P12,151; 22 Fed. R. Evid. Serv. (Callaghan) 421

December 31, 1986

Southern District of Florida.

For Appellant Pilotto, E. David Rosen, Carl M. Walsh.

For Appellant Gopman, Ronald A. Dion.

For Appellant Giardiello & Rubin, Barry Fallick, Rochman, Platzer, & Fallick.

For Appellant Wuagneux, John C. Mattes.

For Appellant Tricario, Thomas Decker.

For Appellant Ostrer, Clifford B. Hark.

For Appellee, John M. Owens, William C. Bryson, Leon Kellner, U.S. Dept. of Justice.

Virginia, sitting by designation.

[*1495] JOHNSON, Circuit Judge:

This [**2] is a consolidated appeal brought by eight defendants-appellants challenging

their convictions pursuant to a one count indictment for conspiracy to violate the federal

anti-racketeering statute (RICO). All eight appellants were officers of or somehow

associated with the Laborers International Union of NOrth America ("the Union"). The

government's theory of the case was that the defendants-appellants conspired to receive

kickbacks from various insurance or health care service provider representatives in

exchange for exercising their influence with the Union to obtain the Union's health and

insurance benefits contracts for the companies paying kickbacks. 1 Appellants were

convicted by a jury in the Southern District of Florida. We reject the numerous arguments

the appellants advance on appeal and affirm the convictions.

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The scheme began in 1970, when the Union's Chicago Local decided to [**3] institute a

dental care program for its members. Representatives of the Local's Health and Welfare

Fund, including Angelo Fosco 2 and appellant James Caporale, 3 arranged to give the

contract to Consultants and Administrators, Inc. ("C & A"), a company with no clients,

equipment, or experience. Defendant-appellant Alfred Pilotto 4 also helped get the

contract for C & A. Angelo Fosco and Daniel Milano, Sr., an auditor with the Chicago

Local, each owned 20% of [*1496] C & A's stock. 5 The Fund trustees did not know that

Milano and Fosco had an interest in C & A.

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Although he was indicted as a defendant along with the other defendants-appellants, the

jury acquitted him.

a special representative to the International Union.

president of the Union Local 5 in Chicago, and a special representative to the

International Union. [**4]

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In return for getting C & A the contract, Fosco, Caporale and Pilotto received periodic

cash payments over a four year span of time. 6 Caporale received 25 cents for each union

member covered every month, or roughly $3000 per month. In 1975 alone Caporale

received $31,900, while Fosco received $12,800 and Pilotto received $1200. Milano and

his son, Daniel Milano, Jr., made the payments at the offices of C & A.

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In 1972 C & A sought the dental benefits contract for Union members in Florida. Fosco

agreed to secure the contract for the Milanos. Milano, Jr., travelled to Florida to meet

with defendant-appellants Salvatore Tricario, 7 John Giardiello, 8 Bernard Rubin 9 and

Seymour Gopman. 10 The parties agreed that C & A would pay 15% of the contract

receipts to the four appellants through a dummy [**5] corporation. In exchange, C & A

obtained the Florida contract through an entity called Dental/Vision Care Centers

("DVCC").

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Local's Health and Welfare Benefit Fund.

three Union Health and Welfare Benefit Fund boards, president of the Southeast Florida

District Council of the Union, and a representative to the International Union.

counsel to the Union locals and district council in southern Florida.

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In accordance with this agreement, DVCC made regular payments of 15% of the gross

monthly premiums to a series of dummy corporations that funneled the money to

Gopman, Rubin, Tricario and Giardiello. 11 The first of these dummy corporations was

Fortune [**6] Services, a company owned by Gopman, Rubin, Tricario and Giardiello.

Fortune Services supposedly performed eligibility checks on union members on behalf of

DVCC, although it did not in fact perform that service. In fact, Fortune Services had no

office or professional staff and was run out of Gopman's law office by his mother-in-law.

Each month, Gopman would submit a bill on behalf of the company in the amount of

15% of DVCC's monthly billings.

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cash payments to Rubin and Tricario between 1972 and 1977.

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Fortune Services was replaced in 1975 by a corporate conduit called Ace Services, which

operated in an identical manner to Fortune Services. In late 1975, Ace Services was

replaced by another conduit company called Sales Administrators for Employee Fringe

Advantages ("SAEFA"). SAEFA was owned by defendant-appellant Louis Ostrer. 12

SAEFA was paid 15% of DVCC's gross receipts purportedly for soliciting new business

for DVCC, [**7] although SAEFA did not in fact solicit any new business for DVCC.

SAEFA was succeeded by Drake Towers Joint Venture, a development project associated

with appellant George Wuagneux's company, Sage Corporation. Like the other conduit

corporations, Drake Towers received 15% of DVCC's gross receipts. Wuagneux and

Rubin were partners in Drake Towers, and Gopman also was associated with the

company. Drake Towers was replaced in turn by Fringe Benefits, Inc., a company owned

by Ostrer. The last payments made pursuant to the agreement were made in 1977 to

Fringe Benefits, Inc.

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Union officials.

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Meanwhile, as the contract in Florida was running its course, the Fund trustees in

Chicago decided to expand the dental coverage and include vision care for its members.

In exchange for securing this contract for C & A, Milano, Sr., paid Pilotto [*1497] 10%

of the new premiums through a dummy corporation maintained by James Pinkard, [**8]

Pilotto's son-in-law. As with most of the Florida conduit corporations, Pinkard's company

received the kickbacks under the guise of payments due for services purportedly rendered

checking members' eligibility.

Between 1970 and 1973, a man named Joseph Hauser discussed setting up a life

insurance company with Terence O'Sullivan, vice-president of the International Union.

The two men agreed that if Hauser could set up a company that could write policies on a

nationwide basis, O'Sullivan would use his influence to get business for the company in

exchange for stock in the company and kickbacks. Hauser also met with Caporale, Fosco,

Tricario and Giardiello about setting up business in Florida and in the midwest, and again

the parties agreed to exchange business for kickbacks and stock.

In 1973 Hauser purchased the Farmers National Life Insurance Company in Florida.

Gopman helped with the legal work and assisted in bribing the Florida Insurance

Commissioner to facilitate the purchase. Hauser reached an agreement with Rubin that

Hauser would pay a 15% kickback in exchange for the life insurance business of the

Union locals in Florida. Gopman and Rubin also received stock in the insurance [**9]

company as part of the deal, and Hauser paid Gopman's law firm a $2500 monthly

retainer, although no services were actually rendered. After the contracts were awarded to

Farmers, Hauser began making regular payments to Rubin, Gopman, Tricario, Giardiello,

Fosco and O'Sullivan, as well as making supplemental payments at various times and

buying them cars and jewelry, among other things. Rubin set up a dummy corporation

associated with Farmers that laundered $250,000 in payments from Hauser.

In 1974 Fosco arranged for Hauser to get the midwest contract. Hauser's company paid

monthly amounts to a dummy corporation run by Fosco's son, supposedly as

commissions for policies written by the dummy corporation. This amount was later

supplemented with $36,844.36 because "the outfit" was upset that not enough money was

coming in. Fosco also arranged for the Indiana Union contract to be awarded to Hauser,

again utilizing the dummy corporation run by Fosco's son to funnel kickback payments

from Hauser.

In 1976 Hauser agreed to pay Caporale $25,000 plus 25 cents per member per month in

exchange for the contract to reinsure all of the Chicago union insurance business,

including the C & A dental [**10] clinics. Although Hauser actually paid $15,000 of that

amount, the contract never materialized because Farmers began to experience financial

troubles.

Indictments were returned for sixteen individuals allegedly implicated in the scheme

described above. Five of the defendants were severed prior to trial and are not appellants

here. 13 The remaining defendants went to trial before a jury in the Southern District of

Florida on a one count indictment charging all eleven defendants with conspiracy to

violate the federal racketeering statute, 18 U.S.C.A. § 1962(d). Three of the defendants

were acquitted, 14 while the remaining eight, the appellants here, were convicted.

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James P. Norton, James Pinkard (Pilotto's son-in-law), and Santo Trafficante.

Arcardo.

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The trial court sentenced all [**11] of the defendants to various periods of incarceration

and, in addition, ordered Gopman, Tricario, Giardiello, and rubin to forfeit $1,254,964.80

funneled to them through various corporations as part of the kickback scheme. The trial

court also ordered Pilotto to forfeit $595,701.90 funneled to a company controlled by his

son-in-law as part of the kickback scheme.

[*1498] Several weeks after the verdict in this case was returned, a Miami newspaper

reported that the government was conducting an investigation into allegations of jury

tampering. The defendants moved for a new trial and other relief based on the news

report. The district court denied the motions.

All eight defendants appealed and full briefs were filed under the case number 82-5964.

Since the government stated in its brief that it would not oppose a remand to the district

court for the limited purpose of conducting an evidentiary hearing on the jury tampering

issue, this Court remanded the case for that purpose. The trial court held six days of

hearings on the claim and all jurors and alternates testified or were deposed. In addition,

the court took evidence from FBI agents and a federal prosecutor who

investigated [**12] the jury tampering claim, and from several persons identified as

possible sources of the rumor. The trial court concluded that the defendants had failed to

demonstrate by a preponderance of credible evidence that any extrinsic matter had tainted

the jury's deliberation. That matter comes back on appeal as case number 85-5670 and is

consolidated with the appeal on the merits.

The appellants' briefs taken as a whole raise twelve distinct points of appeal. 15 These

points will be discussed seriatim in order of significance.

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adopt the arguments of all other appellants. Since some of the other appellants' arguments

do not apply to some or all of these appellants, we will appropriately indicate throughout

this opinion when any of these four appellants have joined in an argument by adoption.

