S. Michael Levin, Sp. Atty., John F. Evans, Alexander S. White, Attys., U. S. Dept. of Justice, Miami, Fla., William C. Bryson, Atty., Dept. of Justice, Washington, D. C., for U. S.

Leib & Martinez, Karl J. Leib, Jr., Coral Gables, Fla., for Kopituks & Morales.

Kogen & Kogan, Geoffrey C. Fleck, Loren H. Cohen, Miami, Fla., for Field.

Flynn, Rubio & Tarkoff, Michael H. Tarkoff, Miami, Fla., for Turner.

Varon & Stahl, Joseph A. Varon, Hollywood, Fla., for Vanderwyde.

Mahon, Mahon & Farley, Lacy Mahon, Jr., Jacksonville, Fla., for Williams.

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

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

Appeals from the United States District Court for the Southern District of Florida.

Before HILL and CLARK, Circuit Judges, and SCOTT*, District Judge.

Appellants, waterfront union officials and employers, were convicted in the United States District Court for the Southern District of Florida on numerous charges arising from their participation in a widespread pattern of corruption aimed at securing control of the business activity at several major ports in the Southeastern United States. The evidence adduced at the seven-month trial1 revealed an extensive, well-orchestrated conspiracy spanning a period of more than 10 years in which union officials pressured waterfront employers to make illegal payoffs in return for assured labor peace and lucrative business contracts.

In 1975, the Federal Bureau of Investigation ('FBI') began an extensive undercover investigation of the corrupt enterprise when Joseph Teitlebaum, a waterfront employer who had participated in the conspiracy for several years, agreed to cooperate with the government. With Teitlebaum's assistance, FBI agents successfully infiltrated the enterprise and obtained tape-recordings of conversations transpiring in the course of illegal payoff transactions. The covert investigation continued until January 1977 when the case became public with the issuance of grand jury subpoenas.

On June 7, 1978, a federal grand jury, sitting in Miami, Florida, returned a 70-count, 128 page indictment charging appellants and others2 with a variety of offenses including: racketeering, 18 U.S.C. § 1962(c); conspiracy to engage in racketeering, 18 U.S.C. § 1962(d); payment and receipt of money and other articles of value in exchange for labor peace, 29 U.S.C. § 186; extortion, 18 U.S.C. § 1951; receipt of kickbacks in connection with a labor matter, 18 U.S.C. § 1954; obstruction of justice, 18 U.S.C. § 1503; and filing false income tax returns, 26 U.S.C. § 7206.

Joseph Teitlebaum was the government's "star" witness at trial.3 Teitlebaum's involvement in the conspiracy was extensive and long-lasting and, as such, his testimony constituted the backbone of the government's case.

In the 1960's, Teitlebaum was a vice-president of Eagle Shipping, Inc., a company that performed stevedoring4 services at the port of Miami. In 1966, Teitlebaum met appellant Fred R. Field, Jr. at a labor negotiation meeting in Miami. Field, who was General Organizer of the International Longshoremen's Association ('ILA'), asked Teitlebaum if they could talk privately somewhere. (9:83).5 Teitlebaum arranged to use a friend's boat to take Field on a fishing trip. Field brought three other union officials with him on the trip, including Benny Astorino. (9:84-85).

At one point on the trip, Astorino told Teitlebaum that Field was coming to Miami to establish a new checkers'6 union and that it would be in Teitlebaum's "best interest" to do business with Field. He added that Teitlebaum could demonstrate his "good faith" by paying him $3,000. (9:87-88). Teitlebaum testified that Field was sitting about eight feet behind him and Astorino, looking at Teitlebaum, while the conversation was taking place. (9:86).

Teitlebaum responded that he would have to discuss the matter with his father and uncles, who were responsible for running Eagle, Inc. (which owned Eagle Shipping, Inc.) (9:89). Shortly after returning from the fishing trip, Teitlebaum received telephone calls from two of his customers.7 (9:91). The next day, Teitlebaum received a telephone call from Field in which Field asked him if he had "had a change of heart about the three aces." (9:92). Teitlebaum told him that he had not and that he did not appreciate Field pressuring his customers to persuade Teitlebaum to sign a union contract. (9:92). Field responded, "Listen, prick, you'll sign the contract and like it." (9:93). Teitlebaum ultimately signed the contract.

The next stage of Teitlebaum's involvement in the criminal enterprise did not commence until 1972.8 Throughout the intervening years, Teitlebaum had come to know appellant George Barone, president of the checkers' union in Miami (ILA Local 1922), appellant William Boyle, secretary-treasurer of ILA Local 1922, appellant James Vanderwyde, office manager of ILA Local 1922, and appellant Cleveland Turner, president of the longshoremen's union in Miami (ILA Local 1416).

In 1972, Teitlebaum purchased a 90-ton crane to be used for loading and unloading ships and formed M & M Crane Co. Within a week after the crane was brought to the Dodge Island Seaport at the port of Miami, someone had vandalized it. (9:110). Shortly thereafter, Teitlebaum received a visit from co-defendant Sebastian "Benny" Cotrone. Cotrone advised Teitlebaum that he should "make ... peace" with appellant Barone if he wished to stay in business. Cotrone told Teitlebaum that "they" wanted "a piece of the action from the crane." (9:112). Teitlebaum subsequently began leasing the crane to Marine Terminals, Inc. ('MTI'), a waterfront company managed by George Wagner, who had close ties to the union. (9:128). Wagner was paid a kickback of $15 for every hour of crane use billed to MTI. (19:93-94).

In early 1972, Teitlebaum contacted appellant Boyle about obtaining a contract to perform stevedoring services for the Mardi Gras, a passenger ship owned and operated by the Carnival Cruise Lines. (19:109). Boyle said that he would talk with "the boys" and let Teitlebaum know if it could be done. A couple days later Boyle informed Teitlebaum that he could have the contract, but that it would cost him "two big ones and a free cruise every now and then." (19:109). Teitlebaum agreed and his company subsequently obtained the contract. He paid Boyle $2,000 in installments of $200 per week. (19:123).

When it became apparent to Teitlebaum that it was necessary to reduce the number of porters assigned to work on the Mardi Gras in order to save money, Teitlebaum presented the problem to Boyle, who in turn told Teitlebaum to contact appellant Cleveland Turner, president of the Miami longshoremen's union. Teitlebaum did so and worked out an agreement to pay Turner $50 per week to reduce the number of porters assigned to the dock. Turner told Teitlebaum to talk with the head porter on the dock and to have the head porter call Turner if there was any problem. Teitlebaum made payoffs to Turner from 1972 to 1976. (19:114).

At one point in early 1972, Boyle told Teitlebaum that Teitlebaum's cousin owed the union between $1,800 and $2,000 in delinquent health insurance and dues payments and that it would be in Teitlebaum's best interest to pay the debt on his behalf. (19:95). Teitlebaum agreed to pay the debt. In October or November of 1972, after the debt had been paid, appellant James Vanderwyde told Teitlebaum: "You did a nice job paying off your cousin's debt. Don't let it stop." Teitlebaum asked him what he was talking about, to which Vanderwyde responded: "Are you stupid? We're going to have control of this fucking port right here. Control. That's what counts, control." (19:128). Teitlebaum testified that while he was saying this, Vanderwyde made a fist and gritted his teeth. (19:128).

Approximately one week after his conversation with Vanderwyde, Teitlebaum saw Boyle at the Dodge Island Seaport. Boyle told him that he was going to have to start paying the union $200 per week, but that he would receive additional business for doing so. Boyle made specific reference to the Siboney, a cargo ship operated by Ocean Trailer Transport, Inc. (19:129). Teitlebaum agreed that if he acquired the Siboney contract, he would pay Boyle the $200 per week. (19:129).

Teitlebaum did obtain the Siboney contract and began making the weekly payments to Boyle. He was frequently late in making the payments, however, prompting Boyle to tell him on one occasion that "(i)f the little guy for George found out that you were late, you would have a lot of trouble." (19:209). Boyle identified the "little guy" as appellant Vanderwyde. (19:209).

