Appendix — Turner v. United States

82-1538 MAR 15 1993

No. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

LANDON L. WILLIAMS, WILLIAM BoyLe

AND GEORGE BARONE,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RICHARD BEN-VENISTE, ESQUIRE

BEN-VENISTE & SHERNOFF

4801 Massachusetts Avenue, N.W.

Suite 400

Washington, D.C, 20016

(202) 966-6000

IRVING ANOLIK, ESQUIRE

20 Vesey Street

New York, New York 10007

(212) 732-3050

Counsel for Petitioners

Washington OC ©¢ THIEL PRESS © (202) 6386-452!

(t)

APPENDIX

TABLE OF CONTENTS

Opinion of the Court of Appeals for the Eleventh

Circuit dated November 4, 1982 in United States

v. Kopituk, 690 F.2d 1289 (11th Cir. 1982) ......

Order of the Court of Appeals for the Eleventh

Circuit dated January 14, 1983 in United States

S. ROGMUR, HO: BOOSTED occ ccassacsesesves

Opinion of the United States District Court for

the Southern District of Florida dated August 28,

1979 in United States v. Barone, 83 F.R.D. 565

(B.D. Fla. 1978). ccsccscsceves eo eccescce

Excerpts from the Trial Transcript in United States

v. Barone, No. 78-185-Cr-WMH (S.D. Fla. 1979)...

Excerpts from the Trial Transcript in United States

v. Entman, No. 82-326-Cr-CA (S.D. Fla. 1983) ...

Page

la

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 80-5025

United States of America,

Plaintiff-Appellee,

v.

Dorothy O. Kopituk, Raymond C. Kopituk, Oscar

Morales, Fred R. Fieid, Jr., Cleveland Turner, James

Vanderwyde, Landon L. Williams, William Boyle,

George Barone,

Defendants-Appellants.

APPEALS FROM THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

S. Michael Levin, Sp. Atty., U.S. Dept. of Justice,

Miami, Fla., William C. Bryson, Atty., Dept. of Justice,

Washington, D.C., for U.S.

Leib & Martinez, Karl J. Lieb, Jr., Coral Gables, Fla.,

for Kopituks & Morales.

Kogen & Kogan, Geoffrey C. Fleck, Loren H. Cohen,

Miami, Fla., for Field.

Flynn, Rubio & Tarkoff, Michael H. Tarkoff, Miami,

Fla., for Turner.

2a

Varon & Stahl, Joseph A. Varon, Hollywood, Fila.,

for Vanderwyde.

Mahon, Mahon & Farley, Lacy Mahon, Jr., Jackson-

ville, Fla., for Williams.

Michael A. Masin, Richard M. Gale, Miami, Fla., for

Boyle.

Rosen & Rosen, E. David Rosen, Miami, Fla., for

Barone.

November 4, 1982

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 arising

from their participation in a widespread pattern of cor-

ruption 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 fucrative business

contracts.

In 1975, the Federal Bureau of Investigation (“FBI’’)

began an extensive undercover investigation of the

* Honorable Charles R. Scott, U.S. District Judge for the Middle

District of Florida, sitting by designation.

! The trial commenced on January 28, 1979, and continued

to September 1, 1979.

3a

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

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 con-

2 Twenty-two persons were charged in the indictment. Eight

defendants (Robert Bateman, Alvin P, Chester, Jeremy Chester,

Francesca Cotrone, Joseph Cotrone, Laura Cotrone, Sebastian

“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. De-

fendant Elizah Jackson was acquitted and the jury was unable to

reach a verdict with respect to defendant Isom Clemon, All of the

nine defendants against whom guilty verdicts were returned have

joined in this appeal.

3 Because six of the nine appellants (Dorothy Kopituk, Raymond

Kopituk, Oscar Morales, Fred Field, James Vanderwyde and

[footnote continued]

4a

spiracy was extensive and 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 stevedor-

ing* 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 Organizer of

the International Longshoremen’s Association (“ILA”),

asked Teitlebaum if they could talk privately somewhere.

