author: DUFF, District Judge.

text:
    GILLDORN SAVINGS ASSOCIATION, Gilldorn Corporation, and Gilldorn Mortgage Midwest Corporation, Plaintiffs, v. COMMERCE SAVINGS ASSOCIATION, Defendant.
    No. 85 C 1024.
    United States District Court, N.D. Illinois, E.D.
    Nov. 19, 1985.
    Charles Siemon, Gerald Callaghan, William W. Merrill, III, and Stephen Smith, Siemon, Larsen and Purdy, Chicago, Ill., for plaintiffs.
    Jeffrey Lennard, Duane C. Quaini, and John L. Grossbart, Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill, John L. Lancaster, and Dennis Neil Ryan, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., for defendant.
   MEMORANDUM OPINION AND ORDER

DUFF, District Judge.

This matter comes before the court on the motion of GILLDORN SAVINGS ASSOCIATION, GILLDORN CORPORATION and GILLDORN MORTGAGE MIDWEST CORPORATION (“Gilldorn”) to enjoin Defendant COMMERCE SAVINGS ASSOCIATION (“Commerce”) from proceeding with its prosecution of the case now pending in the United States District Court for the Northern District of Texas, entitled Commerce Savings Association v. Gilldorn Association, Gilldorn Corporation and Gilldorn Mortgage Midwest Corporation, Civil Action No. CA 8 85 306 R (“Dallas action”).

Gilldorn filed this suit in the Northern District of Illinois (“Chicago action”) on January 81, 1985. Defendant filed the Dallas action on February 13, 1985. In the complaint in the Chicago action, Gilldorn alleges that it purchased the stock of Percy Wilson Mortgage and Finance Corporation (“Wilson stock”) from Commerce. The sale was closed on July 18, 1983 pursuant to the Stock Purchase Agreement dated June 13, 1983. Gilldorn alleges breach of express warranty, fraudulent misrepresentation and violation of the Securities Exchange Act of 1934 in the sale of the Wilson stock.

Commerce filed the Dallas action on February 13, 1985. In the Dallas complaint, Commerce alleges that pursuant to the Stock Purchase Agreement, Percy Wilson [predecessor of Gilldorn] agreed to execute and deliver to Commerce a $5,000,000 Promissory Note. The Promissory Note was later substituted by a subordinated debenture issued by Gilldorn. It is further alleged in the Dallas complaint that Commerce subsequently agreed to purchase Gilldorn preferred stock in exchange for the Promissory Note or substituted debenture of Gilldorn. In making, this exchange, Commerce alleges that it relied on Gilldorn’s representations that Gilldorn would not litigate, but would amicably settle, any claims arising from the original Stock Purchase Agreement. The Dallas complaint is based on violations of the Securities Act of 1933, the Texas Securities Act and on the Promissory Note.

Plaintiff Gilldorn has moved to enjoin the defendant from pursuing the Dallas action, arguing that the allegations in the Dallas complaint should have been brought as a compulsory counterclaim pursuant to Rule 13(a) of the Federal Rules of Civil Procedure.

This case is very similar to Warshawsky & Company v. Areata National Corporation, 552 F.2d 1257 (7th Cir.1977) where the court held that allegations in a complaint filed in the Northern District of California should have been brought as a compulsory counterclaim in an action pending in the Northern District of Illinois. As the Illinois action was filed first, the court found that the defendant was properly enjoined from pursuing the California action.

Defendant Commerce argues against a similar result here, stating that 1) the denial of Gilldorn’s motion to dismiss in the Texas action bars consideration of the compulsory counterclaim issue under the doctrine of collateral estoppel; 2) the principles of judicial comity preclude this court’s consideration of issues addressed in the Texas action; and 3) the claims asserted in the Texas action do not constitute a compulsory counterclaim.

This court is inclined to agree with Plaintiff’s characterization of Defendant’s collateral estoppel argument as a “Red Herring”. Defendant’s own authorities require a final judgment for collateral estoppel to apply. The rulings by the Dallas judge do not constitute final judgment.

The doctrine of judicial comity also has no application here. In allowing Plaintiff’s motion, this court enjoins the Defendant and not the United States District Court for the Northern District of Texas. Further, judicial comity should not preclude this Plaintiff from its choice of forum where it was the first to file its complaint. Contrary to Defendant’s reading, the comity issue was considered by the court in Warshawsky & Co., 552 F.2d at 1259.

Defendant’s final argument is also not persuasive. The complaint filed in the Texas action belies Defendant’s assertion that the Texas claim does not support a compulsory counterclaim. Defendant argues that the Chicago claim is based on the original sale of the Wilson stock and that the Texas action is based on the subsequent exchange of the preferred Gilldorn stock for the Promissory Note given in the sale of the Wilson stock. It is clear that the sale of the Wilson stock and the purchase of the prefered Gilldorn stock are very closely related. Commerce attached a copy of the [Wilson] Stock Purchase Agreement to the Texas complaint. Further, the allegations in the Texas complaint that Gilldorn misrepresented its intentions not to litigate the claims arising from the sale of the Wilson stock clearly refers to this very lawsuit. Therefore, it is clear that the two claims are logically related and that Commerce’s claim should have been brought as a compulsory counterclaim in this action.

For these reasons, plaintiffs’ Motion to Enjoin Prosecution of Counterclaim in Separate Litigation is granted.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Teachers Insurance and Annuity Association of America, State Street Bank and Trust Company, as Master Trustee for the Retirement Plans of Atlantic Richfield Company and Certain of its Subsidiaries, and Manufacturers Hanover Trust Co., as Trustee for the Special Situations Bond Fund, Plaintiffs, v. BMC INDUSTRIES, INC., and the First National Bank of Saint Paul, as Agent, Defendants.
    No. 85 Civ. 4881 (RWS).
    United States District Court, S.D. New York.
    Nov. 21, 1985.
    See also, D.C., 630 F.Supp. 1298.

      White & Case, New York City (Thomas McGanney, of counsel), for plaintiffs.
    Cahill Gordon & Reindel, P.C., BMC Industries, Inc., New York City (Charles A. Gilman, Thomas R. Jones and Laurence A. Silverman, of counsel), for defendants.
   OPINION

SWEET, District Judge.

