The defendants, all of whom were connected with the ownership or operation of so-called Medicaid mills, were convicted of mail fraud, a conspiracy to defraud the United States, and conducting a criminal enterprise affecting interstate commerce. We find that all of the arguments raised by the defendants are without merit and affirm the convictions.

The defendants operated twenty-eight medical clinics owned by defendant Ziperstein. These clinics, located in Chicago, Illinois, consisted of a number of facilities housing offices for doctors, pharmacists and medical support personnel. The Medicare and Medicaid billing by these organizations was handled by two companies, also owned by Ziperstein, which processed the charges and sold them to factoring companies that ultimately collected from the State of Illinois for their own account.

The purpose of the conspiracy, as established at trial, was to increase by fraudulent means the reimbursements received from the Medicaid program. Specifically, the defendants sought to obtain compensation from the government for services which were performed without any arguable justification or necessity. The trial transcript, exceeding 6000 pages, reveals numerous devices engaged in by the defendants to accomplish this end. Only a few of these need to be recounted to clarify the nature of the scheme.

The most notable technique employed by the defendants came to be known as the "Garfield Shuffle" ("Garfield" was the name of one chain of clinics). Patients were sent to one or more doctors for unscheduled examinations which bore no relation to the patient's specific complaint before sending the patient for treatment of that complaint. Likewise, laboratory tests, such as x-rays and blood analyses, as well as prescription drugs, were ordered for patients regardless of medical necessity.

Not only were patients subjected to unnecessary drugs and procedures, but also the clinic employed devices to inflate the billing on all procedures performed. For example, two prescriptions were written where one would have sufficed, thereby resulting in a double, flat-rate "professional fee" for the prescriptions. Additionally, laboratory samples were taken in double amounts for a double charge.

Finally, the clinics billed the state for services that were not even performed. Prescriptions, for instance, were dispensed in amounts lower than that specified on the prescription form but the state was billed for the full amount stated. Many prescriptions were also signed in blank so that employees could later fill in larger amounts.

The evidence presented at trial established that all of the convicted defendants were participants in this scheme. In particular, evidence revealed that the defendants had encouraged or, more accurately, pressured clinic personnel to engage in these practices in order to meet specified production quotas. Eugene Ziperstein, principal owner and chief administrative officer of the clinics was sentenced to 30 months in custody and assessed a $10,000 fine. Petrizzi and Lentini, who were administrators of the clinics, were given sentences of a $1,000 fine, one year in custody, and three years on probation. Rosenthal, another administrator, was given the same sentence as Messrs. Petrizzi and Lentini, but it was suspended on condition that he spend six months on work release and the remainder on probation. Shuw Ling Chang, a supervisor in the pharmacies, was sentenced to three years on probation. Various other defendants were acquitted. The convicted defendants now appeal.

II

<SNIP>

13

The defendants first allege that undue prejudice resulted from several remarks in Wu's counsel's opening statement. Two unindicted co-conspirators had been murdered before trial. Judge Will determined that the manner of their death was irrelevant to any issue in the trial and directed counsel to make no mention of their deaths. Nevertheless, Oliver, Wu's counsel, made such a reference in his opening statement. However, he did not mention that the deaths were the result of a murder, and thus we fail to see any prejudice. In another remark in his opening statement, Oliver mentioned that his client was going to take the stand, since "an innocent man almost invariably is eager to take the witness stand." Oliver did not speculate as to whether any of the other defendants were going to refuse to take the stand. Accordingly, these statements clearly fit within our holding in Hutul that such remarks are merely an attempt to bolster the credibility of the testifying defendant, not to comment prejudicially upon the silence of the others. 416 F.2d at 621-22. See also United States v. Barney, 371 F.2d 166 (7th Cir. 1967). Finally, Oliver intimated that certain other defendants had attempted to tamper with witnesses. This statement was not prejudicial because there was a factual foundation to support the statement. The government offered to prove that one witness was approached by defendant Ziperstein who told her to take the Fifth Amendment before the grand jury and pointed out to her that the government could take her children away. Cf. United States v. Akin, 562 F.2d 459 (7th Cir. 1977), Cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978) (belief that evidence would be adduced at trial sufficient to justify reference in opening statement).

The defendants also argue that Oliver's conduct of the cross-examination of government witnesses resulted in prejudice. The objections need not be specifically detailed since they all possess a common characteristic: each of these questions was allegedly prejudicial because they reiterated some point which the government had already made concerning the conspiracy. For example, Robert Wessel, a state employee for the Illinois Medicaid program was called by the government to describe the state management of the Medicaid program with regard to billing and benefits. In the direct examination the government asked detailed questions designed to elicit from Mr. Wessel a description of medical services that would not be compensable by Medicaid or would be in violation of applicable regulations. Tr. at 125-29. For example, the following testimony was elicited after the government inquired as to the state's procedure for verifying Medicaid claims:

Q. Prior to payment for a physician's services, does the Department of Public Aid make any investigation as to whether or not that physician's services were medically necessary?

A. No, ma'am.

Q. Prior to payment does your department make any investigation as to whether the services billed were actually rendered?

A. No, ma'am.

Q. Prior to payment for prescriptions, does the Illinois Department of Public Aid verify whether or not the drug or over-the-counter item was actually dispensed?

A. No, ma'am.

Q. Or whether the quantities appearing on a prescription were actually dispensed?

A. No.

Q. Prior to payment do you determine whether or not the pharmacy used a prescription that was presigned in blank by a doctor?

A. No, ma'am.

Clearly this line of questioning prefigured every violation which the government intended to prove. Likewise Wu's counsel's questions centered on virtually the same types of violations:

Q. And you just plain don't have the personnel to run out and check everybody, do you?

A. No, sir.

Q. Your department, I suppose, would have some objection to paying for duplicate treatment on one individual, is that right?

