Appendix — Kopituk v. United States

82 - 1926 Orica - Supreme Court, USY

NO - FILED

MAY 15 1983

IN THE SUPREME COURT OF THE fy i cid

OCTOBER TERM, 1982

DOROTHY O. KOPITUK, RAYMOND C. KOFITUK,

and OSCAR MORALES,

Petitioners,

Ve

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOSE E. MARTINEZ, ESQ.

ENGLISH, McCAUGHAN &

O* BRYAN

201 Alhambra Circle

Suite 1200

Coral Gables, FL 33134

(305) 448-6000

Counsel for Petitioners

APPENDIX

TABLE OF CONTENTS

PAGE

Order of the Court of Appeals la

for the Eleventh Circuit dated

January 14, 1983, in United

States v. Kopituk, No. 80-5025

Opinion of the Court of Appeals

for the Eleventh Circuit dated

November 4, 1982, in United

States v. Kopituk, 690 F.2d

1289 (1iIth Cir. 1982) 3a

Opinion and Order of the 67a

Southern District Court of

Florida, Miami Division

Certificate of Service of

Appendix

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 80-5025

(Filed: January 14, 1983)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

Dorothy 0. Kopituk, Raymond C. Kopituk,

Oscar Morales, Fred R. Field, Jr., Cleveland

Turner, James Vanderwyde, Landon L. Williams,

William Boyle, and George Barone,

Defendants-Appellants.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

ON PETITIONS FOR REHEARING AND

SUGGESTIONS FOR REHEARING EN BANC

(Opinion November is sais has Cir., 1982, F.

d o

(January 14, 1983)

Before Hill and Clark, Circuit Judges,

and the Hon. Charles R. Scott, U. S. District

Judge from the Middle District of Florida,

sitting by designation.

la

PER CURIAM:

The Fetitions for Rehearing are

DENIED and no member of this panel nor Judge

in regular active service on the Court

having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule

26), the Suggestions for Rehearing En Banc

are also DENIED.

ENTERED FOR THE COURT

/s/ JAMES C. HILL,

United States Circuit Judge

2a

UNITED STATES v. KOPITUK

UNITED STATES of America,

Plaintiff-Appellee,

Vv

Dorothy 0. KOPITUK, Raymond C. Kopi-

tuk, Oscar Morales, Fred R. Field, Jr.

Cleveland Turner, James Vanderwyde,

Landon L. Williams, William Boyle,

George Barone, Defendants- Appellants.

No. 80-5025.

United States Court of Appeals,

Eleventh Circuit.

Nov. 4, 1982.

Defendants, waterfront union officials

and employers, were convicted in United

States District Court for the Southern Dis-

trict of Florida, Wm. M. Hoeveler, J., of

numerous charges arising from their partic-

ipation in a widespread pattern of corrup-

tion aimed at securing control of the busi-

ness activity at several major ports in the

Southeastern United States, and they ap-

pealed. The Court of Appeals, Charles R.

Scott, District Judge, sitting by designation,

held that: (1) in massive, complex RICO

case, trial court did not err in substituting

an alternate juror, who had been released

from separate sequestration and sent home

and who was extensively questioned as to

whether her continued fitness to serve had

been tainted by any extrinsic influence, for

a disabled regular juror after the jury had

begun deliberating; (2) income tax offenses

were not improperly joined with counts

charging nontax offenses; and (3) evidence

was sufficient to support defendants’ con-

victions.

Affirmed.

See also 83 F.R.D. 565.

1. Jury @149

In massive, complex RICO case, trial

court did not err in substituting an alter-

nate juror, who had been released from

separate sequestration and sent home and

who was extensively questioned as to

whether her continued fitness to serve had

been tainted by any extrinsic influence, for

a disabled regular juror after the jury had

begun deliberating. 18 U.S.C.A. § 1961 et

seq.; Fed.Rules Cr.Proc. Rule 24(c), 18 U.S.

C.A.

2. Criminal Law @620(1), 622

Rule subsection governing joinder of

offenses applies only in cases involving a

single defendant charged with multiple of-

fenses whereas rule subsection governing

joinder of defendants governs in cases in-

volving multiple defendants. Fed.Rules Cr.

Proc. Rule 8a, b), 18 U.S.C.A.

3. Criminal Law @620(1)

In prosecution of multiple defendants

on substantive and conspiracy charge

brought under RICO as well as other stat-

utes, it was not improper to join counts

charging tax offenses with counts charging

other types of offenses where government

alleged and succeeded in proving that the

tax counts and the nontax counts were part

of a series of acts or transactions arising

from the conspiracy and criminal enterprise

. Fed.Rules Cr.Proc. Rule &b), 18

U.S.C.A.; 18 U.S.C.A. § 1961 et seq.

4. Criminal Law *620(1)

Substantive offenses arising out of a

single conspiracy can properly be joined

since the conspiracy provides a common link

connecting the offenses. Fed.Rules Cr.

Proc. Rule &(b), 18 U.S.C.A.

5. Criminal Law ¢=62((3)

Where there is misjoinder, severance

under rule setting the limits of tolerance on

the process of joinder of offenses and de-

fendants is mandatory. Fed.Rules Cr.Proc.

Rule 8, 18 U.S.C.A.

6. Criminal Law @=620(3), 622(1)

Joinder of defendants or offenses, even

though proper under terms of rule setting

the limits of tolerance on joinder of of-

fenses and defendants, can be so prejudicial

as to require severance under rule govern-

ing relief from prejudicial joinder. Fed.

Rules Cr.Proc. Rules 8, 14, 18 U.S.C.A.

7. Criminal Law @=620(4), 622(1), 1148

Decision of whether relief is appropri-

ate under rule governing relief from preju-

dicial joinder is entrusted to sound discre-

tion of district court and is reviewable on

appeal only for abuse of that discretion.

Fed.Rules Cr.Proc. Rule 14, 18 U.S.C.A.

8. Criminal Law ¢=622(2)

Degree of prejudice suffered by de-

fendants resulting from trial court's refusal

to sever one waterfront employer until late

in the trial was slight compared with the

substantial countervailing interest of judi-

cial economy; thus, trial court did not

abuse its discretion in denying defendants’

motions to sever based upon waterfront em-

ployer’s antagonistic defense in prosecution

of waterfront union officials and employers

on numerous charges arising from their

participation in a widespread pattern of

corruption aimed at securing control of

business activity in several major ports in

the Southeastern United States. Fed.Rules

Cr.Proc. Rule 14, 18 U.S.C.A.

4a

UNITED STATES v. KOPITUK

9. Criminal Law @=622(1)

To show an abuse of discretion by a

district court in refusing to grant a motion

for severance, a defendant must demon-

strate that the joint trial subjected him to

compelling prejudice against which trial

court was unable to afford protection and,

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. Fed.Rules Cr.Proc. Rule 14, 18

U.S.C.A.

10. Criminal Law @622(2)

In prosecution of certain waterfront

union officials and employers on numerous

charges arising from their participation in a

widespread pattern of corruption aimed at

securing control of a business activity in

several major ports in the Southeastern

United States, trial court did not err in

denying certain defendants’ motions for

severance grounded upon statements of one

defendant’s attorney during closing argu-

ment. Fed.Rules Cr.Proc. Rule 14, 18 U.S.

C.A.

11. Criminal Law @338(1)

In prosecution of multiple defendants

on substantive and conspiracy charges un-

der RICO, trial court did not abuse its dis-

cretion in ruling that testimony as to “star”

witness’ conversation with one defendant

concerning statement made by another de-

fendant to effect that proponent of the

evidence might have to be killed was not

relevant to any issue in the case.

12. Criminal Law @=338(1), 1153(1)

Determinations as to relevance of evi-

dence are well within broad discretion of

trial court and will not be disturbed on

appeal absent a showing that trial court

abused its discretion.

UNITED STATES v. KOPITUK

13. Criminal Law @=622(2)

Defendants, waterfront union officials

and employers charged with participating

in a widespread pattern of corruption aimed

at securing control of the business activity

of several major ports, did not suffer com-

pelling prejudice as result of the length and

somplexity of the joint trial and therefore

were not entitled to severance under rule

yoverning relief from prejudicial joinder.

Fed.Rules Cr.Proc. Rule 14, 18 U.S.C.A.

14. Criminal Law @101(1), 622(2)

In light of the policy favoring joint

trials in conspiracy cases, the convenience

of most of the witnesses and defendants,

and the fact that defendants had failed to

particularize any real prejudice, triai court

lid not abuse its discretion in refusing to

sever one defendant and transfer his case to

the district encompassing his residence in

prosecution of multiple defendants on sub-

stantive and conspiracy charges under

RICO and other statutes. 18 U.S.C.A.

§ 1961 et seq.; Fed.Rules Cr.Proc. Rule

21(b), 18 U.S.C.A.

1S. Criminal Law @101(1)

A criminal defendant doves not have a

ponstitutional right to be tried in the dis-

trict encompassing his residence.

16. Criminal Law @101(1), 1148

Decision of whether to grant a defend-

ant’s motion to transfer a criminal proceed-

ing to another district is within trial court’s

discretionary authority and is reviewable

only for abuse of discretion. Fed.Rules Cr.

Proc. Rule 21(b), 18 U.S.C.A.

17. Commerce @82.5

Essential elements of a substantive

RICO offense which government must

prove beyond a reasonable doubt are: (1)

5a

existence of an enterprise; (2) that the

enterprise affected interstate commerce;

(3) that defendant was employed by or asso-

ciated with the enterprise; (4) that he par-

ticipated, either directly or indirectly, in the

conduct of the affairs of the enterprise;

and (5) that he participated through a pat-

tern of racketeering activity, i.e, through

commission of at least two racketeering

acts. 18 U.S.C.A. § 1961 et seq.

18. Conspiracy @28(3)

Culpability under conspiracy provisions

of RICO Act is established by showing that

the defendant manifested his assent to par-

ticipate, either directly or indirectly, in the

affairs of the conspiracy through the com-

mission of two or more predicate crimes; it

is unnecessary to prove that a conspirator

had full knowledge of every detail concern-

ing the conspiracy, rather, it is sufficient to

show that he had knowledge of the “essen-

tial nature of the plan.” 18 U.S.C.A.

§ 1962(d).

19. Conspiracy @=47(2)

Participation in a conspiracy need not

be proved by direct evidence; it can be

inferred from a development and a colloca-

tion of circumstances and a defendant’s

participation may be inferred from acts of

his which furthered the objectives of the

conspiracy.

20. Criminal Law @=423(i), 427(5)

To be admissible against a defendant, a

coconspirator’s extrajudicial deciaration

must have been made by a person who

conspired with the party against whom the

declaration is offered during course of the

conspiracy and in furtherance of the con-

spiracy; standard of proof governing ad-

missibility of the declarations in a pretrial

context is one of substantiality in that there

must be substantial evidence, independent

of the declarations themselves, sufficient to

satisfy the test. Fed.Rules Evid. Rule

801(dX2XE), 28 U.S.C.A.

21. Criminal Law @=427(3)

If coconspirator declarations are admit-

ted pursuant to a finding that there is

“substantial” evidence that defendant was

a member of the conspiracy and that the

declarations were made by coconspirator

during course of and in furtherance of the

conspiracy, defendant may, upon motion

made at conclusion of all the evidence, re-

quire trial judge to reevaluate admissibility

of the declarations by determining, at that

point, where a preponderance of the evi-

dence on that issue lies. Fed.Rules Evid.

Rule 801(dX2XE), 28 U.S.C.A.

22. Criminal Law @427(5)

Independent evidence against defend-

ant waterfront union official established by

preponderance of evidence that he was a

member of the conspiracy involving union

officials and employers to secure control of

business activity at several major ports in

the Southeastern United States; thus, co-

conspirator declarations were properly ad-

mitted against him. Fed.Rules Evid. Rule

801(dX2XE), 28 U.S.C.A.

23. Commerce @82.5

Conspiracy @47(3)

Labor Relations = 1060

Evidence, which included coconspirator

declarations, was sufficient to support de-

fendant waterfront union official's convic-

tions on substantive RICO charges as well

as RICO conspiracy charges and charges of

violating Taft-Hartley Act. 18 U.S.C.A.

§ 1961 et seq.; Labor Management Reia-

tions Act, 1947, § 1 et seq., 29 U.S.CA.

§ 141 et seq.

6a

UNITED STATES v. KOPITUK

24. Commerce @82.5

Conspiracy @47(3)

Extortion and Threats e=32

Labor Relations <= 1060

Evidence, which established that de-

fendant waterfront union official obtained

money and other articles of value from

waterfront employers through extortionate

means and that he pressured employers to

stay current with their payments, was suf-

ficient to allow jury to reasonably find that

he was a willing, active participant in a

conspiracy aimed at securing control of the

business activity at several major ports in

which union officials pressured waterfront

employers to make illegal payoffs in return

for assured labor peace and lucrative busi-

ness contracts and such evidence was suffi-

cient to support defendant's conviction on

RICO substantive and conspiracy charges, a

Hobbs Act extortion charge and five Taft-

Hartley charges. 18 U.S.C.A. §§ 1951, 1961

et seq.; Labor Management Relations Act,

1947, § 302, 29 U.S.C.A. § 186.

25. Extortion and Threats 25

In order to convict under Hobbs Act,

government need only show that the de-

fendant received property of another with-

out any lawful claim to such property and

that the person who made the payment did

so out of fear; the fear experienced by the

victim does not have to be the consequence

of a direct threat and it is sufficient if the

government can show circumstances sur-

rounding act of extortion that render vic-

tim’'s fear reasonable, including fear of eco-

nomic loss. 18 U.S.C.A. § 1951.