(9:83).5 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).

Landon Williams) challenge the sufficiency of the evidence sup-

porting their convictions, it is necessary to review the evidence,

particularly as it relates to those appellants, in some detail.

4 “Stevedoring” is the process of loading and unloading ships.

5 References to the trial transcript will be cited as “( oe

the first number representing the volume of the transcript and the

second number representing the particular page cited to.

6 “Checkers” are persons employed by stevedoring companies

who monitor or “check” cargo as it is loaded or unloaded from a

ship. :

5a

Teitlebaum responded that he would have to discuss

the matter with his father and uncles, who were re-

sponsible 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

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, 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 1972.8

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, Teitle-

7 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 enumer-

ated in Fed. R. Evid, 803, 804.

8 Teitlebaum assumed full control of Eagle, Inc. in 1972.

6a

baum 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 Marine Terminals, Inc. (“MTI’’), a waterfront

company managed by George Wagner, who had close 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 Teitle-

baum 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, Teitle-

baum presented the problem to Boyle, who in turn told

Teitlebaum to contact appellant Cleveland Turner, presi-

dent 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).

7a

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 pay-

ments 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

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 Vander-

wyde 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 fre-

quently late in making the payments, however, prompt-

ing Boyle to tell him on one occasion that “‘[i]f 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 im-

proving 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. (10:13), That evening

Field visited Teitlebaum’s office and Teitlebaum reiter-

ated 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 repre-

sentative 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, pur-

chased 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 cus-

tomers. 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.

9a

In early 1975, Teitlebaum expressed to Boyle his

interest in acquiring a contract to do business with 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.” Teitle-

baum 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 follow-

ing 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 Teitle-

baum that Williams wanted to give the tickets to the

son of the mayor of Jacksonville as a wedding present.

(20:71). Teitlkebaum 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

10a

return for his pledge to cooperate with the government

in the instant matter, he was permitted to enter a plea

of nolo contendere to the misdemeanor charge of solici-

tation 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 investigation, 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. Teitle-

baum 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). Teitiebaum 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

freight handled, $12 for each container loaded or un-

loaded from a ship and 50 cents per ton for bulk cargo.

(21:124-126). Teitlebaum agreed to pay the $15,000

9 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).

lla

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 Savan-

nah, 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 week, 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, ‘‘Every-

thing 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).

10 Cornelius “Butch” Vanderwyde is the son of appellant James

Vanderwyde.

12a

In April 1976, Teitlebaum visited the ILA office in

Miami to give Boyle one of the weekly “peace” pay-

ments. Boyle was not there so Teitlebaum gave the

money to appellant Vanderwyde. Vanderwyde com-

plained 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 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

13a

“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 addi-

tional $1,000 weekly payments. (24:97).

In July 1976, a business associate of Teitlebaum’s

contacted him egarding 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.

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).

l4a

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 Teitle-

baum that Barone was angry at him for using South-

eastern Maritime, Inc. as a stevedoring company in

Savannah because it “belong[ed] 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

businesss ... [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 Teitle-

baum received a $25,000 payment from the Zim line for

services rendered in Savannah, Boyle told Teitlebaum

that he 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

l5a

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 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 water-

front 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,

16a

$250 a week, $1,000 a month, no matter what does,”

in order to operate in Jacksonville. (25:55).

En route 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).

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 Ter-

minals, Inc. (‘“‘MT1’’), 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

17a

“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 pay-

ments 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 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 nega-

tively, 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 1977. (14:211).

George Wagner began working as a checker for MTI

in 1967. (43:35). In 1968, the principals of MTI ap-

proached Wagner regarding the possibility of him be-

coming a manager. (43:41). Wagner, concerned that

he might lose his union status if he accepted the job,

18a

discussed the matter with Barone, Boyle and Vander-

wyde. (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 wher-

ever ... [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

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 in-

creased 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 Miami. Navarro wanted Wagner to explore

the possibility of allowing appellants Raymond Kopituk

and Oscar Morales, friends of Navarro’s, to open a con-

tainer/trailer repair business on Dodge Island. (43:119).