A. We would object.

Q. But you wouldn't necessarily catch that every time it happened, would you?

A. No, sir.

Q. You pay for blood tests made on patients, don't you?

A. Yes, sir, if they are ordered by a physician.

Q. But you are not authorized to pay for testing of employees of various health centers, who are not bona fide patients, are you?

A. If they are not recipients, no, sir.

Q. You folks wouldn't know from looking at the billings that were sent to you, if the doctor prescribed drugs in a certain quantity, and the pharmacist, in fact, delivered drugs in a lesser quantity, you wouldn't know about that, would you?

Mr. Nash: Objection. Irrelevant, your Honor.

The Court: No, overruled.

Mr. Oliver continued, asking questions about the state's policy on forged prescriptions or pharmacists' sales of public aid eligibility cards ("green cards") obtained while filling prescriptions and never returned to proper owners. Co-defendants' counsel objected, arguing that Mr. Oliver had to make an offer of proof as to these incidents. Mr. Oliver declined to offer any such proof himself, arguing that he expected these incidents to be tied into later proof by the government. The court sustained the objections.

It takes a vivid imagination to conceive any possible prejudice to the co-defendants in this colloquy. With the exception of Mr. Oliver's questions as to forged prescriptions and green cards, every matter had been already addressed or alluded to in the government's direct examination. The government actually offered extensive proof later that prescriptions had been forged. (Tr. 957, 972, 1207-12, 2160-64, 2315-16, 2393-94, 2723-24, 3393-94, 3569-71). Whatever harm accrued to the defendants was the legitimate incrimination which this evidence produced, and we cannot see that the mere reiteration of properly detrimental evidence creates any unfairness proscribed by the Due Process Clause. As to the reference to green cards, it is sufficient to note that the court immediately thereafter sustained defendants' objections, thereby minimizing to acceptable levels any prejudice from such unsubstantiated allegations. An examination of all the remaining allegations of prejudice from Oliver's cross-examination reveals that these allegations rely on the defendants' incorrect theory that reiteration of evidence which the government legitimately produced was detrimental.

Defendants finally claim prejudice from Oliver's closing statement. Again they appear to be complaining only that Oliver was repeating allegations made by the government. Oliver did assert that the clinics were places where "really bad medicine" was practiced and where patients were given wrong drugs and treatments. The record, however, is replete with legitimate and proper evidence that these clinics were staffed by unqualified and unlicensed personnel (Tr. 491, 972, 2817); that unnecessary treatments were prescribed (Tr. 447, 638-40, 698G, 975, 1185, 1970-71, 2008-10, 2089, 2092, 2452, 2775, 3525, and 3544-51); and that needed prescriptions would be underfilled (Tr. 1212). Likewise, calling Ziperstein and Lentini "conspirators" or "vile and despicable men" differed little from the pictures of them painted by the government.

In sum, we cannot say that the defendants have pointed to sufficient incidents of prejudice to mandate a conclusion that they received an unfair trial. Thus, we refuse to set aside the appropriately exercised discretion of the trial court.

III

Defendant Ziperstein argues that the trial court committed error by admitting certain pharmaceutical records showing prescriptions signed in blank, which were turned over to the government by Harlan Eisentraut, a pharmacist in Ziperstein's employ. Ziperstein characterizes these records as "stolen" and argues that alleged government encouragement of this "theft" violated the Fourth Amendment, thereby requiring suppression of these records. Since we do not believe that Ziperstein has correctly characterized the means whereby Eisentraut obtained control over these records, we find no merit in Ziperstein's argument.

The evidence relevant to this argument established that from September 1975 to July 1976 Harlan Eisentraut was employed as a pharmacist in three pharmacies operated by Ziperstein. Shortly before Eisentraut left the Ziperstein pharmacies at the end of July 1976, Eisentraut called FBI Agent Kelly and told him that he had knowledge and evidence of wrongdoing. Specifically, he said that on some "prescriptions (he) had filled, the quantities or integrity had been increased" and that he "found . . . quite a supply of signed Welfare prescriptions not dated by one or probably three different doctors." These documents were in a storage room in the clinic. Agent Kelly expressed an interest in them, and two days later Eisentraut brought the documents to the FBI. Included in the documents were prescriptions filled by Eisentraut himself, prescriptions filled by others before Eisentraut began work in the clinics, and about 200 pre-stamped prescriptions. The FBI directed Eisentraut to return some of the documents which it believed did not indicate any criminal conduct; the remainder of the documents were offered as government exhibits at trial.

The trial court admitted these exhibits over defense objections. The trial court ruling was premised on its findings that Eisentraut gained possession of the documents before his contact with the FBI, that he came into possession of these documents through legitimate means, and that Eisentraut decided to turn over the documents to the FBI on his own volition without any inducement from the FBI. We affirm this ruling of the trial court on the alternative grounds that the defendant did not have a legitimate expectation of privacy in the documents and that no government participation in the removal of the documents was established. Therefore no Fourth Amendment violation occurred.

It must be initially emphasized that in determining the validity of Ziperstein's Fourth Amendment claim the laws relating to ownership, custody and theft as well as other incidents of property law are not particularly relevant to this inquiry. We are not concerned with determining whether these documents are properly characterized as "stolen." The Fourth Amendment clearly countenances numerous seizures where the items seized are taken without the express consent of the owner. Instead, the Fourth Amendment inquiry focuses on whether the owner had a reasonable expectation of privacy with respect to the seized items. If no such expectation exists, the taking cannot run afoul of the Fourth Amendment.