In late 1973, Teitlebaum met with Boyle at the Miami ILA office and told him that he was interested in improving his company's position by acquiring a contract to service either the Mamenic Line or Gran Columbiana Line. Boyle responded that Teitlebaum should speak with appellant Field about it. (20:13). That evening Field visited Teitlebaum's office and Teitlebaum reiterated his interest in the Mamenic and Gran Columbiana lines. Field told Teitlebaum that the Mamenic contract would be the easier of the two to acquire. Teitlebaum expressed concern because he knew of a Mamenic representative that was working for a competing stevedoring company, but Field told Teitlebaum not to worry, stating that the representative could "be taken care of." (20:14). Teitlebaum reported to appellant Barone that Field had promised to help him acquire the Mamenic account. Barone said he would check into it and subsequently gave Teitlebaum instructions as to whom he should contact regarding the account. Teitlebaum's company entered into a contract to perform stevedoring services for the Mamenic Line in June 1974. (20:21-23). As payment for the assistance he received in acquiring the Mamenic account, Teitlebaum, at Boyle's request, purchased three pairs of cruise tickets and gave them to Boyle. (20:29-30).

Later in 1974, Teitlebaum learned that Harrington & Co., a competing business operated by co-defendant Neal L. Harrington, was submitting bids to perform stevedoring work for Nopal Line, a Norwegian steamship company, which was already one of Teitlebaum's customers. Teitlebaum complained to Boyle about the fact that he was paying $200 per week and that he expected his accounts to be protected. Boyle said he would "talk to the boys" and take care of the matter. (20:36). Shortly thereafter, Barone, in Vanderwyde's presence, told Teitlebaum that Harrington & Co. would withdraw its bid. (20:37-38). Teitlebaum's company retained Nopal's business.

In early 1975, Teitlebaum expressed to Boyle his interest in acquiring a contract to do business with Puerto Rico Marine Management, Inc. ('PRMMI'). Boyle once again said he would "talk to the boys" about it. (20:62). Approximately one week later, Teitlebaum ran into Barone in the hallway outside Teitlebaum's office and reiterated his desire to obtain the PRMMI contract. Barone rubbed his foot on the floor, picked up his trouser leg and said, "Heavy." (20:63). Teitlebaum testified that Barone had done precisely the same thing when Teitlebaum received the Siboney contract.

The next day Teitlebaum met with Boyle who told him it would cost "five up front" for the PRMMI contract. Teitlebaum asked whether he meant "big ones or little ones," to which Boyle responded, "Big ones." Teitlebaum asked what his guarantee was and Boyle replied, "If you don't get this one, the next big one belongs to you." (20:64). Either that same day or the following day, Teitlebaum gave Boyle $5,000 in $100 bills. (20:67). Teitlebaum, however, did not get the PRMMI contract.

In the summer of 1975, Boyle told Teitlebaum that he wanted some cruise tickets for appellant Vanderwyde and for appellant Landon Williams, president of ILA Local 1408 in Jacksonville, Florida. Boyle told Teitlebaum that Williams wanted to give the tickets to the son of the mayor of Jacksonville as a wedding present. (20:71). Teitlebaum accommodated the request by obtaining three sets of tickets from the Commodore Cruise Line, one of Teitlebaum's customers. (20:72). Teitlebaum's company paid for all the tickets. (20:76).

In September 1975, Teitlebaum was arrested on state charges of solicitation to commit murder, conspiracy to commit murder and attempted murder. (20:80). In return for his pledge to cooperate with the government in the instant matter, he was permitted to enter a plea of nolo contendere to the misdemeanor charge of solicitation to commit murder and the other charges were dropped. (20:80). He received a sentence of one-year probation.9 From the time of his arrest until conclusion of the investigation, Teitlebaum worked closely with FBI agents in an effort to gather direct evidence of the corrupt enterprise operating on the waterfront.

In the latter part of 1975, Barone told Teitlebaum, in Vanderwyde's presence, that he should "take Savannah" and that Boyle would tell him what to do. (21:31). Accordingly, Teitlebaum set up a company called Georgia Container Agencies to operate at the port of Savannah, Georgia. (21:35). Georgia Container Agencies was to receive a lucrative contract from Zim-Israel Navigation Co., Ltd., an Israeli steamship line. In return for the Zim contract in Savannah, however, Boyle told Teitlebaum that he would have to surrender another account. Teitlebaum told Boyle he would give up the Mamenic account and Boyle said that would be acceptable, stating that he would tell "the fat man" about Teitlebaum's selection. (21:41). Teitlebaum testified that he knew from previous reference that the fat man was appellant Field. (21:42).

In December 1975, Boyle informed Teitlebaum what it would cost for the Zim contract in Savannah: $15,000 "front money," one percent of the value of all ocean freight handled, $12 for each container loaded or unloaded from a ship and 50 cents per ton for bulk cargo. (XX-XXX-XXX). Teitlebaum agreed to pay the $15,000 front money to Boyle in 10 installments of $1,500 each. (21:131). Teitlebaum made several of the $1,500 Savannah payments to Boyle, occasionally using money provided by the FBI.

In January 1976, Teitlebaum travelled to Savannah with Boyle for the purpose of meeting co-defendant Elizah Jackson, president of ILA Local 1414 in Savannah, to determine how much money was going to have to be paid to Jackson. (22:11). Boyle negotiated with Jackson privately and then told Teitlebaum it would cost $300 "up front," $50 per week, and an additional $50 for each ship serviced. (22:25).

Using a tape recorder fitted into his boot by FBI agents, Teitlebaum was able to record some of the conversations that transpired in the course of making the Savannah payments, as well as other payments. Teitlebaum stopped carrying the tape recorder, however, following a February 1976 incident which indicated the defendants may have been getting suspicious of him. On February 11, 1975, Boyle summoned Teitlebaum to the ILA office in Miami. When he arrived Boyle was waiting for him along with co-defendants Vincent James Fiore, Jr. and Cornelius "Butch" Vanderwyde.10 Boyle told Teitlebaum, "Take off your shoes, get comfortable." Teitlebaum testified that he became extremely nervous. He took off his shoes, pulled out his pockets and said, "What's wrong with you?" Boyle simply said, "Everything is fine." (22:118). Teitlebaum related the incident to FBI Special Agent Ray Maria and it was decided that Teitlebaum would no longer wear a body recorder. (22:120).

In April 1976, Teitlebaum visited the ILA office in Miami to give Boyle one of the weekly "peace" payments. Boyle was not there so Teitlebaum gave the money to appellant Vanderwyde. Vanderwyde complained that Teitlebaum was getting too far behind on his payments and said that he wanted at least $500 more. Teitlebaum went next door to his office and borrowed $500 cash from his uncle and his cousin. He returned to the ILA office and gave the money to Vanderwyde. Vanderwyde patted him and said, "Good boy." (24:21-22).

Vanderwyde then told Teitlebaum that he wanted to take a cruise and said he needed six pairs of tickets. (24:23). The following month Boyle gave Teitlebaum a list containing the names of persons who wanted to take a cruise in June on the Mardi Gras. Included on the list were Boyle and his wife and Vanderwyde and his wife. (24:37-38). Teitlebaum purchased the tickets for them. (24:113).

In June 1976, Teitlebaum and representatives of the Zim steamship line discussed the possibility of Georgia Container Agencies, Teitlebaum's Savannah company, performing waterfront services for the Zim line in Mobile, Alabama. Teitlebaum went to Boyle to discuss how much it would cost him to expand into Mobile and Boyle estimated that it would cost $5,000 up front under the same operating conditions that were in effect in Savannah. (24:50). Shortly thereafter, Boyle informed Teitlebaum that appellant Field had contacted co-defendant Isom Clemon, president of ILA Local 1410 in Mobile, and made arrangements for Teitlebaum to meet Clemon. (24:72).

On June 11, Boyle flew to Mobile and was met by Clemon at the airport. Clemon told Teitlebaum that "he was the man in Mobile," that Boyle had told him to "take care" of Teitlebaum, and that "he (Clemon) liked his little white envelope." At a later meeting with Clemon in Mobile, Teitlebaum, in the presence of FBI Special Agent Richard Artin (who was posing as an employee of Teitlebaum's), paid Clemon $400 while they were driving to a restaurant to have lunch. (XX-XXX-XXX). At the restaurant, Clemon told Teitlebaum and Artin that he would not even be talking with them if he had not received an "okay" from Boyle or Field. (24:141). After that meeting, Agent Artin continued to make payments to Clemon. (38:175; 39:30).

Subsequent to Teitlebaum's first meeting with Clemon, Boyle informed him that "Freddie (appellant Field) underestimated the price" for expanding into Mobile and that it would cost $10,000 up front rather than $5,000. (24:84-85). Teitlebaum was told that he could satisfy this obligation by making five $1,000 weekly installment payments, waiting 30 days, and then making five additional $1,000 weekly payments. (24:97).

