Appendix — Provenzano v. United States

APPENDIX

ORDER OF AFFIRMANCE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 81-2411/12

UNITED STATES OF AMERICA

vs.

PROVENZANO, NUNZIO,

Appellant in No. 81-2411

COTLER, IRVING,

Appellant in No. 81-2412

(D.C. Criminal No. 80-00315-01-04)

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE — DISTRICT OF NEW JERSEY

Present: ADAMS and WEIS, Circuit Judges and CONABOY,

District Judge*

JUDGMENT

This cause came on to be heard on the record from the United

States District Court for the District of New Jersey and was argued

by counsel on June 9, 1982.

* Honorable Richard P. Conaboy, United States District Judge for the

Middle District of Pennsylvania, sitting by designation.

2a

Order of Affirmance

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgments of the said District

Court filed July 8, 1981 and appealed at C.A. No. 81-2411 and

entered April 28, 1981, July 9, 1981 and July 13, 1981 and appealed

at No. 81-2412, be, and the same are hereby affirmed.

ATTEST:

s/ Sally Mrvos

Clerk

September 1, 1982

3a

ORDER OF THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT ON SUR PETITION FOR

REHEARING

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-2412

UNITED STATES OF AMERICA

v.

IRVING COTLER,

Appellant

Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS,

HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER

and BECKER, Circuit Judges, and CONABOY, District Judge.*

The petition for rehearing filed by Irving Cotler, Appellant

in the above entitled case having been submitted to the judges

who participated in the decision of this court and to all the other

available circuit judges of the circuit in regular active service, and

no judge who concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in regular active

service not having voted for rehearing by the court in banc, the

petition for rehearing is denied.

By the Court,

s/ Weis

Judge

Dated: Sep. 27, 1982

* The Honorable Richard P. Conaboy, United States District Judge for

the Middle District of Pennsylvania, sitting by designation.

4a

OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 81-2411 and 81-2412

UNITED — OF AMERICA

NUNZIO PROVENZANO,

Appellant in 81-2411

and

IRVING COTLER,

Appellant in 81-2412

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. Nos. 80-00315-01 and 30-00315-04)

Argued June 9, 1982

Before: ADAMS and WEIS, Circuit Judges and

CONABOY,”* District Judge

(Opinion filed September 1, 1982)

Gerald L. Shargel, Esq. (Argued)

150 East 58th Street

New York, New York 10022

Jay Goldberg, Esquire

230 Park Avenue

New York, New York 10169

Attorneys for Appellant

Nuzio Provenzano

*The Honorable Richard P. Conaboy, United States District Judge

for the Middle District of Pennsylvania, sitting by designation.

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Opinion

Irving Anolik, Esq. (Argued)

225 Broadway

New York, New York 10007

Hackensack, New Jersey 07106

Attorneys for Appellant

Irving Cotler

W. Hunt Dumont, Esq. (Argued)

United States Attorney

Thomas L. Weisenbeck, Esq.

Maryanne Trump Desmond, Esq.

Assistant U.S. Attorneys

Federal Building

970 Broad Street — Room 502

Newark, New Jersey 07102

Attorneys for Appellee

United States of America

OPINION OF THE COURT

WEIS, Circuit Judge.

In this appeal from their RICO convictions, defen-

dants raise a number of issues, including denials of a

severance, denial of psychiatric examinations of govern-

ment witnesses, and defective affidavits supporting war-

rants for wiretaps. Another complaint is that not all of

the twelve grand jurors who voted for indictment attend-

ed every session at which evidence was received. Al-

though we do not find that circumstance sufficient to vi-

tiate the indictment, we suggest that in the future,

grand jury absentees be required to read transcripts of

missed sessions. There being no reversible error in any

of defendants’ contentions, however, we permit the con-

victions to stand.

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Opinion

Appellants and two others were indicted for viola-

tions of 18 U.S.C. §1962(c), as well as conspiracy. The

charges arose out of defendants’ activities in obtaining

illegal payments from four trucking companies in order

to secure labor peace. After a lengthy jury trial, two of

the defendants were convicted. Two others were

acquitted.

