Appendix — Turner v. United States
Supreme Court brief1983
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82-1539
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NO. a" ar :
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Supreme Conese.
of the t
United States
OCTOBER TERM, 1982
CLEVELAND TURNER, J4@0083557 557 59900tdhidiiaes
qQueneTTTTRelk.
Petitioners,
Vs.
UNITED STATES OF AMERICA,
Respondent.
On Writ Of Certiorari To The United States
Court Of Appeals For The Eleventh Circuit
APPENDIX TO PETITION OF CLEVELAND TURNER
FOR WRIT OF CERTIORARI
SAMS, GERSTEIN & WARD, P.A.
700 Concord Building
66 West Flagler Street
Miami, Florida 33130
Telephone: (305) 374-3181
By: Richard E. Gerstein
Paul M. Rashkind
Attorneys for Petitioner
TABLE OF CONTENTS
Page
Opinion of Eleventh Circuit Court of Appeals
Dated November 4, 1982,
United States v. Kopituk,
—__. F.2d __ (11th Cir. 1982) ........ App. 1
District Court Order Replacing Juror,
United States v. Barone,
83 F.R.D. 565 (S.D. Fla. 1979) ......... App. 127
Order of Eleventh Circuit Court of Appeals
Denying Rehearing Dated January 14, 1983. App. 148
App. i
UNITED STATES of America,
Plaintiff-A ppellee,
Vv.
Dorothy O. KOPITUK, Raymond C. Kopituk, Oscar
Morales, Fred R. Field, Jr., Cleveland Turner, James
Vanderwyde, Landon L. Williams, William Boyle,
George Barone,
Defendants-A ppellants.
No. 80-5025.
United States Court of Appeals,
Eleventh Circuit.
Nov. 4, 1982.
* * *
Appeals from the United States District Court for
the Southern District of Florida.
Before HILL and CLARK, Circuit Judges, and
SCOTT’, District Judge.
CHARLES R. SCOTT, District Judge:
Appellants, waterfront union officials and employers,
were convicted in the United States District Court for
the Southern District of Florida on numerous charges
*Honorable Charles R. Scott, U.S. District Judge for the
Middle District of Florida, sitting by designation.
App. 1
arising from their participation in a wide-spread pattern
of corruption aimed at securing control of the business
activity at several major ports in the Southeastern
United States. The evidence adduced at the seven-
month trial' revealed an extensive, well-orchestrated
conspiracy spanning a period of more than 10 years in
which union officials pressured waterfront employers
to make illegal payoffs in return for assured labor
peace and lucrative business contracts.
In 1975, the Federal Bureau of Investigation (‘FBI’)
began an extensive undercover investigation of the
corrupt enterprise when Joseph Teitlebaum, a waterfront
employer who had participated in the conspiracy for
several years, agreed to cooperate with the government.
With Teitlebaum’s assistance, FBI agents successfully
infiltrated the enterprise and obtained tape-recordings
of conversations transpiring in the course of illegal
payoff transactions. The covert investigation continued
until January 1977 when the case became public with
the issuance of grand jury subpoenas.
On June 7, 1978, a federal grand jury, sitting in
Miami, Florida, returned a 70-count, 128 page indictment
charging appellants and others’ with a variety of offenses
'The trial commenced on January 28, 1979, and continued to
September 1, 1979.
*Twenty-two persons were charged in the indictment. Eight
defendants (Robert Bateman, Alvin P. Chester, Jeremy Chester,
Francesca Cotrone, Joseph Cotrone, Laura Cotrone, Sebastixn
“Benny” Cotrone and Vincent James Fiore, Jr.) entered guilty
pleas prior to trial. Three defendants (Neal L. Harrington, Max
Forman and Cornelius “Butch” Vanderwyde) were severed. Defendant
Elizah Jackson was acquitted and the jury was unable to reach a
App. 2
including: racketeering, 18 U.S.C. §1962(c); conspiracy
to engage in racketeering, 18 U.S.C. §1962(d); payment
and receipt of money and other articles of value in
exchange for labor peace, 29 U.S.C. §186; extortion, 18
U.S.C. §1951; receipt of kickbacks in connection with a
labor matter, 18 U.S.C. §1954; obstruction of justice, 18
U.S.C. §1503; and filing false income tax returns, 26
U.S.C. §7206.
TEITLEBAUM
Joseph Teitlebaum was the government’s “star”
witness at trial.’ Teitlebaum’s involvement in the
conspiracy was extensive long-lasting and, as such, his
testimony constituted the backbone of the government’s
case.
In the 1960's, Teitlebaum was a vice-president of
Eagle Shipping, Inc., a company that performed
stevedoring* services at the port of Miami. In 1966,
Teitlebaum met appellant Fred R. Field, Jr. at a labor
negotiation meeting in Miami. Field, who was General
(Footnote 2 Continued)
verdict with respect to defendant Isom Clemon. All of the nine
defendants against whom guilty verdicts were returned have
joined in this appeal.
*Because six of the nine appellants (Dorothy Kopituk, Raymond
Kopituk, Oscar Morales, Fred Field, James Vanderwyde and Landon
Williams) challenge the sufficiency of the evidence supporting
their convictions, it is necessary to review the evidence, particularly
as it relates to those appellants, in some detail.
“Stevedoring” is the process of loading and unloading ships.
App. 3
Organizer of the International Longshoremen’s
Association (‘ILA’), asked Teitlebaum if they could talk
privately somewhere. (9:83). Teitlebaum arranged to
use a friend’s boat to take Field on a fishing trip. Field
brought three other union officials with him on the
trip, including Benny Astorino. (9:84-85).
At one point on the trip, Astorino told Teitlebaum
that Field was coming to Miami to establish a new
checkers” union and that it would be in Teitlebaum’s
“best interest” to do business with Field. He added
that Teitlebaum could demonstrate his “good faith” by
paying him $3,000. (9:87-88). Teitlebaum testified that
Field was sitting about eight feet behind him and Astorino,
looking at Teitlebaum, while the conversation was taking
place. (9:86).
Teitlebaum responded that he would have to discuss
the matter with his father and uncles, who were
responsible for running Eagle, Inc. (which owned Eagle
Shipping, Inc.) (9:89). Shortly after returning from the
fishing trip, Teitlebaum received telephone calls from
two of his customers.’ (9:91). The next day, Teitlebaum
‘References to the trial transcript will be cited as “(:_),”
the first number representing the volume of the transcript and
the second number representing the particular page cited to.
“Checkers” are persons employed by stevedoring companies
who monitor or “check” cargo as it is loaded or unloaded from a
ship.
"Teitlebaum was not permitted to discuss the content of the
telephone conversations inasmuch as the statements made by the
callers constituted hearsay not subject to any exception enumerated
in Fed.R.Evid. 803, 804.
App. 4
received a telephone call from Field in which Field
asked him if he had “had a change of heart about the
three aces.” (9:92). Teitlebaum told him that he had not
and that he did not appreciate Field pressuring his
customers to persuade Teitlebaum to sign a union contract.
(9:92). Field responded, “Listen, you prick, you'll sign
the contract and like it.” (9:93). Teitlebaum ultimately
signed the contract.
The next stage of Teitlebaum’s involvement in the
criminal enterprise did not commence until 1972."
Throughout the intervening years, Teitlebaum had come
to know appellant George Barone, president of the
checkers’ union in Miami (ILA Local 1922), appellant
William Boyle, secretary-treasurer of ILA Local 1922,
appellant James Vanderwyde, office manager of ILA
Local 1922, and appellant Cleveland Turner, president
of the longshoremen’s union in Miami (ILA Local 1416).
In 1972, Teitlebaum purchased a 90-ton crane to
be used for loading and unloading ships and formed M
& M Crane Co. Within a week after the crane was
brought to the Dodge Island Seaport at the port of
Miami, someone had vandalized it. (9:110). Shortly
thereafter, Teitlebaum received a visit from co-defendant
Sebastian “Benny” Cotrone. Cotrone advised Teitlebaum
that he should “make . . . peace” with appellant Barone
if he wished to stay in business. Cotrone told Teitlebaum
that “they” wanted “a piece of the action from the
crane.” (9:112). Teitlebaum subsequently began leasing
the crane to Miami Terminals, Inc. (‘MTT’), a waterfront
company managed by George Wagner, who had close
*Teitlebaum assumed full control of Eagle, Inc. in 1972.
App. 5
ties to the union. (9:128). Wagner was paid a kickback
of $15 for every hour of crane use billed to MTI. (19:93-94).
In early 1972, Teitlebaum contacted appellant Boyle
about obtaining a contract to perform stevedoring services
for the Mardi Gras, a passenger ship owned and operated
by the Carnival Cruise Lines. (19:109). Boyle said that
he would talk with “the boys” and let Teitlebaum know
if it could be done. A couple days later Boyle informed
Teitlebaum that he could have the contract, but that it
would cost him “two big ones and a free cruise every
now and then.” (19:109). Teitlebaum agreed and his
company subsequently obtained the contract. He paid
Boyle $2,000 in installments of $200 per week. (19:123).
When it became apparent to Teitlebaum that it
was necessary to reduce the number of porters assigned
to work on the Mardi Gras in order to save money,
Teitlebaum presented the problem to Boyle, who in
turn told Teitlebaum to contact appellant Cleveland
Turner, president of the Miami longshoremen’s union.
Teitlebaum did so and worked out an agreement to pay
Turner $50 per week to reduce the number of porters
assigned to the dock. Turner told Teitlebaum to talk
with the head porter on the dock and to have the head
porter call Turner if there was any problem. Teitlebaum
made payoffs to Turner from 1972 to 1976. (19:114).
At one point in early 1972, Boyle told Teitlebaum
that Teitlebaum’s cousin owed the union between $1,800
and $2,000 in delinquent health insurance and dues
payments and that it would be in Teitlebaum’s best
interest to pay the debt on his behalf. (19:95). Teitlebaum
agreed to pay the debt. In October or November of
App. 6
1972, after the debt had been paid, appellant James
Vanderwyde told Teitlebaum: “You did a nice job paying
off your cousin’s debt. Don’t let it stop.” Teitlebaum
asked him what he was talking about, to which
Vanderwyde responded: “Are you stupid? We're going
to have control of this fucking port right here. Control.
That’s what counts, control.” (19:128). Teitlebaum testified
that while he was saying this, Vanderwyde made a fist
and gritted his teeth. (19:128).
Approximately one week after his conversation
with Vanderwyde, Teitlebaum saw Boyle at the Dodge
Island Seaport. Boyle told him that he was going to
have to start paying the union $200 per week, but that
he would receive additional business for doing so. Boyle
made specific reference to the Siboney, a cargo ship
operated by Ocean Trailer Transport, Inc. (19:129).
Teitlebaum agreed that if he acquired the Siboney
contract, he would pay Boyle the $200 per week. (19:129).
Teitlebaum did obtain the Siboney contract and
began making the weekly payments to Boyle. He was
frequently late in making the payments, however,
prompting Boyle to tell him on one occasion that “{ilf
the little guy for George found out that you were late,
you would have a lot of trouble.” (19:209). Boyle identified
the “little guy” as appellant Vanderwyde. (19:209).
In late 1973, Teitlebaum met with Boyle at the
Miami ILA office and told him that he was interested
in improving his company’s position by acquiring a
contract to service either the Mamenic Line or Gran
Columbiana Line. Boyle responded that Teitlebaum
should speak with appellant Field about it. (20:13). That
evening Field visited Teitlebaum’s office and Teitlebaum
App. 7
reiterated his interest in the Mamenic and Gran
Columbiana lines. Field told Teitlebaum that the Mamenic
contract would be the easier of the two to acquire.
Teitlebaum expressed concern because he knew of a
Mamenic representative that was working for a competing
stevedoring company, but Field told Teitlebaum not to
worry, stating that the representative could “be taken
care of.” (20:14). Teitlebaum reported to appellant Barone
that Field had promised to help him acquire the Mamenic
account. Barone said he would check into it and
subsequently gave Teitlebaum instructions as to whom
he should contact regarding the account. Teitlebaum's
company entered into a contract to perform stevedoring
services for the Mamenic Line in June 1974. (20:21-23).
As payment for the assistance he received in acquiring
the Mamenic account, Teitlebaum, at Boyle's request,
purchased three pairs of cruise tickets and gave them
to Boyle. (20:29-30).
Later in 1974, Teitlebaum learned that Harrington
& Co., a competing business operated by co-defendant
Neal L. Harrington, was submitting bids to perform
stevedoring work for Nopal Line, a Norwegian steamship
company, which was already one of Teitlebaum’s
customers. Teitlebaum complained to Boyle about the
fact that he was paying $200 per week and that he
expected his accounts to be protected. Boyle said he
would “talk to the boys” and take care of the matter.
(20:36). Shortly thereafter, Barone, in Vanderwyde's
presence, told Teitlebaum that Harrington & Co. would
withdraw its bid. (20:37-38). Teitlebaum’s company retained
Nopal’s business.
In early 1975, Teitlebaum expressed to Boyle his
interest in acquiring a contract to do business with
App. 8
Puerto Rico Marine Management, Inc. ((PRMMI’). Boyle
once again said he would “talk to the boys” about it.
(20:62). Approximately one week later, Teitlebaum ran
into Barone in the hallway outside Teitlebaum's office
and reiterated his desire to obtain the PRMMI contract.
Barone rubbed his foot on the floor, picked up his
trouser leg and said, “Heavy.” (20:63). Teitlebaum testified
that Barone had done precisely the same thing when
Teitlebaum received the Siboney contract.
The next day Teitlebaum met with Boyle who told
him it would cost “five up front” for the PRMMI contract.
Teitlebaum asked whether he meant “big ones or little
ones,” to which Boyle responded, “Big ones.” Teitlebaum
asked what his guarantee was and Boyle replied, “If
you don't get this one, the next big one belongs to you.”
(20:64), Either that same day or the following day,
Teitlebaum gave Boyle $5,000 in $100 bills. (20:67).
Teitlebaum, however, did not get the PRMMI contract.
In the summer of 1975, Boyle told Teitlebaum that
he wanted some cruise tickets for appellant Vanderwyde
and for appellant Landon Williams, president of ILA
Local 1408 in Jacksonville, Florida. Boyle told Teitlebaum
that Williams wanted to give the tickets to the son of
the mayor of Jacksonville as a wedding present. (20:71),
Teitlebaum accommodated the request by obtaining
three sets of tickets from the Commodore Cruise Line,
one of Teitlebaum's customers. (20:72). Teitlebaum's
company paid for all the tickets. (20:76).
In September 1975, Teitlebaum was arrested on
state charges of solicitation to commit murder, conspiracy
to commit murder and attempted murder. (20:80). In
return for his pledge to cooperate with the government
App. 9
in the instant matter, he was permitted to enter a plea
of nolo contendere to the misdemeanor charge of
solicitation to commit murder and the other charges
were dropped. (20:80). He received a sentence of one-
year probation.’ From the time of his arrest until
conclusion of the invest.gation, Teitlebaum worked closely
with FBI agents in an effort to gather direct evidence
of the corrupt enterprise operating on the waterfront.
In the latter part of 1975, Barone told Teitlebaum,
in Vanderwyde's presence, that he should “take Savannah”
and that Boyle would tell him what to do. (21:31),
Accordingly, Teitlebaum set up a company called Georgia
Container Agencies to operate at the port of Savannah,
Georgia. (21:35). Georgia Container Agencies was to
receive a lucrative contract from Zim-Israel Navigation
Co., Ltd., an Israeli steamship line. In return for the
Zim contract in Savannah, however, Boyle told Teitlebaum
that he would have to surrender another account.
Teitlebaum told Boyle he would give up the Mamenic
account and Boyle said that would be acceptable, stating
that he would tell “the fat man” about Teitlebaum's
selection. (21:41). Teitlebaum testified that he knew
from previous reference that the fat man was appellant
Field. (21:42).
In December 1975, Boyle informed Teitlebaum what
it would cost for the Zim contract in Savannah: $15,000
“front money,” one percent of the value of all ocean
*The charges stemmed from Teitlebaum's attempt to arrange
a contract killing of a business associate in South America. As
part of the arrangement, Teitlebaum specified that the murder
was to be committed with an ice pick. (26:213, 220, 228).
App. 10
freight handled, $12 for each container loaded or unloaded
from a ship and 50 cents per ton for bulk cargo. (21:124-
126). Teitlebaum agreed to pay the $15,000 front money
to Boyle in 10 installments of $1,500 each, (21:131).
Teitlebaum made several of the $1,500 Savannah payments
to Boyle, occasionally using money provided by the
FBI,
In January 1976, Teitlebaum travelled to Savannah
with Boyle for the purpose of meeting co-defendant
Elizah Jackson, president of ILA Local 1414 in Savannah,
to determine how much money was going to have to be
paid to Jackson, (22:11), Boyle negotiated with Jackson
privately and then told Teitlebaum it would cost $300
“up front,” $50 per weck, and an additional $50 for each
ship serviced, (22:25).
Using a tape recorder fitted into his boot by FBI
agents, Teitlebaum was able to record some of the
conversations that transpired in the course of making
the Savannah payments, as well as other payments.
Teitlebaum stopped carrying the tape recorder, however,
following a February 1976 incident which indicated the
defendants may have been getting suspicious of him.
On February 11, 1975, Boyle summoned Teitlebaum to
the ILA office in Miami. When he arrived Boyle was
waiting for him along with co-defendants Vincent James
Fiore, Jr. and Cornelius “Butch” Vanderwyde." Boyle
told Teitlebaum, “Take off your shoes, get comfortable.”