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A. Sufficiency of the Evidence

The appellants argue that the evidence presented at trial was insufficient [**13] to

support their convictions for conspiracy to violate RICO in three respects. First, most of

the appellants argue that their participation in an "enterprise" was not properly proved

because there was a material variance between the enterprise alleged in the indictment

and the enterprise actually proven at trial. 16 Second, Gopman claims that there is no

evidence that he was involved in the conspiracy during the period of time charged in the

indictment. Third, Ostrer and Wuagneux claim that the evidence at trial was insufficient

to tie them to the conspiracy. In reviewing these claims of insufficiency of the evidence,

we must make all inferences and credibility choices in support of the jury verdict and

examine whether a reasonable trier of fact could find that the evidence presented at trial

established guilt beyond a reasonable doubt. United States v. Perkins, 748 F.2d 1519,

1526 (11th Cir. 1984); United States v. Alonso, 740 F.2d 862, 872 (11th Cir. 1984), cert.

denied, 469 U.S. 1166, 105 S. Ct. 928, 83 L. Ed. 2d 939 (1985).

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indictment improperly charged multiple enterprises rather than a single enterprise

because it charged the International Union, its subordinated bodies, and its affiliated

employee benefit plans.

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[**14] 1. Variance between indictment and proof at trial

Appellants argue that the district court erred by instructing the jury that the enterprise

consisted solely of the International Union when in fact the evidence failed to establish

that the appellants conspired to participate in the affairs of the International Union. The

appellants contend that instead of establishing a single conspiracy run through a single

enterprise, the evidence at trial established the existence of two separate and distinct

conspiracies, the "dental" conspiracy, revolving around Caporale, Fosco and Pilotto, and

the "insurance" conspiracy, revolving around Hauser's venture into the business of

insuring Union members. As a result, appellants contend, there is an impermissible

material variance between the indictment and the proof at trial.

[*1499] A "variance" occurs when the evidence at trial establishes facts materially

different from those alleged in the indictment. United States v. Johnson, 713 F.2d 633,

643 n. 9 (11th Cir. 1983), cert. denied, 465 U.S. 1081, 104 S. Ct. 1447, 79 L. Ed. 2d 766

(1984). A variance between allegations and proof is reversible error [**15] only when it

actually prejudices the defendant. Kotteakos v. United States, 328 U.S. 750, 66 S. Ct.

1239, 90 L. Ed. 1557 (1946); United States v. McCrary, 699 F.2d 1308, 1310 (11th Cir.

1983). To evaluate whether reversible error occurred in this case, we must make two

inquiries; 1) whether a material variance did indeed occur and 2) if so, whether the

appellants suffered substantial prejudice as a result of the variance. Id.; see United States

v. Jenkins, 779 F.2d 606, 617 (11th Cir. 1986); United States v. Warren, 772 F.2d 827,

835 n. 12 (11th Cir. 1985), cert. denied, 475 U.S. 1022, 106 S. Ct. 1214, 89 L. Ed. 2d 326

(1986).

The first problem in determining whether a material variance occurred in this case is in

determining precisely what the indictment charged. The indictment described the

enterprise as the International Union, "including all of its subordinate bodies and

affiliated employee benefit plans." In the charge read to the jury, however, the district

court declined to give the phrase "including subordinate bodies and affiliated benefit

plans" on the grounds that there was no evidence [**16] at trial establishing that the

International Union had subordinate bodies or affiliated benefit plans. At the same time,

the district court refused to strike the same language from the indictment. Throughout the

jury instructions the district court characterized the enterprise at issue as the International

Union, although it cautioned the jury that its description of the charges was "summary".

The court later referred the jury to the indictment for a more complete statement of the

charges, which of course defined the enterprise more broadly than just the International

Union.

The appellants interpret the district court's instruction as requiring the government to

prove that all of the racketeering activities alleged were conducted through the

International Union proper. It is clear, however, that the jury charge viewed as a whole,

which includes the original indictment, establishes that the enterprise charged was not

limited to the International Union parent organization alone. Although the district judge

omitted the phrase "including its subordinate bodies and affiliated benefit plans" from the

charge, he did not strike it from the indictment and alter characterized his

description [**17] of the charges as "summary", referring the jury to the more detailed

description in the indictment. The jury could therefore reasonably conclude that the

enterprise charged in this case was not limited to the legal entity of the International

Union, but that it might consist of something broader. In addition, the term "enterprise"

as broadly defined by the statute embraces not only formally defined entities, but

associations of entities. See United States v. Thevis, 665 F.2d 616, 625-26 (5th Cir.), cert.

denied, 456 U.S. 1008, 102 S. Ct. 2300, 73 L. Ed. 2d 1303 (1982). Consequently, the jury

could have found that the enterprise involved in this scheme was the International Union

Assuming however for present purposes that the charge limited the enterprise to the

International Union alone, we must still measure the evidence established at trial against

the charge to determine whether the proof at trial materially varies from it. Appellants

allege that a material variance occurred in two ways: first, that the proof at trial

established two distinct conspiracies rather than one [**18] and, second, that in any

event the evidence did not establish a conspiracy operating through the enterprise

charged.

The analysis for both contentions is the same: even if the evidence arguably establishes

multiple conspiracies, 17 there is [*1500] no material variance from an indictment

charging a single conspiracy if a reasonable trier of fact could have found beyond a

reasonable doubt the existence of the single conspiracy charged in the indictment. United

States v. Jenkins, supra, 779 F.2d 616-17 (quoting United States v. Cole, 755 F.2d 748,

764 (11th Cir. 1985)); United States v. Plotke, 725 F.2d 1303, 1308 (11th Cir.), cert.

denied, 469 U.S. 843, 105 S. Ct. 151, 83 L. Ed. 2d 89 (1984). In determining whether a

reasonable trier of fact could have found a single conspiracy, the courts in this Circuit

have looked at three factors: 1) whether a common goal existed, 2) the nature of the

scheme, and 3) overlap of participants. Jenkins, supra, 779 F.2d at 617; United States v.

Lee, 695 F.2d 515, 518 (11th Cir.), cert. denied, 464 U.S. 839, 104 S. Ct. 130, 78 L. Ed.

2d 125 (1983). [**19]

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multiple conspiracies, a defendant may be entitled to a jury instruction on multiple

conspiracies. United States v. Sutherland, 656 F.2d 1181, 1189 n. 5 (5th Cir. 1981), cert.

denied, 455 U.S. 949, 102 S. Ct. 1451, 71 L. Ed. 2d 663 (1982). A failure to give such an

instruction is not reversible error, however, unless the defendant can show prejudice. Id.

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We conclude that there was not a material variance in this case. A reasonable trier of fact

could have found that the evidence presented at trial established that Caporale, Pilotto,

Gopman, Rubin, Tricario, and Giardiello conspired to use their positions of authority in

the Union organization as the means to commit the predicate kickback offenses.

Appellants Wuagneux and Ostrer likewise conspired to promote the kickback scheme by

taking advantage of the other appellants' positions of influence within the Union

organization. The "dental [**20] care" branch of the conspiracy began when Fosco,

Caporale and Pilotto, all officers of or representatives to the International Union, sought

to take advantage of their influence within the Union by steering the Union members'

benefit plan contracts to C & A, a company prepared to pay kickbacks to them. Similarly,

the "insurance" branch of the conspiracy began when Fosco, O'Sullivan, Coia, Tricario

and Giardiello, also officers of or representatives to the International Union, persuaded

Hauser to go into the insurance business with the promise that they would use their

influence in the Union to obtain contracts for Hauser in exchange for kickbacks. A

reasonable trier of fact considering this evidence could have found that the appellants in

both branches of the conspiracy were operating a single overarching conspiracy through

the enterprise of the International Union by making use of the influence of high-ranking

officers of or representatives to the International Union to affect the award of insurance

benefits contracts for their own personal monetary gain.

Even if the evidence did not support the jury's finding of a single conspiracy, thereby

creating a material variance between [**21] the proof and the indictment, appellants

must still show that the variance affected their substantial rights. United States v. Warren,

supra, 772 F.2d at 835 n. 12 (11th Cir. 1985); United States v. Rodriguez, 765 F.2d 1546,

1553 (11th Cir. 1985). The courts have found prejudice to substantial rights from a

material variance in two circumstances: 1) where the proof at trial differed so greatly

from the charges in the indictment that the defendant was unfairly surprised and had an

inadequate opportunity to prepare a defense, see, e.g., United States v. Hall, 632 F.2d

500, 504 (5th Cir. 1980), and 2) where there are so many defendants and so many

separate conspiracies before the jury that there is a substantial likelihood that the jury

would transfer evidence from one conspiracy to a defendant involved in another

conspiracy, see, e.g., United States v. Warren, supra, 772 F.2d at 835 n. 12.

The appellants have failed to show prejudice from any variance that might have occurred.

They cannot claim unfair surprise since the variance did not alter the crime charged, the

requisite elements of proof or the appropriate [**22] defenses in a significant manner.

2036, 60 L. Ed. 2d 399 (1979). Appellants were clearly on notice [*1501] as to the

nature of the charges against them and the variance did not affect their ability to prepare a

defense. Nor can they show that there is a likelihood that the jury transferred evidence of

guilt as to one of the conspiracies to a defendant uninvolved in that conspiracy. Not only

is a case involving eleven defendants and two possible conspiracies not so complex by

definition that the jury will be unable to segregate the evidence properly 18, but the fact

that the jury acquitted three of the eleven defendants on trial is evidence that the jury was

indeed able to sift the evidence as to each defendant individually. See Rodriguez, supra,

765 F.2d at 1553 (no proof of prejudicial variance due to jury's inability to segregate

evidence where one defendant acquitted on some charges).

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(1946) (variance held prejudicial where indictment charged one conspiracy but proof at

trial showed eight conspiracies involving 32 defendants), with Berger v. United States,

295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935) (variance held non-prejudicial where

indictment charged one conspiracy but proof at trial showed two conspiracies involving

five defendants), and Jenkins, supra, 779 F.2d at 617 (variance held non-prejudicial

where indictment charged one conspiracy but proof showed two conspiracies involving

eight defendants).