Wagner said he would entertain the idea and arranged to

meet with them.

19a

Prior to meeting with Kopituk!! and Morales, Wagner

discussed the matter with Barone, in the presence of

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 occa-

sions 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

11 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.”

20a

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 co;cerned she could write down

“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 con-

tainer, 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.c., for union

peace. (59:196). Barone told Cotrone that the other

2la

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 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 em-

ployees. (59:203). Once again, Barone told Cotrone

that his competitors had already agreed to the increase,

that Barone’s relationship 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

22a

trailer repair work for PRMMI, the Puerto Rican steam-

ship line. In 1975, representatives of PRMMI offered

Cotrone’s company a contract to perform their main-

tenance 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 Jacksonville

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). Accordingly, Williams and Cotrone arrived at

an agreement whereby Williams would be paid 25 cents

23a

for each man-hour worked in Jacksonville. (60:74).

Thereafter, Miller and Gillespie, at Cotrone’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 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).

24a

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

persiated 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 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 DeMott

and Hodges expand their container repair business into

Charleston, South Carolina. (11:82). He said this could

25a

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 com-

pany loan account of either Harrington or Royal O.

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).

Eventually, Howard herself, through an implicit under-

standing 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

26a

$200 to $800 for Turner. (17:53-59). White, Harring-

ton’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 Loca! 1416) and the

checkers’ union (ILA Local 1922). (18:134-135).

Boyle served as liaison between CCT and the longshore-

men’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 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.

27a

(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 repre-

sent 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 work

had yet been awarded and that Eller & Company could

receive favorable treatment if four or five ghost em-

ployees 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 investiga-

tion 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.

28a

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 seg. 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).

Boyle——extortion (Count 3), 18 U.S.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 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).

29a

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 — 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).

The jury resumed the 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 spe-

cifically told the alternates that they were “discharged.”

30a

(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 moni-

tor the condition of the ill juror during the weekend.

(104:4). The trial judge granted the requrest and deliber-

ations 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 Lucifer was after her and,

at one point, that she was Moses. (104:8). The fore-

person 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

3la

experienced the night of August 16 in which she realized

she was a genius with an IQ of 200 and that her posi-

tion 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.!2_ Following extensive

discussion with counsel, the trial judge, without objec-

tion, ordered that the incapacitated juror be discharged.

(105:25). When defense counsel objected to proceeding

with gn 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).'3

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

12 In an in camera proceeding, the psychiatrist told the court and

counsel that “the sooner [the ill juror] is removed from the situa-

tion 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.

13 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 col-

lected by the deputy marshal and placed under seal. (105:30-31;

106:63-64).

32a

accordance with the court’s instructions, she had not

discussed the case with anyone, 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 pro-

ceeded to examine each of the remaining 11 regular

jurors individually regarding their respective abilities to

begii 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 origina! regular jurors and

the court reinstructed them in full. (107:36-106).

As part of the instructions, the court repeatedly empha-

sized that the jurors were duty-bound to begin their

deliberations afresh, disregarding all of their previous

deliberations. (107:36-39, 105-106).'* The jury then

14 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.

[footnote continued]

33a

retired and deliberated for just over one week before

returning its verdict on September 1, 1979.

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 considera-

tion 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

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 unani-

mous 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 delibera-

tions had ever occurred.

The verdict of the jury cannot be unanimous unless each

and every one of you reaches the decision through delibera-

tions 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.

[footnote continued]

34a

Resolution of this issue, that is, whether the trial

court erred in substituting an alternate juror for a dis-

abled 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,

— US. ——, 102 S.Ct. 2965, 73 L.Ed. 2d 1354

(1982),!5 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.

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 hard-

ship upon you in terms of the time spent re-reviewing the

evidence of the trial, | 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 all 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).

1S The Phillips decision was entered after the briefs had been

submitted in the case at bar, but prior to oral argument.