26. Commerce @82.5

Conspiracy @47(3)

Labor Relations = 1060

Evidence, which indicated that defend-

ant waterfront union official participated in

UNITED STATES v. KOPITUK

a conspiracy in which union officials pres-

sured waterfront employers to make illegal

payoffs in return for assured labor peace

and lucrative business contracts, was suffi-

cient to support defendant’s conviction on

RICO substantive and conspiracy charge

and on two Taft-Hartley charges. 18 U.S.

C.A. § 1961 et seq.; Labor Management

Relations Act, 1947, § 302, 29 U.S.C.A.

§ 186.

27. Criminal Law @1159.4(2)

Credibility determinations lie within

sole province of trier of fact.

28. Commerce @82.5

Internal Revenue #5295

Labor Relations e 1060

Evidence, which established that two

defendant waterfront employers sought out

union officials and willingly agreed to make

payoffs in return for lucrative waterfront

business, was sufficient to support their

convictions on RICO charges and Taft-

Hartley charges and evidence was also suf-

ficient to support their convictions as well

as another defendant's conviction on income

tax charges. 18 U.S.C.A. § 1961 et seq.;

Labor t Relations Act, 1947,

§ 302, 29 U.S.C.A. § 186.

29. Criminal Law @=371(1)

In prosecution on RICO substantive

abuse its discretion in admitting evidence of

defendant’s prior conviction on federal

racketeering charges since evidence of the

prior conviction was relevant to defendant's

intent and since its probative value out-

weighed any danger of unfair prejudice to

defendant or his codefendants. 18 U.S.C.A.

§ 1961 et seq.; Fed.Rules Evid. Rule 404(b),

28 U.S.C.A.

7a

30. Criminal Law @371(1)

In.a conspiracy case, a defendant’s not

guilty plea sufficiently raises issue of intent

to justify admissibility of extrinsic offense

evidence.

31. Witnesses @=372(2)

Trial court, which permitted defend-

ants’ cross-examination of principal govern-

ment witness to bring out that witness had

arrived at an agreement with government

whereby he would testify in return for a

lenient plea agreement in connection with

state charges for his participation in a plot

to kill a business associate in South Ameri-

ca, did not improperly limit scope of defend-

ants’ cross-examination of witness by pro-

hibiting an inquiry into the method of kill-

ing to be employed in executing the murder

contract.

32. Witnesses @=270(1)

A defendant’s right to cross-examine

witnesses against him is not absolute; the

information sought to be elicited must be

relevant. U.S.C.A.Const.Amend. 6.

33. Witnesses ¢=267

When cross-examination has been per-

mitted to an extent sufficient to satisfy

defendant's Sixth Amendment rights, trial

judge’s discretionary authority comes into

play. U.S.C.A.Const.Amend. 6.

34. Criminal Law = 1166(1)

Actions of trial court in recalling cer-

tain witness operated to erase any potential

prejudice defendants might otherwise have

suffered as a consequence of government’s

omissions of certain Jencks Act materials

delivered to defendants. 18 U.S.CA.

§ 3500.

35. Criminal Law e700

A defendant seeking to show a breach

of the Brady doctrine warranting reversal

of his conviction must establish three facts:

(1) that prosecution suppressed evidence;

(2) that evidence bore favorably on defend-

ant’s defense; and (3) that the evidence

was material to the question of guilt or

innocence.

36. Constitutional Law = 268(5)

No denial of due process occurs unless

government’s nondisclosure of exculpatory

information deprives defendant of a fair

trial. U.S.C.A.Const.Amend. 5.

37. Criminal Law @726

Prosecutor’s statements made in course

of his rebuttal argument that one defend-

ant was the “number one man” in a conspir-

acy in which union officials pressured

waterfront employers to make illegal pay-

offs in return for assured labor peace and

lucrative business contracts was a reasona-

ble inference drawn from the evidence and

therefore did not constitute improper clos-

ing argument.

38. Criminal Law ¢=723(1)

In prosecution of multiple defendants

on substantive and conspiracy charge under

RICO and other statutes, prosecutor’s clos-

ing remarks did not constitute a direct sug-

gestion that jury had a personal stake in

the outcome of case; furthermore, even if

the statements were improper, they were

not so offensive as to prejudice any sub-

stantial rights of defendants. 18 U.S.C.A.

§ 1961 et seq.

* Honorable Charles R. Scott, U. S. District Judge

for the Middle District of Florida, sitting by

designation.

8a

UNITED STATES v. KOPITUK

39. Criminal Law = 723(1)

Appeals to jury to act as conscience of

the community, unless designed to inflame

the jury, are not per se impermissible.

40. Criminal Law 1114(1)

Defendants, who failed to include for-

feiture judgment in record on appeal, were

not entitled to appellate consideration of

the merits of that judgment, which arose

from a separate proceeding.

Appeals from the United States District

Court for the Southern District of Florida.

Before HILL and CLARK, Circuit

Judges, and SCOTT *, District Judge.

CHARLES R. SCOTT, District Judge:

Appellants, waterfront union officials

and employers, were convicted in the Unit-

ed States District Court for the Southern

District of Florida on numerous charges

arising from their participation in a wide-

spread pattern of corruption aimed at se-

curing control of the business activity at

several major ports in the Southeastern

United States. The evidence adduced at

the seven-month trial! revealed an exten-

sive, well-orchestrated conspiracy spanning

a period of more than 10 years in which

union officials pressured waterfront em-

ployers to make illegal payoffs in return for

assured labor peace and lucrative business

contracts.

In 1975, the Federal Bureau of Investiga-

tion (‘FBI’) began an extensive undercover

investigation of the corrupt enterprise

1. The trial commenced on January 28, 1979,

and continued to September 1, 1979.

UNITED STATES v. KOPITUK

when Joseph Teitlebaum, a waterfront em-

ployer who had participated in the conspir-

acy for several years, agreed to cooperate

with the government. With Teitlebaum's

assistance, FBI agents successfully infil-

trated the enterprise and obtained tape-re-

cordings of conversations transpiring in the

course of illegal payoff transactions. The

covert investigation continued until Janu-

ary 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 appel-

lants and others? with a variety of offenses

including: racketeering, 18 U.S.C.

§ 1962(c); conspiracy to engage in racket-

eering, 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 mat-

ter, 18 U.S.C. § 1954; obstruction of jus-

tice, 18 U.S.C. § 1508; and filing false in-

come tax returns, 26 U.S.C. § 7206.

TEITLEBAUM

Joseph Teitlebaum was the government's

“star” witness at trial.’ Teitlebaum's in-

volvement in the conspiracy was extensive

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

FU Ha

ltd

If i

tyes

s£is :

fyfluinil

it

If

and long-lasting and, as such, his testimony

constituted the backbone of the govern-

ment's case.

In the 1960's, Teitlebaum was a vice-pres-

ident of Eagle Shipping, Inc., a company

that performed stevedoring ‘ services at the

port of Miami. In 1966, Teitlebaum met

appellant Fred R. Field, Jr. at a labor nego-

tiation 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). Teitlebaum arranged

to use a friend’s boat to take Field on a

fishing trip. Field brought three other un-

ion 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 inter-

est” 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).

Williams) challenge the sufficiency of the evi-

dence supporting their convictions, it is neces-

4 “Stevedoring” is the process of loading and

unloading ships.

5. References to the trial transcript will be cited

as ‘“(.._.__:_____),” the first number repre-

senting the volume of the transcript and the

second number representing the particular

page cited toc.

6 “Checkers” are persons employed by steve-

doring companies who monitor or “check” car-

go as it is loaded or unloaded from a ship.

371

Teitlebaum responded that he would have

to discuss the matter with his father and

uncles, who were responsible for running

Eagle, Inc. (which owned Eagle Shipping,

Inc.) (9:89). Shortly after returning from

the fishing trip, Teitlebaum received tele-

vhone 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 con-

tract. (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 involve-

ment in the criminal enterprise did not com-

mence until 1972 Throughout the inter-

vening years, Teitlebaum had come to know

appellant George Barone, president of the

checkers’ union in Miami (ILA Loca] 1922),

appellant William Boyle, secretary-treasur-

er of ILA Local 1922, appellant James Van-

someone had vandalized it. (9:110). Short-

ly thereafter, Teitlebaum received a visit

from co-defendant Sebastian “Benny” Co-

trone. Cotrone advised Teitlebaum that he

mvch as the statements made by the callers

constituted hearsay not subject to any excep-

tion enumerated in Fed.R.Evid. 803, 804.

UNITED STATES v. KOPITUK

should “make ... peace” with appellant

Barone if he wished to stay in business.

Cotrone told Teitlebaum that “they” want-

ed “a piece of the action from the crane.”

(9:112). Teitlebaum subsequently began

leasing the crane to Marine Terminals, Inc.

(‘MTT’), a waterfront company managed by

George Wagner, who had close ties to the

union. (9:128). Wagner was paid a kick-

back of $15 for every hour of crane use

billed to MTI. (19-93-94).

In early 1972, Teitlebaum contacted ap-

pellant Boyle about obtaining a contract to

perform stevedoring services for the Mardi

Gras, a passenger ship owned and operated

by the Carnival Cruise Lines. (19:109).

Boyle said that he would talk with “the

boys” and let Teitlebaum know if it could

be done. A couple days later Boyle in-

formed 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 con-

tract. He paid Boyle $2,000 in installments

of $200 per week. (19:123).

When it became apparent to Teitlebaum

that it was necessary to reduce the number

of porters assigned to work on the Mardi

Gras in order to save money, Teitlebaum

presented the problem to Boyle, who in turn

told Teitlebaum to contact appellant Cleve-

land Turner, president of the Miami long-

shoremen’s union. Teitlebaum did so and

worked out an agreement to pay Turner

$50 per week to reduce the number of por-

ters assigned to the dock. Turner told Teit-

lebaum to talk with the head porter on the

8. Teitlebaum assumed full control of Eagle, Inc.

in 1972.

10a

UNITED STATES v. KOPITUK

dock and to have the head porter call Turn-

er if there was any problem. Teitlebaum

made payoffs to Turner from 1972 to 1976.

(19:114).

At one point in early 1972, Boyle told

Teitlebaum that Teitlebaum’s cousin owed

the union between $1,800 and $2,000 in de-

linquent 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 Van-

derwyde told Teitlebaum: “You did a nice

job paying off your cousin’s debt. Don’t let

it stop.” Teitiebaum asked him what he

was talking about, to which Vanderwyde

responded: “Are you stupid? We're going

to have control of this fucking port right

here. Control. That’s what counts, con-

trol.” (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 con-

versation 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 con-

tract and began making the weekly pay-

ments to Boyle. He was frequently late in

making the payments, however, prompting

Boyle to teli 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).

lla

372

In late 1973, Teitlebaum met with Boyle

at the Miami ILA office and told him that

he was interested in improving his compa-

ny’s position by acquiring a contract to ser-

vice either the Mamenic Line or Gran Co-

lumbiana Line. Boyle responded that Teit-

lebaum should speak with appellant Field

about it. (20:13). That evening Field visit-

ed Teitlebaum’s office and Teitlebaum reit-

erated his interest in the Mamenic and Gran

Columbiana lines. Field told Teitlebaum

that the Mamenic contract would be the

easier of the two to acquire. Teitlebaum

expressed concern because he knew of a

Mamenic representative that was working

for a competing stevedoring company, but

Field told Teitlebaum not to worry, stating

that the representative could “be taken care

of.” (20:14). Teitlebaum reported to ap-

pellant 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 serv-

ices for the Mamenic Line in June 1974.

(20:21-23). As payment for the assistance

he received in acquiring the Mamenic

account, Teitlebaum, at Boyle’s request,

purchased three pairs of cruise tickets and

gave them to Boyle. (20:29-30).

Later in 1974, Teitlebaum learned that

Harringten & Co., a competing business op-

erated by co-defendant Neal L. Harrington,

was submitting bids to perform stevedoring

work for Nopal Line, a Norwegian steam-

ship company, which was already one of

Teitlebaum’s customers. Teitlebaum com-

plained 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

373

the matter. (20:36). Shortly thereafter,

Barone, in Vanderwyde’s presence, told

Teitlebaum that Harrington & Co. would

withdraw its bid. (20:37-38). Teitlebaum’s

company retained Nopal’s business.

In early 1975, Teitlebaum expressed to

Boyle his interest in acquiring a contract to

do business with Puerto Rico Marine Man-

agement, Inc. (“PRMMI’). Boyle once again

said he would “talk to the boys” about it.

(20:62). Approximately one week later,

Teitlebaum ran into Barone in the hallway

outside Teitlebaum’s office and reiterated

his desire to obtain the PRMMI contract.

Barone rubbed his foot on the floor, picked

up his trouser leg and said, “Heavy.”

(20:63). Teitlebaum testified that Barone

had done precisely the same thing when

Teitlebaum received the Siboney contract.

The next day Teitlebaum met with Boyle

who told him it would cost “five up front”

for the PRMMI contract. Teitlebaum

asked whether he meant “big ones or little

ones,” to which Boyle responded, “Big

ones.” Teitlebaum asked what his guaran-

tee 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 fol-

lowing day, Teitlebaum gave Boyle $5,000

in $100 bills. (20:67). Teitlebaum, how-

ever, did not get the PRMMI contract.

In the summer of 1975, Boyle told Teit-

lebaum that he wanted some cruise tickets

for appellant Vanderwyde and for appellant

Landon Williams, president of ILA Local

1408 in Jacksonville, Florida. Boyle told

Teitlebaum that Williams wanted to give

the tickets to the son of the mayor of

Jacksonville as a wedding present. (20:71).

Teitlebaum accommodated the request by

®. The charges stemmed from Teitlebaum’s at-

tempt to arrange a contract killing of a busi-

ness associate in South America. As part of

12a

UNITED STATES v. KOPITUK

obtaining three sets of tickets from the

Commodore Cruise Line, one of Teitle-

baum’s customers. (20:72). Teitlebaum's

company paid for all the tickets. (20:76).

