 922, 923 (1959), to what in substance is the conduct of an illegal business over a period of years. There has been a tendency in such cases "to deal with the crime of conspiracy as though it were a group [of men] rather than an act" of agreement. See 72 Harv.L.Rev. at 934. Although it is usual and often necessary in conspiracy cases for the agreement to be proved by inference from acts, the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant. It is a great deal harder to tell just what agreement can reasonably be inferred from the purchase, even the repeated purchase, of contraband, than from the furnishing of dynamite to prospective bank robbers or the exchange of worthless property for securities to be subsequently distributed. Purchase or sale of contraband may, of course, warrant the inference of an agreement going well beyond the particular transaction. A seller of narcotics in bulk surely knows that the purchasers will undertake to resell the goods over an uncertain period of time, and the circumstances may also warrant the inference that a supplier or a purchaser indicated a willingness to repeat. But a sale or a purchase scarcely constitutes a sufficient basis for inferring agreement to cooperate with the opposite parties for whatever period they continue to deal in this type of contraband, unless some such understanding is evidenced by other conduct which accompanies or supplements the transaction.
The view that if the evidence warrants the finding that some defendants were parties to a single agreement to sell contraband for a nine-year period, it necessarily does so as to every defendant who has conspired with them at any time for any purpose, is thus a considerable over-simplification. Rinaldo's testimony thoroughly warranted the finding of an agreement among himself, Joe and Rosario Mogavero beginning in 1950 and continuing through 1959. But it does not follow, for example, that his recital of two deliveries to Tantillo in March and July, 1951, on the instructions of Locascio in one instance, and of Rosario Mogavero in the other, would justify a finding that Tantillo had thereby made himself a part of whatever narcotics enterprises Locascio, the Mogaveros and their future partners might engage in for the rest of their lives, provided only that these were uninterrupted — a theorem that would lead to the inevitable but extraordinary conclusion that Tantillo's two purchases entered him into a "partnership in criminal purposes," United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 54 L.Ed. 1168 (1910), with Castiglia, who supplied a source to and took deliveries from an altered core seven years later, and vice versa.
The utmost time bounds of any conspiracy proved as to Tantillo was the liquidation of the partnership between the Mogavero brothers and Locascio by the disposal of the last of the impure heroin imported from the Caneba source in Italy; we see nothing in the mere fact of his purchases that would warrant an inference that he agreed to participate in the activity, begun nearly seven years later, in which Loiacano replaced Locascio as partner of one or both of the Mogaveros, and which depended on wholly new sources of supply. It is indecisive on this issue that there was no substantial time gap between the two phases of the venture and that the jury might permissibly consider there to have been a single continuing agreement as regards the Mogaveros, Loiacano and Rinaldo; the change in operations was sufficient to spend any force remaining in the inference of agreement arising from Tantillo's purchases of long ago. Compare, in a different but relevant context, Maggio v. Zeitz, 333 U.S. 56, 66, 68 S.Ct. 401, 92 L.Ed. 476 (1948).
Tantillo was thus entitled to an instruction which would make his conviction depend on the jury's accepting Rinaldo's testimony that Joe Mogavero's share of the impure heroin divided by the partnership was not sold until after August 15, 1957. The jury's attention should then have been focussed on the extent of the agreement attributable to Tantillo on the basis of his two purchases. Specifically, the jury should have been asked to decide whether the evidence showed that Tantillo was associating himself with the continuing enterprise of importations from Italy being conducted by the Mogavero brothers and Locascio, carrying through the final disposition of the impure heroin, or only with a plot to move what had already been imported. "Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change; his liability is limited to the common purposes while he remains in it." United States v. Peoni, 100 F.2d 401, 403 (2 Cir. 1938). Although this may further complicate the already complex charge in a narcotics conspiracy trial, a requirement necessary to protect a defendant from over-extension of a legal doctrine may not be dispensed with simply because it somewhat lessens the attractiveness of prosecuting for conspiracy rather than for substantive crimes. By no means every conspiracy trial will raise the problem here considered. Often the defendant's act will not have the ambiguity with respect to the inference of agreement that is inherent in the mere purchase, transportation or sale of contraband; even in cases where some ambiguity exists, the precise scope of his agreement would not always be sufficiently important that the judge would