In July 1976, a business associate of Teitlebaum's contacted him regarding a company that wished to move four trailer loads of cigarettes through the port of Miami without having the cigarettes unpacked and then repacked ("stripped" and "stuffed") by union dockworkers as was required under the union contract. Teitlebaum explained the situation to Boyle who said that the cigarettes could move through untouched if the shipper agreed to pay an extra $200 per load. The shipper so agreed and the $800 was incorporated into a special invoice as "extra handling" charges. (XX-XXX-XXX). The same arrangement was followed with regard to another shipment of cigarettes later in the year. (XX-XXX-XXX).

Throughout this period, Teitlebaum continued making payments to appellant Cleveland Turner, alternately with cash, cruise tickets and even automobile tires. In August 1976, Teitlebaum delivered a $200 check to Turner, but as he was leaving Turner ran out to Teitlebaum's car and gave him the check back, saying he wanted only cash from then on. Teitlebaum took back the check and gave Turner $160 in cash that he was carrying. (24:176).

In the latter part of August 1976, Boyle told Teitlebaum that Barone was angry at him for using Southeastern Maritime, Inc. as a stevedoring company in Savannah because it "belong(ed) to another group." (24:185, 194). Subsequently, Teitlebaum met with Boyle and Barone in the hallway outside of his Miami office and Barone told Teitlebaum that he "was going to work with whomever he (Barone) designated" and that Teitlebaum "was going to love every goddam piece of business ... (he) had." (XX-XXX-XXX).

During this period, Teitlebaum was continuously behind in the money he owed and Boyle, Barone and Vanderwyde pressured him to catch up. When Teitlebaum received a $25,000 payment from the Zim line for services rendered in Savannah, Boyle told Teitlebaum that he wanted $2,000 out of it. (24:102). When Teitlebaum asked if he could deduct the cost of the June 1976 cruise tickets from the money he owed, Boyle told him to consider the tickets as a present for Vanderwyde. (24:114). At one point, Boyle told Teitlebaum that it would "relieve a lot of tension" if Teitlebaum were to make payments of $3,500 for Mobile, $1,000 for Savannah and $1,000 for Miami. (24:193). Shortly thereafter, Barone told Teitlebaum, in the presence of Boyle and Vanderwyde, to "get even in Mobile." (25:36). Barone asked Teitlebaum if he was experiencing any problems with the Nopal Line. When Teitlebaum said that he was not, Barone told him, "you may start experiencing some problems." (25:36-37).

In early September 1976, Boyle told Teitlebaum that Field wanted tickets for himself and some friends to take a Christmas cruise on the Mardi Gras. (25:25). In early December, Teitlebaum visited the ILA office and Boyle (in the presence of Field, Barone, appellant Vanderwyde and Cornelius Vanderwyde) asked Teitlebaum if he had made arrangements for Field's tickets. Teitlebaum said that the tickets cost $6,200 and the cruise line who operated the Mardi Gras was not going to give them away because it was the Christmas cruise. (25:152). Teitlebaum called his friend at the cruise line to let Boyle speak with him. Teitlebaum heard Boyle telling the person: "You know who he is. He is our general organizer." (25:156). After a pause, Boyle added, "When contract time comes around, don't look for any favors." (25:156).

Boyle then handed the phone back to Teitlebaum who tried to persuade the cruise line representative to split the cost of the tickets with him. (25:156). At that point Field looked at Teitlebaum and said: "Fuck you and your Jew friend. I am not going. You'll repent. Believe me, you'll repent." (25:157).

In the latter part of 1976, Teitlebaum spoke with Boyle about the possibility of expanding his waterfront operations into the port of Jacksonville, Florida. (24:161). In October, Teitlebaum made arrangements to meet appellant Landon Williams for dinner in Miami. (25:48). They met in the lobby of the Americana Hotel and discussed the Jacksonville operation. Williams told Teitlebaum that it would cost him "(t)en cents a ton, $250 a week, $1,000 a month, no matter what does," in order to operate in Jacksonville. (25:55).

Enroute to the restaurant Teitlebaum gave Williams $400. (25:80). Williams held up five fingers and said, "I was looking for this." Teitlebaum told him that he would receive the additional $100, plus the first monthly payment of $1,000 when they met in Jacksonville. (25:81). Teitlebaum started to discuss the cruise tickets he had obtained for Williams in 1975, but Williams said he did not like to talk in cars because they could easily be bugged. (25:81). Shortly after the Miami meeting, Teitlebaum travelled to Jacksonville where he paid Williams the $1,100, using money supplied by the FBI. (25:96).

OTHER WATERFRONT EMPLOYERS MAKE ILLEGAL PAYOFFS

While Joseph Teitlebaum was the government's key witness, other waterfront employers also testified that they made illegal payments to union officials.

Alvin P. Chester was one of the principals of Chester, Blackburn & Roder ('C, B & R'), a company that rendered steamship agency services at the port of Miami. In 1967, the principals of C, B & R formed Marine Terminals, Inc. ('MTI'), a stevedoring company. Chester testified that he met appellant Barone in 1967 shortly after MTI was established. (14:120). Barone told Chester that he had done him a favor by interfering with an attempt to execute a murder contract on one of Chester's business associates. Chester testified that Barone told him Joseph Teitlebaum was responsible for the contract. (14:122).

Barone explained to Chester that life was different on the docks and that Chester needed a "consultant" to "watch out for things." (14:123). Accordingly, Barone suggested that MTI enter an "arrangement" with Barone whereby the company would pay him a monthly retainer of $1,500. (14:124). Chester said that was too high and they ultimately agreed that MTI would pay Barone $750 each month. (14:124). Chester made the first two payments himself, but his associate Jacob Sklaire made the subsequent payments. (XX-XXX-XXX).

Sklaire testified that he continued paying Barone $750 each month from 1967 through 1972. In 1972, Sklaire and his associates formed Caribbean Freightways, Inc., a freight consolidating business, to operate at the Miami International Airport. (XX-XXX-XXX). The function of the business was to receive freight from several different companies and pack ("stuff") it into containers destined for different ports.

Sklaire asked Barone whether it would be possible to obtain a union contract for the airport operation inasmuch as containers stuffed by non-union personnel that passed through the port were subject to a substantial financial penalty. (14:206). Barone responded negatively, stating that they were not going to award any more union contracts. Nevertheless, Sklaire and Barone arrived at an agreement whereby Barone would permit Sklaire to use non-union personnel without incurring any penalty in return for increasing Barone's monthly payment to $1,000. (14:209). The $1,000 payments continued until January 1977. (14:211).

George Wagner began working as a checker for MTI in 1967. (43:35). In 1968, the principals of MTI approached Wagner regarding the possibility of him becoming a manager. (43:41). Wagner, concerned that he might lose his union status if he accepted the job, discussed the matter with Barone, Boyle and Vanderwyde. (43:41, 45). They were all very positive about Wagner's promotion, telling him to "be on the lookout to be a help to the union" and to "make a dollar wherever... (he) could." (43:47).

As soon as Wagner became manager, he began making monthly payments of $800 to Boyle on behalf of MTI. (43:56). He continued making such payments through 1971. (43:60). In a discussion that occurred late in 1970 at the MTI warehouse, Boyle told Wagner that the money was going into a "pot," and that Boyle's position would improve because he would "share in the entire pot." (43:68-70). Shortly after that discussion, Wagner increased the payments to $1,000 per month. (43:72). Wagner testified that he also paid Boyle from $4,000 to $8,000 in each of the years 1972, 1973 and 1974 over and above the $1,000 monthly payments. (43:77).

During this same period, Wagner was making cash payoffs to appellant Cleveland Turner in amounts ranging from $5,000 to $7,000 each year. In 1972, however, Wagner was experiencing problems generating enough cash to pay Turner so they arranged for Wagner to put ghost employees on MTI's payroll, that is, persons who did not actually work for MTI. Wagner would then turn the payroll checks of such persons over to Turner. (43:85-89).

In mid-1972, Wagner met with Julio Navarro, who worked for a container/trailer repair company operating at the port of Miami. Navarro wanted Wagner to explore the possibility of allowing appellants Raymond Kopituk and Oscar Morales, friends of Navarro's, to open a container/trailer repair business on Dodge Island. (43:119). Wagner said he would entertain the idea and arranged to meet with them.

Prior to meeting with Kopituk11 and Morales, Wagner discussed the matter with Barone, in the presence of Boyle and Vanderwyde. (43:120). Wagner suggested that he would tell Kopituk and Morales that a union contract on Dodge Island would cost them $10,000 up front and $1,000 per month thereafter. (43:120). Barone said that would be acceptable. (43:121). When Wagner met with Kopituk and Morales, however, he told them it would cost $15,000 up front, rather than the $10,000 he had discussed with Barone. They readily agreed. (43:122).