In September 1975, Teitlebaum was ar-

rested on state charges of solicitation to

commit murder, conspiracy to commit mur-

der and attempted murder. (20:80). In

return for his pledge to cooperate with the

government in the instant matter, he was

permitted to enter a plea of aolo contendere

to the misdemeanor charge of solicitation to

commit murder and the other charges were

dropped. (20:80). He received a sentence

of one-year probation. From the time of

his arrest until conclusion ef the investiga-

tion, Teitlebaum worked closely with FBI

agents in an effort to gather direct evi-

dence 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). Ac-

cordingly, Teitlebaum set up a company

called Georgia Container Agencies to oper-

ate at the port of Savannah, Georgia.

(21:35). Georgia Container Agencies was to

receive a lucrative contract from Zim-Israel

Navigation Co., Ltd., an Israeli steamship

line. In return for the Zim contract in

Savannah, however, Boyle told Teitlebaum

that he would have to surrender another

account. Teitlebaum told Boyle he would

give up the Mamenic account and Boyle

said that would be acceptable, stating that

he would tell “the fat man” about Teitle-

baum’s selection. (21:41). Teitlebaum testi-

fied that he knew from previous reference

that the fat man was appellant Field.

(21:42).

the arrangement, Teitlebaum specified that the

murder was to be committed with an ice pick.

(26:213, 220, 228).

UNITED STATES v. KOPITUK

In December 1975, Boyle informed Teit-

lebaum what it would cost for the Zim

contract in Savannah: $15,000 “front mon-

ey,” one percent of the value of all ocean

freight handled, $12 for each container

loaded or unloaded from a ship and 50 cents

per ton for buik cargo. (21:124—126). Teit-

lebaum agreed to pay the $15,000 front

money to Boyle in 10 installments of $1,500

each. (21:131). Teitlebaum made several

of the $1,500 Savannah payments to Boyle,

occasionally using money provided by the

FBI.

In January 1976, Teitlebaum travelled to

Savannah with Boyle for the purpose of

meeting co-defendant Elizah Jackson, presi-

dent of ILA Local 1414 in Savannah, to

determine how much money was going to

have to be paid to Jackson. (22:11). Boyle

negotiated with Jackson privately and then

told Teitlebaum it would cost $300 “up

front,” $50 per 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 re-

cord some of the conversations that tran-

snired in the course of making the Savan-

nah payments, as well as other payments.

Teitlebaum stopped carrying the tape re-

corder, however, following a February 1976

incident which indicated the defendanis

may have been getting suspicious of him.

On February 11, 1975, Boyle summoned

Teitlebsum 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” Vander-

wyde.” 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

10. Cornelius “Butch” Vanderwyde is the son of

374

simply said, “Everything is fine.” (22:118).

Teitlebaum related the incident to FBI Spe-

cial Agent Ray Maria and it was decided

that Teitlebaum would no longer wear a

body recorder. (22:120).

In April 1975, Teitlebaum visited the ILA

office in Miami to give Boyle one of the

weekly “peace” payments. Boyle was not

there so Teitlebaum gave the money to

appellant Vanderwyde. Vanderwyde 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 pat-

ted 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 representa-

tives of the Zim steamship line discussed

the possibility of Georgia Container Agen-

cies, Teitlebaum’s Savannah company, per-

forming 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 esti-

mated 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 Teitle-

_baum that appellant Field had contacted co-

“defendant Isom Clemon, president of ILA

appellant James Vanderwyde.

13a

Local 1410 in Mobile, and made arrange-

ments for Teitlebaum to meet Clemon.

(24:72).

On June 11, Boyle flew to Mobile and was

met by Clemon at the airport. Clemon told

Teitlebaum that “he was the man in Mo-

bile,” 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, Teitle-

baum, in the presence of FBI Special Agent

Richard Artin (who was posing as an em-

ployee of Teitlebaum’s), paid Clemon $400

while they were driving to a restaurant to

have lunch. (24:138-140). At the restau-

rant, 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 meet-

ing, Agent Artin continued to make pay-

ments to Clemon. (38:175; 39:30).

Subsequent to Teitlebaum’s first meeting

with Clemon, Boyie 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 pay-

ments, waiting 30 days, and then making

five additional $1,000 weekly payments.

(24:97).

In July 1976, a business associate of Teit-

lebaum’s contacted him regarding a compa-

ny that wished to move four trailer loads of

cigarettes through the port of Miami with-

out 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

l4a

UNITED STATES v. KOPITUK

load. The shipper so agreed and the $800

was incorporated into a special invoice as

“extra handling” charges. (24:146—148).

The same arrangement was followed with

regard to another shipment of cigarettes

later in the year. (25:136—137).

Throughout this period, Teitlebaum con-

tinued making payments to appeilant

Cleveland Turner, alternately with cash,

cruise tickets and even automobile tires. In

August 1976, Teitlebaum delivered a $200

check to Turner, but as he was leaving

Turner ran out to Teitlebaum’s car and

gave him the check back, saying he wanted

only cash from then on. Teitlebaum took

back the check and gave Turner $160 in

cash that he was carrying. (24:176).

In the latter part of August 1976, Boyle

told Teitlebaum that Barone was angry at

him for using Southeastern Maritime, inc.

as a stevedoring company in Savannah be-

cause it “belongfed] to another group.”

(24:185, 194). Subsequently, Teitlebaum

met with Boyle and Barone in the hallway

outside of his Miami office and Barone told

Teitlebaum that he “was going to work

with whomever he [Barone] designated”

and that Teitlebaum “was going to love

every goddam piece of business ... [he]

had.” (24:196-197).

During this period, Teitlebaum was con-

tinuously behind in the money he owed and

Boyle, Barone and Vanderwyde pressured

him to catch up. When Teitlebaum re-

ceived 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

UNITED STATES v. KOPITUK

“relieve a lot of tension” if Teitlebaum

were to make payments of $3,500 for Mo-

bile, $1,000 for Savannah and $1,000 for

Miami. (24:193). Shortly thereafter, Bar-

one told Teitlebaum, in the presence of

Boyle and Vanderwyde, to “get even in

Mobile.” (25:36). Barone asked Teitie-

baum if he was experiencing any problems

with the Nopal Line. When Teitlebaum

said that he was not, Barone told him, “you

may start experiencing some problems.”

(25:36-37).

In early September 1976, Boyle tcld Teit-

lebaum that Field wanted tickets for him-

self and some friends to take a Christmas

cruise on the Mardi Gras. (25:25). In early

December, Teitlebaum visited the ILA of-

fice and Boyle (in the presence of Field,

Barone, appellant Vanderwyde and Corneli-

us 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). Teitlehaum called his friend at

the cruise line to lei Goyle 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 waterfront operations into

376

the port of Jacksonville, Florida. (24:161).

In October, Teitlebaum made arrangements

to meet appellant Landon Williams for din-

ner 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 “([tjen

cents a ton, $250 a week, $1,000 a month, no

matter what does,” in order to operate in

Jacksonville. (25:55).

Enroute to the restaurant Teitlebaum

gave Williams $400. (25:80). Williams held

up five fingers and said, “I was looking for

this.” Teitlebaum told him that he would

receive the additional $100, plus the first

monthly payment of $1,000 when they met

in Jacksonville. (25:81). Teitlebaum start-

ed 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, Teitle-

baum 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 govern-

ment’s key witness, other waterfront em-

ployers 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. (‘MTI’), a stevedoring company.

Chester testified that he met appellant Bar-

one in 1967 shortly after MTI was estab-

lished. (14:120). Barone told Chester that

he had done him a favor by interfering with

an attempt to execute a murder contract on

15a

one of Chester's business associates. Ches-

ter testified that Barone told him Joseph

Teitlebaum was responsible for the con-

tract. (14:122).

Barone explained to Chester that life was

different on the docks and that Chester

needed a “consultant” to “watch out for

things.” (14:123). Accordingly, Barone

that MTI enter an “arrange-

ment” with Barone whereby the company

would pay him a monthly retainer of $1,500.

(14:124). Chester said that was too high

and they ultimately agreed that MTI would

pay Barone $750 each month. (14:124).

Chester made the first two payments him-

self, 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 com-

Sklaire asked Barone whether it would be

possible to obtain a union contract for the

turn for

ment to $1,000. (14:209). The $1,000 pay-

ments continued until January 1977.

(14:21)).

l6a

UNITED STATES v. KOPITUK

George Wagner began working as a

checker for MTI in 1967. (43:35). In 1968,

the principals of MTI approached Wagner

regarding the possibility of him becoming a

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

he might lose his union status if he accepted

the job, discussed the matter with Barone,

Boyle and Vanderwyde. (43:41, 45). They

were all very positive about Wagner's pro-

motion, telling him to “be on the lookout to

be a help to the union” and to “make a

dollar wherever... [he] could.” (43:47).

As soon as Wagner became manager, he

began making monthly payments of $800 to

Boyle on behalf of MTI. (43:56). He con-

tinued 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 im-

prove because he would “share in the entire

pot.” (43:68-70). Shortly after that dis-

cussion, Wagner increased the payments to

$1,000 per month. (43:72). Wagner testi-

fied 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, Wag-

ner was experiencing problems generating

enough cash to pay Turner so they ar-

ranged 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 Na-

varro, who worked for a container/trailer

repair company operating at the port of

UNITED STATES v. KOPITUK

Miami. Navarro wanted Wagner to ex-

plore the possibility of allowing appellants

Raymond Kopituk and Oscar Morales,

friends of Navarro’s, to open a con-

tainer/trailer repair business on Dodge Is-

land. (43:119). Wagner said he would en-

tertain the idea and arranged to meet with

them.

Prior to meeting with Kopituk ™ and Mo-

rales, Wagner discussed the matter with

Barone, in the presence of Boyle and Van-

derwyde. (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 pay-

ments from FWS and delivered them to

1l. For purposes of convenience, we will usual-

ly refer to Raymond Kopituk simply as “Kopi-

tuk” and to appellant Dorothy Kopituk either

378

Boyle, Vanderwyde or Barone. (43:155-

156). He testified that on two occasions he

received the payment from appellant Doro-

thy Kopituk, wife of appellant Raymond

Kopituk. (43:170; 44:22-24). On one such

occasion, Mr. Kopituk explained to Wagner

that they were having trouble generating

cash and asked if he would accept a check.

Wagner said he would and Mrs. Kopituk

asked him how she should record the check.

Wagner told her he did not care and that as

far as he was concerned she could write

down “Happy Birthday.” She asked him if

“consulting fee” would be acceptable and he

answered affirmatively. (44:23). She pro-

ceeded to record the check in that manner.

In the summer of 1973, Morales ap-

proached 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 truck-

ing company, Jasca Transfer, Inc., was to

pay the union $10,000 up front. (44:43).

As he had done with FWS, however, Wag-

ner told Jeronimo Acosta, the owner of

Jasca Transfer, that the initial payoff

would be $15,000. (44:47). In turn, Wag-

ner agreed to split the extra $5,000 with

Morales. (44:45). The deal was transacted

as planned.and, shortly thereafter, MTI be-

gan sending trucking work to Jasca Trans-

fer.

> > .

Co-defendant Joseph Cotrone came to Mi-

ami from New York in 1972. Along with

his father and sister Laura (also co-defend-

by her full name, as “D. Kopituk,” or as “Mrs.

Kopituk.”

17a

ants), he established United Container and

Ship Repair, Inc., a company that per-

formed container, trailer and minor ship

repairs. In early 1974, Barone and Boyle

visited Cotrone’s office and Barone told Co-

trone that he should pay Barone $200 per

month “to make everything move smooth-

ly,” i.e., for union peace. (59:196). Barone

told Cotrone that the other trailer and con-

tainer repair companies operating at the

port had already agreed to such an arrange-

ment. Parone 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 pay-

ments. (59:197). The payments were made

to Barone in cash, using $20 bills at Bar-

one’s request. (59:198). After the initial

payments were made, the means of gener-

ating sufficient amounts of cash to make

the payments was left to co-defendant

Francesca Cotrone, another of Joseph Co-

trone’s sisters, who began working for the

company in 1975. (59:205).

In September 1975, Barone informed Co-

trone that he wanted to alter the payoff

schedule by charging Cotrone 25 cents for

every hour worked by each of his employ-

ees. (59:203). Once again, Barone told Co-

trone that his competitors had already

agreed to the increase, that Barone’s rela-

tionship 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

18a

UNITED STATES v. KOPITUK

of the monthly payments. Cotrone testified

that he began paying Barone from $1,000 to

$1,500 each month. (59:207). The pay-

ments continued until December 1975.

(59:212).

Cotrone’s company, United Container and

Ship Repair, Inc., had the contract to per-

form container and trailer repair work for

PRMMI, the Puerto Rican steamship line.

In 1975, representatives of PRMMI offered

Cotrone’s company a contract to perform

their maintenance and repair work at the

port of Jacksonville, Florida. (60:35-36).

Cotrone discussed the possibility with Bar-

one 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 Co-

trone 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 compa-

ny began functioning, Barone told Cotrone

that he expected peace payments amount-

ing 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 situ-

ation was “getting ridiculous” and that

they were not going to pay Barone any-

thing for the Jacksonville operation until

they spoke with Landon Williams. (60:66).

UNITED STATES v. KOPITUK

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 agree-

ment whereby Wiliiams would be paid 25

cents for each man-hour worked in Jackson-

ville. (60:74). Thereafter, Miller and Gil-

lespie, 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, 172-208).

Great Southern Trailer Corp. was a con-

tainer and trailer repair business operating

in Savannah, Georgia, during the period

covered by the indictment. It was jointly

owned by Ramon DeMott and James Hodg-

es. 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 con-

tract in order to stay in business. (11:28;

13:40).