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[**23] 2. Gopman's claim of insufficient evidence

Gopman claims that the evidence was insufficient to show that he was involved in the

conspiracy within the five year statute of limitations period. In making this argument,

Gopman focuses on the "insurance" branch of the conspiracy and points to some evidence

that he withdrew from that branch of the conspiracy more than five years before the

indictment was issued by advising the Local Fund board of trustees in Florida to pull out

of Hauser's company. Gopman's argument fails, however, because it ignores the

abundance of evidence establishing Gopman's involvement in the "dental care" branch of

the conspiracy within the relevant time frame. Since we conclude that the jury could have

reasonably found that the appellants were operating pursuant to a single conspiracy,

evidence that Gopman participated in that conspiracy, regardless of which branch, is

enough to support his conviction. See Jenkins, supra, 779 F.2d at 616-17.

3. Ostrer's and Wuagneux's claims of insufficient evidence

Ostrer and Wuagneux also assert claims of insufficiency of the evidence. Both appellants

are in a slightly different position from [**24] the other appellants because they are not

officers of or representatives to either the Local or the International Union. Instead, they

operated outside of the Union in setting up and operating conduit corporations for

funneling the kickback money to the other appellants. Both Ostrer and Wuagneux admit

that DVCC made substantial payments to corporations they controlled, but they contend

that the evidence did not establish that the payments had anything to do with the kickback

scheme. We reject their claims.

Ostrer contends that the only evidence tying him into the kickback scheme was the

unreliable hearsay testimony of Milano, Jr., to the effect that Ostrer's company, SAEFA,

acted as a conduit for kickback payments and that it never performed the service it

purportedly was being paid to provide. The credibility and weight of properly admissible

evidence 19 is for the jury to decide, however, and the jury could reasonably find based on

Milano's testimony that Ostrer participated in the kickback scheme. Furthermore, Milano,

Jr.'s testimony was not the only evidence linking the payments to SAEFA with the

conspiracy. Hauser also testified that Ostrer and Wuagneux had told him that they [**25]

were "laundering" kickback money. In addition, the circumstantial evidence surrounding

the payments to SAEFA, such as the amount of the payments and the pattern of successor

conduit corporations, supports a finding that Ostrer was implicated in the scheme. United

[*1502] States v. Mosquera, 779 F.2d 628, 630 (11th Cir. 1986); United States v.

Jenkins, supra, 779 F.2d at 610.

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Wuagneux makes essentially the same argument, claiming insufficiency of the evidence

because of the unreliability of Milano, Jr.'s and Hauser's testimony and the lack of any

evidence beyond that testimony establishing that his joint venture project, Drake Towers,

was used in furtherance of the kickback scheme. Again, it was within the jury's province

to give whatever credibility and weight they thought appropriate to the testimony of both

witnesses, and based on that testimony the jury could reasonably find [**26] that

Wuagneux participated in the scheme. As with Ostrer, the circumstantial evidence

surrounding the payments to Drake Towers is consistent with the government's theory of

the case. 20

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commission of two predicate acts as required by 18 U.S.C.A. § 1962(d) because his use

of Drake Towers as a conduit corporation amounted to a single act. The evidence at trial

showed, however, that Drake Towers received 17 separate payments from DVCC over a

17 month period. Under the case law interpreting the predicate act requirement of RICO,

each of these payments constitutes a separate violation of 18 U.S.C.A. § 1954 and

therefore a separate predicate act. See United States v. Colacurcio, 659 F.2d 684, 688 n. 4

(5th Cir. 1981), cert. denied, 455 U.S. 1002, 102 S. Ct. 1635, 71 L. Ed. 2d 869 (1982);

U.S. 1022, 103 S. Ct. 1272, 75 L. Ed. 2d 494 (1983).

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[**27] B. Jury Tampering

The appellants' next point of appeal challenges the district court's ruling in the

proceedings on remand investigating the jury tampering allegations. The issue of jury

tampering arose after the trial had concluded when a report appeared in a Miami

newspaper that a grand jury was conducting an investigation into the possibility that a

male juror in a major labor union racketeering case had been given a $200,000 bribe to

secure the acquittal of three or four defendants in the case. The district court's six day

evidentiary hearing, which consisted of testimony from the jurors at issue, the

government officials who investigated the claim of tampering, and various individuals

believed to know the source of the rumor, as well as a review of most of the reports and

transcripts from the grand jury investigation, turned up no credible evidence suggesting

that anyone had actually attempted to bribe or otherwise influence any of the jurors.

The hearing did reveal that one of the jurors, John Curtice, both prior to and during

deliberations, had made several references to certain friends or relatives he had in the

Chicago area purportedly connected with the Mafia. [**28] He told some of the other

jurors that he spoke with these friends or relatives on a daily basis about the trial. Curtice

remarked more than once that his friends in Chicago had told him that some defendants

might have to be sacrificed in order to acquit others, and that his Chicago connections

were pleased or displeased with how the trial was going.

The district court concluded that no tangible evidence supported the allegation that a

juror was bribed or otherwise influenced by an extrinsic contact. The court also found

that while juror Curtice's remarks were "inappropriate", it was "clear from the testimony

that these remarks were perceived for the most part as having been made in jest" and that

"these remarks had absolutely no influence upon the jurors in their deliberations." As a

result, the court ruled that the appellants failed to prove a prejudicial factual intrusion into

the jury's deliberations.

The appellants argue that the district court erred in reaching this conclusion in four ways:

first, the court erroneously placed the burden of showing that an extrinsic factual matter

tainted the jury's deliberations upon the appellants; second, the court erred by not finding

that [**29] the jury was in fact tainted; third, the court improperly refused to compel the

testimony of two reporters involved in the spread of the jury tampering rumor; and

fourth, the anti-Italian ethnic bias evident among the jurors warrants a new trial.

[*1503] Appellants' first claim is meritless. The law in this Circuit is well settled that

the defendant bears the burden of establishing that an extrinsic contact with a jury in fact

occurred. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S.

827, 100 S. Ct. 51, 62 L. Ed. 2d 34 (1979). Once the defendant has proved extrinsic

contact, the burden then shifts to the government to demonstrate that the contact was not

prejudicial. United States v. Phillips, 664 F.2d 971, 999 (5th Cir. 1981), cert. denied, 457

U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982). The district court charged the

appellants with the burden of proving that some extrinsic contact with the jury had been

made, and concluded that they had failed to shoulder that burden. The court thus correctly

allocated the burden of proof.

Appellants' second claim is that the [**30] district court clearly erred in finding that the

jury was not in fact tainted. The district court's conclusion was based on two findings:

first, that the appellants failed to produce any evidence whatsoever to show that any

outside contact with the jury was made and, second, that any questionable conduct by

juror Curtice had no effect on the jury's deliberations.

Appellants dispute the first finding by arguing that the phone calls Curtice claimed to

receive from relatives or friends in Chicago constitute extrinsic contacts. Since the record

does not reflect that the appellants ever established that the phone calls actually took

place, or what the content of the phone calls was, we can hardly conclude that the district

court erred in determining that no extrinsic contact took place.

Appellants dispute the second finding by pointing to portions of the testimony at the

evidentiary hearing which they claim establish that the jury was in fact influenced by

Curtice's comments. Specifically, appellants claim that four of the jurors testified that

they thought Curtice was connected with the mob and that one juror, Dora Swanko,

believed Curtice.

A review of the transcript does not support [**31] appellants' characterization of the

testimony. The transcript reveals that the four jurors who supposedly testified that they

believed Curtice was associated with the mob actually testified only that Curtice might

have told them that he had relatives associated with the mob. All four jurors also testified

that they believed that Curtice was joking when he made those statements. Likewise, the

transcript reflects that, although Dora Swanko stated that she believed Curtice was

receiving phone calls from family members in Chicago, she did not know what the calls

were about or believe that the calls were to members of the Mafia. She also testified that

she thought Curtice's comments were made in a joking context. Consequently, we affirm

the district court's determination that the jury's deliberations in this case were untainted.

Appellants also protest the district court's refusal to compel the testimony of two

reporters who might have had information on the source of the jury tampering matter,

Clyde Wallace and Andy Rosenblatt. In reviewing the appellants' claims, we are mindful

that the extent of a district court's inquiry into alleged extrinsic contacts with the jury is

committed to [**32] the court's sound discretion. United States v. Caldwell, 776 F.2d

989, 997 (11th Cir. 1985); United States v. Watchmaker, 761 F.2d 1459, 1465 (11th Cir.

1985), cert. denied, 474 U.S. 1100, 106 S. Ct. 879, 88 L. Ed. 2d 917 (1986).

Clyde Wallace and Andy Rosenblatt are reporters who wrote articles about the rumors of

a grand jury investigation into a $200,000 bribe of a juror. Wallace, living in the

Washington, D.C., area, declined to testify citing First Amendment privilege and personal

health reasons. Wallace did reveal that his information originated from Terence

O'Sullivan, one of the acquitted defendants. Wallace offered a physician's report that his

health did not permit travel or deposition, and the district court confirmed that report by

appointing an independent physician to examine Wallace. [*1504] Wallace's health

notwithstanding, the court gave appellants twenty days to submit interrogatories which it

in turn would order Wallace to answer. Appellants failed to submit the interrogatories

until almost three months later. At that point the court refused the request as waived and

noted that the interrogatories were [**33] not essential for a fair determination of the

jury tampering issue because the information Wallace was thought to have had been

obtained from O'Sullivan himself.

The district court's decision to disallow the interrogatories of Wallace was entirely

reasonable. Appellants failed to take advantage of the means made available to them to

interrogate Wallace and cannot now claim that their lack of diligence was error on the

part of the trial court. Moreover, appellants were able to get the information they sought

from Wallace -- the source of the jury-tampering rumor -- from O'Sullivan, the man

Wallace identified as his source. O'Sullivan did testify at the evidentiary hearing,

although he denied saying anything about jury-tampering to anyone.

Rosenblatt refused to testify at the evidentiary hearing on grounds of reporter's privilege.

The trial court held that the appellants failed to show that Rosenblatt's information was

otherwise unavailable and that there was a compelling interest in securing his testimony.

The standard governing the exercise of reporter's privilege as articulated in Miller v.

Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980), cert. [**34] denied, 450

U.S. 1041, 101 S. Ct. 1759, 68 L. Ed. 2d 238 (1981), provides that information may only

be compelled from a reporter claiming privilege if the party requesting the information

can show that it is highly relevant, necessary to the proper presentation of the case, and

unavailable from other sources. See In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).

Rosenblatt's article reported that the FBI had received allegations concerning possible

tampering, but the FBI agents involved testified themselves at the evidentiary hearing as

to the origination of the rumor. The district court did not err in concluding that the

appellants failed to show that Rosenblatt had information that was unavailable from other

sources or necessary to the proper presentation of the case in light of the fact that the

FBI's information was provided to appellants in court.

Finally, appellants claim that the jury harbored an ethnic bias against Italians and that this

bias entitles them to a mistrial under the principle articulated in United States v. Heller,

785 F.2d 1524, 1527-28 (11th Cir. 1986). Appellants contend that the record from the

remand [**35] proceedings establishes that "insidious, ethnic taunts" took place in the

jury room. Juror Curtice testified at the evidentiary hearing that some of the other jurors

kidded him about being Italian, usually as part of an exchange with him about his claim

to have cousins in Chicago and his Mafioso connections. Curtice also testified that the

jurors would occasionally joke about some of the defendants "look[ing] like . . . typical

underworld" figures. 21

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basis for a mistrial on grounds of bias. After eight of the defendants were convicted but

before the remaining three defendants were acquitted during the jury's deliberations, two

of the jurors sent a note to the judge asking "if one or more of the members of the jury is

not fulfilling his or her duty according to the oath taken, can he be removed from jury

duty? If not, then I wish to be removed as I do not feel that a fair and just verdict can be

reached." The trial judge responded with an instruction to all jurors to go home and cool

down and to come back the next day.

The testimony of various jurors at the evidentiary hearing indicates that the problem juror

was not Curtice, but Jo Anne Allen, a black juror. The note was prompted by a statement

apparently made by Allen that if the defendants in this case had been black, they would

all be convicted, meaning that she felt that some of the jurors were giving the remaining

three defendants a break because they were white. We cannot hold that this isolated

statement made by a single juror establishes that the verdicts in this case were based on

racial bias, particularly when the remaining three defendants were eventually acquitted,

meaning that Allen herself eventually voted to acquit.

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[**36] [*1505] In United States v. Heller, supra, 785 F.2d at 1527-28, a Jewish trial

attorney was convicted of tax evasion and falsely subscribing to an income tax return.

After a note from the jury foreman during deliberations alerted the court to possible juror

misconduct, the court questioned each member of the panel individually. The voir dire

revealed that, during the course of the trial and into deliberations, several of the jurors

had made a series of anti-Semitic comments and directed ethnic slurs at the defendant,

saying things like ". . . he [the defendant] is Jewish. We are just going to hang him." Id. at

1526.

The Court of Appeals for this Circuit declared a mistrial, holding that the jury's ethnic

and religious slurs in this case constituted impermissible jury misconduct. Id. at 1527.

The court rejected the government's arguments that the anti-Semitic comments were

meaningless because they were made in jest on grounds that ethnic humor itself is an

expression of prejudice and that the district court's inquiry did not sufficiently establish

that ethnic bias did not affect the jury's verdict.

We find this case [**37] distinguishable from Heller, however. There is ample evidence

to establish that the verdicts in this case were not based on ethnic bias, despite the joking

among the jury about Italians and the Mafia. 22 The jury in this case deliberated three full

weeks to arrive at a verdict, acquitting some of the defendants in the process.

Furthermore, not only were two of the jurors themselves Italian, but some of the

defendants the jury acquitted were Italian. By the same token, some of the defendants the

jury convicted were not Italian. In addition, most of the joking around, which took place

on lunch and coffee breaks rather than while the jury was actually deliberating, was

directed at Curtice, a juror, rather than at the defendants as was the case in Heller.

Although the joking around among the jury members in this context was inappropriate,

the record does not indicate that any of the jurors prejudged the guilt or innocence of any

of the defendants as the result of ethnic bias.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

ethnic jokes made in the jury room are per se basis for a mistrial. We do not read Heller

as laying down a per se rule to that effect, but as establishing the proposition that a

mistrial is warranted where it appears that ethnic bias on the part of the jury influenced

the verdict, and that ethnic jokes can serve as a basis for finding ethnic bias.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[**38] C. Forfeitures

Appellants Pilotto, Gopman, Tricario, Giardiello and Rubin challenge the propriety of the

district court's monetary forfeiture orders on several grounds. The penalty provision of

the RICO statute, 18 U.S.C.A. § 1963(a), provides that individuals convicted of violating

the statute

shall be fined not more than $25,000 or imprisoned not more than twenty years, or both,

and shall forfeit to the United States, irrespective of any provision of State law --

(1) any interest the person has acquired or maintained in violation of section 1962;

* * * * * *

(3) any property constituting, or derived from, any proceeds which the person obtained,

directly or indirectly, from racketeering activity or unlawful debt collection in violation

of section 1962.

In accordance with this provision, the district court ordered Pilotto to forfeit the

$595,701.90 he had ordered C & A to pay to the conduit corporation run by his son-inlaw,

James Pinkard. It also entered forfeiture orders against Gopman, Tricario, Giardiello,

and Rubin for the $1,254,964.80 paid by DVCC to the succession of conduit corporations

in Florida.

[**39] 1. Pilotto's claim

Pilotto claims that the district court improperly based its forfeiture order against him on a

theory of vicarious liability. We need not reach at this juncture the question of whether a

forfeiture order may be imposed based on a theory of vicarious liability because it is

apparent that the district [*1506] judge did not in fact base his order on such a theory.

The judge made findings of fact based on ample evidence that the payments to Pinkard's

corporation were disguised kickback payments to Pilotto. The court also found that

Pilotto had in fact received $595,701.90 in proceeds from the illegal scheme through the

conduit corporation. Consequently, the district court properly ordered forfeiture of that

amount, and Pilotto's challenge to the order is meritless.

2. Tricario, Gopman, Giardiello and Rubin -- waiver of jury trial

Tricario, Gopman, Giardiello and Rubin also challenge the forfeiture order entered

against them on grounds that the trial judge misled them into waiving their right to a jury

trial on the issue of joint and several liability. 23 We find, however, that the record does

not support their contention.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

appellants.

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[**40] The indictment originally sought joint and several liability against all defendants

for all the proceeds of the entire scheme. When the trial judge inquired whether any of

the defendants wished a jury trial on the question of forfeiture, Gopman and Giardiello

waived a jury trial from the outset. 24 Later in the trial, the court rejected the government's

broad theory of joint and several liability, and at that point Tricario and Rubin waived

jury trials on the forfeiture question.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

the court allow the government to proceed on a joint liability theory.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Later still, however, the court allowed the government to offer a narrower theory of joint

and several liability limited to Gopman, Rubin, Tricario and Giardiello as joint owners

and beneficiaries of kickback payments to the corporation set up in conjunction with the

"dental care" branch of the conspiracy. None of the four appellants at this point requested

trial [**41] by jury on the forfeiture issue or objected that their prior waiver had been

conditioned on an understanding that the trial court had rejected joint liability in any

form. Under these circumstances we cannot find that the district court misled any of the

appellants in any way into waiving their right to a jury trial on the forfeiture issue.

3. Tricario, Giardiello, Gopman and Rubin -- joint and several liability

Tricario, Giardiello, Gopman and Rubin also challenge the forfeiture order on the

grounds that it improperly grafted the tort principle of joint and several liability onto the

criminal RICO forfeiture provision. 25 The issue of whether a RICO forfeiture can be

imposed jointly and severally is an issue of first impression. A review of the statutory

scheme as a whole and the purpose of the forfeiture provision, however, persuades us that

imposition of joint and several liability in a forfeiture order upon RICO co-conspirators is

not only permissible but necessary in these circumstances to effectuate the purpose of the

forfeiture provision.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[**42] Section 1963(a)(1) of U.S.Code Title 18 requires forfeiture to the United States

of "any interest . . . acquired . . . in violation of section 1962." There is no question in this

case that the series of conduit corporations in Florida received the kickback payments

from DVCC in violation of Section 1962. There is also no question that kickbacks were

paid to the conduit corporations for the use and benefit of the four defendants ordered to

forfeit the kickbacks. The government conceded, however, that it could not prove how

the kickbacks had been allocated among the four defendants. As a consequence, the trial

court imposed joint and several liability upon all four defendants for the total amount of

kickbacks paid to the conduit corporations. The forfeiture provision, however, is silent on

the question of whether a legitimately forfeitable [*1507] interest may be forfeited

through the imposition of joint and several liability.

Tricario, Giardiello, Gopman and Rubin argue that imposing joint and several liability is

improper for three reasons: 1) the language of the forfeiture provision directs that

forfeiture should be imposed upon an individual who violates Section 1962, [**43]

thereby excluding by negative implication joint and several liability; 2) joint and several

liability has never been imposed in a criminal case before; and 3) the doctrine of joint and

several liability is inconsistent with criminal law's traditional focus on individual

wrongdoing and the practice of fashioning an individual penalty appropriate for that

wrongdoing.

We are not persuaded by any of these arguments. First, we reject the contention that

Section 1963(a)(1) excludes joint and several liability by negative implication. The

statute states that individuals convicted of violating Section 1962 shall forfeit any interest

acquired as a result of the violation. 18 U.S.C.A. § 1963(a)(1). The four individuals

subject to the forfeiture order at issue here, Tricario, Giardiello, Gopman and Rubin, were

each convicted of violating Section 1962 and ordered to forfeit the proceeds of the

violation. As individuals convicted under Section 1962, they fall squarely within the

forfeiture provision. The requirement that a convicted individual forfeit the proceeds

from his or her illegal activity in no way implies that the liability may not be imposed in a

joint and [**44] several fashion.