What we have written with respect to Tantillo
This leaves Borelli. The only evidence expressly connecting him with the later phase consists of Garibaldi's declaration in September, 1958, that Borelli was then dealing with him; this was admissible against Borelli only if other evidence permitted the inference that he had associated himself with the continuing venture. See United States v. Reina, 242 F.2d 302, 306 (2 Cir.), cert. denied sub nom. Moccio v. United States, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed. 2d 1427 (1957). Borelli had been one of the first purchasers, in May, 1951. From that time until late in 1955, deliveries to him were so frequent and so large as to suggest strongly that he was a continuing customer on whom Joe Mogavero could rely during the second phase of the conspiracy in which Garibaldi was a prominent figure. Although such evidence, standing alone, might not have sufficed to warrant submitting Borelli's participation in the second phase of the activity to the jury, the judge could properly deem it enough to meet the threshold requirement of showing the likelihood of an association between Borelli and Garibaldi and thus to render admissible the latter's statement confirming the association; with this added, the evidence of Borelli's participation in both phases of the conspiracy was sufficient for persuasion beyond a reasonable doubt. Cf. United States v. Pugliese, 153 F.2d 497, 500 (2 Cir. 1945); United States v. Dennis, 183 F.2d 201, 230-231 (2 Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); Carbo v. United States, 314 F.2d 718, 735-738 (9 Cir. 1963), cert. denied, 84 S.Ct. 1626 (1964); McCormick, Evidence, § 53 (1954); Maguire and Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv.L.Rev. 392, 415-18 (1927); Morgan, Functions of Judge and Jury in the Determination of Preliminary Questions of Fact, 43 Harv. L.Rev. 165, 169, 175, 188 (1929). Like Loiacano and Garibaldi, Borelli was entitled to an instruction that if the jury found the evidence insufficient to link him with the second phase, his liability to conviction depended on whether the efforts to dispose of the bad Italian heroin lasted beyond August 15, 1957.
We add a word why our conclusion on the single conspiracy issue does not require us to direct that any of the defendants be acquitted or even that on a retrial the Government elect between the first and the second phase of the conspiracy, as in United States v. Russano, 257 F.2d 712, 716 (2 Cir. 1958). In contrast to that case, the Government's evidence here was sufficient to permit a finding of a single continuing conspiracy by several defendants, Rosario Mogavero, Loiacano, Borelli and Garibaldi, along with Joe Mogavero and Rinaldo. It sufficed also to show that Locascio, Tantillo, Cinquegrano, Sedotto, Smith and Sancinella had joined with them in one phase of their criminal enterprise and Castiglia in another. This met the joinder requirements of F.R.Crim.Proc. 8, cf. A. L. I. Model Penal Code, § 5.03(4); such variance as there was from the indictment required only the giving of appropriate instructions. See Berger v. United States, 295 U.S. 78, 82-83, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Cohen, supra, 145 F.2d 82, 88-89; United States v. Agueci, supra, 310 F.2d at 827-828.
Seven appellants, Tantillo, Sedotto, Borelli, Smith, Locascio, Rosario Mogavero, and Cinquegrano, contend that the evidence established as a matter of law that they withdrew from the conspiracy before August 15, 1957. The contentions of the first four rest primarily on the alleged absence of evidence of activity on their part after times prior to the cut-off date. Locascio relies on such absence of evidence and also on Rinaldo's testimony as to his split with the Mogaveros. The last two rely heavily on their incarceration — Rosario's, resulting from a state extortion conviction, beginning late in 1953, Cinquegrano's, for an unrelated federal narcotics offense, starting early in 1956, and both continuing beyond the critical date.
The Supreme Court last spoke comprehensively on withdrawal from a conspiracy in the opinion of Mr. Justice McKenna for five Justices in Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912) — the four dissenters not reaching this issue. It laid down rigorous requirements for making out the defense of withdrawal from a conspiracy "having continuity of purpose and which contemplated the performance of acts through a series of years. * * * Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law." Mere cessation of activity is not enough to start the running of the statute; there must also be affirmative action, either the making of a clean breast to the authorities, cf. Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946), or communication of the abandonment in a manner reasonably calculated to reach co-conspirators. And the burden of establishing withdrawal lies on the defendant. See 72 Harv.L. Rev. at 958; Wechsler, Jones and Korn, supra, 61 Colum.L.Rev. at 1015-17; United States v. Cohen, supra, 145 F.2d at 90; United States v. Compagna, 146 F.2d 524, 527 (2 Cir. 1944), cert. denied, 324 U.S. 867-868, 65 S.Ct. 912, 89 L.Ed. 1422 (1945); United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2 Cir. 1961).