Approximately four weeks later, Wagner met with Kopituk and Morales at a Howard Johnson's where they delivered the $15,000 in cash. Wagner kept $2,500, gave Julio Navarro $2,500 and gave the remaining $10,000 to Barone. (XX-XXX-XXX). Shortly thereafter, MTI began sending business to Florida Welding Services Corp. ('FWS'), the company operated by Kopituk and Morales. (43:135). In order to allow FWS to recoup some of the initial payoff money, Wagner prepared inflated invoices on behalf of FWS that were paid by MTI. (43:124, 138, 151-152). He terminated this arrangement after FWS began receiving a substantial amount of waterfront business. (43:154).

Wagner collected the $1,000 monthly payments from FWS and delivered them to Boyle, Vanderwyde or Barone. (XX-XXX-XXX). He testified that on two occasions he received the payment from appellant Dorothy Kopituk, wife of appellant Raymond Kopituk. (43:170; 44:22-24). On one such occasion, Mr. Kopituk explained to Wagner that they were having trouble generating cash and asked if he would accept a check. Wagner said he would and Mrs. Kopituk asked him how she should record the check. Wagner told her he did not care and that as far as he was concerned she could write down "Happy Birthday." She asked him if "consulting fee" would be acceptable and he answered affirmatively. (44:23). She proceeded to record the check in that manner.

In the summer of 1973, Morales approached Wagner concerning a friend of his who wished to begin a trucking operation at Dodge Island Seaport. He asked if Wagner could do the same for him as he had done for FWS. Wagner agreed to try. (44:41). Wagner discussed the proposal with Barone, in the presence of Boyle and Vanderwyde, and Barone gave his approval. The trucking company, Jasca Transfer, Inc., was to pay the union $10,000 up front. (44:43). As he had done with FWS, however, Wagner told Jeronimo Acosta, the owner of Jasca Transfer, that the initial payoff would be $15,000. (44:47). In turn, Wagner agreed to split the extra $5,000 with Morales. (44:45). The deal was transacted as planned and, shortly thereafter, MTI began sending trucking work to Jasca Transfer.

Co-defendant Joseph Cotrone came to Miami from New York in 1972. Along with his father and sister Laura (also co-defendants), he established United Container and Ship Repair, Inc., a company that performed container, trailer and minor ship repairs. In early 1974, Barone and Boyle visited Cotrone's office and Barone told Cotrone that he should pay Barone $200 per month "to make everything move smoothly," i.e., for union peace. (59:196). Barone told Cotrone that the other trailer and container repair companies operating at the port had already agreed to such an arrangement. Barone stressed the fact that he had close connections with the steamship lines, with which companies such as Cotrone's did a substantial amount of business, and that it would mean trouble for him if he declined to go along. (XX-XXX-XXX).

After discussing Barone's proposal with his father, Cotrone agreed to make the payments. (59:197). The payments were made to Barone in cash, using $20 bills at Barone's request. (59:198). After the initial payments were made, the means of generating sufficient amounts of cash to make the payments was left to co-defendant Francesca Cotrone, another of Joseph Cotrone's sisters, who began working for the company in 1975. (59:205).

In September 1975, Barone informed Cotrone that he wanted to alter the payoff schedule by charging Cotrone 25 cents for every hour worked by each of his employees. (59:203). Once again, Barone told Cotrone that his competitors had already agreed to the increase, that Barone's relationship to the steamship lines was very strong and that it would be "wise" for Cotrone to acquiesce. (59:203).

Cotrone discussed the demand with his family and it was agreed that they would make the payments. (59:205). This new method of calculating the payoffs owed to Barone dramatically increased the amount of the monthly payments. Cotrone testified that he began paying Barone from $1,000 to $1,500 each month. (59:207). The payments continued until December 1975. (59:212).

Cotrone's company, United Container and Ship Repair, Inc., had the contract to perform container and trailer repair work for PRMMI, the Puerto Rican steamship line. In 1975, representatives of PRMMI offered Cotrone's company a contract to perform their maintenance and repair work at the port of Jacksonville, Florida. (60:35-36). Cotrone discussed the possibility with Barone and Boyle. Barone said Cotrone would have to pay $3,000 to appellant Landon Williams in order to get an introduction into the Jacksonville area. (60:42).

Cotrone subsequently gave Barone the $3,000 and in June 1975 Barone took Cotrone to Jacksonville to meet Williams. (60:52). Shortly after they sat down to discuss the labor situation in Jacksonville, Williams told Cotrone: "Jacksonville is like Egypt and I'm the Pharaoh in Egypt; and anything that's done up here must come through the Pharaoh." (60:53).

The Cotrones formed a new company, United Trailer Services, Inc., to operate in Jacksonville and hired Robert Gillespie and Stephen Miller to manage it. (60:55). Shortly after Cotrone's Jacksonville company began functioning, Barone told Cotrone that he expected peace payments amounting to 25 cents for every hour worked by each of Cotrone's Jacksonville employees. (60:64-65). Cotrone discussed the matter with his father who concluded that the situation was "getting ridiculous" and that they were not going to pay Barone anything for the Jacksonville operation until they spoke with Landon Williams. (60:66).

On October 3, 1975, Cotrone travelled to Jacksonville to meet with Williams. Upon learning of Barone's request for payment, Williams said: "There's no way anything like that is going to happen in my port. If anybody is going to receive any money, it's going to be me." (60:73). Accordingly, Williams and Cotrone arrived at an agreement whereby Williams would be paid 25 cents for each man-hour worked in Jacksonville. (60:74). Thereafter, Miller and Gillespie, at Cotrone's direction, made regular payments to Williams, although in 1975 the 25 cents-per-hour formula was abandoned in favor of a flat $1,000 per month. (63:26-27, 39-45; 64:141, 172-203).

Great Southern Trailer Corp. was a container and trailer repair business operating in Savannah, Georgia, during the period covered by the indictment. It was jointly owned by Ramon DeMott and James Hodges. In the summer of 1975, DeMott and Hodges learned that the container repair work at the port of Savannah was going to be unionized and that it would therefore be necessary for them to obtain a union contract in order to stay in business. (11:28; 13:40).

DeMott sought advice from appellant Morales, whom he had met a year earlier in a business context, because he knew Morales was operating under a union contract. (11:39-40). DeMott and Hodges subsequently met with Morales and appellant Kopituk at Great Southern's Savannah office to discuss how to go about acquiring a union contract. (11:42-43). Morales told them it would cost money, anywhere from $5,000 to $15,000. (11:44; 13:48). Kopituk agreed with Morales' estimate. (11:45; 13:48).

Shortly after Morales and Kopituk departed, DeMott and Hodges received a telephone call from appellant Boyle, who said that he wanted to meet with them at his Savannah office. (11:46; 13:48-49). When they arrived, Kopituk was sitting inside Boyle's office and Morales was outside on the veranda talking with Boyle. (11:46; 13:50). After Morales and Kopituk left, Boyle told DeMott and Hodges that it would cost them $10,000 to obtain a union contract in Savannah. (11:49; 13:52).

They complained that they did not have that much money and Boyle told them they could pay $6,000 initially and $4,000 at a later date. (11:50; 13:52). DeMott and Hodges subsequently borrowed $6,000 which they gave to Boyle on their way to the ILA office in Savannah to sign the union contract. (11:50-63; 13:52-62).

Present at the contract "negotiation" meeting were appellant Williams, appellant Boyle, co-defendant Jackson, DeMott and Hodges. DeMott and Hodges attempted to negotiate certain changes in the terms of the contract, but Williams told them: "Well, this agreement that's there is going to be it and you are going to sign the fucking contract or get out of the damn business." (11:71-72). When DeMott and Hodges persisted in attempting to discuss the content of the agreement, Williams told them that "people who had gained disfavor wound up on their backs in bed and their arms and legs in traction, sipping soup through a straw and thinking about the follies of their ways." (11:72). DeMott and Hodges signed the contract. (11:73).

While DeMott and Hodges were driving Boyle back to his office, Boyle explained to them that they would have to pay him 30 cents for every hour worked by each of their employees. (11:134). Boyle said that the money was not just for him, but for his associates as well. (11:134). DeMott and Hodges thereafter made regular payments to Boyle calculated on the basis of the 30 cents-per-hour formula. (11:85-86, 94-98, 114-121, 156-162, 198-204; 13:81, 87-88, 90, 106-111, 153-154).