35a

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 per-

mitted 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 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 juror 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 delibera-

tions anew. He also ordered that all notes and other

handwritten material compiled by the jurors during

36a

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 chal-

lenges that mirror those raised herein, i.e., that substitu-

tion of an alternate juror after the jury has commenced

its deliderations 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 substitu-

tion and where adequate safeguards, such as instructing

the reconstituted jury that they must begin 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 deliber-

ations have begun is permissible under the California

constitution. The California court determined that so

long as “a properly qualified alternate juror is available

and the 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 appli-

cable to the Federal Constitution and, therefore, disposi-

tive of appellants’ Sixth Amendment argument.

37a

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:

[cJonsideration 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.

Finally, with regard to appellants’ most pressing

argument, i.e., that substitution of the alternate juror

mandated declaration of a mistrial because such a pro-

cedure 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 constitu-

tionally 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

38a

the defendants were prejudiced by the substitution. 664

F.2d at 993. In Phillips, the court found that the pre-

cautions 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 we conclude that

the imstructions to the jury to begin anew, the

jurors’ individual assurances that they could in fact

begin anew, and the full participation of the substi-

tuted 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 considera-

tion of the 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 s1 stituted juror question would be

superfluous. Each of those arguments has been effec-

tively 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 ap-

proved 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 indi-

vidually and received assurances from all jurors that they

39a

would commence their deliberations anew. As in Phillips,

the trial judge confiscated all notes and 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.

16 In Lamb, contrary to the instant case, the circumstances indi-

cated a strong likelihood that the 11 original jurors coerced the

substituted alternate juror into voting to convict. Prior to substi-

tution 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 end substituted an alternate juror,

instructing the jury that they had to begin their deliberations

anew. Nevertheless, despite the court’s instructions, the recon-

stituted jury returned a guilty verdict only 29 minutes after it

retired to deliberate. 529 F.2d at 1155.

40a

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. Conse-

quently, 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.!7

17 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 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 evi-

[footnote continued]

4la

Admittedly, the further along deliberations 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 Phillips case.

Appellants focused on this point during oral argument,

although no attempt was made to explain why such a

distinction should be determinative.'® Although the

dentiary exhibits until the following week, it is unlikely that any

serious deliberations occurred on that first day. Deliberations were

resumed on Monday, August 13, and continued until Friday

afternoon, August 17, when deliberations were suspended follow-

ing 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.

18 As the government points out in its brief, since the trial court

expressly “discharged” the alternate jurors, it could be argued that

[footnote continued]

42a

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 combi-

nation 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 rever-

sible error should not be misconstrued 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

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

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.

43a

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 con-

voluted, 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. It is well established that 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,

19 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

[footnote continued]

44a

546 F.2d 658, 661 (5th Cir. 1977); United States v.

Park, 531 F.2d 754, 760 n.4 (5th Cir. 1976); United

States v. Marionneaux, 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 v. 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 (lst Cir. 1966). See

generally 1 C. Wright, Federal Practice and Procedure

§ 143, § 144 (1969). But see United States 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

either subsection is, with one exception, more or less

the same.2° 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

two or more acts or transactions connected together or con-

stituting 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 or transactions

constituting an offense or offenses. Such defendants may be

charged in One or more counts together or separately and all

of the defendants need not be charged in each count.

20 In United States v. Marionneaux, supra, it was held that, be-

cause there has been some misapplication of subsection (a) to cases

involving multiple defendants, improper reliance upon that sub-

section, rather than subsection (b), is not fatal to a defendant’s

cause on appeal. 514 F.2d at 1249.

45a

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 Diaz-Munoz, the defendants moved prior to trial

for severance of the tax counts, contending that they

were totally unrelated to the counts charging embezzle-

ment 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 alle-

2! 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

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 inten-

tional 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.

46a

gations 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 appel-

late 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 apper-

taining to that risk. 632 F.2d at 1336.

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 v. Kenny, 645

F.2d 1323, 1334-1345 (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.