Teitlebaum testified that he became extremely nervous.
He took off his shoes, pulled out his pockets and said,
“What's wrong with you?” Boyle simply said, “Everything
"Cornelius “Butch” Vanderwyde is the son of appellant James
Vanderwyde.
App. 11
is fine.” (22:118). Teitlebaum related the incident to
FBI Special Agent Ray Maria and it was decided that
Teitlebaum would no longer wear a body recorder.
(22:120).
In April 1976, Teitlebaum visited the ILA office in
Miami to give Boyle one of the weekly “peace” payments.
Boyle was not there so Teitlebaum gave the money to
appellant Vanderwyde. Vanderwyde complained that
Teitlebaum was getting too far behind on his payments
and said that he wanted at least $500 more. Teitlebaum
went next door to his office and borrowed $500 cash
from his uncle and his cousin. He returned to the ILA
office and gave the money to Vanderwyde. Vanderwyde
patted him and said, “Good boy.” (24:21-22),
Vanderwyde then told Teitlebaum that he wanted
to take a cruise and said he needed six pairs of tickets.
(24:23). The following month Boyle gave Teitlebaum a
list containing the names of persons who wanted to
take a cruise in June on the Mardi Gras. Included on
the list were Boyle and his wife and Vanderwyde and
his wife. (24:37-38). Teitlebaum purchased the tickets
for them. (24:113).
In June 1976, Teitlebaum and representatives of
the Zim steamship line discussed the possibility of
Georgia Container Agencies, Teitlebaum’s Savannah
company, performing waterfront services for the Zim
line in Mobile, Alabama. Teitlebaum went to Boyle to
discuss how much it would cost him to expand into
Mobile and Boyle estimated that it would cost $5,000
up front under the same operating conditions that were
in effect in Savannah. (24:50). Shortly thereafter, Boyle
informed Teitlebaum that appellant Field had contacted
App. 12
co-defendant Isom Clemon, president of ILA Local 1410
in Mobile, and made arrangements for Teitlebaum to
meet Clemon. (24:72).
On June 11, Boyle flew to Mobile and was met by
Clemon at the airport. Clemon told Teitlebaum that
“he was the man in Mobile,” that Boyle had told him to
“take care” of Teitlebaum, and that “he” [Clemon] liked
his little white envelope.” At a later meeting with
Clemon in Mobile, Teitlebaum, in the presence of FBI
Special Agent Richard Artin (who was posing as an
employee of Teitlebaum's), paid Clemon $400 while they
were driving to a restaurant to have lunch. (24:138-140).
At the restaurant, Clemon told Teitlebaum and Artin
that he would not even be talking with them if he had
not received an “okay” from Boyle or Field. (24:141).
After that meeting, Agent Artin continued to make
payments to Clemon. (38:175; 39:30).
Subsequent to Teitlebaum's first meeting with
Clemon, Boyle informed him that “Freddie [appellant
Field] underestimated the price” for expanding into
Mobile and that it would cost $10,000 up front rather
than $5,000. (24:84-85). Teitlebaum was told that he
could satisfy this obligation by making five $1,000 weekly
installment payments, waiting 30 days, and then making
five additional $1,000 weekly payments. (24:97).
In July 1976, a business associate of Teitlebaum's
contacted him regarding a company that wished to
move four trailer loads of cigarettes through the port
of Miami without having the cigarettes unpacked and
then repacked (“stripped” and “stuffed") by union
dockworkers as was required under the union contract.
App. 13
Teitlebaum explained the situation to Boyle who said
that the cigarettes could move through untouched if
the shipper agreed to pay an extra $200 per load. The
shipper so agreed and the $800 was incorporated into a
special invoice as “extra handling” charges. (24:146-
148), The same arrangement was followed with regard
to another shipment of cigarettes later in the year,
(25:136-137),
Throughout this period, Teitlebaum continued
making payments to appellant Cleveland Turner,
alternately with cash, cruise tickets and even automobile
tires. In August 1976, Teitlebaum delivered a $200
check to Turner, but as he was leaving Turner ran out
to Teitlebaum’s car and gave him the check back, saying
he wanted only cash from then on. Teitlebaum took
back the check and gave Turner $160 in cash that he
was carrying. (24:176).
In the latter part of August 1976, Boyle told
Teitlebaum that Barone was angry at him for using
Southeastern Maritime, Inc. as a stevedoring company
in Savannah because it “belongjed] to another group.”
(24:185, 194). Subsequently, Teitlebaum met with Boyle
and Barone in the hallway outside of his Miami office
and Barone told Teitlebaum that he “was going to
work with whomever he [Barone] designated” and that
Teitlebaum “was going to love every goddam piece of
business . . . [he] had.” (24:196-197).
During this period, Teitlebaum was continuously
behind in the money he owed and Boyle, Barone and
Vanderwyde pressured him to catch up. When Teitlebaum
received a $25,000 payment from the Zim line for services
rendered in Savannah, Boyle told Teitlebaum that he
App. 14
wanted $2,000 out of it. (24:102). When Teitlebaum
asked if he could deduct the cost of the June 1976
cruise tickets from the money he owed, Boyle told him
to consider the tickets as a present for Vanderwyde.
(24:114). At one point, Boyle told Teitlebaum that it
would “relieve a lot of tension” if Teitlebaum were to
make payments of $3,500 for Mobile, $1,000 for Savannah
and $1,000 for Miami. (24:193). Shortly thereafter, Barone
told Teitlebaum, in the presence of Boyle and Vanderwyde,
to “get even in Mobile.” (25:36). Barone asked Teitlebaum
if he was experiencing any problems with the Nopal
Line. When Teitlebaum said that he was not, Barone
told him, “you may start experiencing some problems.”
(25:36-37).
In early September 1976, Boyle told Teitlebaum
that Field wanted tickets for himself and some friends
to take a Christmas cruise on the Mardi Gras. (25:25).
In early December, Teitlebaum visited the ILA office
and Boyle (in the presence of Field, Barone, appellant
Vanderwyde and Cornelius Vanderwyde) asked
Teitlebaum if he had made arrangements for Field's
tickets. Teitlebaum said that the tickets cost $6,200
and the cruise line who operated the Mardi Gras was
not going to give them away because it was the Christmas
cruise. (25:152). Teitlebaum called his friend at the cruise
line to let Boyle speak with him: Teitlebaum heard
Boyle telling the person: “You know who he is. He is
our general organizer.” (25:156). After a pause, Boyle
added, “When contract time comes around, don’t look
for any favors.” (25:156).
Boyle then handed the phone back to Teitlebaum
who tried to persuade the cruise line representative to
App. 15
split the cost of the tickets with him. (25:156). At that
point Field looked at Teitlebaum and said: “Fuck you
and your Jew friend. I am not going. You'll repent.
Believe me, you'll repent.” (25:157).
In the latter part of 1976, Teitlebaum spoke with
Boyle about the possibility of expanding his waterfront
operations into the port of Jacksonville, Florida. (24:161).
In October, Teitlebaum made arrangements to meet
appellant Landon Williams for dinner in Miami. (25:48).
They met in the lobby of the Americana Hotel and
discussed the Jacksonville operation. Williams told
Teitlebaum that it would cost him “[t]en cents a ton,
$250 a week, $1,000 a month, no matter what does,” in
order to operate in Jacksonville. (25:55).
Enroute to the restaurant Teitlebaum gave Williams
$400. (25:80). Williams held up five fingers and said, “I
was looking for this.” Teitlebaum told him that he
would receive the additional $100, plus the first monthly
payment of $1,000 when they met in Jacksonville. (25:81).
Teitlebaum started to discuss the cruise tickets he had
obtained for Williams in 1975, but Williams said he did
not like to talk in cars because they could easily be
bugged. (25:81). Shortly after the Miami meeting,
Teitlebaum travelled to Jacksonville where he paid
Williams the $1,100, using money supplied by the FBI.
(25:96).
App. 16
OTHER WATERFRONT EMPLOYERS
MAKE ILLEGAL PAYOFFS
While Joseph Teitlebaum was the government’s
key witness, other waterfront employers also testified
that they made illegal payments to union officials.
Alvin P. Chester was one of the principals of Chester,
Blackburn & Roder (‘C, B & R’), a company that rendered
steamship agency services at the port of Miami. In
1967, the principals of C, B & R formed Marine Terminals,
Inc. (MTI’), a stevedoring company. Chester testified
that he met appellant Barone in 1967 shortly after MTI
was established. (14:120). Barone told Chester that he
had done him a favor by interfering with an attempt to
execute a murder contract on one of Chester's business
associates. Chester testified that Barone told him Joseph
Teitlebaum was responsible for the contract. (14:122).
Barone explained to Chester that life was different
on the docks and that Chester needed a “consultant” to
“watch out for things.” (14:123). Accordingly, Barone
suggested that MTI enter an “arrangement” with Barone
whereby the company would pay him a monthly retainer
of $1,500. (14:124). Chester said that was too high and
they ultimately agreed that MTI would pay Barone
$750 each month. (14:124). Chester made the first two
payments himself, but his associate Jacob Sklaire made
the subsequent payments. (14:195-197).
Sklaire testified that he continued paying Barone
$750 each month from 1967 through 1972. In 1972,
Sklaire and his associates formed Caribbean Freightways,
Inc., a freight consolidating business, to operate at the
App. 17
Miami International Airport. (14:204-205). The function
of the business was to receive freight from several
different companies and pack (“stuff”) it into containers
destined for different ports.
Sklaire asked Barone whether it would be possible
to obtain a union contract for the airport operation
inasmuch as containers stuffed by non-union personnel
that passed through the port were subject to a substantial
financial penalty. (14:206). Barone responded negatively,
stating that they were not going to award any more
union contracts. Nevertheless, Sklaire and Barone arrived
at an agreement whereby Barone would permit Sklaire
to use non-union personnel without incurring any penalty
in return for increasing Barone’s monthly payment to
$1,000. (14:209). The $1,000 payments continued until
January 1979. (14:211).
* * *
George Wagner began working as a checker for
MTI in 1967. (43:35). In 1968, the principals of MTI
approached Wagner regarding the possibility of him
becoming a manager. (43:41). Wagner, concerned that
he might lose his union status if he accepted the job,
discussed the matter with Barone, Boyle and Vanderwyde.
(43:41, 45). They were all very positive about Wagner's
promotion, telling him to “be on the lookout to be a
help to the union” and to “make a dollar wherever . . .
[he] could.” (43:47).
As soon as Wagner became manager, he began
making monthly payments of $800 to Boyle on behalf of
MTI. (43:56). He continued making such payments through
App. 18
1971. (43:60). In a discussion that occurred late in 1970
at the MTI warehouse, Boyle told Wagner that the
money was going into a “pot,” and that Boyle’s position
would improve because he would “share in the entire
pot.” (43:68-70). Shortly after that discussion, Wagner
increased the payments to $1,000 per month. (43:72).
Wagner testified that he also paid Boyle from $4,000 to
$8,000 in each of the years 1972, 1973 and 1974 over
and above the $1,000 monthly payments. (43:77).
During this same period, Wagner was making cash
payoffs to appellant Cleveland Turner in amounts ranging
from $5,000 to $7,000 each year. In 1972, however,
Wagner was experiencing problems generating enough
cash to pay Turner so they arranged for Wagner to put
ghost employees on MTI’s payroll, that is, persons who
did not actually work for MTI. Wagner would then
turn the payroll checks of such persons over to Turner.
(43:85-89).
In mid-1972, Wagner met with Julio Navarro, who
worked for a container/trailer repair company operating
at the port of Miar °. Navarro wanted Wagner to explore
the possibility of allowing appellants Raymond Kopituk
and Oscar Morales, friends of Navarro’s, to open a
container/trailer repair business on Dodge Island. (43:119).
Wagner said he would entertain the idea and arranged
to meet with them.
Prior to meeting with Kopituk" and Morales, Wagner
discussed the matter with Barone, in the presence of
"For purposes of convenience, we will usually refer to Raymond
Kopituk simply as “Kopituk” and to appellant Dorothy Kopituk
either by her full name, as “D. Kopituk,” or as “Mrs. Kopituk.”
App. 19
Boyle and Vanderwyde. (43:120). Wagner suggested
that he would tell Kopituk and Morales that a union
contract on Dodge Island would cost them $10,000 up
front and $1,000 per month thereafter. (43:120). Barone
said that would be acceptable. (43:121). When Wagner
met with Kopituk and Morales, however, he told them
it would cost $15,000 up front, rather than the $10,000
he had discussed with Barone. They readily agreed.
(43:122).
Approximately four weeks later, Wagner met with
Kopituk and Morales at a Howard Johnson's where
they delivered the $15,000 in cash. Wagner kept $2,500,
gave Julio Navarro $2,500 and gave the remaining
$10,000 to Barone. (43:126-131). Shortly thereafter, MTI
began sending business to Florida Welding Services
Corp. (‘FWS’), the company operated by Kopituk and
Morales. (43:135). In order to allow FWS to recoup
some of the initial payoff money, Wagner prepared
inflated invoices on behalf of FWS that were paid by
MTI. (43:124, 138, 151-152). He terminated this
arrangement after FWS began receiving a substantial
amount of waterfront business. (43:154).
Wagner collected the $1,000 monthly payments
from FWS and delivered them to Boyle, Vanderwyde
or Barone. (43:155-156). He testified that on two occasions
he received the payment from appellant Dorothy Kopituk,
wife of appellant Raymond Kopituk. (43:170; 44:22-24).
On one such occasion, Mr. Kopituk explained to Wagner
that they were having trouble generating cash and
asked if he would accept a check. Wagner said he
would and Mrs. Kopituk asked him how she should
record the check. Wagner told her he did not care and
that as far as he was concerned she could write down
App. 20
“Happy Birthday.” She asked him if “consulting fee”
would be acceptable and he answered affirmatively.
(44:23). She proceeded to record the check in that manner.
In the summer of 1973, Morales approached Wagner
concerning a friend of his who wished to begin a trucking
operation at Dodge Island Seaport. He asked if Wagner
could do the same for him as he had done for FWS.
Wagner agreed to try. (44:41). Wagner discussed the
proposal with Barone, in the presence of Boyle and
Vanderwyde, and Barone gave his approval. The trucking
company, Jasca Transfer, Inc., was to pay the union
$10,000 up front. (44:43). As he had done with FWS,
however, Wagner told Jeronimo Acosta, the owner of
Jasca Transfer, that the initial payoff would be $15,000.
(44:47). In turn, Wagner agreed to split the extra $5,000
with Morales. (44:45). The deal was transacted as planned
and, shortly thereafter, MTI began sending trucking
work to Jasca Transfer.
* * *
Co-defendant Joseph Cotrone came to Miami from
New York in 1972. Along with his father and sister
Laura (also co-defendants), he established United
Container and Ship Repair, Inc., a company that performed
container, trailer and minor ship repairs. In early 1974,
Barone and Boyle visited Cotrone’s office and Barone
told Cotrone that he should pay Barone $200 per month
“to make everything move smoothly,” i.e., for union
peace. (59:196). Barone told Cotrone that the other
trailer and container repair companies operating at the
port had already agreed to such an arrangement. Barone
stressed the fact that he had close connections with the
App. 21
steamship lines, with which companies such as Cotrone’s
did a substantial amount of business, and that it would
mean trouble for him if he declined to go along. (59:196-197).
After discussing Barone’s proposal with his father,
Cotrone agreed to make the payments. (59:197). The
payments were made to Barone in cash, using $20 bills
at Barone’s request. (59:198). After the initial payments
were made, the means of generating sufficient amounts
of cash to make the payments was left to co-defendant
Francesca Cotrone, another of Joseph Cotrone’s sisters,
who began working for the company in 1975. (59:205).
In September 1975, Barone informed Cotrone that
he wanted to alter the payoff schedule by charging
Cotrone 25 cents for every hour worked by each of his
employees. (59:203). Once again, Barone told Cotrone
that his competitors had already agreed to the increase,
that Barone’s relaticnship to the steamship lines was
very strong and that it would be “wise” for Cotrone to
acquiesce. (59:203).
Cotrone discussed the demand with his family and
it was agreed that they would make the payments.
(59:205). This new method of calculating the payoffs
owed to Barone dramatically increased the amount of
the monthly payments. Cotrone testified that he began
paying Barone from $1,000 to $1,500 each month. (59:207).
The payments continued until December 1975. (59:212).
Cotrone’s company, United Container and Ship
Repair, Inc., had the contract to perform container and
trailer repair work for PRMMI, the Puerto Rican
steamship line. In 1975, representatives of PRMMI
App. 22
offered Cotrone’s company a contract to perform their
maintenance and repair work at the port of Jacksonville,
Florida. (60:35-36). Cotrone discussed the possibility
with Barone and Boyle. Barone said Cotrone would
have to pay $3,000 to appellant Landon Williams in
order to get an introduction into the Jacksonville area.
(60:42).
Cotrone subsequently gave Barone the $3,000 and
in June 1975 Barone took Cotrone to Jacksonville to
meet Williams. (60:52). Shortly after they sat down to
discuss the labor situation in Jacksonville, Williams
told Cotrone: “Jacksonville is like Egypt and I'm the
Pharaoh in Egypt; and anything that’s done up here
must come through the Pharaoh.” (60:53).
The Cotrones formed a new company, United Trailer
Services, Inc., to operate in Jacksonville and hired
Robert Gillespie and Stephen Miller to manage it. (60:55).
