concurring in part and dissenting in part.
Insofar as today’s majority opinion affirms the convictions of appellants Frank DeSimone and Paul Spector, I concur.
I must dissent, however, from that portion of the majority opinion which holds that there was no error in the Geaney finding with respect to appellant Peter Cicale. *108The District Court based its Geaney finding as to Cicale on statements, by John Messina to DEA agent Eloy Garcia, which the District Court considered to be “verbal acts.” For the reasons stated hereinafter, I view that finding as erroneous, and would remand for reconsideration of the issue.
1. Messina’s statements to Garcia were not “verbal acts.” A “verbal act” is a statement which, irrespective of its truth or falsity, has legal significance, or which, irrespective of its truth or falsity, explains the legal significance of an otherwise ambiguous act. Thus, statements of intention, such as those at issue' here, may qualify as verbal acts, but only where the defendant’s actual intention is legally immaterial and where his expressed intention is legally decisive. In such a case, the words are not offered for their truth, but merely to show the fact of their expression, because the words are legally significant or give legal significance to ambiguous non-verbal conduct regardless of whether they are true. “This situation must be differentiated from the case where words which clarify an ambiguous situation are relevant only because they are offered for their truth.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 801(c)[01], at 801-69 (1981).
The instant case falls squarely in the latter category. The Government contends that the meetings between Messina and Cicale evidence Cicale’s participation in the conspiracy. However, given the long-standing friendship between Messina and Cicale, and also Messina’s contacts with numerous other drug dealers in the New York area, the Messina-Cicale meetings are not significantly probative of Cicale’s participation in the conspiracy unless viewed in conjunction with Messina’s prior statements to the effect that “I am now going to meet my source.” The key point is that Messina’s prior statements only give additional probative value to the subsequent meetings to the extent Messina’s prior statements were true. That is, Messina’s prior statements could properly be characterized as verbal acts only if, upon viewing the Messina-Cicale meetings in conjunction with these statements, one were able to conclude that the probative value of the Messina-Cicale meetings with respect to Cicale’s participation in the conspiracy does not vary depending on whether Messina’s prior statements ■are thought to be true or false. Plainly, such a conclusion would be absurd; indeed, at oral argument the Government declined to urge that the Court take this view. To my mind, however, any application of the “verbal act” doctrine to the six statements in question would have to be predicated on this untenable conclusion.
This reasoning is entirely consistent with the law of the Circuit. In United States v. D’Amato, 493 F.2d 359, 364-65 (2d Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 50 (1974), this Court held that a co-conspirator’s statement that he was going to meet “his people” was “inadmissible hearsay” for the purpose of determining whether the Geaney standard had been satisfied as to a defendant with whom the co-conspirator met after making the statement. In United States v. Stanchich, 550 F.2d 1294, 1298 n.1 (2d Cir. 1977), this Court described DAmato’s analysis in this regard as “unquestionably correct.” Moreover, United States v. Manfredi, 488 F.2d 588, 596 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974), does not call for a contrary result. To be sure, in that case this Court held that a co-conspirator’s statement that he was going to meet his “friend” was properly considered by the trial judge in determining whether the Geaney standard had been satisfied as to a given defendant whom the co-conspirator subsequently met. Manfredi’s holding has subsequently been explained by this Court as based, not on the “verbal act” theory, but rather on the ground that this hearsay had a “ring of reliability” which, under the circumstances, warranted its consideration for Geaney purposes. United States v. Cirillo, 499 F.2d 872, 885 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). No such “ring of reliability” exists here. The record is replete with instances where Messina bragged about his “sources” and their ability to supply heroin, many of which proved utterly false.
*1092. Messina’s statements to Garcia were not admissible against Cicale under Rule 803(8). The majority concludes that Messina’s six statements to Garcia, while hearsay, were admissible against Cicale under Rule 803(3), and hence were properly considered by Judge Conner in making his Geaney finding as to Cicale.1 I disagree. I accept the proposition that hearsay which is admissible against a defendant under an exception to the hearsay rule other than the co-conspirator exception may properly be considered by the trial judge in making his Geaney finding as to that defendant. United States v. Cambindo Valencia, 609 F.2d 603, 635 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980). However, Rule 803(3) makes declarations of intention admissible to prove only the declarant’s future conduct, and not (as had been allowed, prior to the adoption of the Federal Rules of Evidence, under the doctrine set forth in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300, 12 S.Ct. 909, 912, 914, 36 L.Ed. 706 (1892)) to prove the future conduct of another person.2 United States v. Jenkins, 579 F.2d 840, 843 (4th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978); United States v. Layton, 549 F.Supp. 903 (N.D.Cal.1982); see H.R.Rep.No.650, 93d Cong., 1st Sess. (1973) (“the Committee intends that [Rule 803(3) ] be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300, 12 S.Ct. 909, 912-914, 36 L.Ed. 706 (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person”), reprinted in [1974] U.S. Code Cong. & Ad.News 7075, 7087. Under Rule 803(3), then, while Messina’s six statements to Garcia were arguably admissible, with a limiting instruction, against Messina (but cf. United States v. Kaplan, 510 F.2d 606, 610-11 (2d Cir. 1974)), they remained inadmissible hearsay as to Cicale. Accordingly, Rule 803(3) provides no basis for a holding that Judge Conner properly took Messina’s statements into account in making his Geaney finding with respect to Cicale.
3. An appellate court may not review the “real” independent evidence and make its own Geaney finding. In affirming Cicale’s conviction, the majority has determined to (1) disregard the six statements erroneously relied upon by Judge Conner, (2) look instead at the “real” independent evidence against Cicale, and (3) conclude that this evidence satisfies the Geaney standard. I reject this approach. The Geaney finding is a question of fact for the trial judge, United States v. Nixon, 418 U.S. 683, 701 n.14, 94 S.Ct. 3090, 3104 n.14, 41 L.Ed.2d 1039 (1974); United States v. Kaplan, supra, 510 F.2d at 612, and is reviewed on appeal by inquiring merely whether the independent evidence of the defendant-appellant’s participation in the conspiracy provided a “reasonable basis,” see United States v. Doulin, 538 F.2d 466, 471 (2d Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976), or “reasonable grounds,” see United States v. Green, 523 F.2d 229, 233 n.4 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976), for the trial judge’s factual finding of the requisite “likelihood” of the defendant’s participation in the conspiracy. As a result, where (as here) the district judge has misapplied the Geaney standard, it is not for the appellate court to make its own Geaney finding upon properly applying the Geaney standard. United States v. Ziegler, 583 F.2d 77, 80-81 (2d Cir. 1978). In my view, this is particularly so where (as here) the record strongly indicates that the trial judge’s Geaney finding would have differed *110had he properly applied the Geaney standard. That is, the fact that Judge Conner thought it necessary to invoke the “verbal act” doctrine in order to find that the Geaney standard had been satisfied as to Cicale strongly indicates that he found the “real” independent evidence insufficient to support such a finding with respect to Cicale. “Able jurists like Judge [Conner] do not seek out complexities for nothing. We must go on the premise that the [other] evidence failed to supply him with assurance sufficient to justify [finding that Geaney had been satisfied as to Cicale].” United States v. Kaplan, supra, 510 F.2d at 613. In short, today’s decision is nothing less than an unjustified exercise in appellate fact-finding that results in two votes for a verdict of guilt by association.
On the basis of the foregoing, I would remand this action insofar as Cicale is concerned, so that Judge Conner could make a Geaney finding as to Cicale without considering the six statements by Messina to Garcia. If he were to find that the Geaney standard has been satisfied as to Cicale, his decision would be subject to appellate review under the principles previously stated. If, on the other hand, he were to find that the Geaney threshold has not been crossed, Judge Conner would then have to reconsider Cicale’s Rule 29 motion and either dismiss one or both counts of the indictment with respect to Cicale (if he were to grant the motion with respect to one or both counts) or order a new trial as to Cicale (if he were to deny any part of the motion).
Accordingly, I dissent from that portion of the majority opinion which holds that there was no error in the Geaney finding with respect to appellant Cicale.
. I observe that this theory was not urged by the Government either before the trial court or before us. The Government’s decision not to rely on Rule 803(3) at any juncture of these proceedings stands, in my view, as eloquent proof of that rule’s inapplicability to the facts of Cicale’s case.
. I recognize that this Court has, on three separate occasions, declined to rule whether Rule 803(3) limits the Hillman doctrine in this manner. See United States v. Mangan, 575 F.2d 32, 43 n.12 (2d Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 324 (1978); United States v. Moore, 571 F.2d 76, 82 n.3 (2d Cir. 1978); United States v. Stanchich, supra, 550 F.2d at 1297-98 n.1.