<SNIP>

V

Defendant Ziperstein also argues that Pepa, a government witness, was permitted to give highly prejudicial, inadmissible testimony. Pepa worked as a physician for six months in 1972 in a medical center which housed a Ziperstein-operated pharmacy. Pepa testified at trial that shortly after he began at the medical center Ziperstein told him that he should write three to four prescriptions per patient and that Pepa should endeavor to write prescriptions for more expensive drugs than might be necessary. Pepa further testified that on one occasion he had signed blank prescriptions at Ziperstein's request.

On cross-examination, however, Pepa admitted that he had previously told the FBI that he had done nothing wrong while employed by Ziperstein. Before the government's rehabilitation of Pepa on re-direct, the court examined Pepa outside the presence of the jury to determine the reasons for the inconsistency in his statements. Pepa explained that at the time he spoke to the FBI he had been frightened of what Ziperstein would do to him or his family if he told the truth. Pepa substantiated this fear to the court by recounting several threatening incidents. At one time Pepa had warned Ziperstein that he was considering sending his patients to another pharmacy to have their prescriptions filled. Ziperstein responded, stating: "Don't touch those patients. If you do, then God help you." Pepa also testified that after he left his association with Ziperstein, his new office was vandalized and that he believed Ziperstein was responsible. After hearing this testimony, the judge ruled that Pepa could explain to the jury the state of mind which caused him to make the inconsistent statement to the FBI. But the judge also ruled that Pepa should not be permitted to testify as to the reasons for that state of mind I. e., Pepa could testify that he was afraid of Ziperstein but could not relate the specific incidents that gave rise to those fears.

After this ruling, Pepa returned to the stand, and the following colloquy occurred:

Q. Mr. Pepa, why did you lie to the FBI?

The Court: In 1975?

By Mr. Johnson:

Q. Yes, December, 1975.

A. I was scared.

Q. What were you scared of?

Mr. Smith: I object, your Honor.

By The Witness:

The Court: Overruled.

By The Witness:

A. I was scared of the safety of my family.

By Mr. Johnson:

Q. Is there anyone specifically you were scared of?

Mr. Smith: I object.

The Court: Sustained.

<SNIP> 

Defendants' claim that the government did not establish venue in the Northern District of Illinois is similarly without merit. The defendants argue that the government never established that the street addresses to which the warrants were mailed were in Chicago. The addresses, however, all designated Chicago, Illinois, as the city of destination. The defendants' claim, thus, at most becomes a claim that the specific street addresses may be non-existent. We think that fact would be irrelevant in establishing venue where the letters were destined for Chicago and, if deliverable at all, were deliverable there. In any event, since this objection was not raised until after the government completed its case, it was waived. United States v. Fabric Garment Co., 262 F.2d 631 (2d Cir. 1958).

Affirmed.

b. Particularity

Appellant Philip Weinstein also argues that the initial search warrant was insufficiently particular and invalid. Consequently the second search warrant obtained as a fruit of the first was also invalid. The warrant in question authorized the FBI to search the premises of American Medicinal Corporation for property identified in Exhibit A, attached to the warrant and expressly incorporated within it. The warrant stated that the property sought was

relevant and material to alleged violations of the mail fraud statute (Title 18 U.S.C. Sec. 1341), the wire fraud statute (Title 18 U.S.C. Sec. 1343) and Racketeer Influenced Corrupt [sic] Organizations statute (Title 18, U.S.C. Sections 1961 to 1968 inclusive) committed in the Southern District of Florida and elsewhere....

Exhibit A identified the property sought as:

[c]orrespondence, invoices, cancelled checks, check stubs, telegrams, bills of lading, warehouse receipts, bank statements, ledgers, work papers, purchase orders, telephone toll records, address books, daily diaries, calendars, customer lists, autodexes, intracorporate and intercorporate memoranda, and credit card statements pertaining to the following individuals, business firms, and/or purported charities: ...

Exhibit A then set out twenty-eight individuals, business firms, and purported charities which were suspected of involvement in the pharmaceutical fraud scheme.

Clearly, an affidavit incorporated into a warrant by express reference and attached to and accompanying the warrant can cure ambiguity in the warrant itself. United States v. Wuagneux, 683 F.2d 1343, 1351 n. 6 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); United States v. Haydel, 649 F.2d 1152, 1154-58 (5th Cir.), corrected, 664 F.2d 84 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982). The affidavit of FBI agent Roberts, attached to the warrant, set out the scope and operation of the pharmaceutical fraud scheme thought to be operated by, inter alia, AMC, AMI and Philip Weinstein. Included within that affidavit were the dates during which the scheme was believed to have operated. Moreover, the agents conducting the challenged searches were briefed about the investigation; the agent who investigated the case was available to answer questions. On the basis of this showing we believe that the warrant, both as issued and as executed, was sufficiently particular in scope to pass muster under the fourth amendment. As the initial warrant was valid, so the second warrant, issued on the basis of probable cause ascertained during the initial search, was likewise valid.

2. Stanley Kowitt.

As with Philip Weinstein and AMC, the FBI twice searched the offices of Majestic Sales, the business of the appellant Stanley Kowitt. Appellant Kowitt disputes the admission of evidence seized in these searches because the description of the premises contained in the warrants was, he asserts, legally insufficient.⁵ Majestic Sales was in the southwest, not the northwest corner of the building as indicated in the warrant. This discrepancy, appellant Kowitt claims, left to the searching officers a degree of discretion not countenanced by the Constitution. We disagree.

As we stated in Haydel, "[a] warrant's description of the place to be searched need not meet technical requirements nor have the specificity sought by conveyancers. It need only describe the place to be searched with sufficient particularity to direct the searcher, to confine his examination to the place described, and to advise those being searched of his authority." 649 F.2d at 1157. See also Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925); United States v. Prout, 526 F.2d 380, 386-88 (5th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976); United States v. Gitcho, 601 F.2d 369, 371-72 (8th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Campanile, 516 F.2d 288, 291 (2d Cir.1975). An erroneous description of premises to be searched is not necessarily fatal to the validity of a warrant. United States v. Melancon, 462 F.2d 82, 94 (5th Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972). The fourth amendment requires merely that the search warrant describe the premises in such a way that the searching officer may "with reasonable effort ascertain and identify the place intended." Steele, 267 U.S. at 503, 45 S.Ct. at 416 (1925).