Shortly after Cotrone’s Jacksonville company began
functioning, Barone told Cotrone that he expected peace
payments amounting to 25 cents for every hour worked
by each of Cotrone’s Jacksonville employees. (60:64-65),
Cotrone discussed the matter with his father who
concluded that the situation was “getting ridiculous”
and that they were not going to pay Barone anything
for the Jacksonville operation until they spoke with
Landon Williams. (60:66).
On October 3, 1975, Cotrone travelled to Jacksonviile
to meet with Williams. Upon learning of Barone’s request
for payment, Williams said: “There's no way anything
like that is going to happen in my port. If anybody is
going to receive any money, it’s going to be me.” (60:73).
App. 23
Accordingly, Williams and Cotrone arrived at an
agreement whereby Williams would be paid 25 cents
for each man-hour worked in Jacksonville. (60:74).
Thereafter, Miller and Gillespie, at Controne's direction,
made regular payments to Williams, although in 1975
the 25 cents-per-hour formula was abandoned in favor
of a flat $1,000 per month. (63:26-27, 39-45, 64:141, 172-203).
Great Southern Trailer Corp. was a container and
trailer repair business operating in Savannah, Georgia,
during the period covered by the indictment. It was
jointly owned by Ramon DeMott and James Hodges. In
the summer of 1975, DeMott and Hodges learned that
the container repair work at the port of Savannah was
going to be unionized and that it would therefore be
necessary for them to obtain a union contract in order
to stay in business, (11:28; 13:40).
DeMott sought advice from appellant Morales, whom
he had met a year earlier in a business context, because
he knew Morales was operating under a union contract.
(11:39-40), DeMott and Hodges subsequently met with
Morales and appellant Kopituk at Great Southern's
Savannah office to discuss how to go about acquiring a
union contract. (11:42-43), Morales told them it would
cost money, anywhere from $5,000 to $15,000. (11:44;
13:48). Kopituk agreed with Morales’ estimate. (11:45;
13:48).
Shortly after Morales and Kopituk departed,
DeMott and Hodges received a telephone call from
appellant Boyle, who said that he wanted to meet with
App. 24
them at his Savannah office. (11:46; 13:48-49). When
they arrived, Kopituk was sitting inside Boyle's office
and Morales was outside on the veranda talking with
Boyle. (11:46; 13:50). After Morales and Kopituk left,
Boyle told DeMott and Hodges that it would cost them
$10,000 to obtain a union contract in Savannah. (11:49;
13:52).
They complained that they did not have that much
money and Boyle told them they could pay $6,000 initially
and $4,000 at a later date. (11:50; 13:52). DeMott and
Hodges subsequently borrowed $6,000 which they gave
to Boyle on their way to the ILA office in Savannah to
sign the union contract. (11:50-63; 13:52-62).
Present at the contract “negotiation” meeting were
appellant Williams, appellant Boyle, co-defendant Jackson,
DeMott and Hodges. DeMott and Hodges attempted to
negotiate certain changes in the terms of the contract,
but Williams told them: “Well, this agreement that’s
there is going to be it and you are going to sign the
fucking contract or get out of the damn business.”
(11:71-72). When DeMott and Hodges persisted in
attempting to discuss the content of the agreement,
Williams told them that “people who had gained disfavor
wound up on their backs in bed and their arms and legs
in traction, sipping soup through a straw and thinking
about the follies of their ways.” (11:72). DeMott and
Hodges signed the contract. (11:73).
While DeMott and Hodges were driving Boyle
back to his office, Boyle explained to them that they
would have to pay him 30 cents for every hour worked
by each of their employees. (11:134), Boyle said that the
App. 25
money was not just for him, but for his associates as
well, (11:134). DeMott and Hodges thereafter made regular
payments to Boyle calculated on the basis of the 30
cents-per-hour formula. (11:85-86, 94-98, 114-121, 156-162,
198-204; 13:81, 87-88, 90, 106-111, 153-154).
Toward the end of 1975, Boyle suggested that
Delviott and Hodges expand their container repair
business into Charleston, South Carolina. (11:82) He
said this could be accomplished for $5,000. (11:83). DeMott
and Hodges agreed to establish a Charleston operation
and, in February 1976, paid Boyle $5,000. (11:85, 117).
Business, however, did not go well in Charleston and
the operation lasted only about six months. (11:137).
About the time they were dismantling their business
in Charleston, DeMott and Hodges had dinner with
appellant Field in Savannah. Hodges complained to
Field that they were never given the opportunity to
submit bids in Charleston, to which Field replied, “Don't
expect anything for nothing.” (11:143).
* * *
Harrington & Company is a steamship agent and
stevedoring company that operates at the Dodge Island
Seaport in Miami. Dorothy T. Howard, secretary-treasurer
of the company, testified that in 1972, at the direction
of co-defendant Neal L. Harrington, she began preparing
and cashing monthly checks in amounts of several hundred
dollars, which she charged to the company loan account
of either Harrington or Royal 0. White (the co-owners
of Harrington & Company). (17:24, 26-27, 33). She would
place the cash in an envelope and give it to Harrington.
(17:32). Preparation of these checks coincided with visits
from appellant Boyle. (17:35-36).
App. 26
Eventually, Howard herself, through an implicit
understanding with Harrington, developed the “habit”
of giving envelopes containing varying amounts of cash
to Boyle on a monthly basis. (17:37). On each occasion,
she charged the amounts to the personal loan account
of either Harrington or White. In March 1974, the
same practice was commenced with respect to appellant
Turner. (17:46-49), The amounts contained in the envelopes
ranged from $400 to $1,380 for Boyle and $200 to $800
for Turner. (17:53-59). White, Harrington's business
partner, testified that Harrington told him the payments
were for the purpose of ensuring labor peace and were
necessary in order to stay in business. (18:13, 20, 25).
Coordinated Caribbean Transport, Inc. (‘CCT’) is a
transportation company that has its headquarters at
the port of Miami. The company is involved in transferring
cargo received at the port from overland carriers to
trailers that are then loaded onto ships destined for
foreign ports. (18:132-133), During the period covered
by the indictment, the company had contracts with the
Miami longshoremen’s union (ILA Local 1416) and the
checkers’ union (ILA Local 1922). (18:134-135).
Boyle served as liaison between CCT and the
longshoremen's and checkers’ unions, respectively.
(18:148-149). In 1974, CCT was trying to improve its
warehousing operations through negotiations with the
unions. Hector C. Calderon, a vice-president for CCT,
testified that Boyle approached him early in 1974 and
suggested that labor conditions at the warehouse could
be improved for “certain considerations.” (18:150). Calderon
App. 27
ignored the statement, but Boyle broached the subject
again at a subsequent meeting. (18:151-152),
Boyle suggested that if CCT began paying him
$1,000 per month, labor conditions at CCT’s warehouse
would improve. (18:152). After discussing the matter
with a senior official of CCT’s parent company, Calderon
informed Boyle that he had received authorization to
make the payments. (18:157-158). Boyle and Calderon
ultimately agreed that CCT would pay Boyle $600 per
month. (18:159). In late 1975, however, officers of CCT
decided to terminate the payments to Boyle. (18:166),
Shortly thereafter, Calderon informed Boyle of CCT's
decision to terminate the arrangement, while making
one last payment of $3,600 (intended to represent six
future monthly payments). (18:167-168).
*” *” *
George Krickovich was employed by Eller & Company,
a Miami-based stevedoring operation, throughout the
period covered by the indictment. Krickovich testified
that in early 1973, a 155-ton crane owned and operated
by Eller & Company was idled until he agreed to pay
George Wagner $50 per month. (51:192). Wagner told
Krickovich that other cranes on Dodge Island were
operating only because the companies that owned them
were “taking care of some stevedores.” (51:191).
In 1976, Krickovich asked appellant Boyle about
the possibility of Eller & Company obtaining a contract
to perform stevedoring work for a shipping company
that operated between the United States and Puerto
Rico. (51:194). Boyle responded that no contract for the
App. 28
work had yet been awarded and that Eller & Company
could receive favorable treatment if four or five ghost
employees were placed on the company's payroll. (51:194).
Krickovich asked what work the employees would be
performing and Boyle said, “Nothing.” (51:195). Boyle
told Krickovich that the employees would have to be
paid in cash. (51:195). Krickovich discussed the matter
with a senior official of Eller & Company who rejected
the arrangement. (51:196).
* * *
In January 1977, the covert portion of the
investigation terminated with the issuance of numerous
grand jury subpoenas. The indictment was returned in
June 1978 and the case went to trial in January 1979.
In September 1979, the jury returned guilty verdicts
as to all nine appellants herein.
All of the appellants except Dorothy Kopituk were
found guilty of the substantive and conspiracy charges
(Counts 1 and 2) brought under the Racketeer Influenced
and Corrupt Organizations (‘RICO’) Act, 18 U.S.C. §1961
et seq. Additional charges upon which appellants were
found guilty included:
Barone extortion (Count 3), 18
U.S.C. §1951, 18 U.S.C. §2; substantive Taft-Hartley
Act violations (Counts 4, 6, 7, 11, 12, 13, 19, 25,
27, 31, 43 and 48), 29 U.S.C. §186, 18 U.S.C. §2;
filing of false income tax returns (Counts 58, 59,
60, 61 and 62), 26 U.S.C. §7206(1).
App. 29
Boyle extortion (Count 3), 18
US.C. §1951, 18 U.S.C. §2; substantive Taft-Hartley
Act violations (Counts 4, 5, 6, 7, 8, 9, 11, 13, 16,
17, 19, 20, 22, 24, 27, 32, 35, 39, 41, 43, 46, 47 and
52), 29 U.S.C. §186, 18 U.S.C. §2; receipt of illegal
kickbacks (Counts 21 and 23), 18 U.S.C. §1954;
obstruction of justice (Count 33), 18 U.S.C. §1503;
filing of false income tax returns (Counts 63, 64,
65, 66 and 67), 26 U.S.C. §7206(1).
Field substantive Taft-Hartley
Act violations (Counts 17 and 24), 29 U.S.C. §186,
18 U.S.C. §2.
Turner substantive Taft-Hartley
Act violations (Counts 5, 10, 14 and 18), 29 U.S.C.
§186, 18 U.S.C. §2.
Vanderwyde extortion (Count
3), 18 U.S.C. §1951, 18 U.S.C. §2; substantive
Taft-Hartley Act violations (Counts 4, 8, 16, 27
and 43), 29 U.S.C. §186, 18 U.S.C. §2.
Williams substantive Taft-Hartley
Act violations (Counts 9 and 15), 29 U.S.C. §186,
18 U.S.C. §2.
Morales substantive Taft-Hartley
Act violations (Counts 44 and 46), 29 U.S.C. §186,
18 U.S.C. §2; filing of false income tax returns
(Counts 68 and 70), 26 U.S.C. §7206(1).
App. 30
R. Kopituk substantive Taft-
Hartley Act violation (Count 44), 29 U.S.C. §186,
18 U.S.C. §2; filing of false income tax returns
(Counts 68 and 70), 26 U.S.C. §7206(1).
D. Kopituk — evunseeneeeeeeeeee SUBStantive Taft-
Hartley Act violation (Count 44), 29 U.S.C. §186,
18 U.S.C. §2; filing of false income tax returns
(Counts 68 and 69), 26 U.S.C. §7206(2).
A. SUBSTITUTION OF ALTERNATE JUROR
The central issue raised in this appeal is whether
the district court erred in substituting an alternate
juror for a disabled regular juror after the jury had
begun deliberating.
At approximately 1:00 P.M. on Saturday, August
11, 1979, the jury retired to begin its deliberations.
(99:144). The judge ordered that the two remaining
alternate jurors be sequestered and directed a deputy
United States marshal to escort them back to the hotel.
(99:144-145). The trial judge instructed the alternate
jurors not to discuss the case with anyone, telling the
alternates that “[t]here is still a possibility that you
may have to serve.” (99:146). The judge subsequently
arranged to have the alternates sequestered on a floor
of the hotel separate from that of the regular jurors.
(99:156-157). The jurors deliberated only two-and-one-
half hours on this first day. The trial judge excused
them at 3:30 P.M. to allow them to tend to their personal
needs. (99:172).
App. 3i
The jury resumed its deliberations on Monday,
August 13. On Wednesday, August 15, the trial judge
released the two alternates from their sequestration
and sent them home. In so doing, the trial judge specifically
told the alternates that they were “discharged.” (102:22-23).
Nevertheless, he proceeded to instruct them to avoid
all newspaper and television coverage of the trial “in
the slim possibility that we might still call you.” (102:23).
He further instructed them not to discuss the case
with anyone and not to leave the state until the case
was concluded. (102:23-24).
On Friday afternoon, August 17, the court received
a note from the foreperson of the jury expressing concern
as to the mental condition of one of the jurors. (104:4).
The foreperson requested that the jury be permitted
to adjourn until Monday, promising that she would
monitor the condition of the ill juror during the weekend.
(104:4). The trial judge granted the request and
deliberations were suspended until Monday, August
20. (104:6). On Monday morning, the foreperson sent
the court another note stating that, in her opinion, the
juror about whom she had previously expressed concern
required professional help. (104:6). Shortly thereafter,
the court received yet another note from the foreperson
stating that the jury would be unable to continue
deliberating until some action was taken with respect
to the troubled juror. (104:7).
A hearing was held that afternoon at which the
court, together with counsel, explored the juror’s
condition. It became readily apparent that the juror
was mentally ill. The deputy marshal responsible for
guarding the jury room related to the court that the
juror stated that the Lord was talking to her, that
App. 32
Lucifer was after her and, at one point, that she was
Moses. (104:8). The foreperson of the jury told the
court and counsel that the juror had been hallucinating
(104:46) and that she was extremely unstable, repeatedly
alternating between states of elation and depression.
(104:46, 50). The ill juror had told the other jurors of a
revelation she experienced the night of August 16 in
which she realized she was a genius with an IQ of 200
and that her position as a juror in this case was part of
a divine mission. (104:33, 68-69).
On Tuesday, August 21, the court arranged for the
juror to be examined by a psychiatrist, who concluded
that she was mentally disabled and unfit to continue in
her capacity as a juror in this case.” Following extensive
discussion with counsel, the trial judge, without objection,
ordered that the incapacitated juror be discharged.
(105:25). When defense counsei objected to proceeding
with an 11-person jury, the court adjourned for the
remainder of the day to consider whether or not the
first alternate juror should be recalled. (105:27-28)."’
"In an in camera proceeding, the psychiatrist told the court
and counsel that “the sooner .. . [the ill juror] is removed from the
situation the better. As I said, I don’t believe that she is capable of
functioning as a juror, so it would also be in terms of the best
interests of the legal process.” Vol. 3, Supp. Record on Appeal, at
9. The psychiatrist testified that she was experiencing “a manic
episode, with marked grandiosity, marked religiousity, and is by
every definition psychotic.” Jd. at 7.
“Throughout the period that the court and counsel were
wrestling with the problem of the disabled juror, the other 11
regular jurors were kept sequestered in their hotel, having been
ordered not to discuss the case further until the matter was
resolved. (105:3). All of their notes, verdict sheets and the indictment
were collected by the deputy marshal and placed under seal.
(105:30-31; 106:63-64).
App. 33
The following day, the court, over the objections
of defense counsel, decided to substitute the first alternate
juror, Mrs. Evangelist, for the disabled juror. (106:45).
Before doing so, however, the trial judge extensively
questioned Mrs. Evangelist as to her continued fitness
to serve as a juror. Mrs. Evangelist testified that, in
accordance with the court’s instructions, she had not
discussed the case with unyone, she had not received
any information about the case through the media or
any other extrinsic source and that she felt she was
capable of rendering a fair and impartial judgment
with respect to all defendants. (106:55-58).
After questioning the alternate juror, the court
proceeded to examine each of the remaining 11 regular
jurors individually regarding their respective abilities
to begin deliberating anew. (106:73-141). Each juror
stated that he or she would be able to disregard any
opinions or conclusions previously expressed during
deliberations and start all over again. While some jurors
expressed reservations about having to commence their
deliberations anew, such reservations were attributable
to their understandable desire to be reunited with
their families rather than to any obstacle relating to
their thought processes. (106:73-141).
Accordingly, on Thursday, August 23, the alternate
juror was seated with the 11 original regular jurors
and the court reinstructed them in full. (107:36-106). As
part of the instructions, the court repeatedly emphasized
that the jurors were duty-bound to begin their
deliberations afresh, disregarding all of their previous
App. 34
deliberations. (107:36-39, 105-106)."* The jury then retired
and deliberated for just over one week before returning
its verdict on September 1, 1979.
Resolution of this issue, that is, whether the trial
court erred in substituting an alternate juror for a
“The following excerpt demonstrates the extraordinary extent
to which the trial court stressed, even belabored, this point at the
commencement of the instructions:
As you will recall, yesterday I asked you whether you
would be able to start your deliberations anew and put out of
your mind all deliberations you have engaged in since August
11.
I want to remind you now that each of you stated you could
do so, and I now instruct you that you must do so. You must
each put out of your minds all the deliberations that you have
engaged in thus far. You must consider the evidence in this
case anew just as you did when you first retired to deliberate
this case.
You must each determine to start anew your consideration
of each count and each defendant. You must not let anything
that has happened in the course of the period you have spent
in deliberation in any way affect the course of your new
deliberation.