It is argued that however well founded the Hyde rule was on its facts, where, as the Government urged in its brief to the Supreme Court [p. 75 ff.], the defendant Schneider's pre-limitation conduct, in procuring false and fictitious applications for school lands and otherwise, resulted in the passage of titles in the General Land Office within the period,
The evidence as to Locascio's split with the Mogaveros in 1956, although sufficient to present a jury issue as to withdrawal, was far from requiring acquittal as a matter of law. Rinaldo gave testimony as to activity by Locascio early in 1957, noted in the final paragraph of this opinion, which the jury would have had to consider on this issue. Moreover, a finding that Locascio terminated all relations with his associates in 1956 would not demand an acquittal. We see no flaw in the Government's argument that such a dissolution of the 1950 partnership would not constitute an effective withdrawal so long as any of the contraband obtained during his participation was being sold. We do not have to go so far as Eldredge v. United States, 62 F.2d 449 (10 Cir. 1932), to reach that conclusion. The sale of all the heroin — the Mogaveros' share as well as Locascio's — was the very object of the conspiracy; mere bifurcation of the routes of disposal for the conspirators' mutual convenience does not bring the activity to an end for any of them. Locascio could therefore be convicted if the jury accepted Rinaldo's testimony that the Mogavero share was not liquidated until after August 15, 1957.
Turning to the two defendants who were incarcerated, we speedily dismiss Rosario Mogavero's claim to acquittal. Neither authority nor reason would suggest that imprisonment necessarily shows a withdrawal; indeed, we have recently held squarely to the contrary, United States v. Agueci, supra, 310 F.2d at 838-839. Although the evidence of Rosario's continued participation after his incarceration was less strong than as to Valachi's in Agueci, it was strong enough for the jury to find that, far from withdrawing, he continued to be a significant member of the conspiracy.
Cinquegrano cites a number of opinions with passages suggesting that although confinement of a defendant does not constitute withdrawal as a matter of law, it is sufficient unless the Government comes forward with evidence of continued participation. We find difficulty in reconciling such broad statements with what the Supreme Court said in Hyde; we see no basis for thinking that if in that case the defendant Schneider had been incarcerated for an unrelated
IV. Rulings with Respect to Rinaldo's Prior Statements and to Grand Jury Testimony
In addition to the reasons in Part II of this opinion, we would be required to reverse, at least as to certain appellants, because of rulings on two issues relating to Rinaldo's testimony.
Rinaldo had been taken into custody by the Westchester County police in 1960 and had made long statements, in question and answer form, in the presence of Federal narcotics agents, the transcript of which was made available to defense counsel.
When a witness thus affirms the truth of a prior statement, the earlier statement is to be considered "not only as bearing on the credibility of the witness but as affirmative evidence." Stewart v. Baltimore & Ohio R.R., 137 F.2d 527, 529 (2 Cir. 1943); the trier of the facts has "two conflicting statements * * * of equal force as evidence," Zimberg v. United States, 142 F.2d 132, 136 (1 Cir.), cert. denied, 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573 (1944). See also Harman v. United States, 199 F.2d 34, 36 (4 Cir. 1952); Finnegan v. United States, 204 F.2d 105, 115 (8 Cir.), cert. denied, 346 U.S. 821, 74 S.Ct. 36, 98 L. Ed. 347 (1953).
Taking full advantage of the ruling, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), that an indictment may be based on hearsay, the Government did not bring Rinaldo before the grand jury but instead had Selvaggi, a federal narcotics agent, tell the story Rinaldo had told him. Called as a defense witness on some minor matters, Selvaggi admitted that "a certain portion of" Rinaldo's trial testimony was inconsistent with his narration of it to the grand jury. Defense counsel then joined in a motion that the court inspect the grand jury minutes to determine these inconsistencies and make the relevant minutes available. The judge declined to do this except for inconsistencies between Selvaggi's own grand jury and trial testimony.
If Rinaldo had testified before the grand jury, the defendants would have been entitled to have the judge inspect the minutes and turn over any parts useful for cross-examination. United States v. Zborowski, 271 F.2d 661, 665-668 (2 Cir. 1959); United States v. Hernandez, 282 F.2d 71 (2 Cir. 1960), on rehearing, 290 F.2d 86 (1961). The Government ought not be allowed, by having its principal witness speak to the grand jury through the voice of another, to deprive a defendant of this right to impeach by contradiction. It is true that inconsistencies found in the grand jury testimony of such a surrogate are less susceptible of effective use than if the witness himself had testified; when the witness is confronted with what appears to be an inconsistency, he may deny having made the contradictory statement to the agent and counsel's only recourse would be to call the agent and endeavor to have him prove the contrary. But this is not a sufficient reason for the court's refusing to open this avenue of impeachment;
IV. Other matters
Although our direction of a new trial makes it unnecessary to consider many points dealing with matters not likely to recur, we wish to mention one of these because of the serious implications that it and incidents in other cases, cf. United States v. Gersh, 328 F.2d 460 (2 Cir.), cert. denied, Mugnola v. United States, 84 S.Ct. 1919 (1964), have for the administration of criminal justice under the jury system.