The evidence demonstrated that there were two unconnected offices on the west side of the building housing Majestic Sales. One of those offices was occupied by Majestic Sales, the other by an automobile supply firm. Each office had a separate door on the west side of the building. The agent conducting the searches testified that he had been to the premises before and that he had had no doubt which door gave access to Majestic Sales. Furthermore, when the agents arrived at the Majestic Sales office, their knock was unanswered. They inquired to no avail in the automobile supply firm for information about disconnecting the burglar alarm at Majestic Sales. They then called the burglar alarm company to disconnect the alarm and a locksmith to open the door.

We hold that under the circumstances presented here the warrants' erroneous designation of the wrong corner of the building did not invalidate the warrants or the searches conducted pursuant to them. Steele, 267 U.S. at 503, 45 S.Ct. at 416; Prout, 526 F.2d at 386-88; United States v. Darensbourg, 520 F.2d 985, 986-88 (5th Cir.1975); Melancon, 462 F.2d at 94.

As a preface to their arguments against sufficiency of the evidence, all appellants raise a number of issues concerning the district court's rulings on the admissibility of evidence. We address these contentions here.

1. Erroneous exclusion of defense evidence.

A recurring theme in the briefs and arguments of all appellants is that the district court incorrectly excluded evidence concerning the nature of the appellant's activities in the context of the pharmaceutical market. Through one fashion or another, this evidence was calculated to show that the antitrust laws of the United States relieved the appellants of criminal responsibility and that evidence of the operation of these laws was material to the defense. Two arguments are made.

Appellants first argue that the pricing scheme avoided by their misrepresentations was itself illegal under antitrust law. Avoidance of an illegal scheme is not a crime, they urge, and thus, because they did not believe their misrepresentations to have been criminal, scienter was absent and a finding of fraud precluded. We find this argument untenable. The merits of manufacturers' claims of right to sell drugs domestically at uniform prices is immaterial to the issue of fraud. If defendants doubted the legality of that practice their recourse would have been through antitrust action, not through a scheme of misrepresentations communicated through U.S. mails and wires.

Secondly, appellants argue that their misrepresentations were not material because the manufacturers were aware appellants did not really represent charitable or export interests. Without materiality, they point out, there could be no fraud. This argument, too, cannot stand. The district court, while he excluded evidence on the antitrust laws, allowed considerable evidence on the operation and the legitimacy of the American diversion industry, including defendants' allegation that some manufacturers "wink" at representations of nonprofit or export status in order to use the diversion market as a "dumping-ground" for drugs nearing expiration. Thus the issue of materiality was framed for the jury, and in finding fraud they determined that issue.

a. Telexes in support of wire fraud counts.

Philip Weinstein and Wilhelmina Harich Weinstein argue that a purported telex in support of Count V (wire fraud) was improperly admitted because there was no evidence that the telex was actually transmitted.

Identification and admissibility of evidence is within the discretion of the trial court. Bury v. Marietta Dodge, 692 F.2d 1335, 1338 (11th Cir.1982); Meadows and Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir.1969). Moreover, letters and presumably telegrams are prima facie authentic if their content is responsive to prior properly admitted communications. 3 Wharton's Criminal Evidence Sec. 525 (1973); 5 J. Weinstein and Burger, Weinstein's Evidence paragraphs 901(b)(4) and (1983).

The telexes in question were responsive to a June 9, 1977 letter from Solomon Richman to Philip Weinstein. The admission of the June 9 letter is not disputed. The evidence is therefore sufficient to support a finding that the telex in question is what the government claims it to be. Fed.R.Evid. 901(a). Additionally, we hold that the content of the telexes evidence use of interstate communications facilities. See United States v. Goss, 650 F.2d 1336, 1343 (5th Cir. Unit A 1981).

b. The GABAR envelope.

More problematical is the appellant Wilhelmina Weinstein's argument that the government failed to authenticate an envelope attached to the government's Exhibit 230. Government's Exhibit 230 is a copy of a letter dated June 9, 1977 from Richman and GABAR in Belgium addressed to the AMC offices of Philip Weinstein in Ft. Lauderdale, Florida. The June 9th letter summarized the sales and purchases between GABAR and AMC from November, 1976, to February, 1977. The letter also voiced concern about the appearance of pharmaceutical products diverted through AMC on the pharmaceutical diversion market and the pharmaceutical manufacturers' awareness of these appearances. The letter also set out proposed conditions for continued business between GABAR and AMC. The June 9 letter was seized by the FBI at the AMC offices pursuant to the second warrant executed on July 18, 1977. The letter was identified at trial by the FBI officer in charge of the investigation. Counsel for Wilhelmina Weinstein objected to the connection of the letter and envelope at the close of the government's case. The court reserved ruling on the envelope's admissibility until further evidence was received.