Second, the fact that joint and several liability has never been imposed before in a

criminal case does not mean that Congress may not act to provide for such liability. 26

While the statute itself does not expressly state that properly found liability may be

imposed in a joint and several manner, the nature of a RICO conspiracy violation and the

legislative history of the forfeiture provision indicate that joint and several liability is not

only consistent with the statutory scheme, but in some cases will be necessary to achieve

the aims of the legislation.

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contend that the imposition of such liability is outside the scope of penalties Congress is

empowered to impose. However, Tricario, and, by "adoption," Giardiello, Gopman and

Rubin do present an Eighth Amendment challenge to the imposition of such liability.

Since this argument is raised for the first time on appeal, we decline to give it any

consideration.

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[**45] RICO is a statute "intended to provide new weapons of unprecedented scope for

an assault upon organized crime and its economic roots." Russello v. United States, 464

U.S. 16, 26, 104 S. Ct. 296, 302, 78 L. Ed. 2d 17 (1983). The Supreme Court has

consistently interpreted RICO's statutory language broadly in order to give effect to

Congress's far-reaching legislative intent. See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985); United States v. Russello, supra, 464

U.S. at 20-22, 104 S. Ct. at 299-300; see also United States v. Kaye, 556 F.2d 855 (7th

Cir.), cert. denied, 434 U.S. 921, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977); United States v.

Mazzio, 501 F. Supp. 340 (E.D.Pa.1980), aff'd, 681 F.2d 810 (3rd Cir.), cert. denied, 457

U.S. 1134, 102 S. Ct. 2961, 73 L. Ed. 2d 1351 (1982). The legislative history reflects that

Congress regarded the ability to reach racketeering profits as key to a successful attack on

organized crime. 115 Cong.Rec. 5873, 5884-5885 (1969); S.Rept. No. 225, 98th Cong.,

2d [**46] Sess., reprinted in U.S.Code Cong. & Ad.News 3182, 3187-88 (1984); United

States v. Navarro-Ordas, 770 F.2d 959, 970 (11th Cir. 1985), cert. denied, 475 U.S.

1017, 106 S. Ct. 1200, 89 L. Ed. 2d 313 (1986). The forfeiture provision is designed to

reach those profits. Id. The provision seeks not only to punish but "to remove the profit

from organized crime by separating the racketeer from his dishonest gains." United States

v. Russello, supra, 464 U.S. at 27-28, 104 S. Ct. at 302-303; see S.Rept. No. 225, 98th

Cong., 2d Sess., reprinted in U.S.Code Cong. & Ad.News at 3374.

The critical role the forfeiture provision plays in the Congressional scheme persuades us

that joint and several liability [*1508] may be imposed in these circumstances. If the

government were required to determine the precise allocation of racketeering proceeds

between two offenders before the court could impose forfeiture, the effectiveness of the

remedy would be impaired substantially. The offenders would simply have to mask the

allocation of the proceeds to avoid forfeiting them altogether. If the government can

prove the amount of the proceeds [**47] and identify a finite group of people receiving

the proceeds, it defeats the purpose of the provision to hold that the proceeds cannot be

forfeited because the government cannot prove exactly which defendant received how

much of the pot.

Furthermore, permitting joint and several liability in these circumstances would be

consistent with the line of cases in this Circuit holding that the government is not

required to trace racketeering proceeds to specific assets before imposing forfeiture. See

United States v. Navarro-Ordas, 770 F.2d 959, 969 (11th Cir. 1985); United States v.

Conner, 752 F.2d 566, 575 (11th Cir.), cert. denied, 474 U.S. 821, 106 S. Ct. 72, 88 L.

Ed. 2d 59 (1985). The courts in these cases characterized a forfeiture order as an in

personam judgment, holding that if the defendant received proceeds from racketeers,

those proceeds are forfeitable regardless of what the defendant did with the proceeds after

he received them. Navarro-Ordas, supra, 770 F.2d at 969; Conner, supra, 752 F.2d at

577. Once the defendant receives racketeering proceeds, he bears the burden of

satisfying [**48] the forfeiture order. Similarly, in this situation the government has

established the amount of the proceeds and who received the proceeds. The joint and

several liability order simply places the burden of satisfying the order collectively on

Tricario, Giardiello, Gopman and Rubin. There is no question that the monies paid to the

conduit corporations are forfeitable proceeds: joint and several liability in this context is

simply a collection device. Cf. Conner, supra, 752 F.2d at 577 (government's obligation

to trace goes to collectibility rather than to type of interest forfeitable).

Third, we reject the notion that joint and several liability on a forfeiture is inconsistent

with traditional concepts of criminal law and individual responsibility. To begin with, the

criminal law does recognize vicarious liability in certain circumstances. For example, a

co-conspirator can be punished for a substantive offense committed by one of his coconspirators

so long as the offense is reasonably foreseeable and is committed in

furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647, 66 S. Ct.

1180, 1184, 90 L. Ed. 1489 (1946); United States v. Michel, 588 F.2d 986, 999 [**49]

(5th Cir.)., cert. denied, 444 U.S. 825, 100 S. Ct. 47, 62 L. Ed. 2d 32 (1979). The

imposition of joint and several liability on a forfeiture is even less theoretically

problematic than vicarious liability for a substantive conviction might be because it goes

only to the penalty imposed rather than to the individual's criminal liability. In addition,

traditional notions of criminal law are not altogether analogous because RICO itself by

design is not traditional criminal law: it represents a radical departure from common law

notions of liability and punishment in criminal law in a number of respects. 27 See United

States v. Russo, 796 F.2d 1443 (11th Cir. 1986); United States v. Cauble, 706 F.2d 1322,

1345 (5th Cir. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 996, 79 L. Ed. 2d 229

(1984). In summary, then, we hold that the district court's imposition of joint and several

liability for the forfeiture of the proceeds funneled through the conduits was not

improper.

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United States prior to the enactment of the RICO forfeiture provision. See United States

v. Cauble, supra, 706 F.2d at 1345 (5th Cir. 1983).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[**50] Finally, and perhaps most importantly, these four appellants have failed to

demonstrate that imposition of joint and several liability is in any way unfair. The district

court did not arbitrarily apportion the forfeiture amount among the four defendants;

rather, it left for the time being the matter [*1509] of precise apportionment to the

defendants themselves.

4. Tricario, Giardiello, Gopman and Rubin -- forfeiture for conspiracy conviction

Tricario, Giardiello, Gopman and Rubin also argue that forfeiture can be ordered only in

connection with a substantive RICO violation, not in connection with a conspiracy

conviction. They argue that, since conspiracy does not require proof of a substantive

violation of the act, it is inappropriate to impose forfeiture because the government has

not proven that the defendants actually received proceeds from the RICO violation -- that

is, from the agreement. They argue that an agreement alone logically cannot have

proceeds.

The language and legislative history of the statute plainly indicate that Congress intended

to punish a conspiracy to violate RICO with the same tools it made available to punish

substantive violations. RICO's [**51] penalty provision, 18 U.S.C.A. § 1963(a),

provides that each of the three penalties for a RICO violation, imprisonment, fines, and

forfeiture, may be imposed for a violation of "any provision of section 1962." The

conspiracy provision is found in Section 1962 in subsection (d). Furthermore, the

legislative history expressly provides that "Subsection (d) [of section 1962] makes

conspiracy to violate (a), (b) or (c) [of section 1962] equally subject to the sanctions of

sections 1963 and 1964, below." H.Rept. No. 1549, 91st Cong. 2d Sess., reprinted in

U.S.Code Cong. & Ad.News 4007, 4033 (1971).

In addition, as a matter of common sense, a court could impose forfeiture only as a

penalty for a Section 1962(d) conviction if there were in fact proceeds to forfeit. If a

defendant is convicted of conspiracy to violate RICO when he has not in fact received

any proceeds from the illegal venture, then forfeiture would be inappropriate because the

forfeiture provision only permits forfeiture of "interests acquired or maintained" as a

result of a RICO violation. 18 U.S.C.A. § 1963(a)(1). Thus, if an agreement to violate

RICO were nipped in [**52] the bud, before the conspiracy generated any proceeds, the

defendants would not have "interests acquired" that were subject to forfeiture. That is not

the case here, however. The government proved at trial that the conspiracy entered into

by these appellants yielded over two million dollars in proceeds. Given that the purpose

behind the forfeiture provision is to separate the illegal activity from the profits that

activity generated, forfeiting proceeds from conspiracies that, in fact, yield proceeds

would clearly further that goal.

D. Severance

Caporale, Rubin, Wuagneux and Ostrer argue that they were prejudiced by the district

court's failure to grant them a severance from some or all of the other defendants.

Fed.R.Crim.P. 14 provides that

if it appears that a defendant or the government is prejudiced by a joinder of offenses or

of defendants in an indictment or information or by such joinder for trial together, the

court may order an election or separate trials of counts, grant a severance of defendants or

provide whatever relief justice requires.

The grant or denial of a severance is entrusted to the sound discretion of the trial court.

U.S. 1051, 106 S. Ct. 1275, 89 L. Ed. 2d 582 (1986); United States v. Andrews, 765 F.2d

1491, 1498 (11th Cir. 1985), cert. denied, 474 U.S. 1064, 106 S. Ct. 815, 88 L. Ed. 2d

789 (1986). The trial judge's decision not to sever a defendant will be reversed only upon

a showing of compelling prejudice against which the trial judge was unable to shield the

defendant. Id. None of the appellants have made such a showing here.

Caporale and Wuagneux argue initial misjoinder. Their argument is predicated on the

assumption that the Chicago and Florida conspiracies were two separate conspiracies. We

have already concluded, however, that the indictment properly charged a single

conspiracy. The general rule is that defendants who are jointly indicted [*1510] should

be tried together, particularly in conspiracy cases. United States v. Alvarez, 755 F.2d 830,

857 (11th Cir.), cert. denied, 474 U.S. 1064, 106 S. Ct. 274, 88 L. Ed. 2d 235 (1985);

1108, 104 S. Ct. 1614, 80 L. Ed. 2d 143 (1984). [**54] Joinder of co-defendants in a

count charging a single RICO conspiracy violation is permissible, even if different

defendants are charged with different acts of racketeering, if the racketeering acts

charged are in furtherance of the overarching RICO conspiracy charge. United States v.