During the trial seven jurors received unsigned letters reading in substance:
Some of the jurors considered the notes as threats, with a meaning opposite to what they said. The incident received careful and sensitive attention from the judge, the alleged inadequacy of which we need not consider in view of our disposition of the case. But it demonstrates the need for precautions assuring that the addresses, and perhaps even the names, of jurors in cases such as this will be held in confidence; courts must protect the integrity of criminal trials against this kind of disruption, whether it emanated from defendants' enemies, from their friends, or from neither.
It remains to deal briefly with certain rulings on questions of evidence that may recur on a new trial. Two of these related to the examination of Ager. The defense had questioned him as to a statement he had given to the Government, in which he minimized his acquaintance with Bourbonnais and denied making any deliveries; Ager said the prior statement was false, and the judge then declined to receive it. The judge should have permitted the written statement to be introduced as affecting Ager's credibility rather than to force the defense to rely for impeachment solely on Ager's fleeting oral admission that he had lied on the earlier questioning. 3 Wigmore, Evidence §§ 1017, 1037 (1940 ed.); but cf. McCormick, Evidence 68 (1954). Ager had referred to the suitcases as having "16 units"; he later amplified this to 16 kilograms. When pressed by the Government for further explanation, he said "it must have been narcotics." On this being ruled out, the prosecutor, over objection, was allowed to ask "Do you know now what was in those suitcases?", which elicited substantially the same answer as had been rightly stricken; the objection should have been sustained in the absence of a showing that Ager was giving "an impression derived from the exercise of his own senses, not from the reports of others," or from speculation based on the high price paid. 2 Wigmore, Evidence, § 657(a) (1940 ed.).
Complaint is made of the refusal to compel the Government to turn over certain material in its files relating to Sierra. As in the case of Rinaldo's interview, see fn. 10, we can see no reason why portions of the tape recording of Sierra's interview which related to his testimony should not have been made available to defense counsel to enable them to be satisfied, as the judge was, with respect to the accuracy of the transcripts. More important was the refusal to turn over Sierra's letter of August 29, 1960, offering his assistance to the Government
A few further matters in conclusion: We approve the admission of the declarations of one Renna, made in 1957 immediately after a meeting with Locascio which Rinaldo had arranged at Joe Mogavero's request, "that he [Renna] seemed to think that everything with the Canebas and Locascio was all right." There was ample evidence that Renna, as the Canebas' messenger, had joined with Locascio and the Mogaveros in the "Italian" phase of the conspiracy which was still being wound up, and the remark, in its setting, could be construed as indicating there was some thought of reviving the partnership and the Italian source of supply. On the other hand, a statement by Renna, on a chance encounter with Rinaldo in April or May, 1959, that he thought the difficulties which Joe Mogavero and Locascio had had with the Canebas had been resolved, would better have been excluded, both because of the lack of evidence that any bond with Renna still existed and because this declaration, made after Rinaldo's severance with Joe Mogavero, appears to have been narrative only. The incident with respect to the use of a prior consistent statement by Rinaldo as to the date when he began deliveries to Sedotto will hardly recur in the same form; it suffices to note that this circuit has disapproved of rehabilitation in that manner. United States v. Sherman, 2 Cir., 171 F.2d 619, 621-622 (1948), cert. denied sub nom. Whelan v. United States, 337 U.S. 931, 69 S.Ct. 1484 (1949), but see Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390, 394 (1963), cert. denied, 376 U.S. 972, 84 S.Ct. 1139, 12 L.Ed.2d 86 (1964). The Government's bills of particulars should not have been sent to the jury in the absence of any request on its part; the accusation is that made in the indictment, and submission of bills of particulars, even if accompanied, as here, by instructions that they are not evidence, is likely to be confusing. Cf. Pipkin v. United States, 243 F.2d 491, 494 (5 Cir. 1957).
The Court is indebted to Jerome J. Londin, Ernest H. Rosenberger, Eve M. Preminger and Harvey P. Dale, Esqs., assigned counsel, for forceful presentations in behalf of the appellants whom they represent.
Reversed for a new trial as to all defendants in a manner consistent with this opinion.
"In determining whether there was a single conspiracy, you may consider what the evidence shows as to changes of personnel and activity, but you may find a single conspiracy even though there were changes in personnel and activities, provided that you find that some of the conspirators continued throughout the life of the conspiracy and that the purposes of the conspiracy continued to be those charged in the indictment.
"But, on the other hand, if you find that one conspiracy terminated and another one was formed you may not find a single conspiracy, even though the purposes of both conspiracies were the same and that some of the defendants were members of both."
The judge had previously charged:
"Now, a conspiracy once formed, ladies and gentlemen, is presumed to continue as to each alleged participant until either its object has been accomplished or there has been some affirmative act by that participant of termination or withdrawal."