The June 9th letter was addressed to Philip Weinstein. Attached to the letter at trial was an envelope, postmarked June 21, 1977, Brussels, addressed to Wilhelmina Weinstein at her residence. The envelope was evidently seized at the same time and place as the letter. Wilhelmina Weinstein does not contest the content of the letter, but argues that the envelope which connects her to that content was not part of the original exhibit, and was improperly admitted because it was not independently authenticated. At the close of all evidence in the case she moved for judgment of acquittal or new trial on this ground, pointing out that there was no testimony whatsoever as to the envelope. The government responded that the envelope was at all times attached to the letter and that, as early as the grand jury investigation, the document was described as "a letter addressed to Ms. Wilma Harich postmarked June 21, 1977, at Brussels, Belgium." Moreover, the government now argues that certain remarks of appellants' counsel at a pretrial hearing indicate their awareness that an envelope was attached to the letter. The district court permitted the envelope to remain stapled to the government's exhibit and denied without opinion the defendant's motion for judgment of acquittal or new trial on this issue.⁶

In our careful review of this record we have been unable to find (and counsel for the government has been unable to point out) any evidence linking the envelope addressed to Wilhelmina Harich Weinstein to the letter addressed to Philip Weinstein. Indeed the only connection between these two documents which the evidence in this case supports is the fact that the letter and the envelope were stapled together at the time of their production before the grand jury. If this letter were sent in the envelope at issue, the defense of the appellant Wilhelmina Harich Weinstein would have been substantially impaired. One claiming to be a non-participating bystander would be hard put to explain the receipt of such a conspiratorial writing. The acceptance of the letter and the envelope into evidence as one exhibit, stapled together, with no testimony or other evidence linking the two documents, was error and prejudicial to Wilhelmina Weinstein's defense. The harm accruing from this error being unquestionable, the conviction of appellant Wilhelmina Weinstein must be vacated and the case against her remanded for a new trial.

3. Admissibility of Coconspirator Hearsay.

The appellant Solomon Richman argues that hearsay statements, by alleged coconspirators, admitted against him at trial were inadmissible under Fed.R.Evid. 801(d)(2)(E) because they were not statements made during the course and in furtherance of a conspiracy. Appellant Richman argues there was insubstantial independent evidence to support the admission of the hearsay statements of the appellant's alleged coconspirators. United States v. Alvarez, 696 F.2d 1307, 1310 (11th Cir.), cert. denied, 461 U.S. 907, 103 S.Ct. 1878, 76 L.Ed.2d 809 (1983); United States v. James, 590 F.2d 575, 578-81 (5th Cir.), (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).

In James our predecessor court held that a trial judge must determine admissibility of coconspirator hearsay based upon substantial and independent evidence (a) that a conspiracy existed, (b) that the defendant and the declarant both were members of the conspiracy, and (c) that the hearsay statements sought to be admitted were made in furtherance of the conspiracy. James, 590 F.2d 578-81. Moreover, even if the requirements of James are not met and coconspirator hearsay is improperly admitted, that admission may nevertheless be harmless error. United States v. Phillips, 664 F.2d 971, 1026-27 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

The hearsay testimony of which the appellant Richman principally complains came in through testimony by Boudewijn Van Pamelen⁷ about statements made to him by Wilhelmina Weinstein. This testimony was generally to the effect that Van Pamelen met (then) Wilhelmina Harich in Germany in 1974 and that she accompanied him to the United States. Van Pamelen testified that during the time Wilhelmina Harich Weinstein cohabited with him she told him that pharmaceutical products were transferred from the Church of God to third parties and eventually to the GABAR corporation for resale in the United States.

The government urges that there was sufficient proof of a conspiracy under James to establish the admissibility of these coconspirator hearsay statements. Alternatively, the government argues that any error in admitting the alleged hearsay was harmless because testimony so allowed was cumulative. See e.g., United States v. Means, 695 F.2d 811 (5th Cir.1983).

The June 9th letter from Richman to Philip Weinstein links Richman to Weinstein, hence to the conspiracy and Wilhelmina Weinstein, the declarant of Van Pamelen's testimony. However, we note that the statements of which the appellant Richman principally complains are not, on their face, in furtherance of the conspiracy. As such, the central requirement of James would appear to be unsatisfied in the instant case.

We need not decide that question, however, because the statements at issue are, in our view, cumulative. At least in a nonconstitutional sense, therefore, see e.g., Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946), any error from their admission must be deemed harmless. Means, 695 F.2d at 818; Phillips, 664 F.2d at 1027, n. 84. Additionally, although appellant Richman does not expressly raise the point, we note that it is still an open question in this circuit whether erroneous admission of coconspirator hearsay may constitute a violation of the constitutional right to confrontation of witnesses.

 We need not now decide that issue because the evidence presented in the admissible June 9, 1977 letter from Richman to Philip Weinstein was overwhelmingly probative of guilt. It is our view that the cumulative admission of potentially erroneous hearsay statements linking Solomon Richman to the conspiracy at issue were, beyond a reasonable doubt, not determinative of the outcome of this trial as to the appellant Richman. Accordingly, any constitutional error in the admission of these statements was harmless in a constitutional sense as well. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

We come then to the heart of this case, the sufficiency of the evidence as to RICO conspiracy and underlying overt acts as to each appellant. In order to make this evaluation we must examine, first, the elements of the charged offenses, RICO conspiracy and the essential predicate acts thereto.

Count One of the superseding indictment charged all appellants with conspiracy to violate the RICO statute. Fifty-seven overt acts were alleged to have been committed in furtherance of that conspiracy.¹ Count II charged Philip Weinstein with wire fraud. Count III charged Philip Weinstein and Wilhelmina Harich Weinstein with mail fraud. Count IV charged Solomon Richman and Philip Weinstein with wire fraud. Count V charged Solomon Richman, Philip Weinstein and Wilhelmina Harich Weinstein with wire fraud. Counts VI and VII charged Solomon Richman and Philip Weinstein with wire fraud. Counts VIII through XIII of the indictment charged income tax evasion against various appellants herein.

Proof of a RICO conspiracy charge puts upon the government the burden to show beyond a reasonable doubt that each appellant herein objectively manifested an agreement to participate, directly or indirectly, in acts violating the substantive provisions of RICO. A substantive violation of RICO requires proof of the following elements:

(1) The existence of an enterprise which affects interstate or foreign commerce, (2) that the defendant 'associated with' the enterprise; (3) that the defendant participated in the conduct of the enterprises' affairs; and (4) that the participation was through a pattern of racketeering activity, [that is that the defendant committed] at least two acts of racketeering activity designated in 18 U.S.C. Sec. 1961(1).