DeMott sought advice from appellant Mo-

rales, 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 subse-

quently met with Morales and appellant

Kopituk at Great Southern’s Savannah of-

fice 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).

-

19a

Shortly after Morales and Kopituk de-

parted, DeMott and Hodges received a tele-

phone 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).

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—68; 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

negctiate certain changes in the terms of

the contract, but Williams told them:

“Well, this agreement that’s there is going

to be it and you are going to sign the

fucking contract or get out of the damn

business.” (11:71-72). When DeMott and

Hodges persisted in attempting to discuss

the content of the agreement, Williams told

them that “people who had gained disfavor

wound up on their backs in bed and their

arms and legs in traction, sipping soup

through a straw and thinking about the

follies of their ways.” (11:72). DeMott and

Hodges signed the contract. (11:73).

While DeMott and Hodges were driving

Boyle back to his office, Boyle explained to

them that they would have to pay him 30

cents for every hour worked by each of

their employees. (11:124). 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 con-

tainer repair business into Charleston,

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

be accomplished for $5,000. (11:83). De-

Mott 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.

(11:187). About the time they were dis-

mantling their business in Charleston, De-

Mott and Hodges had dinner with appellant

Field in Savannah. Hodges complained to

Field that they were never given the oppor-

tunity 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 oper-

ates 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. Harring-

ton, she began preparing and cashing

monthly checks in amounts of several hun-

dred dollars, which she charged to the com-

pany loan account of either Harrington or

Royal 0. White (the co-owners of Harring-

ton & Company). (17:24, 26-27, 33). She

would place the cash in an envelope and

give it to Harrington. (17:32). Prepara-

tion of these checks coincided with visits

from appellant Boyle. (17:35-36).

UNITED STATES v. KOPITUK

Eventueliy, Howard herself, through an

implicit understanding with Harrington, de-

veloped the “habit” of giving envelopes con-

taining varying amounts of cash to Boyle

on a monthly basis. (17:37). On each occa-

sion, she charged the amounts to the per-

sonal 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 con-

tained in the envelopes ranged from $400 to

$1,380 for Boyle and $200 to $800 for Turn-

er. (17:53-59). White, Harrington’s busi-

ness partner, testified that Harrington tc!d

him the payments were for the purpose of

ensuring labor peace and were necessary in

order to stay in business. (18:13, 20, 25).

Coordinated Caribbean Transport, Inc.

(‘CCT’) is a transportation company that

has its headquarters at the port of Miami.

The company is involved in transferring

cargo received at the port from overland

carriers to trailers that are then loaded onto

ships destined for foreign ports. (18:132-

133). During the period covered by the

indictment, the company had contracts with

the Miami longshoremen’s union (ILA Local

1416) and the checkers’ union (ILA Local

1922). (18:134—135).

Boyle served as liaison between CCT and

the longshoremen’s and checkers’ unions,

respectively. (18:148-149). In 1974, CCT

was trying to improve its warehousing op-

erations through negotiations with the un-

ions. 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 im-

proved for “certain considerations.”

(18:150). Calderon ignored the statement,

but Boyle broached the subject again at a

subsequent meeting. (18:151-152).

20a

UNITED STATES v. KOPITUK

Boyle suggested that if CCT began pay-

ing 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 re-

ceived authorization to make the payments.

(18:157-158). Boyle and Calderon ultimate-

ly agreed that CCT would pay Boyle $600

per month. (18:159). In late 1975, how-

ever, officers of CCT decided to terminate

the payments to Boyle. (18:166). Shortly

thereafter, Calderon informed Boyle of

CCT’s decision to terminate the arrange-

ment, while making one last payment of

$3,600 (intended to represent six future

monthly payments). (18:167—168).

George Krickovich was employed by Eller

& Company, a Miami-based stevedoring op-

eration, throughout the period covered by

the indictment. Krickovich testified that in

early 1973, a 155-ton crane owned and oper-

ated 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 Eiler & Company

obtaining a contract to perform stevedoring

work for a shipping company thai 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 favor-

able treatment if four or five ghost employ-

ees 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 ar-

rangement. (51:196).

In January 1977, the covert portion of the

investigation terminated with the issuance

of numerous grand jury subpoenas. The

indictment was returned in June 1978 and

the case went to trial in January 1979. In

September 1979, the jury returned guilty

verdicts as to all nine appellants herein.

All of the appellants except Dorothy Ko-

pituk 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:

RR extortion (Count 3),

18 U.S.C. § 1951, 18 U.S.C. § 2; sub-

stantive Taft-Hartley Act violations

(Counts 4, 6, 7, 11, 12, 18, 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).

re extortion (Count 3), 18

U.S.C. § 1951, 18 U.S.C. § 2; substan-

tive Taft-Hartley Act violations

(Counts 4, 5, 6, 7, 8, 9, 11, 13, 16, 17, 19,

20, 22, 24, 27, 32, 35, 59, 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), 1% U.S.C. § 1503;

filing of false income tax returns

(Counts 63, 64, 65, 66 and 67), 26 U.S.C.

§ 7206(1).

a substantive Taft-Hart-

ley Act violations (Counts 17 and 24),

29 U.S.C. § 186, 18 U.S.C. § 2.

2la

BER cascnncad 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; sub-

stantive Taft-Hartley Act violations

(Counts 4, 8, 16, 27 and 43), 29 U.S.C.

§ 186, 18 U.S.C. § 2.

Williams... -.-..-.- substantive Taft-Hart-

ley Act violations (Counts 9 and 15), 29

U.S.C. § 186, 18 U.S.C. § 2.

Morales... ....-- substantive Taft-Hart-

ley 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).

R. Kopituk- ..-..- substantive Taft-Hart-

ley 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-Hart-

ley 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

{1] The central issue raised in this ap-

peal is whether the district court erred in

substituting an alternate juror for a dis-

abled regular juror after the jury had be-

gun deliberating.

At approximately 1:00 P.M. on Saturday,

August 11, 1979, the jury retired to begin

its deliberations. (99:144). The judge or-

dered that the two remaining alternate jur-

ors 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 dis-

UNITED STATES v. KOPITUK

cuss the case with anyone, telling the alter-

nates that “[(tJhere 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 deliberat-

ed 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 its deliberations on

Monday, August 13. On Wednesday, Au-

gust 15, the trial judge released the two

alternates from their sequestration and sent

them home. In so doing, the trial judge

specifically told the alternates that they

were “discharged.” (102:22-23). Never-

theless, he proceeded to instruct them to

avoid all newspaper and television coverage

of the trial “in the slim possibility that we

might still call you.” (102:23). He further

instructed them not to discuss the case with

anyone and not to leave the state until the

case was concluded. (102:23—24).

On Friday afternoon, August 17, the

court received a note from the foreperson

of the jury expressing concern as to the

mental condition of one of the jurors.

(104:4). The foreperson requested that the

jury be permitted to adjourn until Monday,

promising that she would monitor the con-

dition of the ill juror during the weekend.

(104:4). The trial judge granted the re-

quest and deliberations were suspended un-

til Monday, August 20. (104:6). On Mon-

day 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 foreper-

son stating that the jury would be unable to

continue deliberating until sorne action was

22a

UNITED STATES v. KOPITUK

taken with respect to the troubled juror.

(104:7).

A hearing was held that afternoon at

which the court, together with counsel, ex-

plored the juror’s condition. It became

readily apparent that the juror was mental-

ly 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 foreperson of the jury told the

court and counsel that the juror had been

hallucinating (104:46) and that she was ex-

tremely unstable, repeatedly alternating be-

tween states of elation and depression.

(104:46, 50). The ill juror had told the other

jurors of a revelation she experienced the

night of August 16 in which she realized she

was a genius with an IQ of 200 and that her

position as a juror in this case was part of a

divine mission. (104:33, 68-69).

On Tuesday, August 21, the court ar-

ranged 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.” Fol-

lowing extensive discussion with counsel,

the trial judge, without objection, ordered

that the incapacitated juror be discharged.

(105:25). When defense counsel objected to

proceeding with an ll-person jury, the

court adjourned for the remainder of the

23a

alternate juror should be recalled. (105:27-

28)."

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 accordarive

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 proceeded to examine each of the

remaining 11 regular jurors individually re-

garding their respective abilities to begin

deliberating anew. (106:73-141). Each

juror stated that he or she would be able to

disregard any opinions or conclusions previ-

ously 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 un-

derstandable desire to be reunited with

their families rather than to any obstacle

relating to their thought processes.

(106:73—-141).

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 in their hotel, having been

ordered not to discuss the case further until the

matter was resolved. (105:3). All of their

notes, verdict sheets and the indictment were

collected by the marshal and placed

under seal. (105:30-31; 106:63-64).

85 UNITED STATES v. KOPITUK

Accordingly, on Thursday, August 23, the

iternate juror was seated with the 11 oriy-

nal regular jurors and the court reinstruct-

d them in full. (107:36-106). As part of

he instructions, the court repeatedly em-

hasized that the jurors were duty-bound to

egin their deliberations afresh, disregard-

ng all of their previous deliberations.

107:36-39, 105-106). The jury then

4. The following excerpt demonstrates the ex-

traordinary extent to which the trial court

Stressed, even belabored, this point at the com-

mencement of the instructions:

As you will recall, yesterday I asked you

August 11.

I want to remind you now that each of you

stated you could do so, and I now instruct

you that you must do so. You must each put

out of your minds all the deliberations that

you have engaged in thus far. You must

consider the evidence in this case anew just

as you did when you first retired to deliberate

this case.

You must each determine to start anew

your consideration of each count and each

defendant. You must not let anything that

has happened in the course of the period you

have spent in deliberation in any way affect

N

retired and deliberated for just over one

week before returning its verdict on Sep-

tember 1, 1979.

Resolution of this issue, that is, whether

the trial court erred in substituting an al-

ternate juror for a disabled regular juror

after deliberations had begun, is controlled

by a recent decision of the United States

Court of Appeals for the Fifth Circuit,

defendant the right to a unanimous verdict,

reached only after full participation of the

twelve jurors who ultimately return verdicts.

That right can only be assured if the twelve

of you who now make up this jury begin

today as if no prior deliberations had ever

occurred.

The verdict of the jury cannot be unani-

mous unless each and every one of you

reaches the decision through deliberations

which are the common experience of all of

you. Each member of your group must have

the benefit of the opinions and deliberations

of the other eleven, and each of you must

heed the personal reactions and interreac-

tions of your fellow jurors, including your

new member.

I emphasize this point because it is essen-

tial under the law that you deliberate togeth-

er, among yourselves and without regard to

what may have occurred earlier.

Although this requirement that you start

deliberations anew may impose and undoubt-

edly does impose some hardship upon you in

terms of the time spent re-reviewing the evi-

dence of the trial, I am confident that each

one of you will follow this necessary proce-

dure.

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 under-

stand. It is to solve that problem that we are

proceeding the way that we are presently

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).

4a

UNITED STATES v. KOPITUK

United States v. Phillips, 664 F.2d 971 (5th

Cir. 1981), cert. denied, —— U.S. ——, 102

S.Ct. 2965, 73 L.Ed.2d 1354 (1982), wherein

it was held that such a procedure consti-

tutes reversible error only if the defendants

are prejudiced by the substitution. In Phil-

lips, the panel found that the procedural

safeguards taken by the trial judge (which

were expressly patterned after those em-

ployed by the trial judge in the instant

case) operated to obviate any danger of

unfair prejudice. 664 F.2d at 993.

The decision in Phillips is binding as

precedent in this circuit pursuant to the

Fifth Cireuit Court of Appeals Reorganiza-

tion Act of 1980, P.L. 96-452, $4 Stat. 1995.

Bonner v. City of Prichard, Alabama, 661

F.2d 1206, 1207 (11th Cir. 1981). Extrapo-

lating from that fact, it is clear that this

panel is bound by the Phillips decision be-

cause one panel of the court of appeals is

not permitted to overrule or reconsider the

decision of a prior panel. Branch v. Phillips

Petroleum Co., 638 F.2d 873, 877 (5th Cir.

1981); United States v. Alfrey, 620 F.2d

551, 555 (5th Cir. 1980).

The facts in Phillips were remarkably

similar to those in the instant case. Indeed,

Phillips approaches the status of the prover-

bial “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 sev-

eral defendants and lasted more than five

months. After the jury had been deliberat-

ing for approximately two days, one of the

regular jurors became iil 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

15. The Phillips decision was entered after the

briefs had been submitted in the case at bar,

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 alter-

nate 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 deliberations

anew. He also ordered that all notes and

other handwritten material compiled by the

jurors during deliberations be confiscated.

Finally, he reinstructed the jury in full,

particularly emphasizing their duty to com-

mence their delibers.aons with a clean slate.

664 F.2d at 991.

In Phillips, the appellate court was faced

with challenges that mirror those raised

herein, i.e., that substitution of an alternate

juror after the jury has commenced its de-

liberations violates the clear provisions of

Fed.R.Crim.P. 2A(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 in-

corporated within the Fifth Amendment.

Turning first to the constitutional argu-

ments, the Phillips panei found no per se

constitutional impediment to substitution of

an alternate after deliberations have begun

where good cause has been shown for the

substitution and where adequate safe-

guards, such as instructing the reconstitut-

ed jury that they must begin deliberating

anew, have been taken. 664 F.2d at 992-

993. In so finding, the court relied in part

but prior to oral argument.