Rosenthal, 793 F.2d 1214, 1234 (11th Cir. 1986); United States v. Sans, 731 F.2d 1521,

1533 (11th Cir. 1984), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 785

(1985); United States v. Welch, 656 F.2d 1039, 1051 (5th Cir. 1981), cert. denied, 456

U.S. 915, 102 S. Ct. 1768, 72 L. Ed. 2d 173 (1982); United States v. Martino, 648 F.2d

367, 385-86 (5th Cir. 1981), cert. denied, 456 U.S. 943, 102 S. Ct. 2006, 72 L. Ed. 2d

465 (1982). Caporale's activities in Chicago and Wuagneux's in Florida were both in

furtherance of the overarching RICO conspiracy count charged in the indictment, and

therefore initial joinder was proper. Further, Caporale and Wuagneux have failed to make

any showing that the district court's decision to try them together with the other

defendants resulted [**55] in any prejudice. We find no error here.

Rubin argues that he was entitled to a severance from defendant Fosco because they

presented antagonistic and mutually exclusive defenses. Rubin was convicted, while

Fosco was acquitted. Fosco attempted to prove that he did not participate in the

conspiracy by showing that he took measures to remedy the problems that developed as a

result of Hauser's insurance contracts with Union affiliates. The key witness for Fosco

was Robert Connerton, general counsel for the Union. Connerton testified that Fosco

placed Rubin on administrative leave from his post as an international representative

following an internal union investigation in 1975. Rubin claims that this testimony

prejudiced his defense, which was that he had no knowledge or involvement in the

scheme.

This Circuit has held that a district court is required to grant a severance where there are

two potentially antagonistic defenses only if the conflict between the two defendants is so

irreconcilable that the jury will infer that both defendants are guilty solely because of the

conflict. United States v. Barnes, 681 F.2d 717, 722 (11th Cir. 1982), cert. denied, 460

U.S. 1046, 103 S. Ct. 1447, 75 L. Ed. 2d 802 (1983); [**56] United States v. Berkowitz,

662 F.2d 1127, 1134 (5th Cir. 1981); United States v. Herring, 602 F.2d 1220, 1224-25

(5th Cir. 1979), cert. denied, 444 U.S. 1046, 100 S. Ct. 734, 62 L. Ed. 2d 732 (1980). To

mandate severance, antagonism between the two defenses must be so high that "the jury,

in order to believe the core of testimony offered on behalf of [one] defendant, must

necessarily disbelieve the testimony offered on behalf of his co-defendant." Berkowitz,

supra, 662 F.2d at 1134.

Rubin has failed to show that the conflict between his defense and Fosco's defense

created the requisite level of antagonism. The focus of Fosco's defense was that he was

not a party to the insurance kickback scheme or, in the alternative, that he had withdrawn

from the scheme by 1975. This defense did not focus on Rubin or Rubin's role in the

conspiracy -- in fact, Connerton's testimony about Rubin's removal took only six out of

over 400 pages of transcript in three full days of testimony. Furthermore, the trial judge

carefully limited Connerton's testimony to minimize the prejudice to Rubin, advising the

witness to omit or limit [**57] his reference to Rubin. Connerton's testimony about

Rubin did not go into Rubin's role in the matter or the nature of the internal investigation

that brought about his removal. When viewed in context, Connerton's testimony cannot

be fairly described as so antagonistical to Rubin's defense that the jury would necessarily

have to disbelieve the testimony offered on Rubin's behalf. [*1511] Ostrer also claims

that Connerton's testimony on Fosco's behalf prejudiced his defense. He argues that

Connerton's reference to another insurance scheme run by a salesman in New York

implicated Ostrer because he was the only defendant from New York. A review of the

transcript shows, however, that Connerton never mentioned Ostrer by name, never stated

that this New Yorker was also a defendant in this case, or otherwise suggested that one of

the defendants in this scheme ran the prior scheme. Since there was nothing in

Connerton's testimony to connect the prior scheme with the present scheme, much less

with Ostrer specifically, Connerton's testimony was not in any way prejudicial to Ostrer's

defense.

Ostrer also contends that he was entitled to a severance because he was denied adequate

time to [**58] prepare his pro se defense. The Supreme Court has held that only an

unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable

request for a delay mandates reversal of a trial court's decision to deny a request for a

continuance. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 1616-1617, 75 L. Ed.

2d 610 (1983). Ostrer argues that the request for delay was justifiable because he was

hospitalized for two months and because he had only twenty-four hours to confer with

court-appointed stand-by counsel. The argument overlooks the fact that Ostrer had over a

year from the date of the indictment to the first day of trial to prepare his defense and that

he was represented by retained counsel for most of that period of time. Under these

circumstances, we cannot conclude that Ostrer's request for a delay was justifiable, or that

the district court's decision to go ahead and try Ostrer with the rest of the defendants was

arbitrary.

Finally, Caporale and Wuagneux argue that the case was so lengthy and complex that the

jurors were unable to keep straight which evidence went against which defendants. As a

result, they argue, some evidence [**59] inculpating the other defendants necessarily

prejudiced them. We reject this argument on two grounds. First, the jury demonstrated

their ability to sift the evidence by acquitting three of the eleven defendants. We have

held that convictions should be sustained where it may be inferred from the verdict that

the jury meticulously sifted the evidence as to each defendant. United States v. Kabbaby,

672 F.2d 857, 862 (11th Cir. 1982); United States v. Zicree, 605 F.2d 1381, 1389 (5th

Cir. 1979), cert. denied, 445 U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980). Second,

since both defendants were being tried on a conspiracy charge, much of the evidence they

object to as prejudicial would have been admissible against them in a separate trial to

prove agreement and the predicate acts. Consequently, we conclude that the district court

did not abuse its discretion in electing to try these eleven defendants together.

E. Hearsay and Confrontation Clause

Caporale, Wuagneux, Giardiello, Rubin, Ostrer and Gopman, argue that portions of

Milano, Jr.'s testimony were inadmissible hearsay and therefore improperly admitted into

evidence. [**60] Specifically, they focus on Milano, Jr.'s testimony as to what Angelo

Fosco and his father, Milano, Sr., told him about the kickback scheme. Milano, Jr.,

testified that Fosco told him that "he and Mr. Caporale got us the contract". Milano, Jr.,

also testified as to what his father told him about who received the DVCC payments.

Milano, Jr.'s testimony was properly admitted. Fosco's statements to Milano, Jr., are not

hearsay because they are statements of a co-conspirator of a party during the course of

and in furtherance of the conspiracy pursuant to Fed.R.Evid. 801(d)(2)(E). 28 See United

States v. [*1512] Cannington, 729 F.2d 702, 711 (11th Cir. 1984); United States v.

Peacock, 654 F.2d 339, 350 (5th Cir. 1981), on reh'g, 686 F.2d 356, cert. denied, 464

U.S. 965, 104 S. Ct. 404, 78 L. Ed. 2d 344 (1983). Milano, Sr.'s statements to Milano, Jr.,

are not hearsay under the same rationale. A statement made by a co-conspirator is

admissible if evidence independent of hearsay statements shows that a conspiracy

existed, that persons challenging admission were members of the conspiracy, and that the

statements [**61] were made during the course of and in furtherance of the conspiracy.

1501, 1507 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S. Ct. 2396, 81 L. Ed. 2d 353

(1984). Non-hearsay evidence clearly established that Fosco, Milano, Sr., and Milano, Jr.,

were members of the conspiracy. Furthermore, Fosco's statements to Milano, Jr., were

made to recruit his services in operating the kickback scheme, while Milano, Sr.'s

statements to Milano, Jr., were made to assist Milano, Jr., in delivering kickback

payments in the appropriate amounts to the appropriate parties. The trial court properly

concluded that these statements were admissible pursuant to Rule 801(d)(2)(E) as

statements made by co-conspirators in furtherance of the conspiracy.

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parts of Milano, Jr.'s testimony are inadmissible double hearsay. This claim is meritless.

There is nothing to indicate that the statements of Milano, Sr., and Fosco to Milano, Jr.,

were based on anything other than personal knowledge.

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[**62] Wuagneux, Giardiello, Rubin, Ostrer and Gopman also argue that the admission

of Milano, Sr.'s statements via Milano, Jr., violates the Confrontation Clause of the

United States Constitution. The Confrontation Clause is not transgressed if a statement

that would otherwise be hearsay satisfies two requirements: 1) the declarant is

unavailable, and 2) the statement bears adequate indicia of reliability, which may be

inferred if the statement falls within a "firmly rooted hearsay exception." Ohio v. Roberts,

448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980); Williams v. Melton, 733

F.2d 1492, 1496 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S. Ct. 567, 83 L. Ed. 2d 508

(1984); United States v. Peacock, supra, 654 F.2d at 349. Milano, Sr., was deceased at

the time of the trial and therefore clearly unavailable. Furthermore, as discussed above,

the statements bear adequate indicia of reliability as statements of a co-conspirator in

furtherance of the conspiracy pursuant to 801(d)(2)(E). Although statements by a coconspirator

technically are not hearsay at all under Fed.R.Evid. 801(d)(2)(E), the

courts [**63] have treated 801(d)(2) statements as if they were exceptions to the hearsay

rule for purposes of analysis under the Confrontation Clause. United States v. Georgia

Waste Systems, Inc., 731 F.2d 1580, 1581-82 (11th Cir. 1984); United States v. Carter,

721 F.2d 1514, 1535 (11th Cir.), cert. denied, 469 U.S. 819, 105 S. Ct. 89, 83 L. Ed. 2d

36 (1984); United States v. Peacock, supra, 654 F.2d at 349. The trial court did not err in

admitting Milano, Sr.'s statements.

F. Other Evidentiary Challenges

Wuagneux challenges the admission of two other pieces of evidence: 1) the joint venture

agreements between Wuagneux's Sage Corporation and Gopman and 2) certain checks

which he claims were not directly linked to Drake Towers. He argues that this evidence

should have been excluded as irrelevant or extremely prejudicial because neither the

checks nor the agreements had anything to do with transactions involving Drake Towers.

His argument presupposes that the indictment narrowly charged him with laundering

money through the Drake Towers project since the joint venture agreements and the

checks clearly implicate Wuagneux [**64] in the conspiracy through dealings between

other members of the conspiracy and Sage Corporation or with Wuagneux individually.

The indictment is not as narrow as Wuagneux asserts that it is, however. Paragraph 17 of

the indictment charges Wuagneux with directing and maintaining both Drake Towers and

the Sage Corporation as conduits for disguising illegal kickback payments. The joint

venture agreements and checks show a continuing financial relationship between

Gopman and [*1513] Wuagneux as early as 1973 and, even more importantly, transfers

of money during the transition from Fortune Service to Drake Towers as the kickback

conduit. Such evidence is clearly relevant and was properly admitted into evidence.

G. Prosecutorial Misconduct

Caporale, Ostrer, Giardiello, Rubin, and Gopman raise several challenges to the

prosecutor's conduct at trial and during the course of the grand jury investigation. A

prosecutor's comments must be viewed in the context of the record as a whole, and will

be the basis for reversal only if they result in prejudice affecting the substantial rights of

the defendant. United States v. Reme, 738 F.2d 1156, 1165-66 (11th Cir. 1984), [**65]

Caporale claims prejudicial misconduct due to a question the prosecutor asked him

during cross-examination. Caporale had testified on direct examination that he first met a

certain C & A officer in 1970. On cross-examination, the prosecutor asked him about an

application for a bank loan this C & A officer had made in 1969, in which the officer had

represented that he previously had a contract with the Chicago Fund to provide dental

services. Caporale told the prosecutor that he did not know anything about the C & A

official's prior business dealings, and the prosecutor moved to another line of

questioning.

We reject Caporale's claim that the prosecutor's question was either improper or

prejudicial. The only arguably damaging inference that might be drawn from the question

is that Caporale knew the C & A official one year earlier than he had testified. While

such an inference might theoretically undercut Caporale's credibility, any real prejudice

from the inconsistency is unlikely in view of Caporale's response [**66] to the question

and the fact that the prosecutor did not attempt to impeach Caporale with the question or

mention it in closing arguments.

Ostrer argues that the government improperly introduced evidence that he had laundered

money because the indictment did not charge him with laundering money. Ostrer's

argument, as with some of the other appellants' arguments, misreads the indictment. It

charged that he ran SAEFA and Fringe Benefits "as, among other purposes, conduits for

disguising illegal kickback monies received from DVCC" and that he and the other

defendants had agreed to "hide and conceal, and cause to be hidden and concealed, the

purpose of the conspiracy and the acts committed in furtherance of the conspiracy."

While the indictment does not use the word "laundering", Ostrer's money laundering

activity is clearly encompassed by the language of the indictment. Beyond that, evidence

of money laundering activity would be admissible to establish a predicate act of

racketeering for the RICO conspiracy charge, regardless of whether Ostrer was charged

with some crime beyond conspiracy or not.

Ostrer, Giardiello, Rubin and Gopman also claim that the prosecutor improperly

vouched [**67] for the credibility of Hauser and Milano, Jr., in his closing argument.

This argument is meritless. The prosecutor merely told the jurors that Hauser and Milano,

Jr., had no motive to lie since they had already been convicted, and that the jury had been

shown every good reason why they should believe the witnesses. The prosecutor's

comments are proper credibility arguments based on evidence in the record rather than

personal vouching for the witness's credibility. Ostrer, Giardiello, Rubin and Gopman

next argue that the government engaged in misconduct in presenting the case to the grand

jury in several respects. First, they argue that the prosecutor improperly failed to inform

the grand jury of Hauser's earlier perjury conviction. Since Hauser has never been

convicted of perjury, however, the prosecutor could not have engaged in misconduct in

this regard. They also claim that the grand jury was misled when Hauser testified before

them that he had kept a [*1514] diary of the events at issue in the case when in fact he

had not. A conviction will be set aside for prosecutorial misconduct where the

prosecution knowingly introduces false information and there is a reasonable

likelihood [**68] that the false testimony prejudiced the defendant's rights. United States

v. Butera, 677 F.2d 1376 (11th Cir. 1982), cert. denied, 459 U.S. 1108, 103 S. Ct. 735, 74

L. Ed. 2d 958 (1983); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981).

There is no indication that the prosecutors knowingly introduced Hauser's false testimony

about the diary to the grand jury. Furthermore, there has been no showing that the false

testimony contributed in any significant way to the grand jury's return of the indictment.

We find no reversible error here. 29

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lied to the grand jury in various respects. Again, even if the testimony was indeed false, it

does not constitute reversible error unless there is a showing that the government

knowingly permitted the false testimony to come before the grand jury and that the false

testimony is prejudicial. Ostrer has made no such showing.

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[**69] Finally, Ostrer, Giardiello, Rubin and Gopman argue that there was

impermissible delay in returning the indictment against them. Although the scheme began

in 1970, the indictment was not returned until 1981. Although the speedy trial guarantee

of the Sixth Amendment does not apply to preindictment delay, dismissal for delay is

warranted under the Fifth Amendment's Due Process Clause if the defendant shows 1)

that the delay caused actual prejudice to the conduct of his defense and 2) that the

government intentionally caused the delay in order to gain a tactical advantage over the

defendant. United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 2048, 52 L. Ed.

2d 752 (1977); United States v. Lindstrom, 698 F.2d 1154, 1157-58 (11th Cir.).

Even if Ostrer, Giardiello, Rubin and Gopman could prove prejudice from the delay, they

clearly did not prove that the prosecution deliberately caused the delay to gain any

tactical advantage. The delay in the return of the indictment is readily explained by the

complexity of the case and the fact that the chief government witness, Hauser, did not

begin to cooperate until 1979. Further, appellants have [**70] not suggested what

tactical advantage the government hoped to gain in delaying the return of the indictment,

or pointed to any tactical advantage that in fact resulted from the delay. It is plain that

there has not been reversible prosecutorial misconduct in this case. 30

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H. Jury Instructions

Gopman, Ostrer, Giardiello and Rubin object to three aspects of the district court's jury

instructions. 31 To properly evaluate a challenge to a jury instruction, we must examine the

entire charge as a whole to determine whether it is an accurate statement of the issues and

the law. United States v. Bosby, 675 F.2d 1174, 1184 n. 17 (11th Cir. 1982); United

States v. Abravaya, 616 F.2d 250, 251 (5th Cir. 1980). Where an appellant objects to the

trial court's refusal to give an instruction, we will reverse only if the proposed instruction

is an accurate statement of the law, is not covered [**71] in substantial part by the

instructions given, and is so important that the defendant's ability to defend himself is

seriously impaired by the denial. United States v. Williams, 728 F.2d 1402, 1404 (11th

Cir. 1984).

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Gopman begins by arguing that the trial court erred in refusing to instruct the jury that the

government bore the burden of proof on withdrawal from a conspiracy. He acknowledges

that this Circuit has already ruled that the defendant bears the burden of proof on that

issue, see United States v. Diaz, 662 F.2d 713, 717 (11th Cir. 1981), but asks us to

reconsider that [*1515] ruling. We are bound by Diaz and see no reason to reconsider

that ruling even if we were so empowered.

Second, Gopman, Giardiello, Rubin and Ostrer argue that the trial court's instructions on

the requisite elements of a RICO offense failed to clearly instruct the jury that defendants

could be found guilty [**72] only if the jury found that each defendant agreed to commit

two predicate acts of racketeering. In particular, the contention focuses on a passage in

the charge where the court explained that it was not necessary for the jury to find that any

of the defendants actually committed the predicate acts. The three appellants contend that

the jury could infer from this passage that any of the defendants could be convicted

simply by agreeing to join a conspiracy where others had or planned to commit two such

acts.

While this contention might have merit if the appellants had been indicted for and

convicted of a substantive violation of RICO pursuant to 18 U.S.C.A. § 1962(a)-(c), it

overlooks the fact that the appellants were tried and convicted on a conspiracy charge,

violations of the RICO statute, the appellants were charged with and convicted only of

of conspiracy under Section 1962(d) does not require that two predicate acts of

racketeering actually [**73] occurred. United States v. Carter, 721 F.2d 1514 (11th Cir.

1984). Instead, it requires that the defendants agreed to the commission of two predicate

acts. Id.

The record in this case reflects that the trial judge's instructions fully conveyed to the jury

that each defendant must have agreed to commit at least two predicate acts. The court

read the language of the RICO statute to the jury and described in considerable detail the

charge against the defendants. The court then charged:

In summary, four essential elements are required to be proved in order to establish the

offense of conspiracy charged in the indictment:

First, that the conspiracy charged in the indictment was willfully formed, and was

existing at or about the time alleged;

Second, that the accused willfully became a member of the conspiracy, that is, he

objectively manifested, by his words or actions, an agreement to participate, directly or

indirectly, in the conduct of the affairs of the enterprise, through a pattern of racketeering

activity, as hereinafter defined, that is by agreeing to participate, directly or indirectly, in

two or more acts of racketeering activity;

Third, [**74] that one of the conspirators thereafter knowingly committed at least one of

the overt acts charged in the indictment, at or about the time and place alleged; and

Fourth, that such overt act was knowingly done in furtherance of some object or purpose

of the conspiracy, as charged.

If the jury should find beyond a reasonable doubt from the evidence in the case, that the

existence of the conspiracy charged in the indictment has been proved, and that during

the existence of the conspiracy, one of the overt acts alleged was knowingly done by one

of the conspirators in furtherance of some object or purpose of the conspiracy, then proof

of the conspiracy offense charged is completed; and it is complete as to every person

found by the jury to have been willfully a member of the conspiracy at the time the overt

acts were committed, regardless of which of the conspirators did the overt act.

The object and purpose of the conspiracy charged in Count One, is the conduct of the

affairs of an enterprise, in this case the Laborer's International Union of North America,

through a pattern of racketeering activity.