You are to start fresh as if the past days have simply not
happened. Each of you must keep in mind your pledge that
you can begin your deliberations with a completely open
mind. On each shoe [sic] you must decide and you must abide
by that pledge throughout your deliberations.
In order to help you start fresh in your thinking about this
case, I am going to reinstruct you on the law, just as I
instructed you on August 11.
I want each of you, as you listen to the instructions, to
consider only the evidence you have heard at this trial and
not in any way consider the deliberations you have engaged
in during the past twelve days or any conclusions, tentative
App. 35
disabled regular juror after deliberations had begun, is
controlled by a recent decision of the United States
Court of Appeals for the Fifth Circuit, United States v.
Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied,
(Footnote 14 Continued)
or final, that any of you may have reached in the course of
your deliberations.
The reason for this requirement is that the law grants to
the prosecution and to each defendant the right to a unanimous
verdict, reached only after full participation of the twelve
jurors who ultimately return verdicts.
That right can only be assured if the twelve of you who now
make up this jury begin today as if no prior deliberations had
ever occurred.
The verdict of the jury cannot be unanimous unless each
and every one of you reaches the decision through deliberations
which are the common experience of all of you. Each member
of your group must have the benefit of the opinions and
deliberations of the other eleven, and each of you must heed
the personal reactions and interreactions of your fellow jurors,
including your new member.
I emphasize this point because it is essential under the law
that you deliberate together, among yourselves and without
regard to what may have occurred earlier.
Although this requirement that you start deliberations
anew may impose and undoubtedly does impose some hardship
upon you in terms of the time spent re-reviewing the evidence
of the trial, I am confident that each one of you will follow this
necessary procedure.
I want to thank you for and commend you for your patience
and your understanding. We have been in trial many months.
The unfortunate events of this past week are the fault of no
one, as I am sure you ali understand. It is to solve that
problem that we are proceeding the way that we are presently
proceeding.
I was certainly, as I am sure all counsel were, impressed
with your willingness to do that which you have agreed to do
under these difficult circumstances and, that is, to begin your
deliberations anew.
(107:36-39).
App. 36
U.S.___, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982),”°
wherein it was held that such a procedure constitutes
reversible error only if the defendants are prejudiced
by the substitution. In Phillips, the panel found that
the procedural safeguards taken by the trial judge
(which were expressly patterned after those employed
by the trial judge in the instant case) operated to
obviate any danger of unfair prejudice. 664 F.2d at 993.
The decision in Phillips is binding as precedent in
this circuit pursuant to the Fifth Circuit Court of Appeals
Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995.
Bonner v. City of Prichard, Alabama, 661 F.2d 1206,
1207 (11th Cir. 1981). Extrapolating from that fact, it is
clear that this panel is bound by the Phillips decision
because one panel of the court of appeals is not permitted
to overrule or reconsider the decision of a prior panel.
Branch v. Phillips Petroleum Co., 638 F.2d 873, 877 (5th
Cir. 1981); United States v. Alfrey, 620 F.2d 551, 555
(5th Cir. 1980).
The facts in Phillips were remarkably similar to
those in the instant case. Indeed, Phillips approaches
the status of the proverbial “red cow” case with respect
to the substituted juror question raised herein. Phillips,
like the case at bar, was a massive, complex RICO case.
The trial involved several defendants and lasted more
than five months. After the jury had been deliberating
for approximately two days, one of the regular jurors
became ill and subsequently suffered a heart attack.
The district court decided to replace the disabled regular
“The Phillips decision was entered after the briefs had been
submitted in the case at bar, but prior to oral argument.
App. 37
juror with an alternate juror who had been kept separately
sequestered. In so doing, the court expressly relied
upon the procedures employed by the district court in
the instant case, the trial of which had concluded six
months earlier. 664 F.2d at 991 n.13.
In accordance with those procedures, the trial judge
in Phillips questioned the alternate juroi as to whether
he had discussed the case with anyone or whether he
had been exposed to any extrinsic information concerning
it and questioned each of the remaining regular jurors
as to whether they would be able to begin their
deliberations anew. He also ordered that all notes and
other handwritten material compiled by the jurors during
deliberations be confiscated. Finally, he reinstructed
the jury in full, particularly emphasizing their duty to
commence their deliberations with a clean slate. 664
F.2d at 991.
In Phillips, the appellate court was faced with
challenges that mirror those raised herein, i.e., that
substitution of an alternate juror after the jury has
commenced its deliberations violates the clear provisions
of Fed.R.Crim.P. 24(c), the right to trial by a fair and
impartial jury guaranteed by the Sixth Amendment,
and the prohibition against being placed in double jeopardy
incorporated within the Fifth Amendment.
Turning first to the constitutional arguments, the
Phillips panel found no per se constitutional impediment
to substitution of an alternate after deliberations have
begun where good cause has been shown for the
substitution and where adequate safeguards, such as
instructing the reconstituted jury that they must begin
App. 38
deliberating anew, have been taken. 664 F.2d at 992-993.
In so finding, the court relied in part upon People v.
Collins, 17 Cal.3d 687, 552 P.2d 742, 131 Cal.Rptr. 782
(1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d
796 (1977), wherein the California Supreme Court held
that substitution of an alternate juror after jury
deliberations have begun is permissible under the
California constitution. The California court determined
that so long as “a properly qualified alternate juror is
available and that juror fully participates in all of the
deliberations which lead to a verdict,” the right to jury
trial is not violated. 131 Cal.Rptr. at 786, 552 P.2d at
746. The Phillips panel found such reasoning to be
equally applicable to the Federal Constitution and,
therefore, dispositive of appellants’ Sixth Amendment
argument.
The appellants in Phillips also claimed, as do the
appellants herein, that substitution of the alternate
juror operated to place them twice in jeopardy for the
same offense in violation of the Fifth Amendment.
That argument was rejected offhandedly, the court
concluding that:
[clonsideration of defendant’s case by a jury
which includes a former alternate who has
replaced a regular juror after deliberations
have begun no more violates the double jeopardy
clause than does consideration by a jury which
includes a former alternate who has replaced
a regular juror during the trial before jury
deliberations have begun.
664 F.2d at 991-992 n.14.
App. 39
Finally, with regard to appellants’ most pressing
argument, i.e., that substitution of the alternate juror
mandated declaration of a mistrial because such a
procedure is contrary to the express language of
Fed.R.Crim.P. 24(c), the Phillips court commenced its
analysis with a determination that Rule 24(c) is not
constitutionally grounded. 664 F.2d at 992.
Rule 24(c) reads in pertinent part as follows:
Alternate jurors in the order in which they
are called shall replace jurors who, prior to
the time the jury retires to consider its verdict,
become or are found to be unable or disqualified
to perform their duties.. . . An alternate juror
who does not replace a regular juror shall be
discharged after the jury retires to consider
its verdict.
While recognizing that substitution of the alternate
juror constituted a violation of Rule 24(c), the court
declined to adopt a position that would require automatic
reversal in all cases in which the rule was violated.
Rather, the appropriate inquiry, according to the court,
is whether the defendants were prejudiced by the
substitution. 664 F.2d at 993. In Phillips, the court
found that the precautions employed by the trial judge
sufficed to obviate any danger of prejudice to the
appellants, stating:
The safeguards utilized by the court neutralized
the possible prejudice to the appellants. We
need not remand for an evidentiary hearing
on the issue of prejudice, [citing case], because
App. 40
we conclude that the instructions to the jury
to begin anew, the jurors’ individual assurances
that they could in fact begin anew, and the full
participation of the substituted alternate in
the deliberations, which lasted six days, obviated
the danger of undue prejudice. On the record
before us we cannot discern that appellants
were prejudiced by the substitution. The
substitution procedure utilized by the court
did not deprive appellants of their right to a
full consideration of their cases by an impartial
jury panel.
664 F.2d at 996.
Having the benefit of Judge Johnson’s opinion in
Phillips, further discussion of appellants’ legal arguments
relative to the substituted juror question would be
superfluous. Each of those arguments has been effectively
disposed of as a matter of legal principle. All that
remains is to apply Phillips to the facts at bar.
It is of no small significance that the safeguards
approved in Phillips were formulated in express reliance
upon the district court’s opinion previously entered in
the instant case. See United States v. Barone, 83 F.R.D.
565 (S.D.Fla.1979). As in Phillips, the trial judge in the
instant case extensively questioned the alternate juror
as to whether her continued fitness to serve had been
tainted by any extrinsic influence. As in Phillips, the
trial judge questioned each remaining regular juror
individually and received assurances from all jurors
that they would commence their deliberations anew.
As in Phillips, the trial judge confiscated all notes and
App. 41
handwritten material compiled by the jurors during
their original deliberations. Finally, as in Phillips, the
trial judge reinstructed the jurors in full, emphasizing
their duty to disregard all prior deliberations and begin
afresh.
In Phillips, the panel noted that the jury deliberated
on its verdict for six days following substitution of the
alternate juror. 664 F.2d at 991, 996. Similarly, in the
instant case, the jury deliberated for more than a week
following substitution of the alternate. This is significant
because one of the primary concerns of permitting an
alternate juror to be substituted after jury deliberations
have commenced is that the 11 original regular jurors
may have already made up their minds to convict and,
together, may coerce the alternate juror into joining in
their position. See United States v. Lamb, 529 F.2d
1153, 1156 (9th Cir. 1975)."° The fact that the jury continued
to deliberate for an entire week after the alternate was
substituted negates any inference that the original
regular jurors had previously decided to convict and
that they impressed that position on the alternate.
"In Lamb, contrary to the instant case, the circumstances
indicated a strong likelihood that the 11 original jurors coerced
the substituted alternate juror into voting to convict. Prior to
substitution of the alternate, the original jury had returned a
guilty verdict after deliberating for four hours. The trial judge
refused to accept the verdict, believing that it was reached in a
manner contrary to his instructions. He declared a luncheon recess,
after which one of the jurors requested to be excused, stating that
she was “emotionally unable to come to a decision.” The judge
excused the regular juror and substituted an alternate juror,
instructing the jury that they had to begin their deliberations
anew. Nevertheless, despite the court's instructions, the reconstituted
jury returned a guilty verdict only 29 minutes after it retired to
deliberate. 529 F.2d at 1155.
App. 42
Notwithstanding the many similarities between
the instant case and the Phillips case, however, some
factual distinctions do exist. In Phillips, the alternate
juror was kept separately sequestered up until the
moment he was substituted. In the instant case, although
the trial judge initially decided to keep the alternates
separately sequestered, he released them from their
sequestration after four days. Upon doing so, however,
he instructed them not to discuss the case with anyone
and to avoid all media coverage of the trial because
there was a possibility that they would be recalled.
Moreover, prior to seating the alternate as a regular
juror, the judge made an extensive inquiry to satisfy
himself and counsel that the alternate had indeed obeyed
his instructions, Consequently, the fact that the alternate
juror was physically sequestered for only a portion of
the time prior to being substituted is not, in light of the
other precautions taken by the trial court, a distinguishing
fact of such significance as to command a different
result.
Another factual distinction between this case and
Phillips concerns the period of time the jury spent
deliberating prior to substitution of the alternate juror.
As noted supra, in Phillips, the jury deliberated for
approximately two days before the regular juror became
incapacitated and the alternate was substituted. In the
instant case, the jury spent a total of approximately
five days deliberating prior to substitution of the
alternate." Admittedly, the further along deliberations
"While there was a gap of 12 days between the day the jury
first began deliberating and the day the alternate juror was
actually seated as a regular juror, a review of the events that
transpired shows that actual deliberations occupied less than five
App. 43
proceed, the more difficult it becomes to disregard
them and begin anew. Nevertheless, the jurors’ individual
assurances that they could and would begin deliberating
anew, combined with the fact that the jury deliberated
for a full week subsequent to substitution of the alternate
juror, is sufficient indication that the jurors were able
to and did in fact obey the court's extensive instructions
regarding their duty to eliminate all prior deliberations
from their minds and begin with a clean slate.
Finally, the facts of this case are distinguishable
from those in Phillips in that the trial judge, upon
releasing the alternate jurors from their sequestration,
specifically stated that they were “discharged,” whereas,
it is argued, no such statement was ever made in the
(Footnote 17 Continued)
of those days. The jury retired to deliberate at 1:00 P.M. on
Saturday, August 11, and was excused two-and one-half hours
later. Since they had to elect a foreperson and did not even
receive the evidentiary exhibits until the following week, it is
unlikely that any serious deliberation occurred on that first day.
Deliberations were resumed on Monday, August 13, and continued
until Friday afternoon, Augus’ 17, when deliberations were suspended
following receipt of the first note concerning the mentally ill
juror. Although deliberations purportedly resumed on Monday,
August 20, at 9:00 A.M., it was only 9:45 when the court received
the second note from the foreperson suggesting that the ill juror
needed professional help. Shortly thereafter, the court received a
third note stating that jury deliberations could proceed no further
until some action was taken with respect to the ill juror. The
following morning the court expressly instructed the jury to
cease all further deliberations until the problem of the disabled
juror was resolved. Thus, although there was a 12-day period
between the day the jury first retired to deliberate and the day
the alternate juror was substituted, it appears that actual
deliberations occurred only from Monday, August 20, through
Friday, August 24.
App. 44
Phillips case. Appellants focused on this point during
oral argument, although no attempt was made to explain
why such a distinction should be determinable.” Although
the trial judge used the word “discharged” in sending
the alternate jurors home, he made it clear to them
that their duties as jurors had not necessarily terminated.
In fact, he expressly told them that there was still a
possibility that they would be recalled and instructed
them not to discuss the case with anyone, to avoid all
media coverage of the case and to remain within the
state of Florida.
The tenor of appellants’ argument suggests that it
would have been acceptable for the trial judge to have
said, “Go home, I release you,” or use any other
combination of words of similar import, so long as he
did not use the word “discharge.” We decline to attribute
any such talismanic quality to that word and accordingly
reject appellants’ argument on this point.
Our decision that substitution of the alternate juror
after deliberations had begun does not constitute
reversible error should not be minsconstrued as a stamp
of approval upon such a practice. As was true in Phillips,
the trial court’s decision to substitute the alternate
was made in the context of a trial of truly epic proportions
"As the government points out in its brief, since the trial
court expressly “discharged” the alternate jurors, it could be
argued that Rule 24(c) was not even violated. The rule simply
states that the alternate “shall be discharged after the jury retires
to consider its verdict.” It says nothing about whether the alternate
jurors can be recalled. While the government attorneys deserve
credit for their ingenuity, we reject this argument and assume
that Rule 24(c) was violated when the alternate juror was recalled.
App. 45
in terms of length, scope and expense to both sides. We
endorse the statement in Phillips that, “Our conclusion
that the district court committed no reversible error
must likewise be understood as limited to such an
exceptional context.” 664 F.2d at 996.
It is not our intention, nor is it within our province,
to authorize routine deviation from the terms of Rule
24(c). That rule is “the rule” and the substituted juror
procedure upheld herein is a narrowly limited exception
to the rule, applicable only in extraordinary situations
and, even then, only when extraordinary precautions
are taken, as was done below, to ensure that the
defendants are not prejudiced.
B. SEVERANCE ISSUES
Appellants raise a variety of claims that focus
upon the failure of the district court to grant any of
their several motions to sever certain offenses and/or
defendants from the trial below. Their arguments, while
somewhat convoluted, state claims of misjoinder under
Fed.R.Crim.P. 8 and improper denial of relief from
prejudicial joinder under Fed.R.Crim.P. 14.
(1) Misjoinder
Appellants Vanderwyde, Williams, Morales and
the Kopituks contend that the counts of the indictment
charging income tax offenses (Counts 58 through 70)
were improperly joined with the counts charging non-tax
offenses. A substantial portion of appellants’ argument
on this issue, however, is erroneously premised upon
Fed.R.Crim.P. 8(a), which deals with joinder of offenses.
App. 46
It is well established that the Rule 8(a) applies only in
cases involving a single defendant charged with multiple
offenses, whereas Rule 8(b) governs in cases involving
multiple defendants.” United States v. Levine, 546 F.2d
658, 661 (5th Cir. 1977); United States v. Park, 531 F.2d
754, 760 n.4 (5th Cir. 1976); United States u Marionneauz,
514 F.2d 1244, 1248 (5th Cir. 1975); United States v.
Gentile, 495 F.2d 626, 628 n.2 (5th Cir. 1974); United
States v. Bova, 493 F.2d 33, 35 (5th Cir. 1974); Cupo wv.
United States, 359 F.2d 990, 992 (D.C.Cir.1966), cert.
denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549
(1967); King v. United States, 355 F.2d 700, 704-705 (1st
Cir. 1966). See generally 1 C. Wright, Federal Practice
and Procedure §143, §144 (1969). But see United v.
Diaz-Munoz, 632 F.2d 1330, 1335-1336 (5th Cir. 1980).
Nevertheless, while it is clear that appellants’ reliance
upon Rule 8(a) is misplaced, this does not destroy their
underlying argument on appeal, for the analysis under
Rule 8 reads as follows:
(a) Joinder of Offenses. ‘Two or more offenses may be
charged in the same indictment or information in a separate
count for each offense if the offenses charged, whether
felonies or misdemeanors or both, are of the same or similar
character, or are based on the same act or transaction or on
two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
(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 of 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.
