# Appendix — Turner v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0634%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 928

## Text

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 ac

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0634%3A2. Public record. Not legal advice.