Phillips, 664 F.2d at 1011.

Breaking this definition into its component parts, we examine first the meaning of a RICO enterprise within the meaning of the statute. In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the Supreme Court held that the existence of an enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." Id. at 583, 101 S.Ct. at 2528. Turkette left intact this circuit's holding in United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). United States v. Cagnina, 697 F.2d 915, 921 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983) ("Turkette does not prevent this court from adhering to Elliot [Elliott]."). Elliott made it clear that the definitive factor in determining the existence of a RICO enterprise was an association of individuals, however loose or informal, which furnishes a vehicle for the commission of two or more predicate crimes (the pattern of racketeering activity requisite to the RICO violation). Elliott, 571 F.2d at 898. In United States v. Hewes, 729 F.2d 1302 (11th Cir.1984), we held "that a RICO enterprise exists where a group of persons associates, formally or informally, with the purpose of conducting illegal activity." Hewes, 729 F.2d at 1311.

A pattern of racketeering activity is defined in the statute as

[A]t least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.

18 U.S.C. Sec. 1961(5). Racketeering activity is in turn identified in 18 U.S.C. Sec. 1961(1) as being various acts, the commission of which constitute violations of federal or state law. Proof of RICO conspiracy requires proof of an agreement to violate a substantive RICO provision. United States v. Carter, 721 F.2d 1514, 1528 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 89, 83 L.Ed.2d 36 (1984).

With these principles in mind we review the evidence in this case to determine whether the requisite showing of conspiracy to violate a substantive RICO provision was made. In doing so we inquire whether, viewed most favorably to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Hewes, 729 F.2d at 1320 (11th Cir.1984), the evidence would permit a reasonable trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). We review the evidence as to each appellant.

The appellant Wilhelmina Weinstein argues that the evidence demonstrated merely that she was a secretary for the operations of AMI, AMC and Philip Weinstein, that she made no decisions of policy, and that she at no time agreed to conspire to violate RICO. We have carefully reviewed the evidence of Wilhelmina Weinstein's participation in the conspiracy and conclude that it was sufficient to make out a question of fact on that issue. However, we have held the envelope portion of government's Exhibit 230, the GABAR letter of June 9, 1977, to have been improperly admitted into evidence and to have been prejudicial. Because we vacate Wilhelmina Weinstein's conviction on this ground, we decline to review further her claims as to sufficiency of the evidence.

In order to make out its case against appellant Kowitt, the government bears the burden of proving beyond a reasonable doubt that he knew, actually or constructively, that the pharmaceutical products he obtained were acquired through misrepresentations to the manufacturers. In reviewing the sufficiency of the evidence as to this showing we must take care, under the peculiar facts of this case, to ascertain whether the jury was allowed to draw improper inferences of fraud from the peculiar and necessarily clandestine practices of the diversion industry. Diversion itself is not contended to be illegal. Evidence that Kowitt removed labels from the pharmaceuticals he obtained from his suppliers proves no crime. Evidence that Kowitt requested certain pharmaceutical products for which he had a ready market and from which he could make a quick profit, evidence that Kowitt demanded goods packaged in English, evidence that Kowitt tendered payment upon delivery for pharmaceutical goods--none of these facts are probative of guilt. At most, this evidence serves as a basis only for the inference that Stanley Kowitt was an exacting customer of an entity which he may or may not have known to be committing fraud.

Upon an exhaustive review of this 4,000 plus page record, we conclude that the essential evidence supporting the jury's finding that Stanley Kowitt participated knowingly in a scheme involving fraudulent misrepresentation was the conversation testified to by Peter Fixler which took place between Fixler and Kowitt. In this conversation Stanley Kowitt told Peter Fixler "make sure whoever was buying the pharmaceuticals that they tell the pharmaceutical company that ... birth control pills were not going to countries that did not allow them, so maybe Spain or the Roman Catholic countries. That would make the pharmaceutical companies wise." The question for our determination is thus whether this evidence is enough. We hold that it is.

While we have evaluated the evidence in this case as required by Glasser, supra, we have nevertheless scrutinized the evidence pointing to Kowitt's participation in RICO and underlying counts with particular care lest evidence of disapproved business practices be confused with evidence of the crimes charged. Kowitt and his codefendants were not charged with conducting business in a fashion disapproved by pharmaceutical manufacturers. They were charged with violating RICO through mail and wire fraud, federal crimes. Neither federal attorneys nor courts may be used to assist business houses in policing their requirements for product distribution. However, the fact that Kowitt and his coappellants were admittedly distributing the obtained products through diversion contrary to the wishes of the pharmaceutical manufacturers provided a sufficient and strong motive for the commission of fraud. It is the duty of the court to make certain defendants were not convicted merely because they did that which was disapproved, while yet admitting evidence of disapproval as a motive for the fraud alleged. Our critical review of the evidence in this case and of the trial judge's instruction to the jury has satisfied us that the district court was aware of this potential confusion. We believe that his instructions properly directed the jury's attention to the requirement of law that the government prove mail and wire fraud above and beyond participation in disapproved marketing practices.

There was abundant proof that fraudulent misrepresentations to pharmaceutical manufacturers furthered Kowitt's interests. Evidence therefore established Kowitt's motive for fraud. Moreover, Fixler's testimony established that Kowitt counselled his suppliers as to the content of their fraudulent misrepresentations. This evidence proved Kowitt's participation in fraud. We hold the evidence against Kowitt sufficient to sustain his conviction.