App. 47
either subsection is, with one exception, more or less
the same.” The critical difference between the two
subsections is that Rule 8(a) allows joinder of offenses
against a single defendant that “are of the same or
similar character,” even if such offenses do not arise
out of the same series of acts or transactions. Under
Rule 8(b), offenses may not be joined unless they arise
out of a series of acts or transactions, regardless of
how similar they may be in character. 1 C. Wright,
Federal Practice and Procedure §144 (1969). That
distinction, however, does not bear on the resolution of
this appeal.
The substance of appellants’ argument that it was
improper to join the counts charging tax offenses with
the counts charging other types of offenses is derived
largely from United States v. Diaz-Munoz, supra, in
which a panel of the former Fifth Circuit Court of
Appeals reversed the convictions of three defendants
on the ground that, inter alia, counts of the indictment
charging various income tax offenses were improperly
joined with counts charging embezzlement and insurance
fraud. 632 F.2d at 1335-1336."
"In United States v. Marionneauz, supra, it was held that,
because there has been some misapplication of subsection (a) to
cases involving multiple defendants, improper reliance upon that
subsection, rather than subsection (b), is not fatal to a defendant's
cause on appeal. 514 F.2d at 1249.
"The panel in Diaz-Munoz relied upon subsection (a) of Rule 8
in analyzing the severance question regarding the propriety of
joining counts charging tax offenses with counts charging non-tax
offenses, even though that case involved multiple defendants.
Given the well established precedent in the Fifth Circuit, as well
as in other circuits, that subsection (a) has no application to cases
App. 48
In Diaz-Munoz, the defendants moved prior to trial
for severance of the tax counts, contending that they
were totally unrelated to the counts charging
embezzlement and insurance fraud and, therefore, could
not be joined with those counts under Rule 8. The
government responded that “[t]he proof at trial will
show the allegations of the subject counts to be part of
a series of transactions which began with the acts of
fraud and were concluded when the fraudulent income
was not reported as income to the Internal Revenue
Service.” 632 F.2d at 1335. Accepting the government's
representation that the counts would be connected up
at trial, the district court denied the motions for severance.
At trial, however, the government failed to produce
any evidence tending to prove a connexity between the
tax counts and the non-tax counts, and even conceded
this point at oral argument. 632 F.2d 1336. The appellate
panel found that in representing to the court that the
counts were part of a series of transactions, the
government “assumed the risk that its proof would
fail” and, accordingly, had to bear the consequences
appertaining to that risk. 632 F.2d at 1336.
(Footnote 21 Continued)
involving more than one defendant, see authority cited in text
supra, we can only conclude that the panel's reliance upon that
subsection resulted from an oversight, rather than from an intentional
action to reformulate the rules governing the applicability of the
provisions of Rule 8. Of course, adherence to a subsection (b),
rather than a subsection (a), analysis in Diaz-Munoz would in no
way have affected the result in that case, since the critical term
distinguishing the two subsections (“of the same or similar character”)
was not at issue therein.
App. 49
Thus, the decision in Diaz-Munoz was based upon
the government’s failure to prove a nexus between the
tax and non-tax counts and does not, as appellants
argue, stand for the proposition that joinder of tax and
non-tax offenses in a single indictment is per se improper.
Indeed, there would be no legal or logical basis for such
a rule and, in fact, there is ample authority supporting
the position that tax counts can properly be joined
with non-tax counts where it is shown that the tax
offenses arose directly from the other offenses charged.
United States v. Beasley, 519 F.2d 233, 238 (5th Cir.
1975), vacated on other grounds, 425 U.S. 956, 96 S.Ct.
1736, 48 L.Ed.2d 201 (1976); United States u Kenny,
645 F.2d 1323, 1344-1345 (9th Cir. 1981); United States
v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977), cert.
denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765
(1978); United States v. Isaacs, 493 F.2d 1124, 1158-1159
(7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41
L.Ed.2d 1146 (1974). Assumably, had the government
been able to fulfill its pretrial representation that the
evidence would establish that the unreported income
charged in the tax counts constituted the proceeds of
the embezzlement and/or insurance fraud offenses charged
in the other counts, the result in Diaz-Munoz would
have been different.
The pertinent focus in misjoinder claims of this
type is not upon the nature of the offenses that are
joined together, but upon whether the terms of Rule
8(b) have been met, that is to say, whether the offenses
arose from the “same series of acts or transactions.” In
order to constitute a “series” of acts or transactions
under Rule 8b), there must be “substantial identity of
facts or participants” among the various offenses. United
States v. Marionneaua, supra, 514 F.2d at 1249.
App. 50
It is wel! established that substantive offenses
arising out of a single conspiracy can properly be joined,
sinee the conspiracy provides a common link connecting
the offenses. United States v. Phillips, supra, 664 F.2d
at 1016; United States v. Gentile, supra, 495 F.2d at
631-632; Gordon v. United States, 438 F.2d 858, 878 (5th
Cir. 1971); United States v. Adams, 581 F.2d 193, 197
(9th Cir. 1978); United States v. Bernstein, 533 F.2d
775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct.
523, 50 L.Ed.2d 608 (1976); United States v. Somers,
496 F.2d 723, 729-730 (3d Cir.), cert. denied, 419 U.S.
832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); 1 C. Wright,
Federal Practice and Procedure §144 (1969).” In other
words, the fact that the substantive offenses emanated
from a single, central conspiracy is a sufficient indication
that substantial identity of facts or participants exists
among the offenses.
In the instant case, the government alleged and
succeeded in proving that the tax counts and the non-
tax counts were part of a series of acts or transactions
arising from the conspiracy and criminal enterprise
charged in Counts 1 and 2 of the indictment, respectively.
Counts 58 through 67 charged appellants Barone (58-62)
“Appellant Vanderwyde cites United States v. Levine, 546
F.2d 658 (5th Cir. 1977), for the principle that there must be a
determination, absent the conspiracy count, as to whether joinder
is proper under Rule 8b), but the case does not even remotely
embrace such a principle. In Levine, joinder of certain offenses
and defendants was found to be improper because the offenses
were actually part of two separate and distinct conspiracies. 546
F.2d at 665-666. The court simply held that there was an insufficient
identity of facts or participants involved in the two conspiracies
to constitute a “series” of acts under Rule 8(b). 546 F.2d at 666.
App. 51
and Boyle (63-67) with filing false income tax returns.
Counts 68 through 70 charged appellants Morales and
Raymond and Dorothy Kopituk with assisting in the
preparation of fraudulent corporate income tax returns
on behalf of their company, Florida Welding Services
Corp., by claiming false business deductions.
The government’s proof at trial showed that the
unreported income that formed the basis of the tax
offense counts against Barone and Boyle stemmed from
funds they received as a result of their participation in
the conspiracy and the criminal enterprise that constituted
the foundation for all the other charges against them.
Similarly, the government’s proof showed that the
unlawful business deductions claimed by Morales and
the Kopituks on behalf of Florida Welding Services
Corp. stemmed from illegal payments they made in
connection with their participation in the conspiracy
and criminal enterprise.
The tax offenses were thus part of a series of acts
committed in furtherance of the overall conspiracy. In
the case of the unreported income received by Boyle
and Barone, the filing of false income tax returns operated
to maximize the benefits enjoyed as a result of their
participation in the conspiracy and, of course, facilitated
their efforts to avoid detection of the criminal enterprise.
As for the fraudulent deductions claimed on behalf of
Florida Welding Services Corp., the preparation of false
corporate income tax returns enabled the Kopituks
and Morales to minimize the adverse financial impact
of the illegal payoffs they were making in order to
App. 52
acquire waterfront business.” Accordingly, since the
tax offenses arose directly and solely out of the other
offenses committed in furtherance of the conspiracy,
they were properly joined under Rule 8&(b).
(2) Prejudicial Joinder
Fed.R.Crim.P. 8 sets “the limits of tolerance” on
the process of joinder of offenses and defendants. United
States v. Bova, supra, 493 F.2d at 36. If those limits are
exceeded, joinder becomes misjoinder and is deemed
to be inherently prejudicial. Where there ‘is misjoinder,
severance under Rule 8 is mandatory. United States v.
Levine, supra, 546 F.2d at 661; United States v.
Marionneaux, supra, 514 F.2d at 1248; United States v.
Bova, supra, 493 F.2d at 35-36.
Nevertheless, joinder of defendants or offenses,
even though proper under the terms of Rule 8, can be
so prejudicial as to require severance under Fed.R.Crim.P.
14.* The decision of whether relief is appropriate under
*Since Rule 8 was designed to facilitate trial convenience and
efficiency by avoiding duplicative proceedings, see 8 J. Moore,
Moore's Federal Practice $8.02{1} (2d ed. 1981), it is noteworthy
that proof of the overall conspiracy and criminal enterprise comprised
a substantial portion of the proof necessary to prosecute the tax
offenses.
“Rule 14 reads in pertinent part as follows:
If it appears that a defendant or the government is prejudiced
by a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together, the court
may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief
justice requires.
App. 53
Rule 14, however, is entrusted to the sound discretion
of the district court and is reviewable on appeal only
for abuse of that discretion. United States v. McCulley,
673 F.2d 346, 349 (11th Cir. 1982); United States v.
Kabbaby, 672 F.2d 857, 861 (11th Cir. 1982); United
States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980);
United States v. Marionneauz, supra, 514 F.2d at 1248;
Tillman v. United States, 406 F.2d 930, 933 n.5 (5th
Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct.
2143, 23 L.Ed.2d 742 (1969).
Having determined that joinder in this case was
proper under Rule 8, it becomes necessary to consider
appellants’ claims of prejudicial joinder under Rule 14.
Some of these claims raise constitutional questions
which, while distinct from the issue of joinder, are
nevertheless related. Accordingly, they will be dealt
with in this section.
Appellants Turner, Williams, Morales and the
Kopituks contend that they were prejudiced by the
existence of antagonistic defenses that resulted from
the government's decision to jointly indict both the
union officials and the waterfront employers, and that
the lower court erred in denying their respective motions
for severance. The crux of this argument concerns the
defense of co-defendant Neal L. Harrington, a waterfront
employer who was, in fact, ultimately severed during
trial.
Harrington, as noted in the facts section of this
opinion, was co-owner of a Miami-based steamship agency
and stevedoring company during the period covered
by the indictment. He was charged with making illegal
payoffs to union officials in return for labor peace. At
App. 54
the beginning of trial, counsel for Harrington informed
the court of Harrington's intention to rely upon an
“economic duress” theory of defense, i.e., Harrington
would admit making illegal payoffs to union officials
but would claim that he did so under economic coercion.
Counsel for Harrington told the court and other counsel
that he intended to pursue this course in his opening
statement.
Several of the appellants moved for a severance at
that point, contending that Harrington’s position was
prejudicial to their own, since they would be denying
any and all participation in the criminal enterprise.
The trial judge declined to order a severance at that
point, reserving a final ruling until the trial had progressed
to a stage where the issue would be more clearly focused.
In order to avoid any possible prejudice in the interim,
the court instructed counsel for Harrington to limit the
scope of his opening statement to what he believed the
government would or would not be able to prove with
respect to his client alone. The court told counsel for
Harrington that he would be permitted to make a
second opening statement at the close of the government's
case if it were ultimately decided that his client would
not be severed.
During his opening statement, counsel for Harrington
told the jury that “the Government's evidence will
show that physically certain things took place; physically
certain money passed.” (4:110). Further on, he stated:
“Now, the Government has indicated in its opening
statement —and I concur that the evidence will show
that that was a way of life on the docks—the Government
has contended in their opening statement that the
App. 55
enterprise,—.” (4:111). At that point, an objection was
interposed and sustained, and the court advised counsel
to remember the previous order. No other statements
were made that even remotely implicated Harrington's
co-defendants.
Late in the trial, but before Harrington ever had
an opportunity to introduce evidence on his own behalf
to support his economic duress theory, the court ordered
him severed from the trial. Appellants contend that
the district court abused its discretion when it failed,
alternatively, to sever Harrington at the beginning of
the trial or to sever them once it became apparent that
Harrington's defense was clearly irreconcilable with
their own.
To show an abuse of discretion by a district court
in refusing to grant a motion for severance, a defendant
must demonstrate that the joint trial subjected him to
compelling prejudice against which the trial court was
unable to afford protection. United States v. Harper,
11 Cir. 1982, 680 F.2d 731; United States v. Kabbaby,
supra, 672 F.2d at 861; United States v. Tombrello, 666
F.2d 485, 492 (11th Cir. 1982); United States vu. Swanson,
572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849,
99 S.Ct. 152, 58 L.Ed.2d 152 (1978). In the context of an
antagonistic defense claim, it is necessary to show not
simply that the defenses were antagonistic, but that
they were irreconcilable and mutually exclusive. United
States v. Mota, 598 F.2d 995, 1001 (5th Cir. 1979); United
States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978);
United States v. Swanson, supra, 572 F.2d at 529.
App. 56
In the case sub judice, the trial court ultimately
became convinced that Harrington's defense was
irreconcilable with those of his co-defendants and ordered
that he be severed from the trial. In so doing, the court
fulfilled its “continuing duty at all stages of the trial to
grant a severance if prejudice does appear.” Schaffer v.
United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d
921 (1960). Consequently, the only question is whether
the action of the trial court in severing Harrington was
“too little, too late,” that is, whether appellants had
already suffered compelling prejudice warranting reversal
of their convictions. We think not.
Appellants rely upon United States v. Johnson,
478 F.2d 1129 (5th Cir. 1973), and United States v.
Crawford, supra, to support their position, but each
case is readily distinguishable. In Johnson, two defendants,
Johnson and Smith, were jointly tried on a charge of
passing counterfeit bills. Johnson’s defense at trial was
that he was not present when the crime was committed.
Smith, on the other hand, admitted that he and Johnson
passed the counterfeit bills, but claimed that he was
working as an informer for the municipal police
department at the time. Indeed, the foundation of Smith’s
entire defense consisted of laying the blame upon Johnson
and a third party. As the appellate panel observed, “[a]
study of the record revealfed], that Smith’s attorney
implicated Johnson at every opportunity.” 478 F.2d at
1133.
Accordingly, the court of appeals reversed Johnson's
conviction, finding that, while severance was not
mandatory prior to trial, “as the trial progressed it
became clear that the prejudice to Johnson of defending
App. 57
at a joint trial with Smith outweighed any possible
disruption in the judicial process which would result
from having separate trials.” 478 F.2d at 1134. In so
finding, the court noted that there were only two
defendants “and it would not have been very time
consuming, but entirely practicable, to have accorded
them separate trials.” 478 F.2d at 1134.
In United States u Crawford, supra, two defendants,
Crawford and Blanks, were jointly tried on a charge of
possessing an unregistered sawed-off shotgun. At trial,
the sole defense of each defendant was to incriminate
the other:
Blanks incriminated Crawford and exculpated
himself at every opportunity. Crawford on the
other hand, attempted to show that he was
not culpable because Blanks alone had possession
of the firearm. Each was the government's
best witness against the other. Each defendant
had to confront not only hostile witnesses
presented by the government, but also hostile
witnesses presented by his co-defendant.
581 F.2d at 492. In light of such circumstances, the
court reversed the convictions, noting that “[blecause
the evidence was uncomplicated and only two defendants
were involved, the inconvenience and expense of separate
trials would not have been great.” 581 F.2d at 492.
The instant case differs substantially from both
the Johnson and Crawford cases in two major respects —
the degree of prejudice inhering in the respective cases
as a result of the joint trials and the degree to which
App. 58
the interest of judicial economy was served by the
decision to pursue joint, rather than separate, trials.
The degree of prejudice suffered by the defendants in
the Johnson and Crawford cases was truly compelling.
In both cases, there were, in effect, two prosecutors —
the government and the co-defendant. The defendants
in Johnson and Crawford, respectively, were inseparably
intertwined due to the fact that, in each case, there
were only two defendants charged with a single offense.
This made it impossible for any defendant to escape
the prejudicial impact ensuing from his co-defendant’s
“He did it” defense. Despite this fact, the trial court in
each case refused to grant a severance even when the
irreconcilable nature of the defenses clearly manifested
itself.
To the contrary, in the instant case, the trial judge
properly exercised his authority to sever Harrington
once it became apparent that his defense was
irreconcilable with that of the defendant union officials.
Consequently, unlike the situation in Johnson and
Crawford, Harrington never had the opportunity to
offer his testimony or other evidence directly implicating
his co-defendants.
Appellants seize upon the statements made by
counsel for Harrington during his opening statement,
see text supra, as the primary evidence of prejudice
arising from his antagonistic defense. As noted,
Harrington’s counsel stated that the government's
evidence would show that “physically certain money
passed” and acknowledged that such conduct was a
App. 59
“way of life on the docks.”” Beyond that, appellants
obliquely refer to the antagonistic nature of Harrington's
cross-examination of government witnesses.
Nowhere, however, it is asserted that Harrington's
attorney directly “pointed the finger” at or apportioned
the blame upon any particular appellant herein, as was
the case in both Johnson and Crawford. Moreover,
because there were many defendants and many charges
involved in the trial below, there was no “inseparable
intertwining” between Harrington and the other
defendants. Any negative implications raised by
Harrington’s counsel were thus diffused, rather than
concentrated upon any particular individual, thereby
diminishing the likelihood of prejudicial impact.
This case is somewhat similar to United States v.
Mota, supra, wherein the court of appeals rejected a
claim of prejudice based on antagonistic defenses. Mota
and Flores were charged together with federal drug
offenses. At the joint trial, counsel for Flores stated in
his opening statement that the evidence would show
Flores did indeed commit the offense charged, but that
he was insane at the time. Mota contended at trial and
on appeal that he was prejudiced by such statements,
arguing that the admission by Flores’ counsel implicated
him as well since both defendants were charged with
committing the same offense at the same time and
place.