47a

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 pro-

ceeds 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

8(b), there must be “substantial identity of facts or

participants” among the various offenses. United States

v. Marionneaux, supra, 514 F.2d at 1249.

It is well established that substantive offenses arising

out of a single conspiracy can properly be joined, since

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).?2 In other

22 Appellant Vanderwyde cites United States v. Levine, 546 F.2d

658 (5th Cir. 1977), for the principle that there must be a deter-

mination, absent the conspiracy count, as to whether joinder is

proper under Rule 8(b), but the case does not even remotely

embrace such a principle. In Levine, joinder of certain offenses

[footnote continued]

48a

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 suc-

ceeded 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) 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 consti-

tuted 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.

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 insuf-

ficient identity of facts or participants involved in the two con-

spiracies to constitute a “series” of acts under Rule 8(b). 546 F.2d

at 666.

49a

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 acquire

waterfront business.2* Accordingly, since the tax offenses

arose directly and solely out of the other offenses com-

mitted 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. Marion-

neaux, 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

23 Since Rule 8 was designed to facilitate trial convenience and

efficiency by avoiding duplicative proceedings, see 8 J. Moore,

Moore’s Federal Practice 4 8.02[1] (2d ed. 1981), it is noteworthy

that proof of the overall conspiracy and criminal enterprise com-

prised a substantial portion of the proof necessary to prosecute

the tax offenses.

50a

prejudicial as to require severance under Fed. R. Crim. P.

14.24 The decision of whether relief is appropriate under

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. Marionneaux, 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 appel-

lants’ 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.

24 Rule 14 reads in pertinent part as follows:

If it appears that a defendant or the government is preju-

diced by a joinder of offenses or of defendants in an indict-

ment 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.

5la

Harrington, as noted in the facts section of this

opinion, was co-~owncr 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 the beginning of trial, counsel for Harrington

informed the court of Harrington’s intention to rely

upon an “economic duress” theory of defense, i.c.,

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

52a

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 enter-

prise, —.”” (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,

1] 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 v.

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.

53a

In the case sub judice, the trial court ultimately

became convinced that Harrington’s defense was irrecon-

cilable 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. Craw-

ford, 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 depart-

ment at the time. Indeed, the foundation of Smith’s

entire defense consisted of laying the blame upon John-

son and a third party. As the appellate panel observed,

“la] study of the record reveal[ed] 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 manda-

tory prior to trial, “as the trial progressed it became clear

that the prejudice to Johnson of defending at a joint trial

with Smith outweighed any possible disruption in the

judicial process which would result from having separate

54a

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 v. 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 him-

self 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 ‘‘[b]ecause

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 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

55a

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 ‘‘way of life on the docks.’’?5

Beyond that, appellants obliquely refer to the antago-

nistic nature of MHarrington’s cross-examination of

government witnesses.

Nowhere, however, is it 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 defend-

25 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.

56a

ants. 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

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

57a

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 enor-

mous. Because it was necessary to prove the existence of

the criminal enterprise and underlying conspiracy with

respect to each defendant, a substantial part 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 govern-

ment in efficiently utilizing judicial resources would

never justify denying a person a fair trial. If a 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 concomitant 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 appel-

lants resulting from the trial court’s refusal to sever

defendant Harrington until late in the trial was slight

when compared with the substantial countervailing

58a

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 confrontation clause,

that is, Field argues that his right to confront the wit-

nesses against him was violated bec2use 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, particu-

larly 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

26 Williams raises this claim, but does not argue it in any detail.

59a

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

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 preju-

dicial 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

60a

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 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

where 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.

6la

Appellant Williams next contends that he was preju-

diced by a joint trial in that he was prohibited from

eliciting Teitlebaurn’s testimony concerning a 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 conver-

sation 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

62a

trial because it was impossible for the jury to reach an

intelligent individualized verdict with respect 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, 322 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 instruc-

tion 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

63a

upheld if it can be inferred from the verdict that the jury

“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 appel-

lants 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 v. 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 evidenced by the jury’s verdict, to minimize any per-

nicious effect that might otherwise have resulted from

64a

the 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 appel-

lant Williams’ claim that he was improperly forced to

undergo a joint trial in Miami rather than 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 Divi-

sion 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.’ ?®

Williams filed a Rule 21 motion three weeks prior to

27 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.