Toward the end of 1975, Boyle suggested that DeMott and Hodges expand their container repair business into Charleston, South Carolina. (11:82). He said this could be accomplished for $5,000. (11:83). DeMott and Hodges agreed to establish a Charleston operation and, in February 1976, paid Boyle $5,000. (11:85, 117). Business, however, did not go well in Charleston and the operation lasted only about six months. (11:137). About the time they were dismantling their business in Charleston, DeMott and Hodges had dinner with appellant Field in Savannah. Hodges complained to Field that they were never given the opportunity to submit bids in Charleston, to which Field replied, "Don't expect anything for nothing." (11:143).

Harrington & Company is a steamship agent and stevedoring company that operates at the Dodge Island Seaport in Miami. Dorothy T. Howard, secretary-treasurer of the company, testified that in 1972, at the direction of co-defendant Neal L. Harrington, she began preparing and cashing monthly checks in amounts of several hundred dollars, which she charged to the company loan account of either Harrington or Royal O. White (the co-owners of Harrington & Company). (17:24, 26-27, 33). She would place the cash in an envelope and give it to Harrington. (17:32). Preparation of these checks coincided with visits from appellant Boyle. (17:35-36).

Eventually, Howard herself, through an implicit understanding with Harrington, developed the "habit" of giving envelopes containing varying amounts of cash to Boyle on a monthly basis. (17:37). On each occasion, she charged the amounts to the personal loan account of either Harrington or White. In March 1974, the same practice was commenced with respect to appellant Turner. (17:46-49). The amounts contained in the envelopes ranged from $400 to $1,380 for Boyle and $200 to $800 for Turner. (17:53-59). White, Harrington's business partner, testified that Harrington told him the payments were for the purpose of ensuring labor peace and were necessary in order to stay in business. (18:13, 20, 25).

Coordinated Caribbean Transport, Inc. ('CCT') is a transportation company that has its headquarters at the port of Miami. The company is involved in transferring cargo received at the port from overland carriers to trailers that are then loaded onto ships destined for foreign ports. (XX-XXX-XXX). During the period covered by the indictment, the company had contracts with the Miami longshoremen's union (ILA Local 1416) and the checkers' union (ILA Local 1922). (XX-XXX-XXX).

Boyle served as liaison between CCT and the longshoremen's and checkers' unions, respectively. (XX-XXX-XXX). In 1974, CCT was trying to improve its warehousing operations through negotiations with the unions. Hector C. Calderon, a vice-president for CCT, testified that Boyle approached him early in 1974 and suggested that labor conditions at the warehouse could be improved for "certain considerations." (18:150). Calderon ignored the statement, but Boyle broached the subject again at a subsequent meeting. (XX-XXX-XXX).

Boyle suggested that if CCT began paying him $1,000 per month, labor conditions at CCT's warehouse would improve. (18:152). After discussing the matter with a senior official of CCT's parent company, Calderon informed Boyle that he had received authorization to make the payments. (XX-XXX-XXX). Boyle and Calderon ultimately agreed that CCT would pay Boyle $600 per month. (18:159). In late 1975, however, officers of CCT decided to terminate the payments to Boyle. (18:166). Shortly thereafter, Calderon informed Boyle of CCT's decision to terminate the arrangement, while making one last payment of $3,600 (intended to represent six future monthly payments). (XX-XXX-XXX).

George Krickovich was employed by Eller & Company, a Miami-based stevedoring operation, throughout the period covered by the indictment. Krickovich testified that in early 1973, a 155-ton crane owned and operated by Eller & Company was idled until he agreed to pay George Wagner $50 per month. (51:192). Wagner told Krickovich that other cranes on Dodge Island were operating only because the companies that owned them were "taking care of some stevedores." (51:191).

In 1976, Krickovich asked appellant Boyle about the possibility of Eller & Company obtaining a contract to perform stevedoring work for a shipping company that operated between the United States and Puerto Rico. (51:194). Boyle responded that no contract for the work had yet been awarded and that Eller & Company could receive favorable treatment if four or five ghost employees were placed on the company's payroll. (51:194). Krickovich asked what work the employees would be performing and Boyle said, "Nothing." (51:195). Boyle told Krickovich that the employees would have to be paid in cash. (51:195). Krickovich discussed the matter with a senior official of Eller & Company who rejected the arrangement. (51:196).

In January 1977, the covert portion of the investigation terminated with the issuance of numerous grand jury subpoenas. The indictment was returned in June 1978 and the case went to trial in January 1979. In September 1979, the jury returned guilty verdicts as to all nine appellants herein.

All of the appellants except Dorothy Kopituk were found guilty of the substantive and conspiracy charges (Counts 1 and 2) brought under the Racketeer Influenced and Corrupt Organizations ('RICO') Act, 18 U.S.C. § 1961 et seq. Additional charges upon which appellants were found guilty included:

Barone extortion (Count 3), 18 U.S.C. § 1951, 18 U.S.C. § 2; substantive Taft-Hartley Act violations (Counts 4, 6, 7, 11, 12, 13, 19, 25, 27, 31, 43 and 48), 29 U.S.C. § 186, 18 U.S.C. § 2; filing of false income tax returns (Counts 58, 59, 60, 61 and 62), 26 U.S.C. § 7206(1).

Boyle extortion (Count 3), 18 U.S.C. § 1951, 18 U.S.C. § 2; substantive Taft-Hartley Act violations (Counts 4, 5, 6, 7, 8, 9, 11, 13, 16, 17, 19, 20, 22, 24, 27, 32, 35, 39, 41, 43, 46, 47 and 52), 29 U.S.C. § 186, 18 U.S.C. § 2; receipt of illegal kickbacks (Counts 21 and 23), 18 U.S.C. § 1954; obstruction of justice (Count 33), 18 U.S.C. § 1503; filing of false income tax returns (Counts 63, 64, 65, 66 and 67), 26 U.S.C. § 7206(1).

Field substantive Taft-Hartley Act violations (Counts 17 and 24), 29 U.S.C. § 186, 18 U.S.C. § 2.

Turner substantive Taft-Hartley Act violations (Counts 5, 10, 14 and 18), 29 U.S.C. § 186, 18 U.S.C. § 2.

Vanderwyde extortion (Count 3), 18 U.S.C. § 1951, 18 U.S.C. § 2; substantive Taft-Hartley Act violations (Counts 4, 8, 16, 27 and 43), 29 U.S.C. § 186, 18 U.S.C. § 2.

Williams substantive Taft-Hartley Act violations (Counts 9 and 15), 29 U.S.C. § 186, 18 U.S.C. § 2.

Morales substantive Taft-Hartley Act violations (Counts 44 and 46), 29 U.S.C. § 186, 18 U.S.C. § 2; filing of false income tax returns (Counts 68 and 70), 26 U.S.C. § 7206(1).

R. Kopituk substantive Taft-Hartley Act violation (Count 44), 29 U.S.C. § 186, 18 U.S.C. § 2; filing of false income tax returns (Counts 68 and 70), 26 U.S.C. § 7206(1).

D. Kopituk substantive Taft-Hartley Act violation (Count 44), 29 U.S.C. § 186, 18 U.S.C. § 2; filing of false income tax returns (Counts 68 and 69), 26 U.S.C. § 7206(2).

The central issue raised in this appeal is whether the district court erred in substituting an alternate juror for a disabled regular juror after the jury had begun deliberating.

At approximately 1:00 P.M. on Saturday, August 11, 1979, the jury retired to begin its deliberations. (99:144). The judge ordered that the two remaining alternate jurors be sequestered and directed a deputy United States marshal to escort them back to the hotel. (XX-XXX-XXX). The trial judge instructed the alternate jurors not to discuss the case with anyone, telling the alternates that "(t)here is still a possibility that you may have to serve." (99:146). The judge subsequently arranged to have the alternates sequestered on a floor of the hotel separate from that of the regular jurors. (XX-XXX-XXX). The jurors deliberated only two-and-one-half hours on this first day. The trial judge excused them at 3:30 P.M. to allow them to tend to their personal needs. (99:172).

The jury resumed its deliberations on Monday, August 13. On Wednesday, August 15, the trial judge released the two alternates from their sequestration and sent them home. In so doing, the trial judge specifically told the alternates that they were "discharged." (102:22-23). Nevertheless, he proceeded to instruct them to avoid all newspaper and television coverage of the trial "in the slim possibility that we might still call you." (102:23). He further instructed them not to discuss the case with anyone and not to leave the state until the case was concluded. (102:23-24).