The court of appeals rejected the argument, attaching
significance to the fact that the concession was made
*It is unlikely that these two statements, made at the opening
of trial, played any part in the jury's verdicts returned more than
seven months later.
App. 60
by counsel during opening statement and not by Flores
himself. 598 F.2d at 1000. The court found that any risk
of prejudice was diminished by the instruction to the
jury that the comments of counsel were not evidence
and were not to be considered as such. 598 F.2d at 1000.
A similar instruction was given in the instant case.
(107:43). See also United States v. Vadino, 11 Cir., 1982,
680 F.2d 1329 (assertion of entrapment defense by one
defendant does not necessarily entitle co-defendant who
denies all involvement in the offense to a severance).
The second major distinction between the instant
case and those relied upon by appellants involves the
relative degree to which the interest of judicial economy
was served by opting for joint, rather than separate,
trials. The appellate decisions in both Johnson and
Crawford emphasized the minimal demand that the
holding of separate trials would make upon judicial
resources inasmuch as the original joint trials were
uncomplicated and involved only two defendants.
Conversely, trial of the instant case lasted seven months,
involved 12 defendants, and necessitated the calling of
130 witnesses. The demand upon scarce judicial resources
was enormous. Because it was necessary to prove the
existence of the criminal enterprise and underlying
conspiracy with respect to each defendant, a substantial
portion of the government’s proof would necessarily
have had to be repeated for each defendant who was
granted a separate trial. The interest of judicial economy
was thus well-served by proceeding with a joint trial.
Of course, the interest of the public and the
government in efficiently utilizing judicial resources
would never justify denying a person a fair trial. If a
App. 61
person demonstrates that he will incur compelling
prejudice if forced to undergo a joint trial, a severance
must be granted, regardless of the impact on judicial
economy. Nevertheless, it must be recognized that joint
trials involving numerous defendants and offenses almost
inevitably present a danger of some degree of prejudice
to the participants. United States v. Levine, supra, 546
F.2d at 662; Cupo v. United States, supra, 359 F.2d at
993. This imposes a duty upon the court to balance the
defendant’s allegations of prejudice against the interest
of judicial economy and concommitant policy favoring
joint trials in conspiracy cases. United States v. Mota,
supra, 598 F.2d at 1000; United States v. Swanson,
supra, 572 F.2d at 528.
We find that the degree of prejudice suffered by
appellants resulting from the trial court’s refusal to
sever defendant Harrington until late in the trial was
slight when compared with the substantial countervailing
interest of judicial economy. Accordingly, the trial court
did not abuse its discretion in denying appellants’ motions
to sever based upon Harrington’s antagonistic defense.
Appellants Williams” and Field make a separate
but related claim that they were prejudiced by the
defense strategy adopted by appellant Boyle, whose
counsel admitted in closing argument that Boyle was
guilty of receiving money on several occasions (Taft-
Hartley Act violations) but was innocent of the more
serious charges such as conspiracy and extortion. Field's
entire argument hinges upon the Sixth Amendment
*Williams raises this claim, but does not argue it in any
detail.
App. 62
confrontation clause, that is, Field argues that his right
to confront the witnesses against him was violated
because he was unable to cross-examine Boyle, who
declined to testify at trial.
This argument is fatally flawed by the fact that
none of the statements made by Boyle's attorney
incriminated Field or any of the other appellants. The
statements of Boyle’s counsel merely conceded that
Boyle alone, one of 12 defendants on trial, committed
some violations of the Taft-Hartley Act. As such, they
were insufficient justification to characterize Boyle as
a “witness against” Field so as to entitle Field to the
right to cross-examine Boyle. It simply cannot be said
that the statements at issue seriously prejudiced any
of the appellants, particularly in light of the court’s
numerous instructions to the jurors that they were to
evaluate each defendant and the charges and evidence
against him (or her in the case of Dorothy Kopituk)
separately. (99:58, 63-64, 135; 101:76; 107:40, 44-45, 94).
Field also contends that, since he was unable to
cross-examine Boyle regarding his admissions, he should
have been permitted to comment upon Boyle's decision
not to testify. In support of this contention, Field relies
upon DeLuna v. United States, 308 F.2d 140 (5th Cir.
1962). In DeLuna, two defendants, DeLuna and Gomez,
were jointly indicted on a federal narcotic charge. They
were arrested after police observed Gomez throw the
narcotics out his car window. At trial, Gomez testified
that he had never seen the package of narcotics until
DeLuna handed it to him and told him to throw it out
the window. DeLuna declined to testify, but his attorney
attempted to fix the sole blame upon Gomez. During
App. 63
closing argument, counsel for Gomez made reference
to the failure of DeLuna to take the stand, telling the
jury that “at least one man was honest enough and had
courage enough to take the stand and subject himself
to cross examination, and tell you the whole story . %
308 F.2d at 142 n.1. DeLuna was convicted and Gomez
was acquitted.
On appeal, DeLuna’s conviction was overturned.
The panel concluded that he had an absolute privilege
to exercise his right to remain silent free from the
prejudicial comments of his co-defendant’s attorney.
The panel found further, however, that counsel for
Gomez had a duty to make such prejudicial comments
for the benefit of his client, stating:
If an attorney’s duty to his client should require
him to draw the jury's attention to the possible
inference of guilt from a co-defendant’s silence,
the trial judge’s duty is to order that the
defendants be tried separately.
308 F.2d at 141.
In United States v. Kahn, 381 F.2d 824 (7th Cir.
1976), the Seventh Circuit Court of Appeals construed
the right recognized in DeLuna as limited to situations
where it is shown that “real prejudice” will result
unless the defendant is allowed to comment upon the
failure of his co-defendant to testify. 381 F.2d at 840.
The question as we see it is how essential is it
to a fair and complete defense, an attribute of
a fair trial, that defendants be permitted to
App. 64
comment upon a co-defendant’s exercise of his
right against self-incrimination. The procedural
difficulties and the complication of joint trials
arising from the rule suggested by dicta in
DeLuna are so great that we cannot say there
is an absolute right, without reference to the
circumstances of defense at trial, for a defendant
to comment on the refusal of a co-defendant to
testify.
381 F.2d at 840.
The circumstances in the case sub judice did not
justify any comment on behalf of Field regarding Boyle’s
failure to testify. To begin with, it does not appear that
Field even requested that he be permitted to make
such a comment. Indeed, it would have been a somewhat
inane strategy for Field’s attorney to condemn Boyle’s
failure to testify when Field himself did not testify.
More importantly, because the statements of Boyle’s
counsel did not inculpate Field or any other defendant,
there was no basis under the law emanating from DeLuna
and Kahn for making any comment upon Boyle’s decision
to remain silent. Those cases authorize such comments
only waere an attorney has a clear “duty” to make
them, 308 F.2d at 141, in order to avoid “real prejudice”
to his own client. 381 F.2d at 840. In this case, there
was no such prejudice and, hence, no such duty. The
trial court, therefore, did not err in denying appellants’
motions for severance grounded upon the statements
of Boyle’s attorney during closing argument.
Appellant Williams next contends that he was
prejudiced by a joint trial in that he was prohibited
from eliciting Teitlebaum’s testimony concerning a
App. 65
discussion in which appellant Boyle told him that Williams
might have to be killed. At one point during the course
of the conspiracy, Williams was running for a higher
union office and had, according to Teitlebaum, threatened
to report appellants Turner and Field to the Department
of Labor and the Internal Revenue Service unless they
supported his election bid. Boyle told Teitlebaum that
unless Williams “straighten[ed] up” they might have to
kill him. (29:58-60). After discussing the matter with
counsel outside the presence of the jury, the trial judge
ruled that the testimony was inadmissible because it
was not relevant to any issue involved in the case.
(29:64-65). Consequently, the testimony was not excluded,
as Williams contends, due to a conflict arising from the
fact that it was a joint trial, but rather because it was
irrelevant.
Determinations as to the relevance of evidence
are well within the broad discretion of the trial court
and will not be disturbed on appeal absent a showing
that the trial court abused its discretion. Williams v.
Hoyt, 556 F.2d 1336, 1339 (5th Cir. 1977), cert. denied,
435 U.S. 946, 98 S.Ct. 1530, 55 L.Ed.2d 544 (1978);
United States v. Linetsky, 533 F.2d 192, 204 (5th Cir.
1976); United States v. Calles, 482 F.2d 1155, 1160 (5th
Cir. 1973); United States v. Allison, 474 F.2d 286, 288-289
(5th Cir. 1973). The trial court did not abuse its discretion
in refusing to admit the testimony of Teitlebaum’s
conversation with Boyle.
Several appellants claim they were prejudiced by
the length and complexity of the joint trial. These
factors, appellants claim, combined to deprive them of a
fair trial because it was impossible for the jury to
reach an intelligent individualized verdict with respect
App. 66
to each defendant. Admittedly, the proportions of the
trial below were somewhat extraordinary: 12 defendants,
130 witnesses, 22,000 pages of trial transcript, seven
months of trial, 70-count indictment. Nevertheless, while
we do not endorse the government’s modern penchant
for drawing together evermore complex and extensive
conspiracies into a single indictment, we are unable to
conclude that appellants suffered compelling prejudice
as a result of the scope and breadth of the trial below.
Consequently, they were not entitled to a severance
under Rule 14. United States v. Harper, supra, at 733;
United States v. Kabbaby, supra, 672 F.2d at 861; United
States v. Tombrella, supra, 666 F.2d at 492; United
States v. Swanson, supra, 572 F.2d at 528.
The pertinent inquiry in reviewing this question
on appeal is whether the jury was able to “individualize
each defendant in his relation to the mass.” Kotteakos
v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252,
90 L.Ed. 1557 (1946). The correlative concern is that
the jury may allow the evidence produced with respect
to one defendant or one offense to “spillover” and
influence their decision regarding a different defendant
or a different offense. The most efficacious tool to
protect against this danger is a clear cautionary instruction
from the trial court as to the duty of the jurors to
consider each defendant and the evidence against him
or her separately. United States v. Morrow, 537 F.2d
120, 136 (5th Cir. 1976), cert. denied, 430 U.S. 956 97
S.Ct. 1602, 51 L.Ed.2d 806 (1977). The most telling, and
really the only, means through which to measure the
jurors’ collective adherence to such an instruction is to
look at the verdict. Convictions will generally be upheld
if it can be inferred from the verdict that the jury
App. 67
“meticulously sifted the evidence” as demonstrated by
its decision to acquit on certain counts. Tillman v. United
States, supra, 406 F.2d at 936, quoting 8 J. Moore,
Moore’s Federal Practice §14.04{1] at 14-15 (2d ed. 1968).
As noted supra, the trial court in the case sub
judice gave precise instructions to the jurors that they
should give separate consideration to each defendant
on each count. Moreover, the court reiterated this directive
several times. (99:58, 63-64, 135; 101:76; 107:40, 44-45,
94). The verdicts returned by the jury reflect that the
jurors fulfilled their duty in this regard. The jury returned
split verdicts as to four of the nine appellants and was
unable to reach a verdict at all as to one defendant.
In reaching our determination that appellants were
not unduly prejudiced by the length and complexity of
the joint trial, we are guided by recent cases of similar
magnitude that have rejected the same argument. See,
e.g., United States u Phillips, supra, 664 F.2d at 1016-1017
(six month trial; 36-count, 100 page indictment; 12
defendants); United States v. Martino, 648 F.2d 367,
385-386 (5th Cir. 1981) (20 defendants, most with Spanish
or Italian surnames; 35-count indictment; three month
trial; more than 200 witnesses); United States v. Morrow,
supra, 537 F.2d at 135-137 (23 defendants). These and
other cases teach that it is not enough simply to show
that the trial was lengthy and/or complex. It is necessary
to demonstrate with particularity compelling prejudice
and appellants have failed in this regard. We believe
the trial court’s cautionary instructions sufficed, as
evidence by the jury’s verdict, to minimize any pernicious
effect that might otherwise have resulted from the
App. 68
length and complexity of the joint trial.” Finally, we
would be remiss in failing to note that where, as in the
case herein, conspirators have created an extensive
and far-flung conspiracy, deviously constructed and
pursued, it is their unlawful conduct that produces a
complex trial and, accordingly, they have no basis to
insist that they be insulated from its complexities.
The final severance issue warranting discussion is
appellant Williams’ claim that he was improperiy forced
to undergo a joint trial in Miami rather }han a separate
trial in Jacksonville. While framed in terms of a due
process claim, this argument amounts to an assertion
that the district court abused its discretion in refusing
to sever Williams and transfer his case to the Jacksonville
Division of the United States District Court for the
Middle District of Florida.
Fed.R.Crim.P. 21(b) provides that a court “may”,
upon motion of the defendant, transfer a criminal
proceeding to another district “for the convenience of
parties and witnesses, and in the interest of justice.””
“As a tangential argument to the complexity claim, appellants
Morales and the Kopituks contend they were denied a fair trial by
the fact that only a small portion of the testimony presented at
trial related to them. In United States v. Morrow, supra, the court
rejected a similar challenge based upon the quantum of evidence
presented against particular defendants therein, concluding that,
“{njeedless to say, more is required to overturn on appeal the
district court’s exercise of discretion in denying a motion for
severance.” 537 F.2d at 137.
*Rule 21(b) provides in full as follows:
(b) Transfer in Other Cases. For the convenience of parties
and witnesses, and in the interest of justice, the court upon
App. 69
Williams filed a Rule 21 motion three weeks prior to
trial” claiming he would suffer extreme prejudice from
the inconvenience of having to stand trial in Miami,
rather than in Jacksonville, where he resided.” He
cited several financial reasons, including an inability to
absorb the expenses of accommodations in and travel
to Miami, as well as the expenses and fees of his attorney.
The motion was denied.
(Footnote 28 Continued)
motion of the defendant may transfer the proceeding as to
him or any one or more of the counts thereof to another
district.
"The fact that Williams’ motion was filed only three weeks
prior to trial was a sufficient reason in and of itself justifying its
denial. Fed.R.Crim.P. 22 provides that “{a] motion to transfer
under these rules may be made at or before arraignment or at
such time as the court or these rules may prescribe.” Williams
was arraigned on June 15, 1978, seven months prior to the filing of
his Rule 21 motion. In Cagnina v. United States, 223 F.2d 149 (5th
Cir. 1955), the fact that a defendant's motion for transfer was filed
“many weeks” after arraignment and just one week prior to trial
was held to be an adequate ground for denying the motion. 223
F.2d at 154.
“Williams does not contend on appeal, although he apparently
did so in the lower court, that venue was improperly laid in the
Southern District of Florida. Venue in a conspiracy case is proper
in any judicial district in which the conspiratorial agreement was
formed or in any district where an overt act was committed in
furtherance of the conspiracy. Hyde v. United States, 225 U.S.
347, 363, 32 S.Ct. 793, 800, 56 L.Ed. 1114 (1912); United States uv.
Williams, 424 F.2d 344, 352 (5th Cir. 1970); Bellard v. United
States, 356 F.2d 437, 438 (5th Cir.), cert. denied, 385 U.S. 856, 87
S.Ct. 103, 17 L.Ed.2d 83 (1966); Miller v. Connally, 354 F.2d 206,
208 (5th Cir. 1965). Clearly, the bulk of the overt acts charged in
the indictment occurred in Miami. Similarly, it appears clear that
the underlying agreement was formulated in Miami.
App. 70
The prejudice of which Williams complains
manifested itself in the fact that on several occasions
during trial Williams was, over the government's
objection, permitted to excuse himself from the
proceedings to attend to personal or business obligations
back in Jacksonville. Counsel for Williams was also
permitted to absent himself from the proceedings on
numerous occasions. On appeal, the absences of Williams’
attorney are attributed to an effort to reduce the expenses
he would otherwise have incurred on Williams’ behalf.
The record makes it clear, however, that counsel's
absences were motivated in large part by his concern
for the continued well-being of his Jacksonville law
practice." While this is perhaps understandable from
the attorney's point of view, it does much to deflate
Williams’ hardship claim. More important than the reasons
for the absence of Williams’ counsel is the fact that at
no time during the proceedings was Williams without
legal representation. Early in the trial, counsel for
Williams enlisted the services of another attorney in
the case and made it clear to the court that the other
attorney “has been regularly associated as counsel with
me and he will be representing Mr. Williams throughout
the trial in association with me.” (30:100).
“At one point Williams’ attorney told the court that representing
Williams in Miami was a “first class problem,” and that he was not
sure his Jacksonville law practice could endure the strain. (37:148-149).
Accordingly, he requested that attorneys in the case not be required
to be present unless “we absolutely know that there is something
coming in against our client.” (37:149). It is clear, therefore, that
the absences of Williams’ attorney were attributable as much to
his own “hardship” concerns as to those of his client. Williams, of
course, had the option of retaining a Miami-based attorney from
the beginning.
App. 71
Moreover, Williams and his attorney were not the
only persons required to absent themselves from the
trial from time to time. The trial judge, recognizing
that “there still is a problem of life to some extent
going on on the outside” (14:223), frequently accommodated
the requests of various attorneys and defendants to be
excused from the trial proceedings. It was, after all, a
seven month trial. This was generally permitted, however,
only at times where it was clear that the on-going
proceedings would not directly involve the absent
defendant or attorney. (14:223). Significantly, Williams
does not point to any particular event that resulted in
prejudice to him. He does not, e.g., claim that he was
unable to effectively cross-examine any witness against
him, that he was unable to contest the admissibility of
any material evidence against him, or that he was
unable to pursue any particular line of defense.