28 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 motion of the defendant may transfer the proceeding

as to him or any one or more of the counts thereof to

another district.

65a

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.

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

29 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.

30 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 US.

$47, 363, 32 S.Ct. 793, 800, 56 L.Ed. 1114 (1912); United

States v. 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, 308 (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.

66a

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 under-

standable 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).

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, how-

31 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.

67a

ever, only at times where it was clear that the on-going

proceedings would not directly involve the absent defend-

ant or attorney. (14:223). Significantly, Williams does

not point to any particular event that resulted in preju-

dice 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.

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

68a

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 govern-

ment 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 defend-

ants.

A criminal defendant does not have a constitutional

right to be tried in the district encompassing his resi-

dence. Platt v. Minnesota Mining and Manufacturing Co.,

376 U.S. 240, 245, 84 S.Ct. 769, 722, 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

decis.on 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. 1379, 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 (5th Cir. 1977). The policy favoring joint

trials in conspiracy cases, the convenience of mosi 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 discre-

tion in refusing to sever Williams and transfer his case to

Jacksonville.

C. Sufficiency of Evidence

Six of the nine appellants (Field, Vanderwyde, Wil-

liams, Morales, Raymond Kopituk and Dorothy Kopituk)

69a

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. Marx,

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 uv.

United States, 418 U.S. 87, 124, 94S, 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 (1942);

United States v. Marx, 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 ele-

ments of a substantive RICO offense, 18 U.S.C. § 1961

et seq., which the government must prove beyond a rea-

sonable 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

70a

the enterprise; (4) that he participated, either directly

or indirectly, in the conduct of the affairs of the enter-

prise; and (5) that he participated through a pattern of

racketeering activity, i.c., 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 par-

ticipate, 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),

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 U.S. 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 evi-

dence claims seriatim:

7la

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 con-

tends 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

crred in admitting co-conspirator 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 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’ extra-

judicial 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 con-

spiracy; and (3) in furtherance of the conspiracy. United

32 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.

72a

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 decla-

rations 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 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. Ea. 2d 220 (1980).

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

Field 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

33 There is no question that the statements admitted against Field

were made by members of the conspiracy during the course of the

conspiracy and in furtherance thereof,

73a

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).34

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 represen-

tative 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,

34 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 deter-

mining 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 later, unrelated conspiracy. 612 F.2d at 934. In

the instant case, evidence of the 1966 soliciation was n~* 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 acts of the con-

spiracy count [Count 1] relate to the 1966 solicitation from

Teitlebaum).

74a

Teitlebaum’s company entered into a contract with the

Mamenic Line. Teitlebaum compensated the union offi-

cials 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 representa-

tive named Meshulam Zonis and attempted to persuade

Zonis to acquire the cruise tickets for him at a reduced

charge.*5 (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 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

35 Contrary to Field’s assertion that the entire conversation be-

tween Teitlebaum and Zonis was spoken in Yiddish, Zonia testified

that Teitlebaum spoke only “a couple of words” in Yiddish.

(33:254).

75a

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 partici-

pation in the conspiracy.

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 Teitle-

baum acquire the Mamenic account for which the union

officials were compensated with cruise tickets, and par-

ticipated 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 any-

thing 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 Teitlebaum agreed to surrender the Mamenic

account in order to acquire the Zim account, Boyle said

he would report the decision to Field. (21:41).

76a

(2) When Teitlebaum was considering expanding his

business into Mobile, Boyle told him that Field had ar-

ranged 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 Teitle-

baum and FBI Agent Artin that he would not be meeting

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 “underesti-

mated the price” of Teitlebaum’s contract in Mobile.