Defendant BMC Industries, Inc. (“BMC”) has brought a motion to dismiss the complaint for lack of venue or in the alternative to transfer this action to the United States District Court for the District of Minnesota pursuant to 28 U.S.C. § 1404(a), 1406(a). For the following reasons the motion is denied.

Prior Proceedings

This is an action brought by plaintiffs, the Prudential Insurance Company of America (“Prudential”), Teachers Insurance and Annuity Association of America (“TIAA”), State Street Bank and Trust Co. (“State Street”) and Manufacturers Hanover Trust Company (“Manufacturers”) under section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and under principles of common law for rescission of a Note Agreement dated December 13, 1984 (the “Note Agreement”) between BMC and each of the plaintiffs. Plaintiffs purchased $30,000,000 of BMC’s convertible notes (the “Notes”) pursuant to the Note Agreement.

In addition to seeking rescission of the Note Agreement, plaintiffs also requested in their original complaint an injunction to prevent the execution of an amendment to BMC’s ongoing credit agreement with The First National Bank of St. Paul (the “St. Paul Bank”) and other members of a group of bank lenders. This claim for relief was a response to BMC’s declaration to plaintiffs that it had entered into an amendment pursuant to which all of BMC’s debt to the banks would become payable immediately upon any suit for rescission by plaintiffs. Before the court reviewed this injunctive request, BMC voluntarily agreed to waive the effectiveness of the amendment until July 1, 1986 and, therefore, St. Paul Bank was dismissed as a defendant in this action without prejudice.

The Facts

The following facts relevant to venue and transfer are not disputed by the parties. The transaction at issue was initiated in August, 1984 when The First Boston Corporation (“First Boston”), an investment banking company, contacted each of the plaintiffs to inform them of BMC’s intention to offer approximately $25,000,-000 of convertible notes. Kevin Newman, a vice-president of First Boston based in its New York office, was a significant participant in the transaction, both by furnishing information to the plaintiffs and by assisting in negotiations on behalf of BMC. First Boston acted as BMC’s financial ad-visor in connection with the issuance of the Notes. The BMC client officer at First Boston works at that firm’s Chicago, Illinois office.

From August, 1984 through the closing of the transaction on December 13, 1984, the plaintiffs, BMC, and First Boston participated in general meetings and negotiations. One meeting occurred at the offices of BMC in St. Paul, Minnesota. The rest of the meetings leading up to the consummation of the sale appear to have occurred in New York City. One meeting occurred on October 2, 1984 in which BMC provided certain data at issue in the action. Further discussions were held in New York on November 15 and November 30, 1984 and were attended by Paul B. Burke (“Burke”), BMC’s vice-president and general counsel. The Note Agreement was also executed in New York on December 13, 1984. One day after closing, Ryal Poppa, the chairman and chief executive officer of BMC, travelled to New York and disclosed additional information. At another meeting in New York on January 22, 1985, the plaintiffs met with First Boston and BMC representatives and demanded rescission.

Venue

Venue is proper in this district under section 27 of the Exchange Act, 15 U.S.C. § 78aa (1982). The facts-indicate that several meetings between the principals and their agents occurred in New York City and moreover, the transaction was ultimately executed here. Therefore, this court’s holding in Hadron, Inc. v. Vukcevic, [1982-83] Fed.See.L.Rep. (CCH) 99,101 (S.D.N.Y.1983), which was based on the absence of any activities in New York other than plaintiffs’ representation by New York counsel, is inapplicable here.

Transfer

BMC’s alternative motion for a change of venue is made pursuant to 28 U.S.C. §§ 1404(a), 1406(a). Section 1404(a) permits a district court to transfer any civil action to any other district or division where it might have been brought for the convenience of parties and witnesses and in the interest of justice.

The plaintiffs’ choice of forum must be given substantial weight unless the balance of convenience and the interest of justice weighs heavily in favor of the defendant. Factors Etc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Accordingly, the burden is on the defendant to establish that there should be a change of venue. City of New York v. General Motors Corp., 357 F.Supp. 327, 328 (S.D.N.Y.1973), see Ross v. American Airlines, Inc., 83 Civ. 3718 (S.D.N.Y. Oct. 18, 1983) (requiring a “clear-cut showing”); 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure 244 (1976). The relevant factors are: convenience to the parties and witnesses; the relative ease of access to sources of proof; the availability of process to compel the presence of unwilling witnesses; the practical problems indicating that the case can be tried more expeditiously and inexpensively, and the interests of justice. Seven Star Shoe Co., Inc. v. Strictly Goodies, Inc., 83 Civ. 2904 (S.D.N.Y. March 21, 1984). See Van Du-sen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 (1964); Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y. 1967).

An evaluation of the convenience of the parties and witnesses does not provide a clear-cut showing that this case would better be tried in Minnesota. Each of the two opposing sides has amply demonstrated that their employees with knowledge of the transaction and the relevant underlying facts would prefer to appear at a trial located in their home district. Donald Heitzler, a managing director of the Capital Markets Group of the Prudential Investment Corporation, headed the group at Prudential’s New Jersey headquarters that participated in the purchase of the BMC notes and resides in New Jersey. Michael Fitzgerald, a director of the same Capital Market Group, attended several of the meetings and participated in negotiations regarding the Note Agreement; he also lives in the metropolitan New York area. Suzanne Walton and Daniel Nigro are a senior vice president and senior securities analyst, respectively, at TIAA’s main office in New York City. These two witnesses also attended meetings and are prepared to testify about the Note Agreement transaction. BMC, on the other hand, has submitted the affidavit of Paul Burke who asserts that he and other executives at BMC will be greatly inconvenienced by having to testify in this district. Thus there is a sharp division regarding the convenience of New York as opposed to Minnesota. Cf. Ethiopian Spice Extraction Share Co. v. Kalamazoo Spice Extraction Co., 78 Civ. 4169 (S.D.N.Y. June 11, 1979) (finding that the inconvenience to the plaintiff, a foreign corporation, would be the same in either the New York or Michigan district court).