It undoubtedly would have been more convenient
for Williams to have undergone trial in Jacksonville
rather than Miami. It was not, however, patently unfair
to force Williams to stand trial in Miami. While most of
the illegal activity charged against Williams transpired
in Jacksonville, it was not limited solely to that city.
His outside activity included: accepting the $400 “down
payment” on Teitlebaum’s Jacksonville operation while
in Miami; requesting Boyle, who was in Miami, to obtain
some cruise tickets from Teitlebaum, who was also in
Miami; and conducting the union contract negotiation
meeting with Ramon DeMott and James Hodges in
Savannah. Thus, as the government notes in its brief,
this is not a case where a defendant who has engaged
in no misconduct outside his home district is hauled
away to some remote district to stand trial.
App. 72
Moreover, Rule 21 accords weight not just to the
convenience of the defendant, but to the convenience
of all “parties and witnesses.” We have already discussed
the government’s interest in judicial economy and how
the “convenience” of the government is fostered by the
policy favoring joint trials for persons who are properly
joined together in a single indictment. If Williams was
entitled to a separate trial in Jacksonville, then surely
co-defendant Elizah Jackson was entitled to a separate
trial in Savannah and co-defendant Isom Clemon was
entitled to a separate trial in Mobile. Such an approach,
however, would deprive the valid interest in judicial
economy of all force. Rather than try each defendant
separately in his respective place of residence, the
government chose the next best option—it sought and
obtained a joint indictment in Miami, the most convenient
forum for the overwhelming majority of witnesses and
defendants.
A criminal defendant does not have a constitutional
right to be tried in the district encompassing his residence.
Platt v. Minnesota Mining and Manufacturing Co., 376
U.S. 240, 245, 84 S.Ct. 769, 772, 11 L.Ed.2d 674 (1964).
Since venue properly laid in the Southern District of
Florida (see note 30, supra), Williams was properly
indicted and brought to trial in Miami. The decision of
whether to grant Williams’ motion to transfer under
Rule 21 was within the trial court’s discretionary authority
and is reviewable only for abuse of discretion. United
States v. Pry, 625 F.2d 689, 691 (5th Cir. 1980), cert.
denied, 450 U.S. 925, 101 S.Ct. 13879, 67 L.Ed.2d 355
(1981); United States v. Juarez, 573 F.2d 267, 280 (5th
Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d
262 (1978); United States v. Walker, 559 F.2d 365, 372
App. 73
(5th Cir. 1977). The policy favoring joint trials in conspiracy
cases, the convenience of most of the witnesses and
defendants, and the fact that Williams has failed to
particularize any real prejudice, all lead to the conclusion
that the trial court did not abuse its discretion in
refusing to sever Williams and transfer his case to
Jacksonville.
C. SUFFICIENCY OF EVIDENCE
Six of the nine appellants (Field, Vanderwyde,
Williams, Morales, Raymond Kopituk and Dorothy
Kopituk) argue that the evidence produced at the trial
below was legally insufficient to support their convictions.
The standard to be applied in reviewing such claims is
“whether a jury could reasonably find that the evidence
was inconsistent with every reasonable hypothesis of
innocence or, put another way, whether a reasonably
minded jury must necessarily entertain a reasonable
doubt of the defendant’s guilt,” United States v. Marz,
635 F.2d 436, 438 (5th Cir. 1981); accord, United States
v. Arrendondo-Morales, 624 F.2d 681, 683-684 (5th Cir.
1980); United States v. Rodgers, 624 F.2d 1303, 1306
(5th Cir. 1980); United States v. Witt, 618 F.2d 283, 284
(5th Cir.), cert. denied, 449 U.S. 882, 101 S.Ct. 234, 66
L.Ed.2d 107 (1980).
In making that determination, we must view all
the evidence in the light most favorable to the
government, accepting all reasonable inferences and
credibility choices that tend to support the jury’s verdict.
Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct.
2887, 2911, 41 L.Ed.2d 590 (1974); Glasser v. United
States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680
App. 74
(1942); United States v. Mara, supra, 635 F.2d at 438;
United States v. Arrendondo-Morales, supra, 624 F.2d
at 684; United States v. Middlebrooks, 618 F.2d 273,
278 (5th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401,
66 L.Ed.2d 246 (1980).
As noted supra, all of the appellants herein, with
the exception of Dorothy Kopituk, were convicted on
the two RICO charges (Counts 1 and 2). The essential
elements of a substantive RICO offense, 18 U.S.C. §1961
et seq., which the government must prove beyond a
reasonable doubt, are: (1) the existence of an enterprise;
(2) that the enterprise affected interstate commerce;
(3) that the defendant was employed by or associated
with the enterprise; (4) that he participated, either
directly or indirectly, in the conduct of the affairs of
the enterprise; and (5) that he participated through a
pattern of racketeering activity, i.e., through the
commission of at least two racketeering acts. United
States v. Martino, supra, 648 F.2d at 394.
Culpability under the conspiracy provision of the
RICO Act, 18 U.S.C. §1962(d), is established by a showing
that the defendant manifested his assent to participate,
either directly or indirectly, in the affairs of the conspiracy
through the commission of two or more predicate crimes.
United States v. Elliott, 571 F.2d 880, 903 (5th Cir.),
cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344
(1978). It is, of course, unnecessary to prove that a
conspirator had full knowledge of every detail concerning
the conspiracy. Rather, it is sufficient to show that he
had knowledge of the “essential nature of the plan.”
United States v. Elliott, supra, 571 F.2d at 903, quoting
United States v. Brasseaux, 509 F.2d 157, 160 n.3 (5th
Cir. 1975).
App. 75
Moreover, participation in a conspiracy need not
be proved by direct evidence. It can be inferred from a
“development and a collocation of circumstances.” United
States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en
banc), cert denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d
777 (1979), quoting Glasser v. United States, supra, 315
US. at 80, 62 S.Ct. at 469. A defendant's participation
in a conspiracy may be inferred from acts of his which
furthered the objectives of the conspiracy. United States
v. Marx, supra, 635 F.2d at 439; United States v.
Middlebrooks, supra, 618 F.2d at 278. Keeping these
legal principles in mind, we will proceed to consider
appellants’ insufficiency of the evidence claims seriatim:
Field
Appellant Field was convicted on the RICO and
RICO conspiracy charges (Counts 1 and 2) and on two
charges of violating Section 186 of the Taft-Hartley
Act, 29 U.S.C. §141 et seg. (Counts 17 and 24).” While
he contends that the sum total of the evidence against
him was insufficient to support his conviction on any of
those charges, his primary argument is that the district
court erred in admitting coconspirator [sic] declarations
against him. Without reference to those declarations,
he argues, the court would have had no choice but to
acquit him on all charges.
Prior to trial, the court held a three day hearing
for the purpose of determining the admissibility of
“Title 29 U.S.C. §186(b\1) makes it unlawful for any union
officer “to request, demand, receive, or accept, or agree to receive
or accept, any payment, loan, or delivery of any money or other
thing of value. . . .” from any employer, with certain exceptions
not applicable herein.
App. 76
extra-judicial co-conspirator declarations against each
of the defendants. Although such a hearing was held
prior to entry of the en banc decision in United States
v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S.
917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), there is no
dispute that the trial court employed the correct legal
standard, as enunciated in James, in ruling that the
co-conspirators’ out-of-court declarations were admissible
against Field.
James requires a showing that, to be admissible
under Fed.R.Evid. 801(d)(2)(E), a co-conspirators’
extrajudicial declaration must have been made: (1) by a
person who conspired with the party against whom the
declaration is offered; (2) during the course of the
conspiracy; and (3) in furtherance of the conspiracy.
United States v. James, supra, 590 F.2d at 578. The
standard of proof governing the admissibility of the
declarations in a pretrial context is one of substantiality.
There must be substantial evidence, independent of
the declarations themselves, sufficient to satisfy the
three-part test set forth above. 590 F.2d at 581. If,
however, co-conspirator declarations are admitted
pursuant to a finding that there is “substantial” evidence
that the defendant was a member of the conspiracy
and that the declarations were made by a co-conspirator
during the course of and in furtherance of the conspiracy,
the defendant may, upon motion made at the conclusion
of all the evidence, require the trial judge to re-evaluate
the admissibility of the declarations by determining, at
that point, where a preponderance of the evidence on
that issue lies. United States v. Grassi, 616 F.2d 1295,
1300 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363,
66 L.Ed.2d 220 (1980).
App. 77
We shall consider whether the independent evidence
against Field established by a preponderance of the
evidence that he was a member of the conspiracy.” The
independent evidence against Field showed that in
1966 Fieid solicited a $3,000 payoff from Teitlebaum.
While Field points to the fact that it was one of his
associates, Benny Astorino, who first asked Teitlebaum
for the money, the evidence was more than sufficient
to infer that Field was the motivating force behind
Astorino’s request. It was Field who initiated the Miami
checkers’ union, it was Field who asked Teitlebaum if
there was someplace they could talk privately, and it
was Field who brought Astorino along on the subsequent
fishing trip with Teitlebaum. (9:83-85). Teitlebaum testified
that Field was sitting only eight feet behind him when
Astorino stated that Field was coming to Miami to
establish a new checkers’ union, that it would be in
Teitlebaum’s “best interest” to do business with him,
and that Teitlebaum could demonstrate his good faith
by paying him $3,000. (9:86-88). Finally, it was Field
himself who called Teitlebaum to ask if he had “had a
change of heart about the three aces.” (9:92).
“There is no question that the statements admitted agains:
Field were made by members of the conspiracy during the course
of the conspiracy and in furtherance thereof.
“Field argues that evidence of the 1966 solicitation incident
should not have been considered in ruling upon the admissibility
of co-conspirator declarations against him and should not have
been admitted into evidence for the jury to consider in determining
Field's guilt or innocence because the incident occurred at a time
too remote from later acts charged in the indictment. Field relies
upon United States v. Solis, 612 F.2d 930 (5th Cir. 1980), to support
this contention, but that case is inapposite. In Solis, it was held
that evidence concerning the defendant's prior crimes “did not,
without more, supply substantive proof” of his participation in a
App. 78
In 1973, when Teitlebaum expressed interest in
the Mamenic Line account, Field promised that he
would assist him in acquiring it. (5:189-191). Field eased
Teitlebaum’s concerns regarding a Mamenic
representative who was working for a competing
stevedoring company by telling him that the
representative would be “taken care of.” (20:14).
Teitlebaum reported to Barone that Field had promised
to help him obtain the Mamenic account and Barone,
after checking into the matter, told Teitlebaum whom
to contact within the Mamenic company. (20:21-23). In
June 1974, Teitlebaum’s company entered into a contract
with the Mamenic Line. Teitlebaum compensated the
union officials for their assistance by purchasing three
sets of cruise tickets which he gave to appellant Boyle.
(20:29-30).
In 1976, Field and other union officials solicited
tickets from Teitlebaum for a Christmas cruise aboard
the Mardi Gras. Appellants Field, Boyle, Barone, and
Vanderwyde were all present when Teitlebaum, under
pressure from Boyle, telephoned a cruise line
representative named Meshulam Zonis and attempted
to persuade Zonis to acquire the cruise tickets for him
(Footnote 34 Continued)
later, unrelated conspiracy. 612 F.2d at 934. In the instant case,
evidence of the 1966 solicitation was not admitted to show
participation in a later, unrelated conspiracy. To the contrary, the
1966 incident was charged as part of the conspiracy for which
Field was on trial (the first three overt 2.» of the conspiracy
count (Count 1] relate to the 1966 solicitation trom Teitlebaum).
App. 79
at a reduced charge.” (25:152-155). The representative
insisted that it was impossible for him to do so because
the cruise was completely booked. After Teitlebaum’s
efforts failed, Boyle unsuccessfully attempted to persuade
the cruise line representative to procure the tickets by
warning him that contract renewal time was approaching.
(25:156). When it appeared that all further efforts at
acquiring the tickets would be futile, Field cursed at
Teitlebaum, said that he was not going on the cruise
and warned Teitlebaum that he would “repent.” (25:157).
Field asserts that his refusal to go on the cruise
demonstrated that he never participated in the solicitation
of the cruise tickets. The fallacious nature of that assertion
becomes clear, however, when one views the entire
episode in context. Field’s angry refusal to go on the
cruise came only after it was clear that Teitlebaum was
unable or unwilling to purchase the tickets at their full
price.
The final piece of independent evidence tending to
prove Field's participation in the conspiracy occurred
in the latter part of 1976 when Field had dinner with
Ramon DeMott and James Hodges in Savannah. When
Hodges and DeMott complained that their Charleston
operation floundered because they were never given
the opportunity to submit bids, Field responded, “Don't
expect anything for nothing.” (11:143). While that
statement may not have amounted to a solicitation of
money, it did bear on Field’s knowledge of and
participation in the conspiracy.
“Contrary to Field’s assertion that the entire conversation
between Teitlebaum and Zonis was spoken in Yiddish, Zonis testified
that Teitlebaum spoke only “a couple of words” in Yiddish. (33:254).
App. 80
We believe that the evidence against Field,
independent of any extrajudicial declarations by his
co-conspirators, was sufficient to establish Field’s
membership in the conspiracy by a preponderance of
the evidence so as to render the statements of his
co-conspirators admissible against him. The independent
evidence showed Field personally pressured Teitlebaum
for an illegal payoff, furthered the goals of the conspiracy
by helping Teitlebaum a quire the Mamenic account
for which the union officials were compensated with
cruise tickets, and participated in the solicitation of
tickets from Teitlebaum for the 1976 Christmas cruise.
Moreover, his statement to DeMott and Hodges summed
up the central operating doctrine of the entire conspiracy:
“Don’t expect anything for nothing.”
Having concluded that the co-conspirator declarations
were properly admitted against Field, the next question
is whether those statements, when combined with the
independent evidence against him, constituted sufficient
evidence to prove his knowing participation in the
conspiracy and criminal enterprise. The out-of-court
declarations of Field’s co-conspirators showed that:
(1) When Teitelbaum agreed to surrender the
Mamenic account in order to acquire the Zim account,
Boyle said he would report the decision to Field. (21:41).
(2) When Teitlebaum was considering expanding
his business into Mobile, Boyle told him that Field had
arranged a meeting between Teitlebaum and co-defendant
Isom Clemon, president of the ILA local in Mobile.
(24:72). At a meeting in Mobile, Clemon told Teitlebaum
and FBI Agent Artin that he would not be meeting
App. 81
with them if he had not received an “okay” from either
Boyle or Field. (24:141).
(3) Subsequent to Teitlebaum’s meeting with
Clemon, Boyle informed Teitlebaum that Field had
“underestimated the price” of Teitlebaum’s contract in
Mobile. (28:84-85).
(4) At one point, when Boyle was pressing
Teitlebaum for payment of $2,400 ($2000 from a large
payment Teitlebaum received on his Zim account and
$400 for delinquent “peace payments”), Boyle told
Teitlebaum that he was going to meet with Field in
Savannah and wanted “everyone to know we were up
to date.” (24:117).
(5) In late 1976, Boyle told Teitlebaum that Field
was unhappy with him for refusing to cooperate with
Harrington & Company, a competitor of Teitlebaum’s
which was also making payoffs to the union officials.
(24:211).
(6) Boyle and Clemon both told Agent Artin that
Field was sharing a payoff arising from a fertilizer
transaction Artin was involved in. (38:171; 39:126; 40:57).
(7) With regard to the solicitation of tickets for
the 1976 Christmas cruise, Boyle had told Teitlebaum
that Field wanted the tickets so that he could take his
wife, son and four other people on the cruise. (25:25).
The independent evidence against Field, combined
with the co-conspirator statements outlined above, was
sufficient to prove Field’s knowing participation in the
App. 82
criminal enterprise and concommitant conspiracy. This
same evidence was also sufficient to support Field’s
convictions on Counts 17 and 24, which charged violations
of the Taft-Hartley Act. Field’s convictions on those
two counts fulfilled the essential element of both the
RICO substantive and consniracy charges that the
defendant engage in two or more predicate crimes.
Count 17 related to Field's participation in Teitlebaum’s
expansion into Mobile, which resulted in a $10,000
payment to the union officials. Count 24 related to
Field’s participation in the solicitation of tickets for
the 1976 Christmas cruise.
Vanderwyde
Appellant Vanderwyde was convicted of the RICO
substantive and conspiracy charges (Counts 1 and 2),
the Hobbs Act extortion charge (Count 3), and five
Taft-Hartley charges (Counts 4, 8, 16, 27 and 43). His
argument that the evidence was insufficient to support
his conviction on any of those charges is without merit.
Vanderwyde claims the evidence showed only that
he was present on occasions when illegal activities
were discussed and points out that mere presence at
the scene of a crime is insufficient to establish participation
in a conspiracy. United States v. Falcone, 311 U.S. 205,
209-210, 61 S.Ct. 204, 205-06, 85 L.Ed.2d 128 (1940);
United States v. Salinas-Salinas, 555 F.2d 470, 473 (5th
Cir. 1977). The evidence adduced at trial, however, was
more than sufficient to allow the jury to reasonably
find that Vanderwyde was a willing, active participant
in the conspiracy and criminal enterprise.