(24:84-85).

(4) At one point, when Boyle was pressing Teitle-

baum for payment of $2,400 ($2,000 from a large

payment Teitlebaum received on his Zim account and

$40 for delinquent “‘peace payments”), Boyle told

Teit baum 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 trans-

action 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, combin. -

with the co-conspirator statements outlined above, was

77a

sufficient to prove Field’s knowing participation in the

criminal enterprise and concomitant conspiracy. This

same evidence was alse sufficient to support Field’s con-

victions 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 conspiracy charges that the defend-

ant 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 participa-

tion in the solicitation of tickets for the 1976 Christmas

cruise.

Vanderwyde

Appellant Vanderwyde was convicted of the RICO

substantive and conspiracy charges (Counts | 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 dis-

cussed 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 triai,

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.

The evidence showed that Vanderwyde accepted

money and cruise tickets from waterfront employers and

78a

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 Teitle-

baum 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).

(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

79a

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 pre-

viously 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 Sepember 1976, Vanderwyde reminded Teitle-

baum 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 com-

pany 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, Vander-

wyde subsequently reminded Teitiebaum not to forget

about the tickets. (25:26).

(11) When George Wagner was making payoffs to the

union on behalf of Marine Terminals, Inc., 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 avail-

able, 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).

80a

(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.>®

The evidence also supported Vanderwyde’s conviction

on the extortion charge. Title 18 U.S.C. § 1961, 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

36 Vanderwyde was convicted of five separate Taft-Hartlcy 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(1)(C), 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 loans to labor organiza-

tions” and, hence, were not within the purview of the definition

of racketeering activity. We agree with the government’s conten-

tion, however, that the parenthetical language following the

reference to Section 186 was included as a means to facilitate iden-

tification of 29 U.S.C. § 186 and was not intended to limit the

definition of racketeering activity only to Taft-Hartley charges

involving “restrictions on payments and loans to labor organiza-

tions.” 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, 161 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(1)(C).

8la

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 experi-

enced 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 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, 406 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 pay-

ments” 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 eco-

37 There is, of course, also a requirement that the extortion affect

or obstruct interstate commerce but that element is not in conten-

tion here.

82a

nomic 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 moncy 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 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

8&0, 62 S. Ct. 469; United States v. Marx, supra, 635 F.2d

at 438; United States v. Arrendondo-Morales, supra, 624

F.2d at 684; United States v. Middlebrooks, supra, 618

F.2d at 278.

83a

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.2° 323,

$28 (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 Williams’ guilt on the two RICO

counts, as well as on the two Taft-Hartley counts. The

evidence against Williams can be summarized as follows:

(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 opera-

tion 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 Teitlkebaum met with Williams in

Miami, he travelled to Jacksonville and paid Williams

$1,100, using money supplied by the FBI. (25:96).

84a

(5) In 1975, co-defendant Joseph Cotrone received

an offer from PRMMI to perform the company’s mainte-

nance 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 aban-

doned 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 nego-

tiage 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 reason-

ably 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

85a

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 Charles-

ton, South Carolina. He further testified that he received

the tickets at the time of payment and that he personally

delivered them to the 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 inci-

dent was being surreptitiously overheard.

The fact that Teitlebaum was never reimbursed for

the cost of the tickets, combined with Williams’ contra-

dictory 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 suf-

ficient to convict Williams on Counts 1, 2, 9 and 15.

38 As noted in the facts section of this opinion, supra, Williams

apparently acquired the tickets on behalf of the mayor of Jackson-

ville, who gave them to his son as a wedding present.

86a

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

68 and 70). Raymond Kopituk was convicted of the two

RICO charges, the samc 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 con-

victed 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 credi-

bility 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

39 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, associa-

tion, 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 dedi-

cated to achieving economic control of several major ports in the

[footnote continued]

87a

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 indi-

rectly, in the affairs of the enterprise through the com-

mission 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 waterfront

business. Viewing the evidence in the light most favor-

able 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 wi

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