Perhaps a more important question, therefore, is the availability of process to compel the testimony of non-party witnesses. See Turner Holdings, Inc. v. Howard Miller Clock Co., 83 Civ. 7545 (S.D.N.Y. February 29, 1984). Newman, the First Boston advisor to BMC in this particular transaction, resides in New York. Charles J. Burns, the former chief financial officer of BMC, resides in the District of Minnesota. Harris Ravine, the former senior vice president, secretary and general counsel for BMC, has retained a job in Colorado, but still maintains a personal residence in Minnesota. Thus, unless and until he changes his personal residence, he presumably would be subject to the process of the district court in Minnesota. Finally, Ryal Poppa, BMC’s former president, resides in Colorado and Margaret Auchincloss, BMC’s client officer at First Boston, resides in Chicago. While the location of these non-party witnesses weighs slightly in favor of Minnesota as the more appropriate forum, the difference does not rise to a material proportion. Cf. Turner Holdings, supra (transferring action upon holding that great majority of potential witnesses resided in Michigan).

In weighing the number and location of potential non-party witnesses, the court has excluded as irrelevant for the present time the location of witnesses for St. Paul Bank. Witnesses from the bank were sought by the plaintiffs for expedited discovery in connection with BMC’s credit agreement with the group of banks headed by St. Paul Bank. Since this aspect of the case has been provisionally settled by consent of the parties, it cannot possibly be the focus of this action until after July, 1986.

None of the other considerations associated with the motion to transfer persuade the court that this action should be tried in Minnesota. The documents sought to be discovered by plaintiffs can certainly be reproduced and presented in New York. See Herbst v. Able, 278 F.Supp. 664, 667 (S.D.N.Y.1967). In addition, the Note Agreement was executed in New York and contains a governing provision which specifies that New York shall provide the law governing the rights of the parties. Each of these facts suggest that New York law will be more important in this action than will the law of the State of Minnesota and so counsel the maintenance of the action in this forum. See Turner Holdings, supra. The docket conditions in each of the two possible fora do not dictate that the action be transferred in the interests of justice. See Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir.1980) (Newman, J., concurring).

In sum, BMC has not met its burden of demonstrating that the plaintiffs’ choice of forum should be overturned. See Factors Etc., supra, 579 F.2d at 218. BMC is a corporation with offices throughout this country and even maintains a presence abroad. Having selected New York as the appropriate place to market its securities and having actively sought the interest of the plaintiffs’ through a New York investment banking firm, BMC should not, without a stronger showing than has been made at this time, be permitted to avoid this logical and appropriate forum for resolving the rights of the parties under the allegedly fraudulent Note Agreement.

BMC’s motion for a transfer of venue will be denied. Should the litigation change its course to include the St. Paul Bank as a party, or should a bankruptcy action be commenced in Minnesota, leave is granted to review the instant transfer motion.

IT IS SO ORDERED.


author: LEVAL, District Judge.

text:
    UNITED STATES of America, v. BADALAMENTI, et al., Defendants.
    No. SS. 84 Cr. 236 (PNL).
    United States District Court, S.D. New York.
    Nov. 26, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Richard Martin, Louis Freeh, Robert Stewart, Robert Bucknam, Asst. U.S. Attys., New York City, for U.S.
    Michael Kennedy, New York City, for defendant Gaetano Badalamenti.
    Ivan Fisher, New York City, for defendant Salvatore Catalano.
    Anthony Lombardino, Kew Gardens, N.Y., for defendant Joseph Lamberti.
    Joseph Benfante, New York City, for defendant Salvatore Mazzurco.
    Frank A. Lopez, Brooklyn, N.Y., for defendant Salvatore Lamberti.
    Steven Kimelman, New York City, for defendant Giovanni Ligammari.
    James La Rossa & Paul Bergman, New York City, for defendant Baldassare Amato.
    Lawrence H. Schoenbach, New York City, for defendant Vincenzo Randazzo.
    Patrick Burke, Suffern, N.Y., for defendant Pietro Alfano.
    David De Petris, New York City, for defendant Emmanuele Palazzolo.
    David Lewis, New York City, for defendant Samuel Evola.
    Robert Koppelman, New York City, for defendant Vito Badalamenti.
    Larry Ruggiero, New York City, for defendants Giuseppe Trupiano and Giuseppe Vitale.
    James Moriarty, New York City, for defendant Lorenzo DeVardo.
    Gerald V. Dichiara, New York City, for defendant Giovanni Cangialosi.
    Robert C. Fogelnest, Philadelphia, Pa., for defendant Salvatore Salamone.
    Larry Bronson, Bayonne, N.J., for defendant Salvatore Greco.
    Kenneth Kaplan, New York City, for defendant Frank Castronovo.
    Marvin Segal, New York City, for defendant Gaetano Mazzara.
    Michael Querques, Orange, N.J., for defendant Francesco Polizzi.
    Joseph W. Ryan, Jr., Mineóla, N.Y., for defendant Filippo Casamento.
   OPINION AND ORDER

LEVAL, District Judge.

The Government moves to require the defense attorneys at the conclusion of each witness’ examination to return to it the materials produced under the Jencks Act, 18 U.S.C. § 3500. Defendant Amato resists the application and contends there is no provision in the statute or elsewhere requiring such return.

The Government cites no decisional authority supporting its position, but claims that tradition and usage are consistent with its view, and purports to explain the lack of supporting decisions by the fact that no opposition was ever previously expressed.

The Government contends because § 3500 bars production of each witness’ statements prior to the time for his cross-examination, this indicates that the sole purpose of the required production is for impeachment on cross and the material can be used for no other purpose. The Government cites the Supreme Court’s opinion in United States v. Palermo, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) for the proposition that the material was intended for use in cross-examination and that the Act sought to restrict overbroad disclosure practices that had grown up under the Jencks decision, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1953). See also United States v. Percevault, 490 F.2d 126 (2d Cir. 1973), and United States v. Catalano, 491 F.2d 268 (2d Cir.1974).

In my view, the Government’s argument goes too far. Even acknowledging that a purpose of the Act was to restrict disclosure in various specified ways, it does not necessarily follow that the Act requires further limitations which it did not specify. The Act went to lengths to specify that “no statement or report •... made by a Government witness ... shall be the subject of subpoena, discovery or inspection until said witness has testified on direct____” If it was intended that the statement be returned after cross, this would have been easy enough, to state.