Appellant Nunzio Provenzano served in various

capacities in Teamsters Union Local 560 in northern

New Jersey, progressing from business agent to

secretary-treasurer, and then to president in 1975. The

other appellant, Irving Cotler, was the owner of several

trucking companies which had no contracts with Local

560. During the period covered by the indictment, the

labor contract between Local 560 and signatory compa-

nies contained a “city man rule.” This provision required

any trucking company hauling iron, steel, and special

commodities within the jurisdiction of Local 560 to se-

cure express authorization for its operations from the

union. Avsent such permission, a company was required

to utilize the services of a Local 560 “city man” during

pickup and delivery.

Ray Dee acted as the North Jersey agent for All

States Trucking Company. In 1972, after Provenzano

became the union’s business agent, the permanent “city

man” assigned to All States was discharged. Sometime

after this, Dee began making payments to defendant

Cotler in exchange for All States’ freedom to operate

without the use of a city man. In 1975, All States ex-

panded its operation, and began using an additional

agent named Joe Mabus. He made payments to

Provenzano through another intermediary until he was

imprisc..ed in early 1975. After that occurred, Mabus

made no further payments, and a few months later, Lo-

cal 560 struck All States. The strike ended when All

States’ president discharged Mabus and agreed to use

OF ee oe ee ee ne

were not affected by the strike.

Ta

Opinion

About a year later, All States’ vice-president met

ee anneenee eamnee cation: wo SUONaNS, 6 Cotler

Opinion

Mason and Dixon paid a fixed weekly fee, but Helms

was required to remit a percentage of its revenues.

The jury convicted Cotler and Provenzano on both

counts of the indictment. On appeal, the defendants al-

lege numerous trial errors. Cotler contends he was

prejudiced by denial of his motions for severance made

both before and during the trial. He also asserts that the

warrants used to secure court-authorized wiretaps were

not supported by adequate grounds. He further argues

that the district court erred in refusing to order psychiat-

ric examinations of Ralph Picardo and Joseph Szapor.

two witnesses who testified for the government. Finally.

he contends his privacy rights were violated by Szapor's

use of recording devices during their conversations.

Provenzano also argues that there should have been

a severance. In addition, he contends that there was in-

sufficient evidence to show that the “enterprise” was

of the witnesses who testified before the first grand jurv

were not called before the succeeding indicting grand

jury; and second, not all of the twelve jurors who voted

for indictment were present at every session of the in-

dicting grand jury.

I. THE SEVERANCE ISSUE

A.

Cotler argues that he was the victim of a concerted

attack at trial by the other three defendants. which.

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Opinion

co-defendants’ tactics in taking the witness

and their pointed comments about being unable

cross-examine him, emphasized his decision not to

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tagonism in the defense strategies of this case.

. they were complementary, for if the jury had

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Cotler stood to benefit if the jury

co-defendants’ theory that he was off on a

own. Indeed, in his summation, Cotler’s

counsel argued that none of the money went to any of

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best strategy to avoid conviction.

(3d Cir.), cert. denied, 404 U.S. 846 (1971), we rejected

a similar argument saying, “the mere presence of hostil-

ity among defendants” is insufficient to require separate

trials. That is especially true in this case, where the hos-

tility exhibited at the trial, if accepted by the jury, would

be advantageous to the co-defendants.

Provenzano takes a different tack on the severance

issue. He contends that if there had been separate pro-

ceedings, Cotler would have testified. The fact that the

trials were joined, and that Cotler exercised his right not

to testify, Provenzano argues, amounted to an

infringment on his. rights of confrontation and compul-

sory process. At an earlier stage in the joint trial. Cotler's

attorney did represent te the court that if there were sep-

arate trials, Cotler would take the stand at the request of

any defendant. Counsel apparently later had second

thoughts on this matter and declined to proceed nonjury

as to Cotler’s own case. Provenzano reasons that if Cotler

had been tried first, there would have been no fifth

amendment problem thereafter. But a defendant cannot

compel a co-defendant to testify even if their trials are

severed, United States v. Barber, 442 F.2d at 529. so

more than a possibility that a co-defendant will testifv is

required. See United States v. Rosa, 560 F.2d 149, 156

(3d Cir.), cert. denied, 434 U.S. 862 (1977).