25a

87 UNITED STATES v. KOPITUK

pon People v. Collins, 17 Cal.3d 687, 552

2d 742, 131 Cal.Rptr. 782 (1976), cert. de-

ied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d

96 (1977), wherein the California Supreme

ourt held that substitution of an alternate

uror after jury deliberations have begun is

ermissible under the California constitu-

ion. The California court determined that

o long as “a properly qualified alternate

uror is available and that juror fully par-

icipates in all of the deliberations which

pad to a verdict,” the right to jury trial is

ot violated. 131 Cal.Rptr. at 786, 552 P.2d

t 746. The Phillips panel found such rea-

oning to be equally applicable to the Fed-

ral Constitution and, therefore, dispositive

f appellants’ Sixth Amendment argument.

The appellants in Phillips also claimed, as

lo the appellants herein, that substitution

f the alternate juror operated to place

hem twice in jeopardy for the same of-

ense in violation of the Fifth Amendment.

‘hat argument was rejected offhandedly,

he 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 con-

sideration by a jury which includes a for-

mer alternate who has replaced a regular

juror during the trial before jury deliber-

ations have begun.

64 F.2d at 991-992 n.14.

Finally, with regard to appellants’ most

ressing argument, i.e., that substitution of

he alternate juror mandated declaration of

| mistrial because such a procedure is con-

rary to the express language of Fed.R

rim.P. 2A({c), the Phillips court commenced

ts analysis with a determination that Rule

A(c) is not constitutionally grounded. 664

"2d at 992.

Rule 24(c) reads in pertinent part as fol-

lows:

Alternate jurors in the order in which

they are called shall replace jurors who,

prior to the time the jury retires to con-

sider 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 dis-

charged 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 re-

versa! in all cases in which the rule was

violated. Rather, the appropriate inquiry,

according to the court, is whether the de-

fendants were prejudiced by the substitu-

tion. 664 F.2d at 993. In Phillips, the court

found that the precautions employed by the

trial judge sufficed to obviate any danger

of prejudice to the appellants, stating:

The safeguards utilized by the court neu-

tralized the possible prejudice to the ap-

pellants. We need not remand for an

evidentiary hearing on the issue of preju-

dice, [citing case], because we conclude

that the instructions to the jury to begin

anew, the jurors’ individual assurances

that they could in fact begin anew, and

the full participation of the substituted

alternate in the deliberations, which last-

ed six days, obviated the danger of undue

prejudice. On the record before us we

cannot discern that appellants were prej-

udiced by the substitution. The substitu-

tion procedure utilized by the court did

not deprive appellants of their right to a

full consideration of their cases by an

impartial jury panel.

664 F.2d at 996.

Having the benefit of Judge Johnson's

opinion in Phillips, further discussion of ap-

26a

UNITED STATES v. KOPITUK

pellants’ legal arguments relative to the

substituted juror question would be super-

fluous. Each of those arguments has been

effectively disposed of as a matter of legal

principle. All that remains is to apply Phil-

lips to the facts at bar.

It is of no small significance that the

safeguards approved in Phillips were for-

mulated in express reliance upon the dis-

trict court’s opinion previously entered in

the instant case. See United States v. Bar-

one, 83 F.R.D. 565 (S.D.Fila.1979). As in

Phillips, the trial judge in the instant case

extensively questioned the alternate juror

as to whether her continued fitness to serve

had been tainted by any extrinsic influence.

As in Phillips, the trial judge questioned

each remaining regular juror individually

and received assurances from all jurors that

they would commence their deliberations

anew. As in Phillips, the trial judge confis-

cated 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 pri-

or deliberations and begin afresh.

In Phillips, the panel noted that the jury

deliberated on its verdict for six days fol-

lowing 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, togeth-

er, may coerce the alternate juror into join-

ing in their position. See United States v.

Lamb, 529 F.2d 1153, 1156 (9th Cir. 1975).*

The fact that the jury continued to deliber-

ate 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.

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 decid-

ed to keep the alternates separately seques-

tered, he released them from their seques-

tration 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 jvror, the judge made an exten-

sive inquiry to satisfy himself and counsel

that the alternate had indeed obeyed his

instructions. Consequently, the fact that

the alternate juror was physically seques-

tered for only a portion of the time prior to

being substituted is not, in light of the

ter which one of the jurors requested to be

89 UNITED STATES v. KOPITUK

ther precautions taken by the trial court, a

istinguishing fact of such significance as

» command a different result.

Another factual distinction between this

ase and Phillips concerns the period of

ime the jury spent deliberating prior to

ubstitution of the alternate juror. As not-

d supra, in Phillips, the jury deliberated

or approximately two days before the reg-

lar juror became incapacitated and the

lternate was substituted. In the instant

ase, the jury spent a total of approximate-

y five days deliberating prior to substitu-

ion of the alternate.” Admittedly, the

urther along deliberations proceed, the

nore difficult it becomes to disregard them

nd begin anew. Nevertheless, the jurors’

ndividual assurances that they could and

ould begin deliberating anew, combined

rith the fact that the jury deliberated for a

ull week subsequent to substitution of the

Iternate juror, is sufficient indication that

he jurors were able to and did in fact obey

he court’s extensive instructions regarding

heir duty to eliminate all prior delibera-

7. 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 tran-

spired shows that actuai 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 evidentiary exhibits until the

17, when deliberations were suspended follow-

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

tions from their minds and begin with a

clean slate.

Finally, the facts of this case are distin-

guishable from those in Phillips in that the

trial judge, upon releasing the alternate

jurors from their sequestration, specifically

stated that they were “discharged,” where-

as, it is argued, no such statement was ever

made in the Phillips case. Appeilants fo-

cused on this point during oral argument,

although no attempt was made to explain

why such a distinction should be determina-

tive.* Although the trial judge used the

word “discharged” in sending the alternate

jurors home, he made it clear to them that

their duties as jurors had not necessarily

terminated. In fact, he expressly told them

that there was still a possibility that they

would be recalled and instructed them not

to discuss the case with anyone, to avoid all

media coverage of the case and to remain

within the state of Florida.

The tenor of appellants’ argument sug-

gests that it would have been acceptable for

the trial judge to have said, “Go home, I

with respect to the ill juror. The following

morning the court expressly instructed the jury

to cease all further deliberations until the prob-

lem 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, Au-

gust 24.

18. As the government points out in its brief,

since the trial court expressly “discharged” the

alternate jurors, it could be argued that Rule

24(c) was not even violated. The rule simply

states that the alternate “shall be discharged

after the jury retires to consider its verdict.” It

says nothing about whether the alternate jurors

can be recalled. While the government attor-

neys deserve credit for their ingenuity, we re-

ject this argument and assume that Rule 24(c)

was violated when the alternate juror was re-

called.

28a

UNITED STATES v. KOPITUK

release you,” or use any other combination

of words of similar import, so long as he did

not use the word “discharge.” We decline

to attribute any such talismanic quality to

that word and accordingly reject appellants’

argument on this point.

Our decision that substitution of the al-

ternate juror after deliberations had begun

does not constitute reversible error should

not be misconstrued as a stamp of approval

upon such a practice. As was true in Phil-

lips, 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 cor-

mitted 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 proce-

dure 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

19. Rule 8 reads as follows:

(a) Joinder of Offenses. Two or more of-

fenses may be charged in the same indict-

ment or information in a separate count for

each offense if the offenses charged, whether

felonies or misdemeanors or both, are of the

same or similar character or are based on the

_ Same act or transaction or on two or more

acts or transactions connected together or

constituting parts of a common scheme or

to grant any of their several motions to

sever certain offenses and/or defendants

from the trial below. Their arguments,

while somewhat convoluted, state claims of

misjoinder under Fed.R.Crim.P. 8 and im-

proper denial of relief from prejudicial join-

der under Fed.R.Crim.P. 14.

(1) Misjoinder

[2] 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.

&(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 &b) governs in cases involving multi-

ple defendants.” United States v. Levine,

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

States v. Park, 531 F.2d 754, 760 n.4 (5th

Cir. 1976); United States 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,

(b) Joinder of Defendants. Two or more

defendants may be charged in the same in-

dictment or information if they are alleged to

have participated in the same act or transac-

tion or in the same series of acts of transac-

tions 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.

29a

355 F.2d 700, 704-705 (ist Cir. 1966). See

generally 1 C. Wright, Federal Practice and

Procedure § 143, § 144 (1969). But see

United v. Diaz-Munoz, 632 F.2d 1330, 1335-

1336 (5th Cir. 1980).

Nevertheless, while it is clear that appel-

lants’ reliance upon Rule 8a) is misplaced,

this does not destroy their underlying argu-

ment on appeal, for the analysis under ei-

ther subsection is, with one exception, more

or less the same.” The critical difference

between the two subsections is that Rule

&(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 &b), offenses

may not be joined unless they arise out of a

series of acts or transactions, regardless of

how similar they may be in character. 1 C.

Wright, Federal Practice and Procedure

§ 144 (1969). That distinction, however,

does not bear on the resolution of this ap-

peal.

[3] The substance of appellants’ argu-

ment 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 for-

mer Fifth Circuit Court of Appeals reversed

UNITED STATES v. KOPITUK

the convictions of three defendants on the

ground that, inter alia, counts of the indict-

ment charging various income tax offenses

were improperly joined with counts charg-

ing embezzlement and insurance fraud.

632 F.2d at 1335—1336.2!

In Diaz-Munoz, the defendants moved

prior to trial for severance of the tax

counts, contending that they were totally

unrelated te 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 allega-

tions 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 in-

come to the Internai Revenue Service.”

632 F.2d at 1335. Accepting the govern-

ment’s representation that the counts would

be connected up at trial, the district court

denied the motions for severance.

At trial, however, the government failed

to produce any evidence tending to prove a

connexity between the tax counts and the

non-tax counts, and even conceded this

point at oral argument. 632 F.2d 1336.

The appellate panel found that in repre-

senting to the court that the counts were

part of a series of transactions, the govern-

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

reformulate the rules

ty of the provisions of Rule 8. Of course,

adherence to a subsection (b), rather than a

subsection (a), anaiysis in Diaz-Mupoz would

in no way have affected the result in that case,

since the critical term distinguishing the two

subsections (“of the same or similar charac-

ter”) was not at issue therein.

UNITED STATES v. KOPITUK

ment “assumed the risk that its proof would

fail” and, accordingly, had to bear the con-

sequences appertaining 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 net, 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,

1344-1345 (9th Cir. 1981); United States v.

McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977),

cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55

L.Ed.2d 765 (1978); United States v. Isaacs,

493 F.2d 1124, 1158-1159 (7th Cir.), cert.

denied, 417 U.S. 976, 94 S.Ct. 3184, 41

L.Ed.2d 1146 (1974). Assumably, had the

government been able to fulfill its pretrial

representation that the evidence would es-

tablish that the unreported income charged

in the tax counts constituted the proceeds

of the embezzlement and/or insurance

fraud offenses charged in the other counts,

the result in Diaz-Munoz would have been

different.

The pertinent focus in misjoinder claims

of this type is not upon the nature of the

22. Appellant Vanderwyde cites United States v.

Levine, 546 F.2d 658 (5th Cir. 1977), for the

offenses that are joined together, but upon

whether the terms of Rule &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 “se-

ries” of acts or transactions under Rule

&(b), there must be “substantial identity of

facts or participants” among the various

offenses. United States v. Marionneaux,

supra, 5i4 F.2d at 1249.

[4] It is well established that substan-

tive offenses arising out of a single conspir-

acy can properly be joined, since the con-

spiracy provides a common link connecting

the offenses. United States v. Phillips, su-

pra, 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. Som-

ers, 496 F.2d 723, 729-730 (3d Cir.), cert.

denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d

58 (1974); 1 C. Wright, Federal Practice

and Procedure § 144 (1969). In other

words, the fact that the substantive of-

fenses emanated from a single, central con-

spiracy is a sufficient indication that sub-

stantial identity of facts or participants ex-

ists among the offenses.

In the instant case, the government al-

leged and succeeded in proving that the tax

counts and the non-tax counts were part of

a series of acts or transactions arising from

part separate

and distinct conspiracies. 546 F.2d at 665-666.

The court simply held that there was an insuffi-

cient identity of facts or participants involved

in the two ies to constitute a “series”

of acts under Rule 8(b). 546 F.2d at 666.

the conspiracy and criminal enterprise

charged in Counts 1 and 2 of the indict-

ment, 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 ap-

pellants 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 Bar-

one and Boyle stemmed from funds they

received as a result of their participation in

the conspiracy and the criminal enterprise

that constituted the foundation for all the

other charges against them. Similarly, the

government’s proof showed that the unlaw-

ful business deductions claimed by Morales

and the Kopituks on behalf of Florida

Welding Services Corp. stemmed from ille-

gal payments they made in connection with

their participation in the conspiracy and

criminal enterprise.

The tax offenses were thus part of a

series of acts committed in furtherance of

the overall conspiracy. In the case of the

unreported income received by Boyle and

Barone, the filing of false income tax re-

turns 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 crimi-

23. Since Rule 8 was designed to facilitate trial

convenience and efficiency by avoiding duplica-

tive proceedings, see 8 J. Moore, Moore’s Fed-

eral Practice ¥ 8.02[1] (2d ed. 1981), it is note-

portion of the proof necessary to prosecute the

tax offenses.

24. Rule 14 reads in pertinent part as follows:

UNITED STATES v. KOPITUK

nal enterprise. As for the fraudulent de-

ductions claimed on behalf of Florida Weld-

ing Services Corp., the preparation of false

corporate income tax returns enabled the

Kopituks and Morales to minimize the ad-

verse financial impact of the illegal payoffs

they were making in order to acquire

waterfront business.“ Accordingly, since

the tax offenses arose directly and solely

out of the other offenses committed in fur-

therance of the conspiracy, they were prop-

erly ioined under Rule &b).

(2) Prejudicial Joinder

[5] Fed.R.Crim.P. 8 sets “the limits of

tolerance” on the process of joinder of of-

fenses 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. Le-

vine, supra, 546 F.2d at 661; United States

v. Marionneaux, supra, 514 F.2d at 1248;

United States v. Bova, supra, 493 F.2d at

35-36.

[6,7] Nevertheless, joinder of defend-

ants or offenses, even though proper under

the terms of Rule 8, can be so prejudicial as

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

14™ The decision of whether relief is ap-

propriate under Rule 14, however, is en-

trusted to the sound discretion of the dis-

trict court and is reviewable on appeal only

If it appears that a defendant or the

government is prejudiced by a joinder of of-

fenses or of defendants in an indictment or

information or by such joinder for trial to-

gether, the court may order an election or

separate trials of counts, grant a severance of

defendants or provide whatever other relief

justice requires.

32a

UNITED STATES v. KOPITUK

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, su-

pra, 514 F.2d at 1248; Tillman v. United

States, 406 F.2d 930, 933 n.5 (5th Cir.),

vacated on other grounds, 395 U.S. 830, 89

S.Ct. 2143, 23 L.Ed.2d 742 (1969).

Having determined that joinder in this

case was proper under Rule 8, it becomes

necessary to consider appellants’ claims of

prejudicial joinder under Rule 14. Some of

these claims raise constitutional questions

which, while distinct from the issue of join-

der, are nevertheless related. Accordingly,

they will be dealt with in this section.

{8} Appellants Turner, Williams, Mo-

rales and the Kopituks contend that they

were prejudiced by the existence of antago-

nistic defenses that resulted from the

government’s decision to jointly indict both

the union officials and the waterfront em-

ployers, and that the lower court erred in

denying their respective motions for sever-

ance. The crux of this argument concerns

the defense of co-defendant Neal L. Har-

rington, a waterfront employer who was, in

fact, ultimately severed during trial.

Harrington, as noted in the facts section

of this opinion, was co-owner of a Miami-

based steamship agency and stevedoring

company during the period covered by the

indictment. He was charged with making

illegal payoffs to union officials in return -

for labor peace. At the beginning of trial,

counsel for Harrington informed the court

of Harrington’s intention to rely upon an

“economic Curess” theory of defense, i.e.,

Harrington would admit making illegal

payoffs to union officials but would claim

that he did so under economic coercion.

Counsel for Harrington told the court and

other counsel that he intended to pursue

this course in his opening statement.

Several of the appellants moved for a

severance at that point, contending that

Harrington’s position was prejudicial to

their own, since they would be denying any

and all participation in the criminal enter-

prise. 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 instruct-

ed counsel for Harrington to limit the scope

of his opening statement to what he be-

lieved the government would or would not

be able to prove with respect to his client

alone. The court told counsel for Harring-

ton 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 Govern-

ment’s evidence will show that physicaily

certain things took place; physically certain

money passed.” (4:110). Further on, he

stated: “Now, the Government has indi-

cated in its opening statement—and I con-

cur that the evidence will show that that

was a way of life on the docks—the Govern-

ment has contended in their opening state-

ment that the enterprise.” (4:111). At

that point, an objection was interposed and

sustained, and the court advised counsel to

remember the previous order. No other

statements were made that even remotely

implicated Harrington's co-defendants.

Late in the trial, but before Harrington

ever had an opportunity to introduce evi-

dence on his own behalf to support his

economic duress theory, the court ordered

33a

him severed from the trial. Appellants con-

tend that the district court abused its dis-

cretion when it failed, alternatively, to sev-

er Harrington at the beginning of the trial

or to sever them once it became apparent

that Harrington's defense was clearly irrec-

oncilable with their own.

[9] To show an abuse of discretion by a

district court in refusing to gr«nt a motion

for severance, a defendant must demon-

strate that the joint trial subjected him to

compelling prejudice against which the trial

court was unable to afford protection.

United States v. Harper, 11 Cir. 1982, 680

F.2d 731; United States v. Kabbaby, supra,

672 F.2d at 861; United States v. Tombrel-

lo, 666 F.2d 485, 492 (11th Cir. 1982); Unit-

ed 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 irreconcila-

ble 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. Swan-

son, supra, 572 F.2d at 529.

In the case sub judice, the trial court

ultimately became convinced that Harring-

ton’s defense was irreconcilable with those

of his co-defendants and ordered that he be

severed from the trial. In so doing, the

court fulfilled its “continuing duty at all

stages of the trial to grant a severance if

prejudice does appear.” Schaffer v. United

States, 362 U.S. 511, 516, 80 S.Ct. 945, 4

L.Ed.2d 921 (1960). Consequently, the only

question is whether the action of the trial

court in severing Harrington was “too little,

too late,” that is, whether appellants had

already suffered compelling prejudice war-

ranting reversal of their convictions. We

think not.

UNITED STATES v. KOPITUK

Appellanis rely upon United States v.

Johnson, 478 F.2d 1129 (5th Cir. 1973), and

United States v. Crawford, supra, to sup-

port their position, but each case is readily

distinguishable. In Johnson, two defend-

ants, 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 Johnson and a third party.

As the appellate panel observed, “[a] study

of the record reveal[ed] that Smith’s attor-

ney implicated Johnson at every opportuni-

ty.” 478 F.2d at 1133.

Accordingly, the court of appeals re-

versed Johnson’s conviction, finding that,

while severance was not mandatory prior to

trial, “as the trial progressed it became

clear that the prejudice to Johnson of de-

fending at a joint trial with Smith out-

weighed any possible disruption in the judi-

cial process which would result from having

separate trials.” 478 F.2d at 1134. In so

finding, the court noted that there were

only two defendants “and it would not have

been very time consuming, but entirely

practicable, to have accorded them separate

trials.” 478 F.2d at 1134.

In United States 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 excul-

pated himself at every opportunity.

34a

UNITED STATES v. KOPITUK

Crawford, on the other hand, attempted

to show that he was not culpable because

Blanks alone had possession of the fire-

arm. Each was the government’s best

witness against the other. Each defend-

ant had to confront not only hostile wit-

nesses presented by the government, but

also hostile witnesses presented by his

co-defendant.

581 F.2d at 492. In light of such circum-

stances, the court reversed the convictions,

noting that “[bJecause the evidence was un-

complicated 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 preju-

dice 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, rath-

er than separate, trials. The degree of

prejudice suffered by the defendants in the

Johnson and Crawford cases was truly com-

pelling. In both cases, there were, in ef-

fect, two prosecutors—the government and

the co-defendant. The defendants in John-

son and Crawford, respectively, were insep-

arably intertwined due to the fact that, in

each case, there were only two defendants

charged with a single offense. This made it

impossible for any defendant to escape the

prejudicial impact ensuing from his co-de-

fendant’s “He did it” defense. Despite this

fact, the trial court in each case refused to

grant a severance even when the irreconcil-

able nature of the defenses clearly mani-

fested itself.

25. It is unlikely that these two statements,

made at the opening of trial, played any part in

396

To the contrary, in the instant case, the

trial judge properly exercised his authority

to sever Harrington once it became appar-

ent that his defense was irreconcilable with

that of the defendant union officials. Con-

sequently, unlike the situation in Johnson

and Crawford, Harrington never had the

opportunity to offer his testimony or other

evidence directly implicating his co-defend-

ants.

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, Har-

rington’s counsel stated that the govern-

ment’s evidence would show that “physical-

ly certain money passed” and acknowledged

that such conduct was a “way of life on the

docks.” > Beyond that, appellants oblique-

ly refer to the antagonistic nature of Har-

rington’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. More-

over, because there were many defendants

and many charges involved in the trial be-

low, there was no “inseparable intertwin-

ing” between Harrington and the other de-

fendants. Any negative implications raised

by Harrington’s counsel were thus diffused,

rather than concentrated upon any particu-

lar individual, thereby diminishing the like-

lihood 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

the jury’s verdicts returned more than seven

months later.

35a

397

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 admis-

sion 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 argu-

ment, 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 dimin-

ished 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 appel-

lants 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 min-

imal demand that the holding of separate

trials would make upon judicial resources

inasmuch as the original joint trials were

uncomplicated and involved only two de-

fendants. Conversely, trial of the instant

case lasted seven months, involved 12 de-

fendants, and necessitated the calling of 130

witnesses. The demand upon scarce judi-

cial resources was enormous. Because it

UNITED STATES v. KOPITUK

was necessary to prove the existence of the

criminal enterprise and underlying conspir-

acy with respect to each defendant, a sub-

stantial portion of the government’s proof

would necessarily have had to be repeated

for each defendant who was granted a sep-

arate trial. The interest of judicial econo-

my was thus well-served by proceeding

with a joint trial.

Of course, the interest of the public and

the government in efficiently utilizing judi-

cial resources would never justify denying a

person a fair trial. If a person demon-

strates that he will incur compelling preju-

dice if forced to undergo a joint trial, a

severance must be granted, regardless of

the impact on judicial economy. Neverthe-

less, it must be recognized that joint trials

involving numerous defendants and of-

fenses almost inevitably present a danger

of some degree of prejudice to the partici-

pants. 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 allega-

tions of prejudice against the interest of

judicial economy and concommitant policy

favoring joint trials in conspiracy cases.

United States v. Mota, supra, 598 F.2d at

1000; United States v. Swanson, supra, 572

F.2d at 528.

We find that the degree of prejudice suf-

fered by appellants resulting from the trial

court’s refusal to sever defendant Harring-

ton until late in the trial was slight when

compared with the substantial countervail-

ing interest of judicial economy. Accord-

ingly, the trial court did not abuse its dis-

cretion in denying appellants’ motions to

sever based upon Harrington’s antagonistic

defense.

36a

UNITED STATES v. KOPITUK

{10} 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 ciosing 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

witnesses against him was violated because

he was unable to cross-examine Boyle, who

declined to testify at trial.

This argument is fatally flawed by the

fact that none of the statements made by

Boyle’s attorney incriminated Field or any

of the other appellants. The statements of

™-vle’s counsel merely conceded that Boyle

alone, one of 12 defendants on trial, com-

mitted some violations of the Taft-Hartley

Act. As such, they were insufficient justi-

fication to characterize Boyle as a “witness

against” Field so as to entitle Field to the

rignt to cross-examine Boyle. It simply

cannot be said that the statements at issue

seriously prejudiced any of the appellants,

particularly in light of the court’s numerous

instructions to the jurors that they were to

evaluate each defendant and the charges

and evidence against him (or her in the case

of Dorothy Kopituk) separately. (99:58,

63-64, 185; 101:76; 107:40, 4445, 94).

Field also contends that, since he was

unable to cross-examine Boyle regarding his

admissions, he should have been permitted

to comment upon Boyle’s decision not to

testify. In support of this contention, Field

relies upon DeLuna v. United States, 308 F.

2d 140 (5th Cir. 1962). In DeLuna, two de-

fendants, DeLuna and Gomez, were jointly

26. Williams raises this claim, but does not ar-

indicted on a federal narcotic charge. They

were arrested after police observed Go-

mez 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 stard, telling

the jury that “at least one man was honest

enough and had courage enough to take the

stand and subject himself to cross examina-

tion, 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 over-

turned. The panel concluded that he had

an absolute privilege to exercise his right to

remain silent free from the prejudicial com-

ments of his co-defendant’s attorney. The

panel found further, however, that counsel

for Gomez had a duty to make such prejudi-

cial comments for the benefit of his client,

stating:

If an attorney's duty to his client should

require him to draw the jury's attention

to the possible inference of guilt from a

co-defendant’s silence, the trial judge’s

duty is to order that the defendants be

tried separately.

308 F.2d at 141.

In United States v. Kahn, 381 F.2d 824

(7th Cir. 1976), the Seventh Circuit Court of

Appeals construed the right recognized in

DeLuna as limited to situations where it is

shown that “real prejudice” w result un-

less the defendant is allowed to comment

upon the failure of his co-defendant to tes-

tify. 381 F.2d at 840.

gue it in any detail.

37a

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-de-

fendant’s exercise of his right against

self-incrimination. The procedural diffi-

culties and the complication of joint trials

arising from the rule suggested by dicta

in DeLuna are so great that we caanot

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 testi-

fy. More importantly, because the state-

ments of Boyle’s counsel did not inculpate

Field or any other defendant, there was no

basis under the law emanating from DeLu-

na 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.

[11] Appellant Williams next contends

that he was prejudiced by a joint trial in

that he was prohibited from eliciting Teit-

lebaum’s testimony concerning a discussion

UNITED STATES v. KOPITUK

in which appellant Boyle told him that Wil-

liams might have to be killed. At one point

during the course of the conspiracy, Wil-

liams was running for a higher union office

and had, according to Teitlebaum, threat-

ened to report appellants Turner and Field

to the Department of Labor and the Inter-

nal 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). Conse-

quently, 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.

{12] Determinations as to the relevance

of evidence are well within the broad dis-

cretion of the trial court and will not be

disturbed on appeal absent a showing that

the trial court abused its discretion. Wil-

liams v. Hoyt, 556 F.2d 1336, 1339 (5th Cir.

1977), cert. denied, 435 U.S. 946, 98 S.Ct.

1530, 55 L.Ed.2¢ 544 (1978); United States

v. Linetsky, 583 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 testimo-

ny of Teitlebaum’s conversation with Boyle.

[13] Several appellants claim they were

prejudiced by the length and complexity of

the joint trial. These factors, appellants

claim, combined to deprive them of a fair

trial because it was impossible for the jury

to reach an intelligent individualized verdict

with respect to each defendant. Admitted-

38a

UNITED STATES v. KOPITUK

ly, the proportions of the trial below were

somewhat extraordinary: 12 defendants,

130 witnesses, 22,000 pages of trial tran-

script, seven months of trial, 70-count in-

dictment. Nevertheless, while we do not

endorse the government’s modern penchant

for drawing together evermore complex

and extensive conspiracies into a single in-

dictment, 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 1733;

United States v. Kabbaby, supra, 672 F.2d

at 861; United States v. Tombrella, supra,

666 F.2d at 492; United States v. Swanson,

supra, 572 F.2d at 528.

The pertinent inquiry in reviewing this

question on appeal is whether the jury was

able to “individualize each defendant in his

relation to the mass.” Kotteakos v. United

States, 328 U.S. 750, 773, 66 S.Ct. 1239,

1252, 90 L.Ed. 1557 (1946). The correlative

concern is that the jury may allow the

evidence produced with respect to one de-

fendant or one offense to “spillover” and

influence their decision regarding a differ-

ent defendant o a different offense. The

most efficacious tool to protect against this

danger is a clear cautionary instruction

from the trial court as to the duty of the

jurors to consider each defendant and the

evidence against him or her separately.

United States v. Morrow, 537 F.2d 120, 136

(5th Cir. 1976), cert. denied, 430 U.S. 956, 97

S.Ct. 1602, 51 L.Ed.2d 806 (1977). The most

telling, and really the only, means through

which to measure the jurors’ collective ad-

herence to such an instruction is to look at

the verdict. Convictions will generally be

upheld if it can be inferred from the verdict

that the jury “meticulously sifted the evi-

dence” 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 con-

sideration 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 re-

turned split verdicts as to four of the nine

appellants and was unable to reach a ver-

dict at all as to one defendant.

In reaching our determination that appel-

lants were not unduly prejudiced by the

length ard complexity of the joint trial, we

are guided by recent cases of similar magni-

tude 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 cau-

tionary instructions sufficed, as evidence by

the jury’s verdict, to minimize any perni-

cious effect that might otherwise have re-

sulted from the length and complexity of

39a

401

the joint trial.” Finally, we would be re-

miss in failing to note that where, as in the

case herein, conspirators have created an

extensive and far-flung conspiracy, devious-

ly constructed and pursued, it is their un-

lawful conduct that produces a complex tri-

al and, accordingly, they have no basis to

insist that they be insulated from its com-

plexities.

[14] The final severance issue warrant-

ing discussion is appellant 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 Division of the United States

District Court for the Middle District of

Florida.

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 defend-

ants 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 con-

venience 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.

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

UNITED STATES v. KOPITUK

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 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 ac-

commodations in and travel to Miami, as

well as the expenses and fees of his attor-

ney. The motion was denied.

The prejudice of which Williams com-

plains 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

to the filing of his Rule 21 motion. In Cagnina

v. United States, 223 F.2d 149 (Sth 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, al-

though he apparently did so in the lower court,

that venue was improperly !aid in the Southern

District of Florida. Venue in a conspiracy case

is proper in any judicial district in which the

conspiratorial agreement was formed or in any

district where an overt act was committed in

furtherance of the conspiracy. Hyde v. United

States, 225 U.S. 347, 363, 32 S.Ct. 793, 800, 56

L.Ed. 1114 (1912); United States 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, 208

(5th Cir. 1965). Clearly, the bulk of the overt

acts charged in the indictment occurred in Mi-

ami. Similarly, it appears clear that the under-

lying agreement was formulated in Miami.

40a

UNITED STATES v. KOPITUK

was also permitted to absent himself from

the proceedings on numerous occasions. On

appeal, the absences of Williams’ attorney

are attributed to an effort to reduce the

expenses he would ctherwise 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 en-

listed the services of another attorney in

the case and made it clear to the court that

the other attorney “has been regularly asso-

ciated 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 ex-

cused from the trial proceedings. It was,

after all, a seven month trial. This was

generally permitted, however, only at times

where it was clear that the on-going pro-

ceedings would not directly involve the ab-

sent defendant or attorney. (14:223). Sig-

nificantly, Williams does not point to any

particular event that resulted in prejudice

to him. He does not, e.g., claim that he was

unable to effectively cross-examine any

witness against him, that he was unable to

contest the admissibility of any material

evidence against him, or that he was unable

to pursue any particular line of defense.

It undoubtedly would have been more

convenient for Williams to have undergone

trial in Jacksonville rather than Miami. It

was not, however, patently unfair to force

Williams to stand trial in Miami. While

most of the illegal activity charged against

Williams transpired in Jacksonville, it was

not limited solely to that city. His outside

activity included: accepting the $400 “down

payment” on Teitlebaum’s Jacksonville op-

eration while in Miami; requesting Boyle,

who was in Miami, to obtain some cruise

tickets from Teitlebaum, who was also in

Miami; and conducting the union contract

negotiation meeting with Ramon DeMott

and James Hodges in Savannah. Thus, as

the government notes in its brief, this is not

a case where a defendant who has engaged

in no misconduct outside his home district is

hauled away to some remote district to

stand trial.

Moreover, Rule 21 accords weight not

just to the convenience of the defendant,

but to the convenience of all “parties and

witnesses.” We have already discussed the

government’s interest in judicial economy

and how the “convenience” of the govern-

ment is fostered by the policy favoring joint

trials for persons who are properly joined

together in a single indictment. If Wil-

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”

the strain. (37:148-149). Accordingly, he re- concerns a to those of his client. Williams, of

quested that attorneys in the case not be re- course, had the option of retaining a Miami-

quired to be present unless “we absolutely based attorney from the beginning.

4la

liams was entitled to a separate trial in

Jacksonville, then surely co-defendant Eli-

zah Jackson was entitled to a separate trial

in Savannah and co-defendant Isom Clemon

was entitled to a separate trial in Mobile.

Such an approach, however, would deprive

the valid interest in judicial economy of all

force. Rather than try each defendant sep-

arately in his respective place of residence,

the government chose the next best op-

tion—it sought and obtained a joint indict-

ment in Miami, the most convenient forum

for the overwhelming majority of witnesses

and defendants.

(15, 16] A criminal defendant does not

have a constitutional right to be tried in the

district encompassing his residence. Platt

v. Minnesota Mining and Manufacturing

Co., 376 U.S. 240, 245, 84 S.Ct. 769, 772, 11

L.Ed.2d 674 (1964). Since venue properly

laid in the Southern District of Florida (see

note 30, supra), Williams was properly in-

dicted and brought to trial in Miami. The

decision of whether to grant Williams’ mo-

tion to transfer under Rule 21 was within

the trial court’s discretionary authority and

is reviewable only for abuse of discretion.

United States v. Pry, 625 F.2d 689, 691 (5th

Cir. 1980), cert. denied, 450 U.S. 925, 101

S.Ct. 1879, 67 L.Ed.2d 355 (1981); United

States v. Juarez, 573 F.2d 267, 280 (5th

Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289,

58 L.Ed.2d 262 (1978); United States v.

Walker, 559 F.2d 365, 372 (5th Cir. 1977).

The policy favoring joint trials in conspir-

acy cases, the convenience of most of the

witnesses and defendants, and the fact that

Williams has failed to particularize any real

prejudice, all lead to the conclusion that the

trial court did not abuse its discretion in

refusing to sever Williams and transfer his

case to Jacksonville.

UNITED STATES v. KOPITUK

C. SUFFICIENCY OF EVIDENCE

Six of the nine appellants (Field, Vander-

wyde, Williams, Morales, Raymond Kopituk

and Dorothy Kopituk) argue that the evi-

dence produced at the trial below was legal-

ly insufficient to support their convictions.

The standard to be applied in reviewing

such claims is “whether a jury could reason-

ably find that the evidence was inconsistent

with every reasonable hypothesis of inno-

cence or, put another way, whether a rea-

sonably minded jury must necessarily enter-

tain a reasonable doubt of the defendant’s

guilt.” United States v. Marx, 635 F.2d

436, 438 (5th Cir. 1981); accord, United

States v. Arrendondo-Morales, 624 F.2d 681,

683-684 (5th Cir. 1980); United States v.

Rodgers, 62A F.2d 1303, 1306 (5th Cir. 1980);

United States v. Witt, 618 F.2d 283, 284

(5th Cir.), cert. denied, 449 U.S. 882, 101

S.Ct. 234, 66 L.Ed.2d 107 (1980).

In making that determination, we must

view all the evidence in the light most

favorable to the government, accepting all

reasonable inferences and credibility choices

that tend to support the jury’s verdict.

Hamling v. United States, 418 U.S. 87, 124,

94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974);

Glasser v. United States, 315 U.S. 60, 80, 62

S.Ct. 457, 469, 86 L.Ed. 680 (1942); United

States v. Marx, supra, 635 F.2d at 438;

United States v. Arrendondo-Morales, su-

pra, 624 F.2d at 684; United States v. Mid-

dlebrooks, 618 F.2d 273, 278 (5th Cir.), cert.

denied, 449 U.S. 984, 101 S.Ct. 401, 66

L.Ed.2d 246 (1980).

[17] As noted supra, all of the appel-

lants herein, with the exception of Dorothy

Kopituk, were convicted on the two RICO

charges (Counts 1 and 2). The essential

elements of a substantive RICO offense, 18

U.S.C. § 1961 et seg., which the govern-

ment must prove beyond a_ reasonable

42a

UNITED STATES v. KOPITUK

doubt, are: (1) the existence of an enter-

prise; (2) that the enterprise affected inter-

state commerce; (3) that the defendant was

employed by or associated with the enter-

prise; (4) that he participated, either direct-

ly or indirectly, in the conduct of the affairs

of the enterprise; and (5) that he partici-

pated through a pattern of racketeering

activity, ie., through the commission of at

least two racketeering acts. United States

v. Martino, supra, 648 F.2d at 394.

{18} Culpability under the conspiracy

provision of the RICO Act, 18 U.S.C.

§ 1962(d), is established by a showing that

the defendant manifested his assent to par-

ticipate, either directly or indirectly, in the

affairs of the conspiracy through the com-

mission of two or more predicate crimes.

United States v. Elliott, 571 F.2d 880, 903

(5th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct.

349, 58 L.Ed.2d 344 (1978). It is, of course,

unnecessary to prove that a conspirator had

full knowledge of every detail concerning

the conspiracy. Rather, it is sufficient to

show that he had knowledge of the “essen-

tial nature of the pian.” United States v.

Elliott, supra, 571 F.2d at 903, quoting

United States v. Brasseaux, 509 F.2d 157,

160 n.3 (5th Cir. 1975).

[19] Moreover, participation in a con-

spiracy need not be proved by direct evi-

dence. It can be inferred from a “develop-

ment and a collocation of circumstances.”

United States v. Malatesta, 590 F.2d 1379,

1381 (5th Cir.) (en banc), cert. denied, 440

U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777

(1979), quoting Glasser v. United States,

supra, 315 U.S. at 80, 62 S.Ct. at 469. A

defendant’s participation in a conspiracy

32. Title 29 U.S.C. § 186(b)(1) makes it unlaw-

ful for any union officer “to- request, demand,

receive, or accept, or agree to receive or accept,

404

may be inferred from acts of his which

furthered the objectives of the conspiracy.

United States v. Marx, supra, 635 F.2d at

439; United States v. Middlebrooks, supra,

618 F.2d at 278. Keeping these legal princi-

ples in mind, we will proceed to consider

appellants’ insufficiency of the evidence

claims seriatim:

Field

Appellant Field was convicted on the

RICO and RICO conspiracy charges (Counts

1 and 2) and on two charges of violating

Section 186 of the Taft-Hartley Act, 29

U.S.C. § 141 et seg. (Counts 17 and 24).

While he contends that the sum total of the

evidence against him was insufficient to

support his conviction on any of those

charges, his primary argument is that the

district court erred in admitting coconspira-

tor declarations against him. Without ref-

erence to those declarations, he argues, the

court would have had no choice but to ac-

quit him on all charges.

Prior to trial, the court held a three day

hearing for the purpose of determining the

admissibility of extra-judicial co-conspirator

declarations against each of the defendants.

Although such a hearing was held prior to

entry of the en banc decision in United

States v. James, 590 F.2d 575 (5th Cir.),

cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61

L.Ed.2d 283 (1979), there is no dispute that

the trial court employed the correct legai

standard, as enunciated in James, in ruling

that the co-conspirators’ out-of-court decla-

rations were admissible against Field.

[20,21] James requires a showing that,

to be admissible under Fed.R.Evid.

any payment, loan, or delivery of any money or

other thing of value ....” from any employer,

with certain exceptions not applicable herein.

43a

801(d\(2XE), a co-conspirators’ extrajudicial

declaration must have been made: (1) by a

person who conspired with the party

against whom the declaration is offered;

(2) during the course of the conspiracy; and

(3) in furtherance of the conspiracy. Unit-

ed States v. James, supra, 590 F.2d at 578.

The standard of proof governing the admis-

sibility of the declarations in a pretrial con-

text is one of substantiality. There must be

substantial evidence, independent of the

declarations themselves, sufficient to satis-

fy the three-part test set forth above. 590

F.2d at 581. If, however, co-conspirator

declarations are admitted pursuant to a

finding that there is “substantial” evidence

that the defendant was a member of the

conspiracy and that the declarations were

made by a co-conspirator during the course

of and in furtherance of the conspiracy, the

defendant may, upon motion made at the

conclusion of all the evidence, require the

trial judge to re-evaluate the admissibility

of the declarations by determining, at that

point, where a preponderance of the evi-

dence on that issue lies. United States v.

Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert.

denied, 449 U.S. 956, 101 S.Ct. 363, 66

L.Ed.2d 220 (1980).

UNITED STATES v. KOPITUK

was a member of the conspiracy. The

independent evidence against Field showed

that in 1966 Field solicited a $3,000 payoff

from Teitlebaum. While Field points to the

fact that it was one of his associates, Benny

Astorino, who first asked Teitlebaum for

the money, the evidence was more than

sufficient to infer that Field was the moti-

vating force behind Astorino’s request. It

was Field who initiated the Miami checkers’

union, it was Field who asked Teitlebaum if

there was someplace they could talk pri-

vately, and it was Field who brought Asto-

rino along on the subsequent fishing trip

with Teitlebaum. (9:83-85). Teitlebaum

testified that Field was sitting only eight

feet behind him when Astorino stated that

Field was coming to Miami to establish a

new checkers’ union, that it would be in

Teitlebaum’s “best interest” to do business

with him, and that Teitlebaum could dem-

onstrate his good faith by paying him

$8,000. (9:86-88). Finally, it was Field

himself who called Teitlebaum to ask if he

had “had a change of heart about the three

aces.” (9:92).™

In 1973, when Teitlebaum expressed in-

terest in the Mamenic Line account, Field

promised that he would assist him in acquir-

ing it. (5:189-191). Field eased Teitle-

baum’s concerns regarding a Mamenic repre-

this contention, but that case is inapposite. In

Solis, it was held that evidence concerning the

defendant’s prior crimes “did not, without

more, supply substantive proof” of his partici-

pation in a later, unrelated conspiracy. 612

F.2d at 934. In the instant case, evidence of

the 1966 solicitation was not admitted to show

participation in a later, unrelated conspiracy.

To the contrary, the 1966 incident was charged

as part of the conspiracy for which Field was

on trial (the first three overt acts of the con-

spiracy count [Count 1] relate to the 1966 solic-

itation from Teitlebaum).

44a

UNITED STATES v. KOPITUK

sentative who was working for a competing

stevedoring company by telling him that

the representative would be “taken care

of.” (20:14). Teitlebaum reported to Bar-

one that Field had promised to kelp him

obtain the Mamenic account and Barone,

after checking into the matter, told Teitle-

baum whom to contact within the Mamenic

company. (20:21—23). In June 1974, Teit-

lebaum’s company entered into a contract

with the Mamenic Line. Teitlebaum com-

pensated the union officials for their assist-

ance by purchasing three sets of cruise tick-

ets which he gave to appellant Boyle.

(20:29--30).

In 1976, Field and other union officials

solicited tickets from Teitlebaum for a

Christmas cruise aboard the Mardi Gras.

Appellants Field, Boyle, Barone, and Van-

derwyde were all present when Teitlebaum,

under pressure from Boyle, telephoned a

cruise line representative named Meshulam

Zonis and attempted to persuade Zonis to

acquire the cruise tickets for him at a re-

duced charge.* (25:152-155). The repre-

sentative insisted that it was impossible for

him to do so because the cruise was com-

pletely booked. After Teitlebaum’s efforts

failed, Boyle unsuccessfully attempted to

persuade the cruise line representative to

procure the tickets by warning him that

contract renewal time was approaching.

(25:156). When it appeared that all further

efforts at acquiring the tickets would be

futile, Field cursed at Teitlebaum, said that

he was not going on the cruise and warned

Teitlebaum that he would “repent.”

(25:157). Field asserts that his refusal to

go on the cruise demonstrated that he never

participated in the solicitation of the cruise

tickets. The fallacious nature of that asser-

35. Contrary to Field’s assertion that the entire

conversation between Teitlebaum and Zonis

was spoken in Yiddish, Zonis testified that Teit-

tion becomes clear, however, when one

views the entire episode in context. Field’s

angry refusal to go on the cruise came only

after it was clear that Teitlebaum was un-

able or unwilling to purchase the tickets at

their full price.

The final piece of independent evidence

tending to prove Field’s participation in the

conspiracy occurred in the latter part of

1976 when Field had dinner with Ramon

DeMott and James Hodges in Savannah.

When Hodges and DeMott complained that

their Charleston operation floundered be-

cause they were never given the opportuni-

ty to submit bids, Field responded, “Don’t

expect anything for nothing.” (11:143).

While that statement may not have

amounted to a solicitation of money, it did

bear on Field’s knowledge of and participa-

tion in the conspiracy.

We believe that the evidence against

Field, independent of any extrajudicial dec-

larations by his co-conspirators, was suffi-

cient to establish Field’s membership in the

conspiracy by a preponderance of the evi-

dence so as to render the statements of his

co-conspirators admissible against him.

The independent evidence showed Field

personally pressured Teitlebaum for an ille-

gal payoff, furthered the goals of the con-

spiracy by helping Teitlebaum acquire the

Mamenic account for which the union offi-

cials were compensated with cruise tickets,

and participated in the solicitation of tick-

ets from Teitiebaum for the 1976 Christmas

cruise. Moreover, his statement to DeMott

and Hodges summed up the central operat-

ing doctrine of the entire conspiracy:

“Don’t expect anything for nothing.”

lebaum spoke only “a couple of words” in Yid-

dish. (33:254).

45a

407

{23} Having concluded that the co-con-

spirator declarations were properly admit-

ted against Field, the next question is

whether those statements, when combined

with the independent evidence against him,

constituted sufficient evidence to prove his

knowing participation in the conspiracy and

criminal enterprise. The out-of-court decla-

rations of Field’s co-conspirators showed

that:

(1) When Teitlebaum agreed to surrender

the Mamenic account in order to acquire the

Zim account, Boyle said he would report the

decision to Field. (21:41).

(2) When Teitlebaum was considering ex-

panding his business into Mobile, Boyle told

him that Field had arranged a meeting

between Teitlebaum and co-defendant Isom

Clemon, president of the ILA local in Mo-

bile. (24:72). At a meeting in Mobile,

Clemon told Teitlebaum and FBI Agent

Artin that he would not be meeting with

them if he had not received an “okay” from

either Boyle or Field. (24:141).

(3) Subsequent to Teitlebaum’s meeting

with Clemon, Boyle informed Teitlebaum

that Field had “underestimated the price”

of Teitlebaum’s contract in Mobile. (24:84—

85).

(4) At one point, when Boyle was press-

ing Teitlebaum for payment of $2,400

($2,000 from a large payment Teitlebaum

received on his Zim account and $400 for

delinquent “peace payments”), Boyle told

Teitlebaum that he was going to meet with

Field in Savannah and wanted “everyone to

know we were up to date.” (24:117).

(5) In late 1976, Boyle told Teitlebaum

that Field was unhappy with him for re-

fusing to cooperate with Harrington &

Company, a competitor of Teitlebaum’s

which was also making payoffs to the union

officials. (24:211).

UNITED STATES v. KOPITUK

(6) Boyle and Clemon both told Agent

Artin that Field was sharing a payoff aris-

ing from a fertilizer transaction Artin was

involved in. (38:171; 39:126; 40:57).

(7) With regard to the solicitation of tick-

ets for the 1976 Christmas cruise, Boyle had

told Teitlebaum that Field wanted the tick-

ets so that he could take his wife, son and

four other people on the cruise. (25:25).

The independent evidence against Field,

combined with the co-conspirator state-

ments outlined above, was sufficient to

prove Field’s knowing participation in the

criminal enterprise and concommitant con-

spiracy. This same evidence was also suffi-

cient to support Field’s convictions on

Counts 17 and 24, which charged violations

of the Taft-Hartley Act. Field’s convic-

tions on those two counts fulfilled the es-

sential element of both the RICO substan-

tive and conspiracy «harges that the de-

fendant engage ir - or more predicate

crimes. Count 1i reicted to Field’s partici-

pation in Teitlebaum's expansion into Mo-

bile, which resulted in a $10,000 payment to

the union offimals. Count 24 related to

Field’s participation in the solicitation of

tickets for the 1976 Christmas cruise.

Vanderwyde

(24] Appellant Vanderwyde was cor-

victed of the RICO substantive and conspir-

acy charges (Counts 1 and 2), the Hobbs Act

extortion charge (Count 3), and five Taft-

Hartley charges (Counts 4, 8, 16, 27 and 43).

His argument that the evidence was insuf-

ficient to support his conviction on any of

those charges is without merit.

Vanderwyde claims the evidence showed

only that he was present on occasions when

illegal activities were discussed and points

out that mere presence at the scene of a

46a

UNITED STATES v. KOPITUK

crime is insufficient to establish participa-

tion in a conspiracy. United States v. Fal-

cone, 311 U.S. 205, 209-210, 61 S.Ct. 204,

205-06, 85 L.Ed.2d 128 (1940); United

States v. Salinas-Salinas, 555 F.2d 470, 473

(5th Cir. 1977). The evidence adduced at

trial, however, was more than sufficient to

allow the jury to reasonably find that Van-

derwyde was a willing, active participant in

the conspiracy and criminal enterprise.

The evidence showed that Vanderwyde

accepted money and cruise tickets from

waterfront employers and that he pressured

employers to stay current with their pay-

ments. Briefly, the evidence against Van-

derwyde showed that:

(1) When Teitlebaum finished paying off

his cousin’s debt to the union, Vanderwyde

told him not to let the payments stop.

When Teitlebaum asked him what he

meant, Vanderwyde responded that they

were seeking “control” of the port.

(19:128).

(2) When Teitlebaum was behind in his

weekly “peace payments,” Boyle warned

him that if Vandcrwyde found out, Teitleb-

aum would be in serious trouble. (19:209-

210).

(3) In the spring of 1975, Boyle obtained

cruise tickets from Teitlebaum on behalf of

Vanderwyde and others. Vanderwyde did,

in fact, go on the cruise. (20:76).

(4) In April 1976, Teitlebaum visited the

Miami ILA office to pay Boyle $250. Boyle

was not there, but Vanderwyde was. Van-

derwyde told Teitlebaum that he was too

far behind in his payments and that $250

was not enough. He demanded an addi-

tional $500 in cash, which Teitlebaum pro-

duced. (24:21-Z2).

(5) At the same meeting, Vanderwyde

told Teitlebaum he wanted to take a cruise

on the Mardi Gras and said he needed six

pairs of tickets. (24:23). Boyle subse-

quently gave Teitlebaum a list of the cou-

ples who would be taking the cruise. In-

cluded on the list were Vanderwyde and his

wife. (24:36~-37).

(6) When Teitlebaum received a substan-

tial payment from the Zim Line for services

rendered to the company at the port of

Savannah, Boyle demanded $2,000 of the

amount as partial payment for getting Teit-

lebaum the contract in Savannah. Subse-

quently, Vanderwyde approached Teitieb-

aum and asked for the money, saying

“Boyle told me you have a commitment for

him.” (24:105).

(7) When Teitlebaum asked Boyle if he

could deduct the price of the six pairs of

cruise tickets he had previously purchased

for the union officials from the $2,000 he

owed for Savannah, Boyle told him to con-

sider the cruise tickets as a gift to Vander-

wyde. (24:114).

(8) In September 1976, Vanderwyde re-

minded Teitlebaum that he still owed the

union officials $4,000 for the privilege of

expanding into Mobile. (25:26).

(9) When Teitlebaum told Vanderwyde

that a shipping company operator was try-

ing to sell Teitlebaum his company for

$106,000 more than it was worth, Vander-

wyde responded that that was too much if

the seller intended on keeping all of the

money for himself, but “if it .. . [was] for a

little division, that ... [was] something

else.” (25:161). .

(10) After Boyle had told Teitlebaum

that Field wanted tickets for the 1976

Christmas cruise, Vanderwyde subsequently

reminded Teitlebaum not to forget about

the tickets. (25:26).

47a

(11) When George Wagner was making

payoffs to the union on behalf of Marine

Terminals, Inc., Vanderwyde told Wagner

that the payoffs were going into a “pot”

and “bitterly complained” because his share

of the pot was only $700 to $800 per month.

(44:77).

(12) Wagner testified that when Boyle

was not available, he would frequently de-

liver MTI’s $1,000 monthly payments to

Vanderwyde. (43:74—75).

(13) Vanderwyde also accepted delivery

of the $1,000 monthly payments that were

made on behalf of Florida Welding Services

Corp. (43:155-156).

(14) Vanderwyde was present at numer-

ous meetings where unlawful activity in

furtherance of the conspiracy either tran-

spired or was discussed.

This evidence was clea..y sufficient to

support the jury’s verdict on the RICO

counts, for it showed that Vanderwyde ac-

tively pursued furtherance of the objects of

the conspiracy and enterprise through the

commission of at least two predicate

crimes.*

36. Vanderwyde was convicted of five separate

Taft-Hartley charges, but contends that viola-

tions of Section 186(b) of the Taft-Hartley Act

do not constitute the requisite racketeering acts

under the RICO statute. He relies upon the

definition of “racketeering activity” found in 18

U.S.C. § 1961(1)(C), which provides:

(1) “Racketeering activity” means ... (C)

any act which is indictable under title 29,

United States Code, section 186 (dealing with

restrictions on payments and loans to labor

of the definition of racketeering activity. We

agree with the government's contention, how-

ever, that the parenthetical language following

UNITED STATES v. KOPITUK

[25] The evidence also supported Van-

derwyde’s conviction on the extortion

charge. Title 18 U.S.C. § 1951, known as

the Hobbs Act, makes it a crime to obstruct

or affect interstate commerce by obtaining

the property of another through extortion-

ate means. In order to convict under the

Hobbs Act, the government need show only

that the defendant received the property of

another without any lawful claim to such

property and that the person who made the

payment did so out of fear.” United States

v. Emmons, 410 U.S. 396, 399-400, 93 S.Ct.

1007, 1009-1010, 35 L.Ed.2d 379 (1973);

United States v. Nell, 570 F.2d 1251, 1258

(5th Cir. 1978). The fear experienced by

the victim does not have to be the conse-

quence of a direct threat. It is sufficient if

the government can show circumstances

surrounding the act of extortion that ren-

der the victim’s fear reasonable. United

States v. Nell, supra, 570 F.2d at 1258;

United States v. Quinn, 514 F.2d 1250, 1266

(5th Cir. 1975), cert. denied, 424 U.S. 955, 96

S.Ct. 1430, 47 L.Ed.2d

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