United States v. James Joseph Testa, United States of America v. Edward Epstein

James Joseph Testa and Edward Epstein appeal from their convictions, after a jury trial, for conspiracy with intent to distribute seven kilograms of heroin in return for $100,000 tribute money for assistance and protection in the transaction in violation of 21 U.S.C. § 846 , and for knowing and intentional distribution of one kilogram of heroin in violation of 21 U.S.C. § 841 (a)(1). The six co-defendants with whom appellants were indicted pleaded guilty to these or related charges.

The appellants make several assignments of error, objecting to the trial court’s failure to strike testimony concerning acts and declarations occurring prior to or after the conspiracy charged; asserting that the court allowed the jury to consider the extrajudicial declarations of co-conspirators without sufficient evidence aliunde of the existence of the conspiracy and appellants’ knowledge of and participation in it; contesting the admission into evidence of consensually monitored tapes of telephone calls of the informant and appellants, recorded by an undercover agent; and, as to Epstein alone, urging that the trial court’s denial of his motion for change of venue constituted a deprivation…