C. Appellants Philip Weinstein, Solomon Richman, and Robert

Falvo

Our review of the record in this case reveals ample evidence upon which a rational trier of fact could conclude that the appellants Philip Weinstein, Solomon Richman, and Robert Falvo agreed to participate and participated in a conspiracy in violation of RICO. Sufficient evidence therefore exists as to each of these.V. ERRORS IN THE INDICTMENT

1. Count II.

Count II of the indictment charged mail fraud. Of the appellants in this case, only Philip Weinstein was named in that count. However, the trial court charged the jury on Count II not only against Philip Weinstein, but also against Robert Falvo, Stanley Kowitt, Solomon Richman, and Wilhelmina Weinstein. We vacate the judgments of conviction on Count II as to the appellants Wilhelmina Weinstein, Robert Falvo, Stanley Kowitt and Solomon Richman.

2. Fifth amendment violation.

The appellant Wilhelmina Weinstein argues that the jury's improper consideration of her guilt as to the Count II mail fraud charge resulted in a misconstruction of the indictment, effecting a material amendment to the indictment requiring reversal of her conviction on all remaining counts in this case. She relies upon Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), as authority for this result. In light of our disposition of Wilhelmina Weinstein's conviction, we are not required to reach this issue. In the interest of clarity on remand, however, we address it briefly.

It is well established that "the erroneous amendment of one count does not destroy other counts of the indictment nor invalidate the judgment of conviction thereon ... in the absence of a showing of prejudice." C. Wright, Federal Practice and Procedure: Crim.2d Sec. 127 n. 16 and accompanying text (citing Chow Bing Kew v. United States, 248 F.2d 466 (9th Cir.), cert. denied, 355 U.S. 889, 78 S.Ct. 259, 2 L.Ed.2d 188 (1957); Carney v. United States, 163 F.2d 784 (9th Cir.), cert. denied, 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400 (1947)). Thus, while it is clear that the conviction of appellant Wilhelmina Weinstein on the improperly amended Count II must be vacated, see e.g. United States v. Fischetti, 450 F.2d 34 (5th Cir.1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); C. Wright, supra, section 127 n. 1 (and accompanying text), there is no basis in law for the proposition that this improper amendment on Count II affected the validity of the remaining convictions under other counts of the indictment. VI. MISJOINDER AND SEVERANCE

The appellant Philip Weinstein argues that failure to grant a severance of his prosecution from the trial of his codefendants violated his sixth amendment right to cross-examine a substantial government witness as to credibility and veracity on the required elements of the charged offense. He urges reversal on this ground, relying on United States v. Lindstrom, 698 F.2d 1154, 1163-64 (11th Cir.1983); and United States v. Callahan, 551 F.2d 733, 737 (1977), aff'd after remand, 579 F.2d 398 (6th Cir.1978).

The witness appellant Weinstein wanted to cross-examine was David Pollard. Early in the trial the court excluded testimony adduced by the government from Pollard that Robert Falvo and Frank Dante, an associate of Robert Falvo, were attempting to extort a share of the profits derived from the pharmaceutical diversion enterprise from the other participants in that scheme. The gravamen of Philip Weinstein's contention is that he should have been allowed to cross-examine Pollard (a) to impeach his testimony, and (b) to dispel any impression that Weinstein voluntarily aided extortion attempts. He argues that, by denying his motion to sever or for a mistrial on this issue made during the cross-examination of Pollard, the district court denied him the opportunity to cross-examine Pollard on these points and thus worked a deprivation of sixth amendment right.

The government answers Philip Weinstein's claim on this issue by noting that his proffered ground for severance at trial was that he sought further examination of Pollard to show that Pollard was himself part of the alleged extortion attempt instigated by Frank Dante and Robert Falvo. This testimony would have gone to Pollard's credibility. Robert Falvo's attorney pointed out to the trial court that the court's prohibition of evidence on extortion prevented this line of inquiry. Under these circumstances the district court observed that it could perceive no obvious prejudice to Weinstein from the limitation of cross-examination on Pollard's testimony as to extortion. Philip Weinstein's trial counsel specifically denied that it was the defense theory Weinstein was a victim of Falvo. Thus, the government urges that the district court's limitation of testimony as to extortion was a reasonable measure against prejudice. That limitation did not bar Weinstein from putting on his defense, but simply disallowed him from showing to the jury that Pollard was himself a part of the scheme he (Pollard) depicted and thus a less credible witness.

To overturn a district court's denial of severance under Fed.R.Crim.P. 14, the defendant must demonstrate clear and compelling prejudice. United States v. Sans, 731 F.2d 1521, 1533 (11th Cir.1984); Hewes, 729 F.2d at 1319; United States v. Cannington, 729 F.2d 702, 710 (11th Cir.1984). We hold that no such clear and compelling prejudice has been shown.

The appellant Solomon Richman argues he was misjoined in violation of Fed.R.Crim.P. 8(b) and that the trial court's denial of his motion to sever was prejudicial and is a ground for reversal of his conviction.

Rule 8(b) provides for the joinder of two or more defendants in the same indictment if it is alleged that they participated in the same criminal transaction upon which the prosecution is brought. It is Richman's position that, because it is not alleged he participated in the activities of Opus Christi or the Church of God, the indictment failed to show the substantial identity of facts or participants necessary for proper joinder under Rule 8(b). Richman relies upon United States v. Sutherland, 656 F.2d 1181 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982); and United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). The government argues that, taken as a whole, the indictment charged the appellants with a single enterprise operated for the purpose of obtaining pharmaceutical products through false pretenses. The common thread linking Richman to this attempt was his alleged participation in the scheme to obtain preferential pharmaceutical prices by fraud. These allegations are mirrored in the RICO conspiracy indictments. The government relies upon United States v. Hewes, 729 F.2d 1302 (11th Cir.1984), and United States v. Phillips, 688 F.2d 52 (8th Cir.1982).

As we view this issue, it merely restates the appellant Richman's underlying and repeated contention that there existed no evidence linking him to a conspiracy to defraud pharmaceutical manufacturers. Because we hold the evidence sufficient to sustain a conspiracy indictment and conviction against appellant Richman, there is necessarily a "sufficient common link" to demonstrate the existence of a common scheme or plan. As such, Rule 8(b) is satisfied. See United States v. Kopituk, 690 F.2d 1289, 1313-14 (11th Cir.1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2089, 77 L.Ed.2d 300 (1983).

The appellants Wilhelmina and Philip Weinstein and appellant Robert Falvo argue that remarks made by the prosecutor and government witnesses were improper and prejudicial and should have resulted in a dismissal of the indictment or, alternatively, a mistrial.

The appellant Falvo contends that the prosecutor deliberately and repeatedly attempted to interject evidence of extortion into the trial proceedings. The district court, although it warned the prosecutor against this conduct, denied a motion for mistrial on this ground. Four instances of alleged prosecutorial misconduct are urged. In opening, the prosecutor referred to one of the characters in the alleged conspiracy as a "strong man." The trial judge cautioned the prosecutor against such characterizations. The court also offered to give an instruction to the jury but none was sought. The government argues, that at the time these statements were made, the district court had not yet determined to exclude all evidence of extortion. As such, the government argues it should not be charged with knowing that the phrase "strong man" was an improper characterization.

As a second ground of alleged error, the prosecutor included in his closing argument reference to appellant Falvo as being the person "pulling the strings." This comment was the subject of the trial judge's reprimand before the jury to the prosecutor for making an argument from material stricken from the jury's consideration. The judge instructed the jury "to disregard any evidence or any comment on testimony about Mr. Falvo pulling strings."

A third ground of error is urged as testimony from one of the government's witnesses that Frank Dante "looked like a person out of the Untouchables, like [a] Frank Nitty-type character." Here, also, the district court instructed the jury to "disregard the last answer. Stereotypes are not evidence, and you are to disregard them entirely."

Finally, another government witness testified that, in a meeting about their business relationships, Robert Falvo used foul language and made strong statements about the witness's wife. There was no curative instruction on this testimony. A motion for mistrial, apparently on the basis of this testimony was denied.

The appellants Philip and Wilhelmina Weinstein revisit these same instances of alleged improper remarks by the prosecutor. In essence they urge the district court's determination that the inferences of Mafia activities and extortion which arose from the impermissible testimony were so damaging that the trial court abused discretion in refusing to grant a mistrial.

Reversal on the basis of prosecutorial misconduct requires that the misconduct be "so pronounced and persistent that it permeates the entire atmosphere of the trial." United States v. Alanis, 611 F.2d 123, 126 (5th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980), (quoting United States v. Blevins, 555 F.2d 1236 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978)). See also United States v. Newbern, 731 F.2d 744, 754 (11th Cir.1984). Moreover, a prejudicial remark may be rendered harmless by curative instructions to the jury. United States v. Nickerson, 669 F.2d 1016, 1020 (5th Cir. Unit B 1982); United States v. Lichenstein, 610 F.2d 1272, 1282 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980). Finally, considerable weight must be given to the trial court's assessment of the prejudicial effect of the remarks in question. Nickerson, 669 F.2d at 1020; Blevins, 555 F.2d at 1240.

While we emphatically disapprove the remarks made by the prosecutor in this case, we believe that the trial court provided an opportunity to cure any potential prejudice in three of the four instances to which appellants allude. The fourth instance was, in our view, harmless. We are also mindful that we evaluate these allegedly improper remarks in the context of a four week trial; we believe the trial judge, whose vantage was superior to ours, to have correctly concluded the allegedly improper remarks were not so pronounced and persistent as to permeate the entire atmosphere of the trial. We therefore hold the trial judge correctly denied motions for mistrial on the basis of improper prosecutorial remarks.

Robert Falvo argues the district court erred in denying his motion to dismiss the indictment on the basis of an unconscionable delay in prosecution. He alleges prejudice to his defense accruing from the death of an associate of Falvo's, Frank Dante, between 1979 and the date of prosecution. A government prosecutor testified at a pretrial hearing in his case that the government was ready to indict Falvo as early as 1979. The five-year statute of limitations, 18 U.S.C. Sec. 3282 (1982), had not expired at the time this prosecution was commenced.

Statutes of limitations provide the primary guarantee against stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 317-19, 92 S.Ct. 455, 462-63, 30 L.Ed.2d 468 (1971); United States v. Hendricks, 661 F.2d 38, 38-39 (5th Cir.1981). Additionally, to succeed on a motion for dismissal of an indictment based upon unconscionable delay a defendant must demonstrate both a substantial prejudice to his right of a fair trial and an intentional delay on the part of the government made in order to gain tactical advantage over the accused. Tiemens v. United States, 724 F.2d 928, 929 (11th Cir.1984). As we have observed, "this standard is an exceedingly high one...." Id. We hold that Falvo has demonstrated neither that the government delayed for tactical advantage, nor that he sustained sufficient prejudice to overcome the high standard upon which we review his claims. Accordingly, the judgment of the district court as to prosecutorial misconduct by unconscionable delay is affirmed.

In summary, in case number 83-5260 we hold that the convictions of Wilhelmina Weinstein, Solomon Richman, and Robert Falvo, are VACATED as to Count II of the indictment charging wire fraud. The conviction of Wilhelmina Weinstein is VACATED as to all remaining counts. In all other respects the judgment in 83-5260 is AFFIRMED.

In case number 83-5570 the conviction of Stanley Kowitt is VACATED as to Count II of the indictment charging wire fraud. In all other respects the judgment in 83-5570 is AFFIRMED.