Furthermore, a legislative act is more complex than the Government’s argument presupposes. Acts generally do not have a single, clearly defined goal. This statute, for example, accommodates different values and objectives. Paragraph (a) concerns itself with protecting the Government from premature disclosure; paragraph (e) seeks to protect the integrity of the trial process and cross-examination by limiting disclosure for cross-examination to prior statements of the witness that are reproduced “substantially verbatim”; paragraph (b) seeks to protect the defendant’s ability to defend at trial by requiring the disclosure of the prior statements of the witness to defense counsel. Not only does an act serve different objectives, it also represents a legislative compromise of different and conflicting political interests — in this case, those that would have preferred earlier and more extensive disclosure as against those that would favor less disclosure of the Government’s investigative file. Justice Frankfurter’s opinion in Palermo discusses the turbulence of Congressional activity between the initial submission of a bill by the Department of Justice, through numerous modifications and counterproposals, to the finally adopted act.

The Government’s position also leads to rather improbable results. If, for example, as trial progresses, defense counsel perceives, through a combination of § 3500 material previously turned over and later testimony or other § 3500 material, that Government agents have engaged in misconduct — subornation of perjury, suppression of evidence or Brady material, failure to disclose § 3500 material — and counsel requires use of the prior § 3500 material to support his application for relief, the Government’s position means that he cannot so use it because it was disclosed under the Act solely for crossing the prior witness. I think this is far fetched.

Nor is it self evident that under the Act a defendant should not be permitted to consult previously disclosed § 3500 material of another witness to help plan cross of a later witness. Although it is elementary that a witness may not be impeached by the statement of another, it does not follow that defense counsel should be barred from access to the previously disclosed inconsistent statements to suggest areas to explore on cross, or to support an application to recall the prior witness. All this, the Government contends, is forbidden by unwritten but implicit commands of the Act. In my view, if something so contrary to logic or fairness had been intended, it would have been written.

The statute’s only reference to appeal also tends (modestly) to favor the defendant’s position. Where excisions have been made from the statement turned over on the grounds that portions do not “relate” to the witness’ direct, the statute requires the Government to preserve “the entire text of such statement ... [to] be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge [as to excision].” This sentence imposing the obligation of preservation only as to statements not turned over, seems to suggest that Congress believed the defendant did not need the Government’s help to preserve items that had been turned over.

I note further that the Government’s effort to explain the absence of decisional authority by the suggestion that “intervention of the Court is not generally required to procure compliance” is at odds with at least this judge’s experience. In my nearly eight years on the bench, I can recall no prior instance in which I was aware of a government demand for such return of the § 3500 materials. Nor do I recall such applications being made during the four years I served as an Assistant U.S. Attorney in the 1960s. I do not rely on my personal experience recognizing that it is not part of the record and consequently the Government has not been offered the opportunity to rebut it. I find, however, that the Government has not offered evidentiary support for its contention that such return is the usual practice accepted on both sides.

The Government’s application for such an order is denied.

The Government also seeks a more narrow order specifically directed to the § 3500 material of the witness Buscetta, on the grounds that the material contains depositions and statements constituting evidence against innumerable other persons and that its disclosure could cause serious security problems. I believe this application is well founded. I do not believe, however, that rule or reason justify denying the defense attorneys’ access to those materials for appropriate use during trial.

Accordingly, I direct that
(1) defense counsel promptly deliver to the Government all copies in the Buscetta § 3500 materials and
(2) the Government keep copies of those materials on hand during trial to be shown to defense counsel upon demand on the understanding that they will be used only for purposes of this trial.

SO ORDERED.


text:
    UNITED STATES of America, v. BADALAMENTI, et al., Defendants.
    No. SS 84 Cr. 236(PNL).
    United States District Court, S.D. New York.
    Jan. 7, 1986.

      Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Richard Martin, Louis Freeh, Robert Stewart, Robert Bucknam, Asst. U.S. Attys., New York City, for U.S.
    Michael Kennedy, New York City, for defendant Gaetano Badalamenti.
    Ivan Fisher, New York City, for defendant Salvatore Catalano.
    Anthony Lombardino, Kew Gardens, N.Y., for defendant Joseph Lamberti.
    Joseph Benfante, New York City, for defendant Salvatore Mazzurco.
    Frank A. Lopez, Brooklyn, N.Y., for defendant Salvatore Lamberti.
    Steven Kimelman, New York City, for defendant Giovanni Ligammari.
    James La Rossa & Paul Bergman, New York City, for defendant Baldassare Amato.
    Lawrence H. Schoenbach, New York City, for defendant Vincenzo Randazzo.
    Patrick Burke, Suffern, N.Y., for defendant Pietro Alfano.
    David De Petris, New York City, for defendant Emmanuele Palazzolo.
    David Lewis, New York City, for defendant Samuel Evola.
    Robert Koppelman, New York City, for defendant Vito Badalamenti.
    Larry Ruggiero, New York City, for defendant Giuseppe Trupiano and defendant Giuseppe Vitale.
    James Moriarty, New York City, for defendant Lorenzo DeVardo.
    Gerald V. Dichiara, New York City, for defendant Giovanni Cangialosi.
    Robert C. Fogelnest, Philadelphia, Pa., for defendant Salvatore Salamone.
    Larry Bronson, Bayonne, N.J., for defendant Salvatore Greco.
    Kenneth Kaplan, New York City, for defendant Frank Castronovo.
    Marvin Segal, New York City, for defendant Gaetano Mazzara.
    Michael Querques, Orange, N.J., for defendant Francesco Polizzi.
    Joseph W. Ryan, Jr., Mineóla, N.Y., for defendant Filippo Casamento.
   OPINION AND ORDER: CONTORNO TESTIMONY

LEVAL, District Judge.

The Government offers as part of the testimony of Salvatore Contorno statements made to Contorno by six declarants. The Government contends that each of these six was a member of the conspiracy and that their statements are relevant to the charges. As against the defendants’ hearsay objections, the Government contends the statements come within recognized exceptions, being either statements made “by a coconspirator of a party during the course and in furtherance of the conspiracy,” Fed.R.Evid. 801(d)(2)(E), or as statements of an unavailable declarant that “so far tended to subject him to ... criminal liability ... that a reasonable man in his position would not have made the statements] unless he believed [them] to be true.” Fed.R.Evid. 804(b)(3).

I directed that an offer of proof be made on the live testimony of Contorno. Contorno’s testimony on these declarations was heard.

The declarations at issue are those of Emanuele D’Agostino and Leonardo Greco primarily concerning a meeting at a farmhouse in Sicily at which a shipment of drugs was tested for purity; and statements of Carlo Castronovo, Nunzio LaMattina, Antonino Rotolo and Mimmo Teresi, offering to admit Contorno as a partner in drug deals and describing aspects of their dealings.

Numerous arguments are advanced by defendants against the admission of these statements, including, as to the co-conspirator basis under 801(d)(2)(E), that the declarants’ membership in the conspiracy with the defendants is not shown by independent evidence, see United States v. Cambindo Valencia, 609 F.2d 603, 631 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980), that the statements were not in furtherance of the conspiracy, either because they were merely narrative, see United States v. Lieberman, 637 F.2d 95, 102-03 (2d Cir.1980), or because Contorno was importuning the declarants with pleas for charity and the declarants were not in any realistic sense seeking to advance their conspiracy by including him in it; as to the against penal interest basis, that the declarants are not sufficiently shown to be unavailable as witnesses, that the statements were not within the knowledge of the declarants, see United States v. Lang, 589 F.2d 92 (2d Cir. 1978), and the statements were not against the declarants’ penal interest because the circumstances gave the declarants no reason to fear prosecution. Defendants argue further that the receipt of these statements violates the Confrontation Clause of the Constitution by subjecting them to incriminating assertions made by persons not subject to cross-examination. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); United States v. Wright, 588 F.2d 31 (2d Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979); United States v. Puco, 476 F.2d 1099 (2d Cir.), cert. denied, 414 U.S. 844, 94 SCt. 106, 38 L.Ed.2d 82 (1973).

I have given careful consideration to each of the proffered statements in the context of the numerous arguments made and find that the major part of the declarations are admissible, but that certain portions are not.

D’Agostino and Leonardo Greco

According to Contorno’s testimony, D’Agostino offered Contorno the opportunity to participate as an investor in D’Agostino’s heroin transactions. (The two had in earlier years invested together in cigarette smuggling.) D’Agostino told Contorno he needed 50 million lire to invest in one-half kilo of heroin, that the investment was safe because the drugs were handled by Mafia men and that D’Agostino had a friend, Tanino Mazzara, a Mafia member of the Noce family who handled the transactions in the United States. (The Government alleges this referred to the defendant Gaetano Mazzara.) This matter is admissible whether as a co-conspirator’s statements in furtherance of the conspiracy or as an admission against penal interest.

D’Agostino’s membership in a conspiracy with the defendants is shown by independent proof, including D’Agostino’s meeting at the farmhouse with Ganci, Catalano, Mazzara, Castronovo and Salvatore Greco. An invitation of participation as an investor is in furtherance of the purposes of the conspiracy even if Contorno was more eager to join than D’Agostino was to have him.

As to the against penal interest exception, D’Agostino’s acknowledgement of his role in drug dealing unquestionably qualifies. See Lieberman, supra, 637 F.2d at 103-04. So also does the further extension of the statement in which D’Agostino tells that he sends the drugs to his friend Mazzara, which is equally against D’Agostino’s penal interest; it is within his personal knowledge; the circumstances strongly suggest that D'Agostino would not have said it unless it were true. The Court of Appeals made clear in Lieberman, supra, 637 F.2d at 103, United States v. Garris, 616 F.2d 626, 631-32 (2d Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119 (1980); United States v. Katsougrakis, 715 F.2d 769, 775 (2d Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984); and United States v. Stratton, 779 F.2d 820 (2d Cir.1985), that an extension of a declaration against penal interest that shows the guilt of another person (generally a defendant), made on personal knowledge, is admissible as part of the statement if it possesses the degree of reliability (“a reasonable man in [the declarant’s] position would not have made the statement unless he believed it to be true”) that the rule requires, and if its trustworthiness is corroborated by the circumstances. Courts and commentators have recognized the danger that in confessions to law enforcement officers, assertions of the guilt of other persons should be assessed with caution by reason of the declarant’s possible motive to fabricate or exaggerate the implication of another for his personal interest. See Lieberman, 637 F.2d at 103; Garris, 616 F.2d at 631-32; Lang, 589 F.2d at 97; Advisory Committee Notes to Rule 804(b)(3). That concern has no role here. See Katsougrakis, 715 F.2d at 775 (statement to a friend of declarant sufficiently reliable).

As to the Bagheria farmhouse transaction, the evidence shows that D’Agostino was employing Contorno in furtherance of the transaction. D’Agostino had employed Contorno as a helper on previous occasions. D’Agostino solicited Contorno to drive him to the farmhouse and explained they were going to test a shipment of drugs. D’Agostino knew Contorno was armed, as was his habit. (Contorno testified to the importance of being armed when in the presence of substantial quantities of drugs, since anything can happen.) D’Agostino’s statements to Contorno along the way that they were going to test a shipment of drugs and who would be there, is admissible as in furtherance of the conspiracy. D’Agostino was receiving support through the armed presence of Contorno. It was important for Contorno to be aware who was expected and what would happen.

Furthermore, on the way, D’Agostino offered Contorno the opportunity to participate in the venture financially if he could raise the capital. According to Contorno’s understanding of D’Agostino’s remarks in this connection, Contorno could have been cut into this deal at any time up to the loss of the drugs in Milan. D’Agostino’s explanation of details, including the participants, is in furtherance of an offer of participation to a potential investor. See United States v. Perez, 702 F.2d 33, 37 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2457, 77 L.Ed.2d 1336 (1983); United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978).

The co-conspirator-in-furtherance exception also justifies receipt of the few statements of Leonardo Greco who told D’Agostino that he would send someone to show them where the drugs would be tested and that he had sent his brother to be present at the testing.

The same exceptions justify receipt of D’Agostino’s remark on leaving the farmhouse that the drugs had tested well and that the packages had been marked to protect against substitution.