On Friday afternoon, August 17, the court received a note from the foreperson of the jury expressing concern as to the mental condition of one of the jurors. (104:4). The foreperson requested that the jury be permitted to adjourn until Monday, promising that she would monitor the condition of the ill juror during the weekend. (104:4). The trial judge granted the request and deliberations were suspended until Monday, August 20. (104:6). On Monday morning, the foreperson sent the court another note stating that, in her opinion, the juror about whom she had previously expressed concern required professional help. (104:6). Shortly thereafter, the court received yet another note from the foreperson stating that the jury would be unable to continue deliberating until some action was taken with respect to the troubled juror. (104:7).

A hearing was held that afternoon at which the court, together with counsel, explored the juror's condition. It became readily apparent that the juror was mentally ill. The deputy marshal responsible for guarding the jury room related to the court that the juror stated that the Lord was talking to her, that Lucifer was after her and, at one point, that she was Moses. (104:8). The foreperson of the jury told the court and counsel that the juror had been hallucinating (104:46) and that she was extremely unstable, repeatedly alternating between states of elation and depression. (104:46, 50). The ill juror had told the other jurors of a revelation she experienced the night of August 16 in which she realized she was a genius with an IQ of 200 and that her position as a juror in this case was part of a divine mission. (104:33, 68-69).

On Tuesday, August 21, the court arranged for the juror to be examined by a psychiatrist, who concluded that she was mentally disabled and unfit to continue in her capacity as a juror in this case.12 Following extensive discussion with counsel, the trial judge, without objection, ordered that the incapacitated juror be discharged. (105:25). When defense counsel objected to proceeding with an 11-person jury, the court adjourned for the remainder of the day to consider whether or not the first alternate juror should be recalled. (105:27-28).13

The following day, the court, over the objections of defense counsel, decided to substitute the first alternate juror, Mrs. Evangelist, for the disabled juror. (106:45). Before doing so, however, the trial judge extensively questioned Mrs. Evangelist as to her continued fitness to serve as a juror. Mrs. Evangelist testified that, in accordance with the court's instructions, she had not discussed the case with anyone, she had not received any information about the case through the media or any other extrinsic source and that she felt she was capable of rendering a fair and impartial judgment with respect to all defendants. (106:55-58).

After questioning the alternate juror, the court proceeded to examine each of the remaining 11 regular jurors individually regarding their respective abilities to begin deliberating anew. (106:73-141). Each juror stated that he or she would be able to disregard any opinions or conclusions previously expressed during deliberations and start all over again. While some jurors expressed reservations about having to commence their deliberations anew, such reservations were attributable to their understandable desire to be reunited with their families rather than to any obstacle relating to their thought processes. (106:73-141).

Accordingly, on Thursday, August 23, the alternate juror was seated with the 11 original regular jurors and the court reinstructed them in full. (107:36-106). As part of the instructions, the court repeatedly emphasized that the jurors were duty-bound to begin their deliberations afresh, disregarding all of their previous deliberations. (107:36-39, 105-106).14 The jury then retired and deliberated for just over one week before returning its verdict on September 1, 1979.

Resolution of this issue, that is, whether the trial court erred in substituting an alternate juror for a disabled regular juror after deliberations had begun, is controlled by a recent decision of the United States Court of Appeals for the Fifth Circuit, United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982),15 wherein it was held that such a procedure constitutes reversible error only if the defendants are prejudiced by the substitution. In Phillips, the panel found that the procedural safeguards taken by the trial judge (which were expressly patterned after those employed by the trial judge in the instant case) operated to obviate any danger of unfair prejudice. 664 F.2d at 993.

The decision in Phillips is binding as precedent in this circuit pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981). Extrapolating from that fact, it is clear that this panel is bound by the Phillips decision because one panel of the court of appeals is not permitted to overrule or reconsider the decision of a prior panel. Branch v. Phillips Petroleum Co., 638 F.2d 873, 877 (5th Cir. 1981); United States v. Alfrey, 620 F.2d 551, 555 (5th Cir. 1980).

The facts in Phillips were remarkably similar to those in the instant case. Indeed, Phillips approaches the status of the proverbial "red cow" case with respect to the substituted juror question raised herein. Phillips, like the case at bar, was a massive, complex RICO case. The trial involved several defendants and lasted more than five months. After the jury had been deliberating for approximately two days, one of the regular jurors became ill and subsequently suffered a heart attack. The district court decided to replace the disabled regular juror with an alternate juror who had been kept separately sequestered. In so doing, the court expressly relied upon the procedures employed by the district court in the instant case, the trial of which had concluded six months earlier. 664 F.2d at 991 n.13.

In accordance with those procedures, the trial judge in Phillips questioned the alternate juror as to whether he had discussed the case with anyone or whether he had been exposed to any extrinsic information concerning it and questioned each of the remaining regular jurors as to whether they would be able to begin their deliberations anew. He also ordered that all notes and other handwritten material compiled by the jurors during deliberations be confiscated. Finally, he reinstructed the jury in full, particularly emphasizing their duty to commence their deliberations with a clean slate. 664 F.2d at 991.

In Phillips, the appellate court was faced with challenges that mirror those raised herein, i.e., that substitution of an alternate juror after the jury has commenced its deliberations violates the clear provisions of Fed.R.Crim.P. 24(c), the right to trial by a fair and impartial jury guaranteed by the Sixth Amendment, and the prohibition against being placed in double jeopardy incorporated within the Fifth Amendment.

Turning first to the constitutional arguments, the Phillips panel found no per se constitutional impediment to substitution of an alternate after deliberations have begun where good cause has been shown for the substitution and where adequate safeguards, such as instructing the reconstituted jury that they must begin deliberating anew, have been taken. 664 F.2d at 992-993. In so finding, the court relied in part upon People v. Collins, 17 Cal.3d 687, 552 P.2d 742, 131 Cal.Rptr. 782 (1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796 (1977), wherein the California Supreme Court held that substitution of an alternate juror after jury deliberations have begun is permissible under the California constitution. The California court determined that so long as "a properly qualified alternate juror is available and that juror fully participates in all of the deliberations which lead to a verdict," the right to jury trial is not violated. 131 Cal.Rptr. at 786, 552 P.2d at 746. The Phillips panel found such reasoning to be equally applicable to the Federal Constitution and, therefore, dispositive of appellants' Sixth Amendment argument.

The appellants in Phillips also claimed, as do the appellants herein, that substitution of the alternate juror operated to place them twice in jeopardy for the same offense in violation of the Fifth Amendment. That argument was rejected offhandedly, the court concluding that:

(c)onsideration of defendant's case by a jury which includes a former alternate who has replaced a regular juror after deliberations have begun no more violates the double jeopardy clause than does consideration by a jury which includes a former alternate who has replaced a regular juror during the trial before jury deliberations have begun.

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

Finally, with regard to appellants' most pressing argument, i.e., that substitution of the alternate juror mandated declaration of a mistrial because such a procedure is contrary to the express language of Fed.R.Crim.P. 24(c), the Phillips court commenced its analysis with a determination that Rule 24(c) is not constitutionally grounded. 664 F.2d at 992.

Rule 24(c) reads in pertinent part as follows:

Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.... An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.

While recognizing that substitution of the alternate juror constituted a violation of Rule 24(c), the court declined to adopt a position that would require automatic reversal in all cases in which the rule was violated. Rather, the appropriate inquiry, according to the court, is whether the defendants were prejudiced by the substitution. 664 F.2d at 993. In Phillips, the court found that the precautions employed by the trial judge sufficed to obviate any danger of prejudice to the appellants, stating:

The safeguards utilized by the court neutralized the possible prejudice to the appellants. We need not remand for an evidentiary hearing on the issue of prejudice, (citing case), because we conclude that the instructions to the jury to begin anew, the jurors' individual assurances that they could in fact begin anew, and the full participation of the substituted alternate in the deliberations, which lasted six days, obviated the danger of undue prejudice. On the record before us we cannot discern that appellants were prejudiced by the substitution. The substitution procedure utilized by the court did not deprive appellants of their right to a full consideration of their cases by an impartial jury panel.

664 F.2d at 996.

Having the benefit of Judge Johnson's opinion in Phillips, further discussion of appellants' legal arguments relative to the substituted juror question would be superfluous. Each of those arguments has been effectively disposed of as a matter of legal principle. All that remains is to apply Phillips to the facts at bar.

It is of no small significance that the safeguards approved in Phillips were formulated in express reliance upon the district court's opinion previously entered in the instant case. See United States v. Barone, 83 F.R.D. 565 (S.D.Fla.1979). As in Phillips, the trial judge in the instant case extensively questioned the alternate juror as to whether her continued fitness to serve had been tainted by any extrinsic influence. As in Phillips, the trial judge questioned each remaining regular juror individually and received assurances from all jurors that they would commence their deliberations anew. As in Phillips, the trial judge confiscated all notes and handwritten material compiled by the jurors during their original deliberations. Finally, as in Phillips, the trial judge reinstructed the jurors in full, emphasizing their duty to disregard all prior deliberations and begin afresh.