The court's charge, when considered as a whole, fully informed the jury [**75] of the

elements that the government was required to prove under 18 U.S.C.A. § 1962(a), and the

[*1516] argument challenging the inadequacy of the charge is clearly without merit.

Ostrer contends that the district court's refusal to give his proposed instruction setting

forth his theory of defense was improper. Ostrer's proposed instruction can be fairly

characterized as a summary of his closing argument -- a comment on the evidence rather

than a statement of legal theory. Such an instruction cannot constitute an accurate

statement of the law when it is not a statement of the law at all. In addition, the trial

court's omission of the instruction cannot be said to have prejudiced Ostrer's defense

when he admits that he was permitted to present his theory of defense at trial and argued

the theory in his closing. The district court properly refused to give the tendered

instruction. 32

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deliberations. These arguments are meritless and do not warrant further discussion.

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[**76] I. Ex Post Facto

Caporale argues that his conviction violates the Ex Post Facto Clause of the Constitution

because it could have been based solely on acts predating the enactment of RICO in

October 1970. He argues that, since some of the overt acts alleged in the indictment

occurred prior to the effective date of the enactment of RICO and the court failed to

instruct the jury that it could convict him only if both predicate acts occurred after the

effective date of the statute, the jury could have convicted him based on his conduct that

predated the statute.

There is no Ex Post Facto violation here. In this case the trial judge's charge to the jury

was clear that a defendant could not be convicted unless the jury found beyond a

reasonable doubt from the evidence that a defendant continued to be a member of the

conspiracy after June 3, 1976 -- a date several years after the RICO statute became

effective in 1970.

J. Gopman's Prior Plea Agreement

Appellant Gopman argues that his prosecution was barred because of a plea agreement he

entered into in an earlier case. In 1978 Gopman pled guilty to various counts in an

information and indictment of receiving kickbacks in [**77] violation of 18 U.S.C.A. §

1954, income tax evasion in violation of 26 U.S.C.A. § 7206(1), and embezzlement in

violation of 18 U.S.C.A. § 664. Some of the charges in the 1978 indictment and

information were related to the events at issue in this prosecution. Gopman argues that

his lawyer told him that the prior plea agreement embraced an understanding that the

agreement disposed of all pending and future investigations of matters or charges related

to the charges in that indictment and information. Since this prosecution arises in part

from some of the charges in the 1978 prosecution, Gopman claims that the prosecution is

barred.

The three-page plea agreement itself reflects that the government agreed to recommend a

four-year prison term and a $25,000 fine in exchange for Gopman's pleas of guilty to the

designated counts. The government also agreed to dismiss all the remaining counts of the

indictment. The plea agreement does not mention anything about pending or future

investigations or prosecutions. In addition, in ruling on Gopman's motion to dismiss

based on the plea agreement, the district court made findings [**78] of fact that the plea

agreement did not include any promises about any charges other than the ones involved

in that particular indictment and information. 33 A district court's factual determination of

the scope or content of a plea agreement may be set aside only if the finding is clearly

erroneous. United States v. Quigley, 631 F.2d 415, 416 (5th Cir. 1980).

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A careful review of the plea agreement . . . reveals that it does not include any promise by

the government related to offenses not charged in the Indictment and Information to

which it relates. There is no suggestion of any oral or other written representations having

been made to this defendant, and the written plea agreement is clear on its face.

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[*1517] Gopman has failed to establish that the district court's finding as to the scope of

the agreement was clearly erroneous. The language of the document does not support

Gopman's understanding of the agreement's scope, and he has offered nothing further to

support his [**79] claim beyond his own understanding of the agreement as he claims it

was explained to him by his attorney. It is well established in this Circuit that a

defendant's belief as to the scope of the plea agreement does not control the scope of the

agreement. United States v. Thomas, 593 F.2d 615, 623 (5th Cir.), on reh'g, 604 F.2d 450

(1979); cert. denied, 449 U.S. 841, 101 S. Ct. 120, 66 L. Ed. 2d 48 (1980); Jones v.

Estelle, 584 F.2d 687, 689 (5th Cir. 1978); United States v. Bethany, 489 F.2d 91, 93 (5th

Cir. 1974). Furthermore, it is also well established that an attorney's misrepresentations to

his client about the scope of an agreement are also not controlling. United States v.

Flores, 616 F.2d 840, 842 (5th Cir. 1980). We must therefore reject his argument.

K. Double Jeopardy

Gopman and Wuagneux both contend that their prosecutions are barred by the

constitutional prohibition against Double Jeopardy. The Double Jeopardy Clause of the

Fifth Amendment forbids that "any person be subject for the same offense to be twice put

in jeopardy of life or limb." U.S. Const. Amend. [**80] V. Double jeopardy renders

unconstitutional a second prosecution for the same crime after acquittal or conviction,

and multiple punishments for the same crime. Albernaz v. United States, 450 U.S. 333,

101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); United States v. Boldin, 772 F.2d 719, 725

(11th Cir. 1985), mod. in part, 779 F.2d 618, cert. denied, 475 U.S. 1048, 106 S. Ct.

1269, 89 L. Ed. 2d 577 (1986). In determining whether the Double Jeopardy Clause bars

retrial, "the test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of an additional fact which the other does not."

(1932).

Gopman argues that double jeopardy attached to his 1978 prosecution and subsequent

plea agreement and thereby mandates dismissal of the indictment in this case. The

indictment in the 1978 case alleged substantive violations of Sections 1962 and 1954. He

argues that he may not now be prosecuted for RICO conspiracy because the predicate

offenses in the present case include Section [**81] 1954 charges that overlap with two of

the substantive Section 1954 charges in the 1978 case. The district court rejected

Gopman's double jeopardy argument at the outset of the case, and Gopman took an

interlocutory appeal. This Court affirmed the district court's holding that there was no

double jeopardy under the test of Blockburger v. United States, supra, because a Section

1954 substantive offense did not constitute a lesser included offense of a RICO

conspiracy offense.

Gopman makes the same argument here. While an interlocutory appeal on a double

jeopardy claim is not binding on a later appeal, it will be reconsidered only upon an

additional showing of jeopardy. United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.),

made any additional showing to justify a different result on this appeal. Sections 1954

and 1962 differ in that Section 1954 requires proof that the substantive offense was

actually committed, while Section 1962 requires only proof that the defendant agreed to

commit the substantive Section 1954 offenses in question. In addition, [**82] Section

1962 requires proof that the defendant agreed to participate in the affairs of an enterprise

affecting interstate commerce, while Section 1954 does not. See United States v. Martino,

648 F.2d 367, 382-83 (5th Cir. 1981), cert. denied, 456 U.S. 943, 102 S. Ct. 2006, 72 L.

Ed. 2d 465 (1982). We agree with the prior decision of this court that there is no double

jeopardy here.

[*1518] Wuagneux's double jeopardy claim is based upon an earlier RICO conviction

involving a series of activities he carried on via his company, Sage Corporation. The

earlier conviction involved the financing of several real estate projects and various scams

involving pension funds, insurance companies, and two banks. See United States v.

Wuagneux, 683 F.2d 1343 (11th Cir. 1982), cert. denied, 464 U.S. 814, 104 S. Ct. 69, 78

L. Ed. 2d 83 (1983). Wuagneux argues that double jeopardy bars this prosecution because

the alleged misconduct in this case and the earlier case both occurred in the same time

frame, involved Rubin and Gopman, and utilized the Sage Corporation as a vehicle.

The similarities in place, time and vehicle shared [**83] by the two convictions do not

avoid the plain fact that the racketeering activity in the two cases was very different. The

earlier case involved racketeering operated through the enterprise of the Sage

Corporation rather than the Laborers International Union, and did not charge violations of

either Section 1954 or 1962(d). Furthermore, the earlier case was not a kickback

insurance contract scheme but something altogether different. The fact that activities

occurred at the same time and place using the same vehicles does not mean that only one

crime is being committed. See United States v. Ruggiero, 754 F.2d 927, 931-32 (11th

Cir.), cert. denied, 471 U.S. 1127, 105 S. Ct. 2661, 86 L. Ed. 2d 277 (1985) (no double

jeopardy where prior RICO conviction involves same enterprise if pattern of racketeering

differs). There was no double jeopardy by Wuagneux's prosecution in this case.

L. Improper Use of Immunized Testimony

Gopman claims that the government ran afoul of Kastigar v. United States, 406 U.S. 441,

92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), by improperly using prior grand jury testimony

he gave in 1978 under a grant of [**84] immunity. The government admits that the chief

prosecutor in this case read the testimony prior to filing the indictment against Gopman.

The district court ordered the government to produce all of its documents demonstrating

its sources for the information in question, and then after the trial held a hearing on the

issue. The district court then entered findings of fact that the government had met its

burden of showing independent sources for each contested piece of information.

The Supreme Court held in Kastigar v. United States, supra, that the government bears

the burden of proving that testimony that a defendant gave under a promise of use

immunity was not directly or indirectly used in a subsequent prosecution against the

defendant. To meet that burden, the government must show by a preponderance of the

evidence that its evidence in the subsequent prosecution was derived from a legitimate

independent source. Id. at 460, 92 S. Ct. at 1664; United States v. Byrd, 765 F.2d 1524,

1528-29 (11th Cir. 1985); United States v. McDonnel, 550 F.2d 1010, 1012 (5th Cir.),

The essence of Gopman's argument is that the government can never establish an

independent source when the prosecutor has read the immunized testimony prior to trial.

The focus of the inquiry under Kastigar, however, is not whether the prosecutor was

aware of the contents of the immunized testimony, but whether he used the testimony in

any way to build a case against the defendant. Gopman has not come forward with any

persuasive proof that the district court's determination as to any questioned source was

clearly erroneous. Although he lists a number of facts that purportedly could have come

only from his prior testimony, the district court made findings as to the independent

source for each fact. Our review of the record confirms the district court's findings.

Furthermore, it appears that Gopman's prior testimony was self-serving and of no real

value in the subsequent investigation. 34 [*1519] There is no showing of a Kastigar

violation.

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