Around two weeks later, D’Agostino told Contorno that the shipment had been lost to the police in Milan. He told Contorno there had been 40 kilos. Admission of ownership of a drug shipment that has been seized by the police has a high capacity to expose the declarant to criminal liability. The statement is within the against penal interest exception. In addition, D’Agostino told Contorno of the loss as explanation of why Contorno would not receive a gratuity in connection with the deal, with the promise that there would be other opportunities. This aspect of the statement — the advice of the loss as explanation for failure to pay a gratuity to one who helped in the transaction — may also be justified on in-furtherance grounds.

D’Agostino had other conversations with Contorno between the testing day and the seizure. For instance, he had said that Leonardo Greco had sent the shipment to Milan in a fruit truck. Such conversations seem more like narrative gossip than attempts to further the conspiracy and are therefore inadmissible under Rule 801(d)(2)(E). As to the Rule 804(b)(3) exception, although the statements have some capacity to incriminate the declarant, they assert facts outside his personal knowledge. See Lang, supra; Fed.R.Evid. 602. They are excluded.

Carlo Castronovo

Contorno’s testimony concerning the statements of Carlo Castronovo are admissible under the against penal interest exception, in combination with the co-conspirator-in-furtherance exception. Carlo Castronovo, who had done cigarette smuggling as well as cattle dealing with Contorno in earlier years, advised Contorno in 1978-79 that he was dealing in drugs with a La Cosa Nostra cousin in America — Ciccio Castronovo — (asserted by the Government to be the defendant Frank Castronovo) who used pizza restaurants as a front. He invited Contorno to participate.

His admission of drug dealings and also his identification of his cousin as his partner are properly received as statements against his penal interest. See Stratton, supra, at 828-30; Katsougrakis, supra, 715 F.2d at 775; Lieberman, supra, 637 F.2d at 103; Garris, supra, 616 F.2d at 630. Like D’Agostino’s statement to Contorno about Mazzara, Carlo Castronovo’s statement that he dealt with his cousin Ciccio in the United States was within his personal knowledge, was an integral part of a statement clearly against his penal interest, was trustworthy and satisfied all the requirements of Rule 804(b)(3).

As to Carlo’s statement that his cousin used pizza parlors as a front for drugs, however, another problem arises; no showing is made that this was within Carlo’s knowledge. That bars receipt under the against penal interest exception. See Lang, supra.

This portion of the statement may nonetheless be received if made by a co-conspirator in furtherance of the conspiracy. Personal knowledge of the declarant is not required where the basis of admissibility is the defendant co-conspirator’s authorization (under agency theory) to make the statements — especially where, as here, the statement is within the knowledge of the “authorizing” defendants. See United States v. McLernon, 746 F.2d 1098, 1106 (6th Cir.1984) (personal knowledge requirement not applicable to Rule 801(d)(2)(E)); United States v. Ammar, 714 F.2d 238, 254 (3d Cir.) (personal knowledge requirement applies to Rules 803 and 804, but not to Rule 801(d)(2)(E)), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); Advisory Committee Note to Rule 801; McCormick, Handbook of the Law of Evidence, § 262 at 628 & § 263 at 632 (2d ed. 1972). The statement is unquestionably made in furtherance of narcotics transactions as it is part of Carlo’s invitation to Contorno to invest. The conspiracy between the declarant Carlo and the defendants must be shown by evidence independent of the hearsay being offered. Cambindo Valencia, supra, 609 F.2d at 631, 635.

As proof independent of Carlo’s statement that Ciccio operates through pizza parlors, the Government offers a variety of evidence. First, there is the other part of Carlo’s statement, received as against Carlo’s penal interest, that Carlo’s New York importer is his cousin Ciccio, shown to be the defendant Frank Castronovo. Second, shortly after the police seizure of the 40 kilograms in Milan, defendant Frank Castronovo is shown to have telephoned to Carlo in Sicily. Carlo was a Mafia member of the Bagheria family. Leonardo Greco, capo of the Bagheria family, was shown by D’Agostino’s statements to be the principal Sicilian owner of the Bagheria shipment.' Leonardo Greco sent his brother Salvatore to the farmhouse testing meeting. Frank Castronovo also attended the testing meeting. Frank had been observed on February 14 in Palermo with a person connected by surveillance with Ragusa, who in turn was seen with colleagues of Frank Castronovo in Palermo, and a month later, on the eve of the seizure was observed with the Adamitas in Milan. The Adamitas were arrested immediately after consigning the 40 kilograms of heroin to a New York address apparently controlled by Ragusa. Furthermore, there is evidence of meetings between Mazzara and Carlo Castronovo in Sicily in 1983, apparently concerning Mazzara’s efforts to resolve payment problems that had arisen between the Sicilian exporters and New York importers.

This evidence amply satisfies the United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970), requirement of showing the conspiratorial association between Carlo Castronovo and the New York defendant group.

Defendants argue that most of this evidence postdates the statement. They contend that the only evidence of an association existing at the time of the statement about Ciccio’s use of pizza restaurants as fronts is the other part of the same statement to the effect that Carlo’s cousin Ciccio was his New York contact. Defendants argue that the Cambinda Valencia requirement of independent proof forbids use of any part of the statement to determine whether the connection has been shown.

This misunderstands and distorts the proposition. Cambindo Valencia forbids bootstrapping by using the content of the hearsay to demonstrate the satisfaction of the conditions of its admissibility. The requirement that the conspiratorial association be made out by independent proof may be satisfied by any admissible proof. It makes no difference whether this independent proof is an independently admissible part of the declarant’s same statement, so long as the portion relied on has an independent basis of admissibility. United States v. Cambindo Valencia, supra, 609 F.2d at 635 n. 24; see United States v. Cicale, 691 F.2d 95, 103-05 (2d Cir.1982) (statements of co-conspirator declarant independently admissible under a separate hearsay exception (Rule 803(3)) and thus may be relied on to make Geaney finding), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983); United States v. Sperling, 726 F.2d 69 (2d Cir.) (similar to Cicale), cert. denied, — U.S. -, 104 S.Ct. 3516, 82 L.Ed.2d 824 (1984). No bootstrapping is involved since the statement relied on to support the hearsay is independently received.