In Phillips, the panel noted that the jury deliberated on its verdict for six days following substitution of the alternate juror. 664 F.2d at 991, 996. Similarly, in the instant case, the jury deliberated for more than a week following substitution of the alternate. This is significant because one of the primary concerns of permitting an alternate juror to be substituted after jury deliberations have commenced is that the 11 original regular jurors may have already made up their minds to convict and, together, may coerce the alternate juror into joining in their position. See United States v. Lamb, 529 F.2d 1153, 1156 (9th Cir. 1975).16 The fact that the jury continued to deliberate for an entire week after the alternate was substituted negates any inference that the original regular jurors had previously decided to convict and that they impressed that position on the alternate.

Notwithstanding the many similarities between the instant case and the Phillips case, however, some factual distinctions do exist. In Phillips, the alternate juror was kept separately sequestered up until the moment he was substituted. In the instant case, although the trial judge initially decided to keep the alternates separately sequestered, he released them from their sequestration after four days. Upon doing so, however, he instructed them not to discuss the case with anyone and to avoid all media coverage of the trial because there was a possibility that they would be recalled. Moreover, prior to seating the alternate as a regular juror, the judge made an extensive inquiry to satisfy himself and counsel that the alternate had indeed obeyed his instructions. Consequently, the fact that the alternate juror was physically sequestered for only a portion of the time prior to being substituted is not, in light of the other precautions taken by the trial court, a distinguishing fact of such significance as to command a different result.

Another factual distinction between this case and Phillips concerns the period of time the jury spent deliberating prior to substitution of the alternate juror. As noted supra, in Phillips, the jury deliberated for approximately two days before the regular juror became incapacitated and the alternate was substituted. In the instant case, the jury spent a total of approximately five days deliberating prior to substitution of the alternate.17 Admittedly, the further along deliberations proceed, the more difficult it becomes to disregard them and begin anew. Nevertheless, the jurors' individual assurances that they could and would begin deliberating anew, combined with the fact that the jury deliberated for a full week subsequent to substitution of the alternate juror, is sufficient indication that the jurors were able to and did in fact obey the court's extensive instructions regarding their duty to eliminate all prior deliberations from their minds and begin with a clean slate.

Finally, the facts of this case are distinguishable from those in Phillips in that the trial judge, upon releasing the alternate jurors from their sequestration, specifically stated that they were "discharged," whereas, it is argued, no such statement was ever made in the Phillips case. Appellants focused on this point during oral argument, although no attempt was made to explain why such a distinction should be determinative.18 Although the trial judge used the word "discharged" in sending the alternate jurors home, he made it clear to them that their duties as jurors had not necessarily terminated. In fact, he expressly told them that there was still a possibility that they would be recalled and instructed them not to discuss the case with anyone, to avoid all media coverage of the case and to remain within the state of Florida.

The tenor of appellants' argument suggests that it would have been acceptable for the trial judge to have said, "Go home, I release you," or use any other combination of words of similar import, so long as he did not use the word "discharge." We decline to attribute any such talismanic quality to that word and accordingly reject appellants' argument on this point.

Our decision that substitution of the alternate juror after deliberations had begun does not constitute reversible error should not be misconstrued as a stamp of approval upon such a practice. As was true in Phillips, the trial court's decision to substitute the alternate was made in the context of a trial of truly epic proportions in terms of length, scope and expense to both sides. We endorse the statement in Phillips that, "Our conclusion that the district court committed no reversible error must likewise be understood as limited to such an exceptional context." 664 F.2d at 996.

It is not our intention, nor is it within our province, to authorize routine deviation from the terms of Rule 24(c). That rule is "the rule" and the substituted juror procedure upheld herein is a narrowly limited exception to the rule, applicable only in extraordinary situations and, even then, only when extraordinary precautions are taken, as was done below, to ensure that the defendants are not prejudiced.B. SEVERANCE ISSUES

Appellants raise a variety of claims that focus upon the failure of the district court to grant any of their several motions to sever certain offenses and/or defendants from the trial below. Their arguments, while somewhat convoluted, state claims of misjoinder under Fed.R.Crim.P. 8 and improper denial of relief from prejudicial joinder under Fed.R.Crim.P. 14.

(1) Misjoinder

Appellants Vanderwyde, Williams, Morales and the Kopituks contend that the counts of the indictment charging income tax offenses (Counts 58 through 70) were improperly joined with the counts charging non-tax offenses. A substantial portion of appellants' argument on this issue, however, is erroneously premised upon Fed.R.Crim.P. 8(a), which deals with joinder of offenses. It is well established that Rule 8(a) applies only in cases involving a single defendant charged with multiple offenses, whereas Rule 8(b) governs in cases involving multiple defendants.19 United States v. Levine, 546 F.2d 658, 661 (5th Cir. 1977); United States v. Park, 531 F.2d 754, 760 n.4 (5th Cir. 1976); United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975); United States v. Gentile, 495 F.2d 626, 628 n.2 (5th Cir. 1974); United States v. Bova, 493 F.2d 33, 35 (5th Cir. 1974); Cupo v. United States, 359 F.2d 990, 992 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967); King v. United States, 355 F.2d 700, 704-705 (1st Cir. 1966). See generally 1 C. Wright, Federal Practice and Procedure § 143, § 144 (1969). But see United v. Diaz-Munoz, 632 F.2d 1330, 1335-1336 (5th Cir. 1980).

Nevertheless, while it is clear that appellants' reliance upon Rule 8(a) is misplaced, this does not destroy their underlying argument on appeal, for the analysis under either subsection is, with one exception, more or less the same.20 The critical difference between the two subsections is that Rule 8(a) allows joinder of offenses against a single defendant that "are of the same or similar character," even if such offenses do not arise out of the same series of acts or transactions. Under Rule 8(b), offenses may not be joined unless they arise out of a series of acts or transactions, regardless of how similar they may be in character. 1 C. Wright, Federal Practice and Procedure § 144 (1969). That distinction, however, does not bear on the resolution of this appeal.

The substance of appellants' argument that it was improper to join the counts charging tax offenses with the counts charging other types of offenses is derived largely from United States v. Diaz-Munoz, supra, in which a panel of the former Fifth Circuit Court of Appeals reversed the convictions of three defendants on the ground that, inter alia, counts of the indictment charging various income tax offenses were improperly joined with counts charging embezzlement and insurance fraud. 632 F.2d at 1335-1336.21

In Diaz-Munoz, the defendants moved prior to trial for severance of the tax counts, contending that they were totally unrelated to the counts charging embezzlement and insurance fraud and, therefore, could not be joined with those counts under Rule 8. The government responded that "(t)he proof at trial will show the allegations of the subject counts to be part of a series of transactions which began with the acts of fraud and were concluded when the fraudulent income was not reported as income to the Internal Revenue Service." 632 F.2d at 1335. Accepting the government's representation that the counts would be connected up at trial, the district court denied the motions for severance.

At trial, however, the government failed to produce any evidence tending to prove a connexity between the tax counts and the non-tax counts, and even conceded this point at oral argument. 632 F.2d 1336. The appellate panel found that in representing to the court that the counts were part of a series of transactions, the government "assumed the risk that its proof would fail" and, accordingly, had to bear the consequences appertaining to that risk. 632 F.2d at 1336.

Thus, the decision in Diaz-Munoz was based upon the government's failure to prove a nexus between the tax and non-tax counts and does not, as appellants argue, stand for the proposition that joinder of tax and non-tax offenses in a single indictment is per se improper. Indeed, there would be no legal or logical basis for such a rule and, in fact, there is ample authority supporting the position that tax counts can properly be joined with non-tax counts where it is shown that the tax offenses arose directly from the other offenses charged. United States v. Beasley, 519 F.2d 233, 238 (5th Cir. 1975), vacated on other grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201 (1976); United States v. Kenny, 645 F.2d 1323, 1344-1345 (9th Cir. 1981); United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978); United States v. Isaacs, 493 F.2d 1124, 1158-1159 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). Assumably, had the government been able to fulfill its pretrial representation that the evidence would establish that the unreported income charged in the tax counts constituted the proceeds of the embezzlement and/or insurance fraud offenses charged in the other counts, the result in Diaz-Munoz would have been different.

The pertinent focus in misjoinder claims of this type is not upon the nature of the offenses that are joined together, but upon whether the terms of Rule 8(b) have been met, that is to say, whether the offenses arose from the "same series of acts or transactions." In order to constitute a "series" of acts or transactions under Rule 8(b), there must be "substantial identity of facts or participants" among the various offenses. United States v. Marionneaux, supra, 514 F.2d at 1249.