We are not persuaded by Provenzano's contention

that he was substantially harmed by inability to use

cross-examination to blunt or weaken the force of state-

ments made by Cotler and admitted into evidence as

because of his failure to testify. See United States v.

451 F.2d 49, 62-63 (3d Cir. 1971). cert. de-

nied, 405 U.S. 936 (1972). We are not convinced that

cross-examination of Cotler would have aided the

co-defendants more than counsels’ comments about

their inability to cross-examine him.

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Opinion

In United States v. Boscia, 573 F.2d 827, 832 (3d

Cir. ), cert. denied, 436 U.S. 911 (1978), we outlined four

factors that a district court should consider in deciding

whether a severance should be granted:

1. The likelihood of co-defendant testifying;

2. The degree to which such testimony would be

exculpatory;

3. The degree to which the testifying co-defendant

could be impeached;

4. Judicial economy.

It is apparent that on the record of this case items one

and four have not been satisfied.

At one point, it appeared that Cotler would testify if

the trials were severed. However, his attorney's later re-

jection of a suggestion that Cotler proceed non-jury indi-

cates uncertainty that he actually would take the wit-

ness stand if a severance had been granted. Although

Cotler’s counsel did indicate that his client’s testimony

would be exculpatory in nature for Provenzano, Cotler

would also be subject to impeachment, particularly if he

had been tried first and convicted. Finally, judicial econ-

omy concerns were present, and in a case of this nature,

it is preferable to have all of the parties tried together so

that the full extent of the conspiracy may be developed.

See United States v. Rosa, 560 at 156; United States v.

Reicherter, 647 F.2d 397, 399 (3d Cir. 1981); United

States v. Armocida, 515 F.2d 29 (3d Cir.), cert. denied,

423 U.S. 858 (1975); United States v. Somers, 496 F.2d

723, 731 (3d Cir.), cert. denied, 419 U.S. 832 (1974).

We similarly find no merit to Cotler’s contention

that there was a misjoinder under Fed. R. Crim. P. 8.

His argument is that a misjoinder was shown because

there was a variance between the conspiracy charged in

the indictment and the proof adduced at the trial. The

record does not support this assertion and, in any event,

it is foreclosed by United States v. Somers, 496 F.2d at

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Opinion

729, where we rejected the position that is asserted here.

Thus, neither defendant has demonstrated any abuse of

discretion by the trial court. We therefore find no error in

the district court’s refusal to sever the cases.

Il. THE RICO COUNT

wprercwmadeg. o Bym the government failed to

prove that a nexus between the enterprise — Lo-

cal 560 — and the pattern of racketeering activity. Ac-

cording to his theory, the statute is not satisfied unless it

is shown that the enterprise was advanced or benefitted

by the pattern of racketeering activity. He contends that

even though the record would establish .hat he person-

ally profited from payoffs, the interests of the union were

not advanced. Thus, his actions in fact worked to the

ciaeeh & he Gee tad tas tone a

obligations of his office.

The statute, 18 U.S.C. §1962(c) provides in perti-

nent part:

“It shall be unlawful for any person employed by

. . . any enterprise. . . the activities of which af-

fect interstate. . . commerce, to conduct or partici-

pate,. . . in the conduct of such enterprise's affairs

through a pattern of racketeering activity... .”

Defendant relies upon United States v. Webster,

cuit at first held that the statute does not extend to a “sit-

uation where the racketeering activities are advanced

through the assistance of the enterprise.” Jd. at 184. The

court focused on the word “through” in the statutory

language, and reasoned that in order to conduct an en-

terprise’s affairs “through” a pattern of racketeering ac-

tivity, the enterprise’s affairs must necessarily be ad-

vanced by the racketeering. Id. See also Note, 12 Seton

Hall L.Rev. 116 (1981). Nor did the court find any evi-

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Opinion

dence of congressional intent to reach cases where “the

racketeering activity made use of the resources of the

enterprise but did not provide the enterprise witi: any

benefit. . . .” Id. at 184.

The panel later modified its original opinion, howev-

er, finding instead that the proper question should have

been whether the affairs of the enterprise “were con-

ducted through the pattern of racketeering activity, not

whether they were benefittea or advanced or whether

profit to the [enterprise] resulted.” 669 F.2d 185, 186-87

(4th Cir.), cert. denied, —— U.S. —— (1982).

We agree with the Fourth Circuit's latter interpreta-

tion of the relevant statutory language. The record here

demonstrates that, by accepting bribes in exchange for

allowing violations of the collective bargaining agree-

ments to be overlooked, Provenzano was conducting his

union office through racketeering activity. The fact that

the union was harmed rather than benefitted does not

remove the conduct from RICO’s ambit.

A similar situation is presented when public officials

accept bribes in the course of their duties. Thus, in Unit-

ed States v. Frumento, 563 F.2d 1083 (3d Cir. 1977),

cert. denied, 434 U.S. 1072 (1978), the convictions of

state officials who participated in a cigarette smuggling

conspiracy to the detriment of the “enterprise,” the state

itself, were affirmed. Similarly, convictions were upheld

in United States v. Salvitti, 451 F.Supp. 195 (E.D. Pa.),

aff'd mem., 588 F.2d 822 (3d Cir. 1978) (Executive Di-

rector of Redevelopment Authority of Philadelphia — ac-

ceptance of bribes); United States v. Vignola, 464

F.Supp. 1091 (E.D. Pa.), affd mem., 605 F.2d 1199 (3d

Cir. 1979) (Traffic Court judge — acceptance of bribes).

Although these cases did not state that there can be cul-

pability without benefit to the enterprise, that premise is

implicit in the convictions which were affirmed.

In United States v. Scotto, 641 F.2d 47 (2d Cir.

1980), cert. denied, 452 U.S. 961 (1981), the defendant,

a union officer, received illegal labor payoffs. The Court

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Opinion

of Appeals for the Second Circuit held that one conducts

the activities of an enterprise through a pattern of racke-

teering when:

“(1) One is enabled to commit the predicate

offenses solely by virtue of his position in the

enterprise or involvement in or control over the

affairs of the enterprise; or

(2) the predicate-offenses are related to the activi-

ties of that enterprise.”

Id. at 54. It is only when the predicate acts are

unrelated to the enterprise or the actor's association

with it that the nexus element is missing, and con-

sequently ther: is no RICO violation. That is clearly

not the situation presented here. Provenzano was

able to circumvent the bargaining agreement be-

cause of his position in the union, and the payoff

scheme was related to the union's activities, albeit

in a detrimental manner.

That rationale is consistent with our approach

in Frumento and the dis*rict court cases of Salvitti

and Vignoli. See also B. Tarlow, Rico: The New Dar-

ling of the Prosecutor’s Nursery, 49 FORD. L.REV.

165, 228-34 ((1980). Accordingly, the tria: judge

did not err in submitting the RICO counts to the

jury.

Ill. GRAND JURY ISSUES

Before trial, all of the defendants moved for dis-

closure of the transcripts of grand jury attendance

records and voting tallies. The defendants urged

two grounds as justification. First, they believed the

indicting grand jury may have relied on summaries

of testimony before the original grand jury, which

had heard evidence in the case, but whose term ex-

pired before the indictments were returned. The

second grour.d was that not all of the twelve jurors

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Opinion

who voted for indictment had attended every ses-

sion of the grand jury.

A.

The district court accepted the response of the

government that the first grand jury heard testimo-

ny from 19 individuals. The second grand jury

heard testimony from 51 people, two of whom had

also appeared before the first grand jury. The testi-

mony of a third prior witness was read in full to the

indicting jury. No summaries were used before the

second grand jury, but it had the opportunity to re-

view all of the testimony received by the first. Be-

cause not all of the witnesses who appeared before

the first grand jury testified before the indicting

jury, Provenzano analogizes the procedure to the

use of summaries. The district court recognized

that abuse could occur through the use of

successive grand juries, but did not find any to exist

in this case.

We have indicated our concern with the prac-

tice of having a number of grand juries hear testi-

mony which the indicting grand jury ultimately

uses as a basis for indictment. See United States v.

Helstoski, 635 F.2d 200, 202 & n.2 (3d Cir. 1980).

We do not think that in this case, however, the dis-

trict judge erred in refusing the defendant's request

for disclosure of the grand jury transcripts.

The government justified its conduct by claim-

ing that the investigation had taken a new turn after

the second jury was impanelled. The large number

of witnesses called by the indicting grand jury and

the few recalled from the first group support that

contention. In addition, extensive proceedings be-

fore the indicting grand jury are consistent with a

and legitimate inquiry into the charges.

Because of the number of persons called before the

16a

Opinion

indicting jury. it does not appear that the govern-

ment was being “selective” when it chose to limit

the number of witnesses from the first to appear be-

fore the second. We conclude, therefore. that the

trial judge properly determined that defendants had

not demonstrated particularized need for breaching

grand jury secrecy.

A more difficult question is presented by the

other complaint against the grand jury — that not

all who voted for the indictment had attended all of

the 23 sessions. The district judge examined the

voting tallies and attendance records in camera, and

found that out of the twelve votes necessary under

Fed. R. Crim. P 6(f), three of the voting jurors at-

tended every session, four missed one session each,

three were absent from two sessions each, and two

jurors were not present three sessions each.

Although there was not a perfect attendance re-

cord for the twelve voting jurors, the district judge,

relying on United States v. Leverage Funding Sys-

tems, Inc. 637 F.2d 645 (9th Cir. 1980), cert. de-

nied, 452 U.S. 961 (1981), held that neither the

Fifth Amendment nor the Federal Rules of Criminal

Proc.:dure imposed such a requirement. As long as

a quorum was present at every session and at least

twelve jurors voted to indict, both the Constitution

and the rules were satisfied. The court did concede

that there may be a situation where a grand juror

missed so much of the evidence that the Fifth

Amendment would not permit his vote to be count-

ed, but found no such demonstration had been

made here. As an additional reason for denying the

defendant’s motion, the court pointed out the

undesirability of holding “preliminary” trials to de-

termine the competency and adequacy of the evi-

dence before the grand jury.

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a8 00 7 (3d Cir. 1979): In re: Grand Jury Proceed-

ings (Schofield), 486 F.2d 85 (3d Cir. 1973). Yet it is

down by extensiv~ pretrial review of grand jury ac-

tivity. United States v. Calandra, 414 U.S. 338

(1974); Costello v. United States, 350 U.S. 359

(1956).

The district court’s opinion in United States v.

Leverage Funding Systems, Inc., 478 F.Supp. 799,

801 (C.D. Cal. 1979), stated that if the grand jury

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Opinion

committed exists. 637 F.2d at 648. The appellate

- court believed that this duty could be performed

even if a grand juror was absent during the presen-

tation of some exculpatory evidence.

The Second Circuit in United States ex rel. McCann

v. Thompson, 144 F.2d 604 (2d Cir.) cert. denied, 323

U.S. 790 (1944), expounded the approach later adopted

by the Ninth Circuit, observing that since it is quite re-

mote that exculpatory evidence would be presented to a

grand jury, it is unlikely that a defendant would be

harmed by the absence of a grand juror. The absentee

would merely not have heard all of the inculpatory evi-

dence. The court in United States v. Colasurdo, 453

_ F.2d 585, 596 (2d Cir. 1971), cert. denied, 406 U.S. 917

(1972), reaffirmed this position, adding that to permit a

review of attendance from voting records “would bog

down the courts in a morass, a veritable jungle of specu-

lation and conjecture.”

United States v. Lang, 644 F.2d 1232, 1235 (7th

Cir.), cert. denied, ——- U.S. —— (1981), said that the

requirements of Rule 6 belied any intention of imposing

a perfect attendance requirement, for the rule only man-

dates that a quorum be present at every session. The

court also noted that Congress had acted to extend

grand jury terms to allow adequate investigations of

complex criminal activity. To invalidate indictments be-

cause of jury attendance would frustrate that congres-

sional intent. Id. at 1238.

The reasons advanced by the appellate courts which

have considered the problem are weighty ones but, nev-

ertheless, leave us somewhat uneasy. It is indeed specu-

lative to consider what bit of evidence might have per-

suaded a grand juror to vote for or against an indictment.

But the grand juror’s judgment is what the Constitution

requires, and the defendant is entitled to an informed

determination of probable cause.

We recognize the practical problems created by the

very nature of the grand jury's investigative role. Not all

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Opinion

the evidence can be presented at one time — one wit-

ness’ testimony may lead in turn to an investigation that

extends over a period of time. Some witnesses may be

unavailable at a given point and other circumstances

may hinder prompt expedition. The longer the period of

service, the more absences may be expected.

The provisions of Rule 6(e\1), which require the

recordation of grand jury proceedings, aid us in reaching

agreement with the solution »roposed by the Lang court.

As its opinion observed, “[pjrosecutors can insure that

the perception of fairness, as well as its substance, are

maintained by giving replacement and absent grand ju-

rors the opportunity to review transcripts. . . of missed

sessions. That should go a long way to ameliorate the

concerns raised here.” 644 F.2d at 1239.' If a review of

the transcripts should raise questions in a juror’s mind

which could be resolved by recalling a witness, that al-

ternative would be available. Following this procedure

would insure that each grand juror is fully informed of

the evidence which has been presented.

It would have been better to utilize such a practice

in this case, but we cannot say that failure to do so viti-

ates the indictments. We rely on the judgment of the

district judge who had the opportunity to review the

grand jury records in camera. The grand jury here had

23 separate sessions, and although the number of ab-

sences may border the limits of acceptability, it does not

reach the point where we must say that the defendant's

rights have been violated. As we note above, furnishing

transcripts to absent jurors is a practical way to avoid at-

tacks on grand jury voting in the future.

In view of all the circumstances here, we conclude

that the district court did not err in its refusal to unseal

the grand jury records.

1. Although the court approved the summaries as an alterna-

tive, we do not recommend their use unless for some valid reason

transcripts are not available.

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Opinion

IV. PSYCHIATRIC EXAMINATION OF WITNESSES

Before trial, Provenzano's attorney submitted a mo-

tion requesting psychiatric examinations of government

witnesses Ralph Picardo and Joseph Szapor. Supporting

the motion was an affidavit which stated that Picardo

had been branded a “liar,” a “little crazy”, “off-the-wall”,

and “a pathological liar,” by a number of government

witnesses in an earlier unrelated trial. In addition, after

his conviction in February of 1975 for murder, Picardo

was confined for psychiatric examination at the New

Jersey State Prison at Trenton. As to Szapor, the defense

recited a number of bizarre actions and an allegation

that drugs prescribed for treatment and pain may have

affected his competency and credibility. ‘

The trial judge refused to order the examinations,

finding that the attacks posed a credibility issue for jury

resolution. Cotler now asserts that the denial of his mo-

tion was an abuse of discretion. The defendant concedes

that the question of credibility is ultimately one for the

jury, but argues that the opinion of a psychiatrist would

be helpful in the deliberations.

We note that both witnesses were extensively cross-

examined. As a result, the jury heard about Picardo’s

murder conviction and his cocaine and marijuana use,

that he used relatives without their knowledge to further

his criminal schemes, and that he believed self-

preservation was “the name of the game.” The rec-

ord also demonstrates his incentive to furnish informa-

tion to the federal authorities in order to avoid state

prosecution.

The cross-examination of Szapor was so effective

that the trial judge commented that the witness’s credi-

bility was “certainly placed in doubt not only by the evi-

dence offered by the defendants, but certainly as a result

of his cross-examination. . . .” Thus, the evidence be-

fore the jury provided ample information for its task of

evaluating the truthfulness of the two witnesses.

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Opinion

We find no abuse of discretion in the judge's refusal

to order the psychiatric examinations. In United States

v. Pacelli, 521 F.2d 135, 140 (2d Cir. 1975), cert. denied,

424 U.S. 911 (1976), the court said that the question is

within the discretion of the trial judge and will not be

disturbed unless it is plainly in error. We adopt that

standard also.

Even if the examination had been ordered, it is

doubtful at best that psychiatric testimony would have

been appropriate here. The use of such evidence at trial

to attack or support a witness's credibility has not been

favored. In United States v. Barnard, 490 F.2d

907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959

(1974), the court emphasized the jury's responsibility to

assess credibility. Doubting that psychiatrists have more

expertise in this field than juries, the court pointed out

that such expert testimony might cause jurors to surren-

der their common sense in weighing the evidence and

could produce a trial within a trial. The court concluded

that this type of testimony should only be received in un-

usual cases. Id. at 913. The record in this case did not

establish anything so out of the ordinary as to require —

or indeed justify — the use of psychiatric testimony. The

eccentric behavior that might have been deemed signifi-

cant by a psychiatrist was fully explored before the jury.

See also, United States v. Jackson, 576 F.2d 46, 48-49

(Sth Cir. 1978); United States v. Russo, 442 F.2d 498

(2d Cir. 1971), cert. denied, 404 U.S. 1023 (1972).

V. OTHER MATTERS

Cotler also contends that the affidavits supporting

the issuance of warrants for wiretapping and searches

were inadequate. In particular, one affidavit is alleged to

contain 26 pages of irrelevant and prejudicial material.

When that material is deleted, however, adequate prob-

able cause is demonstrated. See United States v. Ster-

ling, 369 F.2d 799 (3d Cir. 1966). We are not persuaded

See, e.g., United States v. Armocida, 515 F.2d 29, 51-52

(3d Cir.), cert. denied, 423 U.S. 858 (1975).

Accordingly, the judgment of the district court will

Clerk of the United States Court of Appeals

for the Third Circuit

23a

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS

Fourth Amendment, United States Constitution:

**The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.”’

Fifth Amendment, United States Constitution:

**No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand

Jury ...nor be deprived of life, a or

property, without due orocess of law. .

18 U.S.C. §1961(4):

fact although not a legal entity(.]’’

18 U.S.C. §1962(c):

. . . any person employed by or associated with

any enterprise engaged in, or the activities of which

affect, interstate or foreign commerce, to conduct

or participate, directly or indirectly, in the conduct

of such enterprise’s affairs through a pattern of

= activity or collection of unlawful

24a

Relevant Constitutional and Statutory Provisions

18 U.S.C. §1962(a):

**(a) It shall be unlawful for any person who has

received any income derived, directly or indirectly,

from a pattern of racketeering activity or through

collection of an unlawful debt in which such person

has participated as a principal within the meaning

of section 2, title 18, United States Code, to use

or invest, directly or indirectly, any part of such

income, or the proceeds of such income, in

acquisition of any interest in, or the establishment

or operation of, any enterprise which is engaged

in, or the activities of which affect, interstate or

foreign commerce. A purchase of securities on the

open market for purposes of investment, and

without the intention of controlling or participating

in the control of the issuer, or of assisting another

to do so, shall not be unlawful under this

subsection if the securities of the issuer held by

the purchaser, the members of his immediate

family, and his or their accomplices in any pattern

or racketeering activity of the collection of a2

unlawful debt after such purchase do not amount

in the aggregate to one percent of the outstanding

securities or any one class, and do not confer,

either in law or in fact, the power to elect one or

more directors of the issuer.’’

18 U.S.C. §1962(b):

**(b) It shall be unlawful for any person through

a pattern of racketeering activity or through

collection of an unlawful. debt to acquire or

maintain, directly or indirectly, any interest in or

control of any enterprise which is engaged in, or

the activities of which affect, interstate or foreign

commerce.”’

25a

Relevant Constitutional and Statutory Provisions

18 U.S.C. §1962(d):

“The final substantive RICO crime makes it

‘unlawful for any person to conspire to violate any

of the provisions of subsections (a), (b) or (c) of

this section.’ ””

Federal Rules of Criminal Procedure Rule 8(b):

**(b) Joinder of Defendants. Two or more

defendants may be charged in the same indictment

or information if they are alleged to have

participated in the same act or transaction or in

the same series of acts or transactions constituting

an offense or offenses. Such defendants may be

charged in one or more counts together or

separately and all of the defendants need not be

charged in each count.”’

Federal Rules of Criminal Procedure Rule 14:

**Rule 14. Relief from Prejudicial Joinder

If it appears that a defendant or the

government is prejudiced by a joinder of offenses

or of defendants in an indictmem <i information

or by such joinder for trial together, the court mav

order an election or separate trials of counts, grant

a severance of defendants or provide whatever

other relief justice requires. In ruling on a motion

by a defendant for severance the court may order

* the attorney for the government to deliver to the

court for inspection in camera any statements or

confessions made by the defendants which the

government intends to introduce in evidence at the

trial.’’