App. 83
The evidence showed that Vanderwyde accepted
money and cruise tickets from waterfront employers
and that he pressured employers to stay current with
their payments. Briefly, the evidence against Vanderwyde
showed that:
(1) When Teitlebaum finished paying off his cousin's
debt to the union, Vanderwyde told him not to let the
payments stop. When Teitlebaum asked him what he
meant, Vanderwyde responded that they were seeking
“control” of the port. (19:128).
(2) When Teitlebaum was behind in his weekly
“peace payments,” Boyle warned him that if Vanderwyde
found out, Teitlebaum would be in serious trouble.
(19:209-210).
(3) In the spring of 1975, Boyle obtained cruise
tickets from Teitlebaum on behalf of Vanderwyde and
others. Vanderwyde did, in fact, go on the cruise. (20:76).
(4) In April 1976, Teitlebaum visited the Miami
ILA office to pay Boyle $250. Boyle was not there, but
Vanderwyde was. Vanderwyde told Teitlebaum that he
was too far behind in his payments and that $250 was
not enough. He demanded an additional $500 in cash,
which Teitlebaum produced. (24:21-22).
(5) At the same meeting, Vanderwyde told
Teitlebaum he wanted to take a cruise on the Mardi
Gras and said he needed six pairs of tickets. (24:23).
Boyle subsequently gave Teitlebaum a list of the couples
who would be taking the cruise. Included on the list
were Vanderwyde and his wife. (24:36-37).
App. 84
(6) When Teitlebaum received a substantial
payment from the Zim Line for services rendered to
the company at the port of Savannah, Boyle demanded
$2,000 of the amount as partial payment for getting
Teitlebaum the contract in Savannah. Subsequently,
Vanderwyde approached Teitlebaum and asked for the
money, saying “Boyle told me you have a commitment
for him.” (24:105).
(7) When Teitlebaum asked Boyle if he could deduct
the price of the six pairs of cruise tickets he had previously
purchased for the union officials from the $2,000 he
owed for Savannah, Boyle told him to consider the
cruise tickets as a gift to Vanderwyde. (24:114).
(8) In September 1976, Vanderwyde reminded
Teitlebaum that he still owed the union officials $4,000
for the privilege of expanding into Mobile. (25:26).
(9) When Teitlebaum told Vanderwyde that a
shipping company operator was trying to sell Teitlebaum
his company for $100,000 more than it was worth,
Vanderwyde responded that that was too much if the
seller intended on keeping all of the money for himself,
but “if it. . . [was] for a little division, that . . . [was]
something else.” (25:161).
(10) After Boyle had told Teitlebaum that Field
wanted tickets for the 1976 Christmas cruise, Vanderwyde
subsequently reminded Teitlebaum not to forget about
the tickets. (25:26).
(11) When George Wagner was making payoffs
to the union on behalf of Marine Terminals, Inc.,
App. 85
Vanderwyde told Wagner that the payoffs were going
into a “pot” and “bitterly complained” because his share
of the pot was only $700 to $800 per month. (44:77).
(12) Wagner testified that when Boyle was not
available, he would frequently deliver MTI’s $1,000
monthly payments to Vanderwyde. (43:74-75).
(13) Vanderwyde also accepted delivery of the
$1,000 monthly payments that were made on behalf of
Florida Welding Services Corp. (43:155-156).
(14) Vanderwyde was present at numerous
meetings where unlawful activity in furtherance of the
conspiracy either transpired or was discussed.
This evidence was clearly sufficient to support the
jury’s verdict on the RICO counts, for it showed that
Vanderwyde actively pursued furtherance of the objects
of the conspiracy and enterprise through the commission
of at least two predicate crimes.”
“Vanderwyde was convicted of five separate Taft-Hartley
charges, but contends that violations of Section 186(b) of the
Taft-Hartley Act do not constitute the requisite racketeering acts
under the RICO statute. He relies upon the definition of “racketeering
activity” found in 18 U.S.C. §1961(1XC), which provides:
(1) “Racketeering activity” means. . .(C) any act which
is indictable under title 29, United States Code, section 186
(dealing with restrictions on payments and loans to labor
organizations). . .
Vanderwyde argues that the Taft-Hartley charges against him did
not involve “restrictions on payments and !oans to labor organizations”
and, hence, were not within the purview of the definition of
racketeering activity. We agree with the government's contention,
App. 86
The evidence also supported Vanderwyde’s conviction
on the extortion charge. Title 18 U.S.C. §1951, known
as the Hobbs Act, makes it a crime to obstruct or affect
interstate commerce by obtaining the property of another
through extortionate means. In order to convict under
the Hobbs Act, the government need show only that
the defendant received the property of another without
any lawful claim to such property and that the person
who made the payment did so out of fear.” United
States v. Emmons, 410 U.S. 396, 399-400, 93 S.Ct. 1007,
1009-1010, 35 L.Ed.2d 379 (1973); United States v. Nell,
570 F.2d 1251, 1258 (5th Cir. 1978). The fear experienced
by the victim does not have to be the consequence of a
direct threat. It is sufficient if the government can
show circumstances surrounding the act of extortion
that render the victim’s fear reasonable. United States
v. Nell, supra, 570 F.2d at 1258; United States v. Quinn,
514 F.2d 1250, 1266 (5th Cir. 1975), cert. denied, 424
(Footnote 36 Continued)
however, that the parenthetical language following the reference
to Section 186 was included as a means to facilitate identification
of 29 U.S.C. §186 and was not intended to limit the definition of
rackeeting activity only to Taft-Hartley charges involving “restrictions
on payments and loans to labor organizations.” A similar argument
was rejected by the Second Circuit Court of Appeals in United
States v. Scotto, 641 F.2d 47, 56-57 (2d Cir. 1980), cert. denied, 452
U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981), wherein it was held
that violations of 29 U.S.C. §186(b), which is the subsection of the
Taft-Hartley Act within which Vanderwyde's offenses fell, constitute
predicate acts of racketeering activity under 18 U.S.C. §1961(1XC).
"There is, of course, also a requirement that the extortion
affect or obstruct interstate commerce but that element is not in
contention here.
App. 87
U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976). Fear of
economic loss is included within the purview of Section
1951. United States v. Quinn, supra, 514 F.2d at 1267;
United States v. Jacobs, 451 F.2d 530, 542 (5th Cir.),
cert. denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231
(1972).
The evidence was sufficient to permit the jury to
reasonably conclude that Vanderwyde, together with
the other defendants charged in Count 3, obtained
money and other articles of value, i.e., cruise tickets,
from Teitlebaum through extortionate means. There
was, in fact, an implicit threat of economic injury
underlying the entire conspiracy. Teitlebaum’s weekly
“peace payments” were for the purpose of ensuring
continued labor peace. Teitlebaum’s payments in
connection with Mobile and Savannah were necessary
in order to receive any waterfront business at those
ports. The threat of economic loss cast a continuous
shadow over Teitlebaum’s dealings with the Miami
union officials and Vanderwyde played a major role in
those dealings.
Finally, there was also sufficient evidence to support
Vanderwyde’s convictions on the Taft-Hartley charges.
As noted supra, a violation of Section 186 of that statute
is proved by a showing that a union officer accepted
any payment of money or other article of value from an
employer. The evidence established that Vanderwyde:
accepted money from Teitlebaum between 1972 and
1977 (Count 4); accepted cruise tickets from Teitlebaum
in the spring of 1975 (Count 8); accepted cruise tickets
from Teitlebaum in May or June 1976 (Count 16); accepted
money from George Wagner at various times between
App. 88
1970 and 1973 (Count 27); and accepted money on behalf
of Morales and the Kopituks at various times between
1973 and 1975 (Count 43).
Williams
Appellant Williams was convicted on the two RICO
charges (Counts 1 and 2) and on two Taft-Hartley charges
(Counts 9 and 15). The gist of Williams’ attack upon the
sufficiency of the evidence is that all of the pertinent
evidence against him consisted of the testimony of
government witnesses who were not telling the truth.
This approach is patently invalid, however, inasmuch
as we are required to review the evidence in the light
most favorable to the government. That standard requires
that all credibility determinations be resolved in favor
of the government. Glasser v. United States, supra,
315 U.S. at 80, 62 S.Ct. 469; United States v. Marz,
supra, 635 F.2d at 438; United States v. Arredondo-
Morales, supra, 624 F.2d at 684; United States v.
Middlebrooks, supra, 618 F.2d at 278.
This is in accordance with the fundamental rule
that credibility determinations lie within the sole province
of the trier of fact. United States v. Phillips, supra, 664
F.2d at 1032; United States v. McCrary, 643 F.2d 323,
328 (5th Cir. 1981); United States v. De Los Santos, 625
F.2d 62, 65 (5th Cir. 1980). Accordingly, we are not in a
position to evaluate the relative credibility of the witnesses
who testified against Williams. Suffice it to say that
the testimony of those witnesses was more than adequate
to establish William's guilt on the two RICO counts, as
well as on the two Taft-Hartley counts. The evidence
against Williams can be summarized as follows:
App. 89
(1) In the Spring of 1975, Williams contacted Boyle
about obtaining some cruise tickets from Teitlebaum.
(20:71). Teitlebaum purchased the tickets at his own
expense and gave them to Boyle. (20:73).
(2) In October 1976, Teitlebaum met with Williams
in Miami to discuss expanding his stevedoring operation
into Jacksonville. They agreed that Teitlebaum would
pay Williams $1,000 per month plus additional money
depending upon the amount of cargo handled. (25:55-57).
Teitlebaum gave Williams $400 up front, but Williams
indicated he wanted $500. Teitlebaum responded that
he would receive the additional $100, along with the
first $1,000 monthly payoff, when they met in Jacksonville.
(25:80-81).
(3) At the same meeting, Teitlebaum attempted
to discuss the 1975 cruise tickets, but Williams cut him
off, stating that it was too easy for someone to “bug”
an automobile. (25:81).
(4) Shortly after Teitlebaum met with Williams
in Miami, he travelled to Jacksonville and paid Williams
$1,100, using money supplied by the FBI. (25:96).
(5) In 1975, co-defendant Joseph Cotrone received
an offer from PRMMI to perform the company’s
maintenance and repair work at the port of Jacksonville.
Barone told Cotrone it would be necessary to give
Williams $3,000 in order for Cotrone to get an introduction
into the Jacksonville area. (60:42). The Cotrones eventually
formed a new company in Jacksonville and began paying
Williams 25 cents for each hour worked by Cotrone’s
Jacksonville employees. That formula was later abandoned
App. 90
in favor of a flat $1,000 per month. (63:26-27, 39-45;
64:141, 172-203).
(6) Williams presided over the meeting at which
Ramon DeMott and James Hodges attempted to negotiate
a union contract in Savannah. When DeMott and Hodges
sought to make certain changes in the contract, Williams
warned them that people who gained disfavor with the
union “wound up on their backs in bed and their arms
and legs in traction, sipping soup through a straw and
thinking about the follies of their ways.” (11:72).
While the major portion of Williams’ argument
relating to the sufficiency of the evidence consists of a
general attack upon the credibility of the witnesses
who testified against him, he focuses particular attention
upon Count 9 of the indictment. Count 9 charged that
Williams solicited and received cruise tickets from
Teitlebaum in or about May 1975, in violation of Section
186 of the Taft-Hartley Act. Williams, testifying at
trial, admitted receiving the tickets, but claimed he
paid Boyle for them. Boyle did not testify.
Williams argues that the jury could not have
reasonably returned a guilty verdict on Count 9 in
light of his uncontradicted testimony that he paid Boyle
for the tickets. The government argues that the jury
was free to reject Williams’ testimony as not being
credible, pointing out that there was contradictory
testimony concerning the ticket transaction. Williams
testified that he paid Boyle for the tickets while at a
union meeting in Charleston, South Carolina. He further
testified that he received the tickets at the time of
payment and that he personally delivered them to the
App. 91
mayor's office upon his return to Jacksonville.” (81:53-55).
The mayor, on the other hand, testified that Williams
told him the tickets could be picked up in Miami and
the mayor's son testified that that was in fact where he
picked them up. (34:164-165; 88:149-150).
Teitlebaum’s testimony concerning his initial meeting
with Williams cast further doubt upon the truthfulness
of Williams’ version of the facts. When Teitlebaum
attempted to discuss the cruise tickets he had obtained
for Williams, Williams cut him short, stating that he
did not want to discuss the matter in an automobile
because cars were too easy to bug. (25:81). Surely, had
Williams actually paid Boyle the full value of the tickets
he would have had no reason to fear that a discussion
of the incident was being surreptitiously overheard.
The fact that Teitlebaum was never reimbursed
for the cost of the tickets, combined with Williams’
contradictory testimony and his reluctance to discuss
the ticket transaction for fear of being electronically
surveilled, was sufficient to allow the jury to infer that
Williams never in fact paid for the tickets. The evidence
was sufficient to convict Williams on Counts 1, 2, 9 and
15.
Morales, R. Kopituk, D. Kopituk
Appellant Morales was convicted of the two RICO
charges (Counts 1 and 2), two Taft-Hartley charges
(Counts 44 and 46), and two income tax charges (Counts
“As noted in the facts section of this opinion, supra, Williams
apparently acquired the tickets on behalf of the mayor of Jacksonville,
who gave them to his son as a wedding present.
App. 92
68 and 70). Raymond Kopituk was convicted of the two
RICO charges, the same two income tax charges, and
one Taft-Hartley charge (Count 44). Dorothy Kopituk
was not charged in the substantive RICO count and
was acquitted on the RICO conspiracy count. She was
convicted of two income tax charges (Counts 68 and 69)
and one Taft-Hartley charge (Count 44). Together, they
challenge the sufficiency of the evidence as to all counts
upon which they were convicted.
Morales and Kopituk contend that the evidence
was insufficient to support their convictions on either
RICO count. In the final analysis, however, their argument
boils down to another ill-fated attack upon the credibility
of the witnesses who testified against them.
With respect to the RICO substantive count, the
government produced sufficient evidence to prove the
existence of the enterprise,” that Morales and Kopituk
“Morales and Kopituk apparently contend that the evidence
was insufficient to prove the existence of an “enterprise,” an
essential element of the RICO substantive offense charged herein.
This contention is wholly without merit. The RICO statute defines
“enterprise” as “any individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals associated
in fact although not a legal entity ... .” 18 U.S.C. §1961(4).
Count 2 of the indictment charged that the appellants and others
“associated with an enterprise . . . to corruptly control and influence
the waterfront industry of various ports in the United States. . .
through a pattern of racketeering activity.” The evidence adduced
at trial overwhelmingly established the existence of an extensive,
well-defined criminal enterprise dedicated to achieving economic
control of several major ports in the Southeastern United States.
In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69
L.Ed.2d 246 (1981), the Supreme Court observed that “[t]here is no
App. 93
were associated with the enterprise, and that Morales
and Kopituk participated in the affairs of the enterprise
through a pattern of racketeering activity. United States
v. Martino, supra, 648 F.2d at 394. With respect to the
RICO conspiracy count, the evidence was sufficient to
allow the jury to reasonably find that Morales and
Kopituk agreed to participate, either directly or indirectly,
in the affairs of the enterprise through the commission
of two or more predicate crimes. United States v. Elliott,
supra. 571 F.2d at 903.
At the trial below, Morales and Kopituk attempted
to establish their innocence by denying all participation
in the criminal enterprise. While they adhere to that
position on appeal, they apparently make the further
contention that, assuming the evidence was sufficient
to establish their participation in the enterprise, such
participation resulted solely from coercion exerted upon
them by union officials. In other words, Morales and
Kopituk attempt to adopt a position similar to that
taken by co-defendant Harrington at trial, i.e., that
they were unwilling victims of the criminal enterprise
who were coerced into making illegal payoffs under
the threat of economic ruin. The evidence adduced at
trial, however, was clearly sufficient to establish that
Morales and Kopituk sought out the union officials and
willingly agreed to make payoffs in return for lucrative
(Footnote 39 Continued)
restriction upon the associations embraced by the definition [of
enterprise}: an enterprise includes any union or group of individuals
associated in fact.” 452 U.S. at 580, 101 S.Ct. at 2527, 69 L.Ed.2d at
253. Without question, the enterprise charged in the indictment,
the existence of which was proved at trial, fell within the broad
definition of enterprise encompassed by the RICO Act.
App. 94
waterfront business. Viewing the evidence in the light
most favorable to the government, it showed that:
(1) In 1972, Morales and Kopituk sought out George
Wagner in an effort to obtain a union contract to engage
in container and trailer repair work at the Dodge Island
Seaport. (43:119-120). Wagner discussed the matter with
Barone, Boyle and Vanderwyde, and it was agreed that
Morales and Kopituk could acquire a union contract for
an initial payment of $10,000 and $1,000 each month
thereafter. (43:120-121). Wagner, however, told Morales
and Kopituk that it would cost $15,000 up front, intending
to keep the extra $5,000 for himself. Morales and Kopituk
readily agreed to the payoffs. (43:122).
(2) Shortly thereafter, Morales and Kopituk met
with Wagner and paid him the $15,000. (43:126). Wagner
subsequently began sending business from MTI to Florida
Welding Services Corp., the company operated by Morales
and Kopituk.” (43:135).
(3) In 1973, Wagner began receiving the $1,000
monthly payoffs from Morales and Kopituk, which he
delivered alternately to Boyle, Barone or Vanderwyde.
“Not only did FWS receive lucrative waterfront business as
a direct result of their illegal payoffs, they were even able to
recoup a substantial portion of the payoff money itself. Wagner
testified that he
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