Here, as explained above, Carlo’s statement that he dealt with his cousin Ciccio in the United States was admissible under Rule 804(b)(3). It is therefore independent proof that may be considered in deciding whether the association between Carlo and the defendant Frank Castronovo has been shown as a basis for admitting Carlo’s further statement that Ciccio used pizza restaurants as fronts. That association is adequately shown.

In conclusion, Carlo’s statement that he dealt in drugs through his cousin Ciccio in the United States is admissible as against Carlo's penal interest under 804(b)(3). The further statement that Ciccio used pizza restaurants as fronts is admissible as a co-conspirator’s statement in furtherance of the conspiracy under 801(d)(2)(E). Mimmo Teresi

As to Mimmo Teresi, Contorno testified that Teresi told him that Teresi, together with certain named partners (not defendants), was dealing in drugs through a phony powdered milk company on Via Longa in Milan. He named defendants Ganci and Catalano as the United States receivers of the drugs. He offered Contorno the opportunity to invest in drugs through his milk company if Contorno could raise the capital.

Teresi’s admission of his drug dealings through the Milanese milk company is properly received as against penal interest, including also his identification of his partners. Other evidence links the milk company to the defendants’ conspiracy through monies smuggled into Switzerland to pay for drugs.

The most prejudicial part of the Teresi statements is his naming of defendants Ganci and Catalano as the United States receivers. This is not shown to be within Teresi’s personal knowledge, making it inadmissible under the against penal interest exception, see Lang, supra; the demonstration that this was said in furtherance of the conspiracy is also quite weak. Furthermore, upon later questioning by the court, Contorno denied that Teresi had named the United States receivers. When I pointed out these problems at an unrecorded bench conference, the Government withdrew its offer of the Ganci-Catalano statement.

Rotolo and LaMattina

Contorno testified at the hearing that in 1977-78 both LaMattina and Rotolo offered him the opportunity to invest in their drug importations. Contorno had earlier invested with them in cigarette smuggling which had involved use of ships bringing tobacco from the Near East. Traffic in tobacco had ceased. Contorno was told that the heroin importation involved the same routes and facilities of shipping as the cigarette traffic. He was told prices and other details including that the heroin was shipped to Mafia members in the United States.

These declarations are properly received as co-conspirators’ statements in furtherance of the conspiracy if independent evidence shows LaMattina’s and Rotolo’s involvement with the defendants. In my opinion this is sufficiently demonstrated. Evidence obtained in the Swiss depositions shows that LaMattina had incurred a huge debt to suppliers of morphine base from Turkey which caused interruption of the traffic, that Rotolo, accompanied by LaMattina’s son-in-law, Priolo, arranged to make payments retiring part of LaMattina’s debt and reopening the traffic, that dollars collected by couriers in New York from Ganci and Castronovo, among others, were routed through Swiss accounts to pay for the morphine base.

Defendants argue that Rotolo’s and LaMattina’s statements- were made, according to Contorno’s testimony, considerably earlier than the first observations of defendants in conspiratorial relationships; that LaMattina is not shown to have received money from the defendants in New York; and that LaMattina and Rotolo were not seeking to further their business by including Contorno but were merely responding to his repeated pleas for charity.

These are reasonable arguments, but not in the end persuasive. The Government’s evidence shows five New York defendants (Ganci, Catalano, Mazzara, Frank Castronovo and Salvatore Greco) testing a huge multimillion dollar shipment of narcotics in a Sicilian farmhouse in February or March 1980. There is evidence that prior shipments had resulted in problems of quality. Police surveillance evidence in Sicily in February 1980 shows prior organizational travel to Rome and Sicily by several of the New York defendants. Evidence from the U.S. wiretaps and surveillances shows years of subsequent continuation among the Bagheria farmhouse participants of their drug importing conspiracy. Also, the statements of D’Agostino about Mazzara and of Carlo Castronovo about his cousin Ciccio in the United States show those two defendants (who are close friends and restaurant partners) to have been involved in drug importation earlier than the Bagheria farmhouse incident. Contorno placed those statements in 1979.

The evidence strongly suggests that so elaborate, far-flung and long-lived a conspiracy, dealing in huge amounts of money and drugs through a complicated and elaborate international network, was not born fully formed at the moment its operation is first observed in February 1980. All the surrounding evidence strongly suggests that these elaborate international conspiratorial arrangements were operating long before Contorno sees them in operation in February or March of 1980. All that is needed to make the evidence admissible is satisfaction of the Geaney threshold test as to the existence of the conspiratorial relationships between the New York defendant group and LaMattina and Rotolo at the time of their making the statements. I find that this is sufficiently shown.

The evidence connecting LaMattina to the New York defendants’ conspiracy also is sufficiently shown. The fact that Rotolo must arrange to satisfy LaMattina’s debt to Musullulu before Musullulu will reopen dealings with Rotolo, coupled with the involvement of LaMattina’s son-in-law and assistant, Priolo, in Rotolo’s negotiations with Musullulu’s representative to get the traffic-moving again, shows (sufficiently to satisfy the Geaney issue) that LaMattina and Rotolo were negotiating for the same account. The evidence of the Swiss money transfers shows, sufficiently to meet the Geaney test, that this was the account of the New York defendant group. The evidence is admissible.

Nor do I find merit in the argument that, because Contorno thereafter repeatedly importuned LaMattina and Rotolo for opportunities to earn money, all their statements should be excluded. It is argued that, after repeated discussions, LaMattina and Rotolo knew well that Contorno was broke and could not invest; their conversations with him were not really seeking to further any conspiracy, but were nothing more than a polite way of putting off persistent solicitation. This argument might have some force if the Government were offering statements made by LaMattina and Rotolo in later conversations with Contorno. But it is my understanding of the Government’s offer of proof and of Contorno’s testimony that the offered statements were made by LaMattina and Rotolo in their early conversations with Contorno. Contorno, although in diminished circumstances, was a Mafia member and had been a co-venturer with them in tobacco smuggling. There is no reason to doubt that their early responses to his approaches by offering him participation genuinely contemplated furthering Mafia business by bringing in a trusted participant.

The evidence of LaMattina’s and Rotolo’s statements would also qualify for receipt as statements against their penal interests under Rule 804(b)(3). All the requirements are met.

The most damaging part of the LaMattina declaration was his statement, according to Contorno, that Ganci and Catalano were the United States receivers of the heroin. When questioned by the Government on the offer of proof, Contorno testified that although LaMattina had told him who were the U.S. receivers, he could not remember the names. Since Contorno made numerous references to the names Ganci, Catalano, Mazzara, Castronovo and Salvatore Greco, I then questioned him to determine whether his statement that he could not remember the names mentioned by LaMattina meant that they were names other than the familiar ones. He answered that he now remembers that it was Ganci and Catalano.

In view of the highly prejudicial nature of this evidence, its low reliability given Contorno’s sudden turnabout on his ability to remember it, the absence of proof of LaMattina’s personal knowledge of that fact and, of course, the pervasive problem for this kind of proof of the defendants’ inability to cross-examine LaMattina, the supposed maker of the statement, I expressed concern as to whether this part of the LaMattina declaration should be received. The Government answered that it would not offer Contorno’s testimony as to LaMattina’s identification of Ganci and Catalano. That detail accordingly is excluded. Additional General Arguments

I do not find merit in the defendants’ other arguments. As to the unavailability of the declarants — a requirement of 804(b)(3) — the Government asserts that D’Agostino, LaMattina and Teresi are dead, while Rotolo, Leonardo Greco and Carlo Castronovo are prisoners and defendants in Italy. (Leonardo Greco is also a defendant in this action.) Defendants argue that the deaths have not been proved and that as to the prisoners, mechanisms are potentially available to the Government under the new mutual assistance treaty with Italy to secure their presence as witnesses. The Government has submitted an affidavit answering the defendant’s claims as to unavailability. The affidavit shows, as to the dead declarants, that the information on their deaths was provided by Dr. Rocco Palamara, Director of the Office of Extradition for the Italian Ministry of Grace and Justice. As to the declarants who are prisoners in Italy, Dr. Palamara advised that they face trial in Italy which is scheduled for February 10, 1986 and that Italy would refuse to extradite them under the treaty, as is its right. This demonstration of their unavailability is sufficient to satisfy Rule 804(b)(3).

I do not find merit in the defendants’ further argument that the Mafia’s code of silence eliminated any risk that the declarants would incur criminal liability in making the declarations. The question as to such declarations is whether under the circumstances the declarant would have been unlikely to say it had not been true. To be against penal interest under the rule, the statement need not be made to persons who are likely to use it against the declarant in court proceedings. Declarations against penal interest are received notwithstanding that they were spoken in confidence in the expectation they would not be repeated to the authorities. See, e.g., Lieberman, supra, 637 F.2d at 104; Puco, supra; see also Lang, supra, 589 F.2d at 97-99 (where the disallowance was because the declaration included matter beyond declarant’s testimonial capacity, not because it was spoken to one believed to be a trustworthy accomplice). Indeed, that makes such declarations more trustworthy. See Stratton, supra, at 828-29. The circumstances of the making of the declarations now being admitted support their reliability.

Finally, there is no merit to the argument that admission of these out of court declarations by unavailable witnesses violates the Confrontation Clause of the Constitution. If it is the law in this Circuit that such declarations are not to be received or are subject to a higher standard of reliability if they are “crucial” to the Government’s case and “devastating” to the defendant, see Stratton, supra, at 830; Wright, supra, 588 F.2d at 38-39; Puco, supra, 476 F.2d at 1103; see also Dutton v. Evans, supra, 400 U.S. at 87, 91 S.Ct. at 219 (dicta) (where Justice Stewart commented that the statements there received against a Confrontation Clause challenge were neither “crucial” nor “devastating”), it is sufficient to answer that these declarations are neither crucial nor devastating. See United States v. Southland Corp., 760 F.2d 1366, 1377 (2d Cir.1985). They are merely reliable evidence, within accepted categories of exception to the hearsay rule, which tend to confirm aspects of otherwise extensive proofs. See Ohio v. Roberts, 448 U.S. 56, 66,100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); Katsougrakis, supra, 715 F.2d at 776.

SO ORDERED.

      . The rule of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed.2d 706 (1892), reflected in Fed.R.Evid. 803(3) would also justify the receipt of this statement of intention. See United States v. Cicale, 691 F.2d 95, 104 (2d Cir. 1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983).

      . As the Cambindo Valencia court noted in a footnote, when Geaney refers to independent nonhearsay evidence of the defendant’s participation in the conspiracy, "it is necessarily singling out more specifically evidence that would otherwise be inadmissible were it not for the coconspirator exception, Fed.R.Evid. 801(d)(2)(E). Otherwise, all of the hearsay deemed admissible pursuant to the hearsay exception rules of Fed.R.Evid. 803 and 804 would be ineligible for proof aliunde of a defendant’s or a declarant’s participation in a conspiracy, surely a result not intended by the rules or the court in Geaney." 609 F.2d at 635 n. 24 (emphasis added).
      By letter to the court dated December 27, 1985 submitted after release of my opinion in draft, counsel for defendant Amato argues that the opinion of the Court of Appeals in Cambindo Valencia, supra, 609 F.2d at 635 n. 24, did not intend to allow use of any part of the statement to prove its admissibility as a co-conspirator’s statement, even though a different basis of admission supports the part relied on.
      I continue to disagree with this argument and believe its fallacy is demonstrated by the following example.
      If the co-conspirator’s statement was in part uttered in the presence of the defendant, in part not, the part uttered in the presence of the defendant is admissible as an adoptive admission of the defendant. If that part demonstrates the existence of a conspiracy between the declarant and the defendants on trial sufficiently to satisfy Geaney, the remainder of the statement will also be admissible if in furtherance of the conspiracy. There is no offense to the principles of Cambindo Valencia notwithstanding that part of the same statement is used to demonstrate the admissibility of the remainder because the part so used is independently admissible. Thus, the "bootstrapping" found problematic in Cambinda Valencia is not involved.
      Here, likewise, the part of Carlo Castronovo’s statement relied on to show his conspiracy with Frank Castronovo is independently admissible. No circularity or bootstrapping is involved.
      Finally, I note that even without considering Carlo Castronovo’s against penal interest statements, there is probably sufficient nonhearsay evidence tying him to the conspiracy with defendant Frank Castronovo.