It is well established that substantive offenses arising out of a single conspiracy can properly be joined, since the conspiracy provides a common link connecting the offenses. United States v. Phillips, supra, 664 F.2d at 1016; United States v. Gentile, supra, 495 F.2d at 631-632; Gordon v. United States, 438 F.2d 858, 878 (5th Cir. 1971); United States v. Adams, 581 F.2d 193, 197 (9th Cir. 1978); United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); United States v. Somers, 496 F.2d 723, 729-730 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); 1 C. Wright, Federal Practice and Procedure § 144 (1969).22 In other words, the fact that the substantive offenses emanated from a single, central conspiracy is a sufficient indication that substantial identity of facts or participants exists among the offenses.

In the instant case, the government alleged and succeeded in proving that the tax counts and the non-tax counts were part of a series of acts or transactions arising from the conspiracy and criminal enterprise charged in Counts 1 and 2 of the indictment, respectively. Counts 58 through 67 charged appellants Barone (58-62) and Boyle (63-67) with filing false income tax returns. Counts 68 through 70 charged appellants Morales and Raymond and Dorothy Kopituk with assisting in the preparation of fraudulent corporate income tax returns on behalf of their company, Florida Welding Services Corp., by claiming false business deductions.

The government's proof at trial showed that the unreported income that formed the basis of the tax offense counts against Barone and Boyle stemmed from funds they received as a result of their participation in the conspiracy and the criminal enterprise that constituted the foundation for all the other charges against them. Similarly, the government's proof showed that the unlawful business deductions claimed by Morales and the Kopituks on behalf of Florida Welding Services Corp. stemmed from illegal payments they made in connection with their participation in the conspiracy and criminal enterprise.

The tax offenses were thus part of a series of acts committed in furtherance of the overall conspiracy. In the case of the unreported income received by Boyle and Barone, the filing of false income tax returns operated to maximize the benefits enjoyed as a result of their participation in the conspiracy and, of course, facilitated their efforts to avoid detection of the criminal enterprise. As for the fraudulent deductions claimed on behalf of Florida Welding Services Corp., the preparation of false corporate income tax returns enabled the Kopituks and Morales to minimize the adverse financial impact of the illegal payoffs they were making in order to acquire waterfront business.23 Accordingly, since the tax offenses arose directly and solely out of the other offenses committed in furtherance of the conspiracy, they were properly joined under Rule 8(b).

(2) Prejudicial Joinder

Fed.R.Crim.P. 8 sets "the limits of tolerance" on the process of joinder of offenses and defendants. United States v. Bova, supra, 493 F.2d at 36. If those limits are exceeded, joinder becomes misjoinder and is deemed to be inherently prejudicial. Where there is misjoinder, severance under Rule 8 is mandatory. United States v. Levine, supra, 546 F.2d at 661; United States v. Marionneaux, supra, 514 F.2d at 1248; United States v. Bova, supra, 493 F.2d at 35-36.

Nevertheless, joinder of defendants or offenses, even though proper under the terms of Rule 8, can be so prejudicial as to require severance under Fed.R.Crim.P. 14.24 The decision of whether relief is appropriate under Rule 14, however, is entrusted to the sound discretion of the district court and is reviewable on appeal only for abuse of that discretion. United States v. McCulley, 673 F.2d 346, 349 (11th Cir. 1982); United States v. Kabbaby, 672 F.2d 857, 861 (11th Cir. 1982); United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980); United States v. Marionneaux, supra, 514 F.2d at 1248; Tillman v. United States, 406 F.2d 930, 933 n.5 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969).

Having determined that joinder in this case was proper under Rule 8, it becomes necessary to consider appellants' claims of prejudicial joinder under Rule 14. Some of these claims raise constitutional questions which, while distinct from the issue of joinder, are nevertheless related. Accordingly, they will be dealt with in this section.

Appellants Turner, Williams, Morales and the Kopituks contend that they were prejudiced by the existence of antagonistic defenses that resulted from the government's decision to jointly indict both the union officials and the waterfront employers, and that the lower court erred in denying their respective motions for severance. The crux of this argument concerns the defense of co-defendant Neal L. Harrington, a waterfront employer who was, in fact, ultimately severed during trial.

Harrington, as noted in the facts section of this opinion, was co-owner of a Miami-based steamship agency and stevedoring company during the period covered by the indictment. He was charged with making illegal payoffs to union officials in return for labor peace. At the beginning of trial, counsel for Harrington informed the court of Harrington's intention to rely upon an "economic duress" theory of defense, i.e., Harrington would admit making illegal payoffs to union officials but would claim that he did so under economic coercion. Counsel for Harrington told the court and other counsel that he intended to pursue this course in his opening statement.

Several of the appellants moved for a severance at that point, contending that Harrington's position was prejudicial to their own, since they would be denying any and all participation in the criminal enterprise. The trial judge declined to order a severance at that point, reserving a final ruling until the trial had progressed to a stage where the issue would be more clearly focused. In order to avoid any possible prejudice in the interim, the court instructed counsel for Harrington to limit the scope of his opening statement to what he believed the government would or would not be able to prove with respect to his client alone. The court told counsel for Harrington that he would be permitted to make a second opening statement at the close of the government's case if it were ultimately decided that his client would not be severed.

During his opening statement, counsel for Harrington told the jury that "the Government's evidence will show that physically certain things took place; physically certain money passed." (4:110). Further on, he stated: "Now, the Government has indicated in its opening statement-and I concur that the evidence will show that that was a way of life on the docks-the Government has contended in their opening statement that the enterprise,-." (4:111). At that point, an objection was interposed and sustained, and the court advised counsel to remember the previous order. No other statements were made that even remotely implicated Harrington's co-defendants.

Late in the trial, but before Harrington ever had an opportunity to introduce evidence on his own behalf to support his economic duress theory, the court ordered him severed from the trial. Appellants contend that the district court abused its discretion when it failed, alternatively, to sever Harrington at the beginning of the trial or to sever them once it became apparent that Harrington's defense was clearly irreconcilable with their own.

To show an abuse of discretion by a district court in refusing to grant a motion for severance, a defendant must demonstrate that the joint trial subjected him to compelling prejudice against which the trial court was unable to afford protection. United States v. Harper, 11 Cir. 1982, 680 F.2d 731; United States v. Kabbaby, supra, 672 F.2d at 861; United States v. Tombrello, 666 F.2d 485, 492 (11th Cir. 1982); United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). In the context of an antagonistic defense claim, it is necessary to show not simply that the defenses were antagonistic, but that they were irreconcilable and mutually exclusive. United States v. Mota, 598 F.2d 995, 1001 (5th Cir. 1979); United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978); United States v. Swanson, supra, 572 F.2d at 529.

In the case sub judice, the trial court ultimately became convinced that Harrington's defense was irreconcilable with those of his co-defendants and ordered that he be severed from the trial. In so doing, the court fulfilled its "continuing duty at all stages of the trial to grant a severance if prejudice does appear." Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). Consequently, the only question is whether the action of the trial court in severing Harrington was "too little, too late," that is, whether appellants had already suffered compelling prejudice warranting reversal of their convictions. We think not.

Appellants rely upon United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973), and United States v. Crawford, supra, to support their position, but each case is readily distinguishable. In Johnson, two defendants, Johnson and Smith, were jointly tried on a charge of passing counterfeit bills. Johnson's defense at trial was that he was not present when the crime was committed. Smith, on the other hand, admitted that he and Johnson passed the counterfeit bills, but claimed that he was working as an informer for the municipal police department at the time. Indeed, the foundation of Smith's entire defense consisted of laying the blame upon Johnson and a third party. As the appellate panel observed, "(a) study of the record reveal(ed) that Smith's attorney implicated Johnson at every opportunity." 478 F.2d at 1133.

Accordingly, the court of appeals reversed Johnson's conviction, finding that, while severance was not mandatory prior to trial, "as the trial progressed it became clear that the prejudice to Johnson of defending at a joint trial with Smith outweighed any possible disruption in the judicial process which would result from having separate trials." 478 F.2d at 1134. In so finding, the court noted that there were only two defendants "and it would not have been very time consuming, but entirely practicable, to have accorded them separate trials." 478 F.2d at 1134.

In United States v. Crawford, supra, two defendants, Crawford and Blanks, were jointly tried on a charge of possessing an unregistered sawed-off shotgun. At trial, the sole defense of each defendant was to incriminate the other: