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711 F. Supp. 1315, *; 1989 U.S. Dist. LEXIS 12972, **
UNITED STATES OF AMERICA v. NICODEMO SCARFO, ET AL. Criminal Action No. 88-00003-1-19 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA 711 F. Supp. 1315; 1989 U.S. Dist. LEXIS 12972 April 20, 1989, Decided April 20, 1989, Filed CORE TERMS: indictment, conspiracy, extortion, photograph, murder, shakedown, racketeering, flight, credibility, severance, mafia, mob, cross examination, prosecutorial misconduct, prosecutor, probative value, codefendant, prejudicial, prejudiced, gun, coconspirator, guilt, reasonable doubt, defense counsel, occupants, objected, train, new trial, admissible, predicate JUDGES: [**1] Franklin S. Van Antwerpen, United States District Judge. OPINIONBY: VAN ANTWERPEN OPINION: [*1319] FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE In the instant matter, a jury convicted defendant Nicodemo Scarfo and sixteen of his associates of various crimes. The indictment under which defendants were found guilty includes seven counts. Counts I and II respectively charge RICO conspiracy and substantive violations, 18 U.S.C. § 1962(c), (d). They identify Scarfo and sixteen other defendants as members of an enterprise known as La Cosa Nostra, the LCN, the Mafia, the mob, this thing of [*1320] ours, the Bruno family and the Scarfo family. The indictment alleges that a succession of bosses ran the enterprise, and that Nicodemo Scarfo was its most recent boss. The underboss, most recently Salvatore Merlino and then Philip Leonetti, worked directly below the boss. The enterprise also had an advisor, known as a "consig", and leaders of regimes known as "capos". Soldiers, the most inferior members of the Mafia hierarchy, comprised the regimes. The purpose of the enterprise was to "control, manage, finance, supervise, participate in, and set policy concerning the making of money through illegal means." In counts I and II, the indictment charges that the enterprise conducted [**2] its affairs through a pattern of racketeering activity which included thirty-nine acts of murder, attempted murder, conspiracy to commit murder, extortion, collection of credit by extortion, illegal lotteries (also charged in count III), illegal sports bookmaking (also charged in count IV), conspiracy to distribute and distribution of controlled substances (also charged in counts V, VI, and VII). Counts I and II also charge five collections of unlawful debt. The Mafia carried out these activities primarily in the Philadelphia and Southern New Jersey areas. Two of Scarfo's associates, Thomas DelGiorno and Nicholas Caramandi, pleaded guilty and testified as government witnesses. They chose to participate with the government because their lives allegedly had been threatened. In light of the circumstances of this case, all parties agreed to an anonymous jury. In addition, the Court granted the government's motion to sequester the jury. The trial commenced on September 28, 1988 and concluded on November 17, 1988. After deliberating for a few days, the jury convicted all the defendants on all counts. n1 As a result of those convictions, the defendants filed several posttrial motions. The [**3] Court provided defendants with generous extensions of time in which to brief their motions. On March 23, 1989, the Court held oral argument on the motions. We will now address the merits of the motions. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The jury did not find an attempt to murder in racketeering act nine of count one. The jury found all other racketeering acts and collections of debt proven beyond a reasonable doubt. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Evidentiary Rulings Defendant Charles Iannece argues that the Court erred in denying his motion to suppress the fruits of the search and seizure effected in Lake Harmony, Pennsylvania on October 29, 1987. Iannece argues that the introduction of evidence of his flight without additional limiting instructions prejudiced him and entitles him to a new trial. He suggests that the flight evidence was admissible only as to one predicate act, the Rouse Hobbs Act Extortion, and that the Court should have instructed the jury to consider that evidence only with regard to that act. Iannece also argues that under Fed.R.Evid. 404(b) n2 and 403 n3, the Court should not have admitted evidence of the guns seized from Iannece because Agent Warner told the jury that one of the guns was stolen; thus, defendant [**4] argues, the jury could have concluded that Iannece was responsible for stealing the gun. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 F.R.E. 404(b) provides as follows:
n3 Fed.R.Evid. 403 provides as follows:
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - According to the testimony of FBI Special Agent Warner, on October 29, 1987 Agent Warner arrested Iannece in Lake Harmony Pennsylvania. (Tr. 11/8/88 at 33). Pursuant to an executed consent to search form, Agent Warner searched the residence and recovered the following: four sets of identification in the name of [*1321] Donald Casalaro, including a driver's license with Iannece's picture on it; a birth certificate and Social Security card [**5] in the name of Thomas Joseph Pecca; two handguns, one of which was reported stolen in Washington, D.C. in 1977; and numerous rounds of hollow point ammunition. (Tr. 11/8/88 at 33-38). Near the conclusion of Agent Warner's testimony, Stephen LaCheen, attorney for Joseph Pungitore, Jr., argued at sidebar that the possession of the guns were 404(b) material, irrelevant to the issue of flight and prejudicial. (Tr. 11/8/88 at 40-41). After a short colloquy on the issue, the Court concluded that admission of the evidence concerning the guns was not prejudicial and was relevant. (Tr. 11/8/88 at 43). No defense attorney argued that the Court should exclude evidence concerning the stolen gun because the jury would conclude that Iannece was responsible for stealing the gun. On behalf of Iannece, Mr. Savino argued only that the Court should not admit the flight and related evidence because Iannece was incarcerated at the time of the instant RICO indictment and the evidence was unrelated to any charges in the indictment. We find that the Court properly admitted the evidence. Flight is viewed in the law of evidence as admission by conduct which expresses consciousness of guilt. E. Cleary, [**6] McCormick on the Law of Evidence § 271 at 655 (2d ed. 1972); See also United States v. Miles, 468 F.2d 482, 489 (3d Cir. 1972) (flight admissible as circumstantial evidence of guilt to be considered with other facts of the case). Its probative value depends upon whether there is sufficient evidence to establish the following four inferences: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to the actual guilt of the crime charged. United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), cert. denied, 439 U.S. 847, 58 L. Ed. 2d 149, 99 S. Ct. 147 (1978). Defendant argues that the last two elements have not been shown because Iannece was incarcerated a the time of the RICO indictment. For flight evidence to be admissible, however, it is not necessary that an actual indictment trigger flight; knowledge of the cooperation of a codefendant, see United States v. Tille, 729 F.2d 615, 622 (9th Cir.), cert. denied, 469 U.S. 845, 83 L. Ed. 2d 93, 105 S. Ct. 156 (1984), or reason to believe that one is sought for commission of crimes, see [**7] United States v. Eggleton, 799 F.2d 378, 381 (8th Cir. 1986), is also sufficient to trigger flight. In the instant matter, the evidence suggested that Iannece became a fugitive before he was indicted on any charges, and after learning that Nicholas Caramandi began cooperating with officials. (Tr. 10/29/88 at 126). The potential damage Caramandi's cooperation could create was not limited to the Rouse extortion, but extended to many of the predicate acts included in the instant RICO indictment. Thus, because Iannece's knowledge of the Caramandi cooperation could have triggered his flight, the court properly admitted the flight evidence. Furthermore, defendants never requested a more specific limiting instruction and did not object n4 to the Court's instruction on flight. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Throughout this opinion we refer to defendants' failures to timely object. Fed.R.Evid. 103 provides that error may not be predicated upon an erroneous ruling which admits or excludes evidence unless a substantial right of the party is affected and the attorney makes a timely and explicit objection. Rule 103 also provides, however, that we should take notice of plain errors affecting substantial rights although they were not brought to the attention of the court. Wherever we refer to a defendant's failure to object, Rule 103 governs our review. [**8] n5 The Court instructed the jury that flight may be considered only with regard to the individual defendant against whom it is offered in light of all the evidence in determining guilt or innocence. The Court also instructed the jury that the significance to be attached to any flight is a matter exclusively within their province, and that they should consider whether there are other reasons for the flight other than consciousness of guilt. (Tr. 11/17/88 at 17-18). This instruction was sufficiently balanced to allow the jury to consider the issue fairly. See United States v. Castro, 813 F.2d 571, 578 (2d Cir.), cert. denied, 484 U.S. 844, 108 S. Ct. 137, 98 L. Ed. 2d 94 (1987); United States v. Feldman, 788 F.2d 544, 555 (9th Cir. 1986), cert. denied, 479 U.S. 1067, 93 L. Ed. 2d 1003, 107 S. Ct. 955 (1987). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*1322] Iannece also argues that under Fed.R.Evid. 404(b), the Court should not have admitted evidence of the guns and ammunition. With regard to the stolen gun, Iannece argues that the jury could have prejudiced Iannece by concluding that he was involved in the theft. Iannece suggests that the Court should have performed a balancing test under Rule 403 and concluded that the probative value was outweighed by the [**9] danger of unfair prejudice. Defendant's argument is not only speculative, but even if the jury would have concluded that Iannece was involved in the theft, this "other crime" pales in the face of substantial evidence concerning defendant's involvement with several murders and shakedowns. After hearing the argument of Mr. LaCheen, and in finding that the gun evidence was relevant to flight and admissible, the Court implicitly balanced the prejudice with the relevance and found the probative value outweighed the potential prejudice. Mr. LaCheen argued that admitting this evidence was "like putting ink in milk," to which the Court responded, "I don't think we have that type of situation here. . . . I think it's relevant that he has guns with him. I think it's part of the flight." (Tr. 11/8/88 at 42-43). Especially given the general nature of the objection, n6 it was not necessary that the Court more explicitly perform the Rule 403 balancing test. See United States v. Lebovitz, 669 F.2d 894, 901 (3d Cir.) (when trial court fails to articulate balancing test, in some instances we find that court implicitly made the requisite balancing) (citing United States v. Provenzano, 620 F.2d 985, 1003 [**10] (3d Cir.), cert. denied, 449 U.S. 899, 66 L. Ed. 2d 129, 101 S. Ct. 267 (1980)), cert. denied, 456 U.S. 929, 72 L. Ed. 2d 446, 102 S. Ct. 1979 (1982); United States v. Long, 574 F.2d 761, 766 (3d Cir.), cert. denied, 439 U.S. 985, 58 L. Ed. 2d 657, 99 S. Ct. 577 (1978) (the dynamics of a trial do not always permit a detailed Rule 403 analysis). Furthermore, where the defendant does not specifically invoke Rule 403, the balancing is subsumed in the Court's ruling. Id. Under the circumstances, the Court did all the Rules required it to do. Therefore, defendant's motion is denied. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Defendants did not comply with Fed.R.Evid. 103(a) in stating that "even if the material objected to had probative value, it was 'substantially outweighed by the danger of unfair prejudice.'" Long, 574 F.2d at 766. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Alleged Perjured Testimony Defendants move to strike the testimony of government witnesses Thomas DelGiorno, Nicholas Caramandi, and Michael Madgin on the ground that their testimony was perjurious and based upon contingent plea agreements. The Court finds this argument meritless. The Supreme Court has held that a defendant is denied due process if the government knowingly introduces perjured testimony to obtain a conviction. Napue v. Illinois, 360 U.S. 264, 269, [**11] 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). The government need not solicit false evidence; it is sufficient if the government allows the evidence to go uncorrected when it surfaces. Id. at 269-70. The burden of establishing the perjury is on the defendants. United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987). The defendants must show more than mere inconsistencies in testimony by government witnesses; the defendants must meet the heavy burden of showing that the testimony was knowingly false. Id. Defendants argue that the government witnesses lied about their governmental remuneration and that witnesses' arrangements with the government were contingent upon the conviction of the defendants. We find otherwise. The plea agreements admitted into evidence specifically state that the rights of the witness were not dependent upon or affected by the outcome of any case in which they testify. (See G. 117a, G. 118, G. 119). The trial testimony supported this understanding. For example, Gerald Egan, the attorney who negotiated the plea agreement on DelGiorno's behalf, testified that "the Federal [*1323] Government made it clear that money was not contingent upon -- was not result oriented. That he [**12] had to cooperate and testify truthfully." (Tr. 11/10/88 at 235). We find no evidence of perjury or contingent fee arrangements. Therefore, defendants motion is denied. Error in Conduct of Trial Defendants argue that throughout the trial the Court showed "partisanship" toward the government attorneys and "disdain" toward defense counsel. Specifically, defendants assert that upon defense objections the Court repeatedly made hostile facial expressions and responded in an antagonistic tone of voice. Defendants argue that this conduct had a chilling effect on defense counsel and deprived defendants of a fair trial. The Court finds these sweeping arguments frivolous and entirely without merit. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Throughout the trial, the Court treated the defense fairly. However unnecessary this exercise may appear, for the record, we will list examples of the numerous occasions on which the Court extended itself for the defense: 1. Over the strenuous objection of the government, the Court granted defendants additional peremptory challenges. 2. Although it is not required by the Federal Rules, the Court allowed the lawyers to conduct their own voir dire after Mr. Simone explained that he considered jury selection one of the most important parts of his case. 3. As discussed in more detail infra, the Court allowed Mr. Simone more leeway in conducting his cross examination than Chief Judge Fullam did in United States v. Scarfo, 1987 U.S. Dist. LEXIS 6698, No. 86-004534-04, hearing at 9-13 (E.D.Pa. 1987). We restricted only his injecting his own credibility into the examination. 4. The Court granted several defense requests for additional time, late starts, and many Saturdays off. 5. With waivers from their clients, the Court permitted defense counsel to absent themselves when necessary from the proceedings. 6. After defense counsel had difficulty getting transcripts from state court proceedings, the Court personally arranged for their expeditious procurement. 7. The Court affirmed all defendants' points for charge and upon defense objection refused to include the government's "missing witness" charge. 8. The Court forced the government to finish its closing late into the night so that the defense could begin first thing in the morning. (Tr. 11/16/88 at 146). 9. The Court did not exercise its contempt powers when Mr. Berry gave an improper closing which grossly misstated the government's burden of proof: Mr. Berry demonstrated the burden of proof by displaying before the jury a pair of scales on which he balanced some coins on one side and a brick on the other. In United States v. Clay, 476 F.2d 1211, 1215 (9th Cir. 1973), the court held that in explaining the burden of proof to a jury in a criminal case, one must "eliminate all references to . . . 'balancing of evidence.'" Mr. Berry also argued to the jury that they must give the defendants "the benefit of any doubt," and the government objected. The Court sustained the objection but did not provide a curative instruction until after Mr. Berry completed his closing. (Tr. 11/15/88 at 34-42). Likewise, the Court did not hold Attorney Pinsky in contempt when he appealed to the passions and prejudices of the jury in imploring the jury to "put fathers and husbands and wives back together, fathers with children, families together." (Tr. 11/15/88 at 66). 10. The Court revised the individual verdict sheets so that the words "not guilty" were always listed before the word "guilty", and appeared directly in front of the jury box and explained to the jury that "not guilty" was given greater prominence to remind them that the "defendants start off presumed innocent. The Government has the burden of proof." (Tr. 11/17/88 at 131). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**13] Double Jeopardy Under F.R.Crim.P. 34, n8 defendants argue that racketeering acts three (Falcone Murder) and twelve (Testa Murder) of this indictment fail to charge an "act or threat involving murder . . . chargeable under state law" because all defendants charged with the murders of Vincent Falcone and Salvatore Testa were acquitted in state court. Defendants argue that where a jury acquits a defendant of substantive charges, the identical charges can not constitute a predicate act "chargeable under state law." 18 U.S.C. 1961(1). Thus, defendants argue that RICO does not permit inclusion of the Testa and Falcone murders, and that such inclusion places them in double jeopardy. The Court disagrees. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 In pertinent part, F.R.Crim.P. 34 provides that "the court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The double jeopardy clause of the Fifth Amendment provides that no person [*1324] shall be "subject to the same offense to be twice put in jeopardy of life or limb." The Supreme Court has held that successive prosecutions by different sovereigns does not violate [**14] defendant's Fifth Amendment rights. See Abbate v. United States, 359 U.S. 187, 194, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959). An act denounced as a crime by the nation and a state is an offense against the peace and dignity of both and may be punished by both. Id. See also Rinaldi v. United States, 434 U.S. 22, 54 L. Ed. 2d 207, 98 S. Ct. 81 (1977). In United States v. Frumento, 563 F.2d 1083, 1088-89 (3d Cir. 1977), cert. denied, 434 U.S. 1072, 55 L. Ed. 2d 775, 98 S. Ct. 1256 (1978), the Third Circuit applied this principle to a federal racketeering case and concluded that the defendants were not placed in double jeopardy after a jury acquitted them in Philadelphia Municipal Court on extortion charges and later a jury found them guilty in federal court for violating RICO. The court expressly rejected the argument that an act must be "chargeable and punishable" under state law: RICO requires "only that the conduct on which the federal charges is based be typical of the serious crime dealt with by the state statute, not that the particular defendant be 'chargeable under State law' at the time of the federal indictment." Id. at 1087, n. 8. In the instant matter, defendants were charged with and found guilty of the federal crime of "racketeering," not the state [**15] offenses per se. The state offenses are merely definitional. See Id. at 1087. Thus, because the Falcone and Testa murders merely define part of the pattern of racketeering activity, defendants were not placed in double jeopardy. Defendants' motion is denied. Defendant Joseph Ciancaglini also raises a double jeopardy argument. In his pretrial motions, because a jury previously convicted Ciancaglini of a RICO conspiracy involving the same enterprise, he moved to dismiss counts one and two of the indictment under the double jeopardy clause of the Fifth Amendment. This Court denied defendant's motion, and defendant appealed to the Third Circuit. In United States v. Ciancaglini, 858 F.2d 923 (3d Cir. 1988), the Third Circuit affirmed this Court's decision denying the defendant's motion. After conviction, Ciancaglini again raises his double jeopardy argument. We remain unpersuaded. Defendant predicates both his pretrial and posttrial motions on a series of underlying facts: (1) both the 1981 indictment (Testa) and the 1988 indictment (Scarfo) involve Philadelphia-based crime families and both allege enterprises with the same goal; (2) the period of the conspiracy charged in Testa [**16] (June, 1972 until June, 1978) overlaps by approximately two years the conspiracy charged in Scarfo (April, 1976 to October, 1987); (3) one of the racketeering acts in the Scarfo indictment occurred within the period of the overlap; (4) five of the 123 overt acts charged in Scarfo occurred within the period of the overlap, two of which were alleged in the Testa indictment; (5) Ciancaglini is the only defendant named in both indictments. Citing United States v. Liotard, 817 F.2d 1074 (3d Cir. 1987), the Third Circuit applied a "totality of the circumstances test" to evaluate the merits of a conspiracy defendant's double jeopardy claim. Ciancaglini, 858 F.2d at 927. The court held that to give rise to a double jeopardy claim, a successive RICO charge must allege both the same enterprise and substantially the same pattern of racketeering activity. Id. at 928. Applying the totality of the circumstances test, and examining all the factors Ciancaglini cited in support of his contention, the court concluded that the two indictments charged distinct RICO violations: The pattern of racketeering activity
Id. at 930. Ciancaglini argues that we should find a double jeopardy violation not only for all the reasons that the Third Circuit rejected, but also because during [*1325] the trial the government radically changed its position on whether this case involves the same conspiracy as the Testa case. Specifically, defendant points to a statement made by the government during an argument concerning the admissability of a tape recording of the November 4, 1977 conversation between Scarfo and other LCN leaders. In arguing that the tape was relevant, the government noted that "this is an ongoing conspiracy." Defendant misreads this reference to conclude that the government concedes that the conspiracy alleged in the Testa indictment and the conspiracy alleged in the Scarfo indictment are the same "ongoing conspiracy." We find that the government clearly intended that phrase to refer to the ongoing nature of the conspiracy [**18] in Scarfo, not in Testa and Scarfo. The government did not radically change its position, but continued to prosecute two separate conspiracies. Therefore, we find that the government did not subject defendant twice to jeopardy. Defendant's motion is denied. Prosecutorial Misconduct Defendants argue that under F.R.Crim.P. 34 n9 the Court should arrest judgment on the grounds of prosecutorial misconduct. In support of this contention, defendants raise several arguments: (1) the prosecution illegitimately sought to corrupt the jury by conveying to them that defendants were dangerous criminals and that a conviction was necessary to the health and safety of the jurors; (2) the prosecution improperly attested to the bravery of witnesses and vouched for their honesty and integrity; (3) the prosecution made prejudicial closing remarks concerning individual defendants and concerning the evaluation of evidence; and (4) the prosecution improperly treated Mr. Simone and Mr. Santaguida. We find all of these arguments meritless. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 In pertinent part, F.R.Crim.P. 34 provides as follows: "The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**19] The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor; prosecutorial misconduct alone does not require a new trial. Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982). The Third Circuit instructs us to inquire whether the prosecutor's remarks
United States v. Adams, 759 F.2d 1099, 1111 (3d Cir.), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985). See also United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1194 (3d Cir. 1984), cert. denied, 470 U.S. 1029, 84 L. Ed. 2d 785, 105 S. Ct. 1397 (1985). We first note that with regard most of the prosecutorial misconduct arguments defendants raise, the defense has neither pointed to, nor can we find, any objection at trial to this [**20] alleged prosecutorial misconduct. Unless it would be plain error not to order a new trial based on prosecutorial misconduct, the failure to object at trial the government's remarks is fatal. United States v. DiPasquale, 740 F.2d 1282, 1296 (3d Cir. 1984), cert. denied, 469 U.S. 1228, 84 L. Ed. 2d 364, 105 S. Ct. 1226, 105 S. Ct. 1225 (1985). We will, however, for the sake of completeness, consider defendants' arguments to determine whether the Court committed either error or plain error. With regard to defendants' first contention, we find that the government did not improperly offer the testimony concerning witness relocations, living conditions, and admissions into the Witness Security Program to demonstrate witnesses' fear or to vouch for their credibility. Rather, the government properly offered the [*1326] testimony in reasonable anticipation of cross examination. See United States v. Frankenberry, 696 F.2d 239, 242-43 (3d Cir. 1982), cert. denied, 463 U.S. 1210, 77 L. Ed. 2d 1392, 103 S. Ct. 3544 (1983) (testimony that a witness is in the Witness Security Program and has received substantial benefit may be elicited during direct examination to counter defense suggestions that his testimony is biased). Apart from the issue of witness relocation, the government [**21] offered testimony of witnesses' fear to help explain the reasons why the witnesses cooperated. This was also a fair and reasonable anticipation of cross examination. As the government argues, it was abundantly clear from defendants' opening arguments and from prior trials involving similar issues, that the defense would attack the witnesses' credibility based on money the government spent on their behalf. For example, in his opening statement, concerning the treatment of witnesses DelGiorno and Caramandi, Mr. Goodman told the jury that
(Tr. 9/29/88 at 40-42). Similarly, in his opening, Mr. Simone referred to the credibility of [**22] the witnesses in light of their custody: "they spent hundreds of thousands of dollars wining and dining these people . . . and then you're going to judge their testimony which you will know to be untrue and incorrect." (Tr. 9/28/88 at 126-27). Again, the defense does not cite to any objection on the record concerning the testimony of the witnesses in this area. Even had they objected, admission of this testimony would have been proper. In United States v. Scarfo, 850 F.2d 1015, 1018 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988), a Hobbs Act prosecution concerning the Rouse extortion (racketeering act thirty-nine in this case), the trial court permitted the prosecution to establish that (1) Caramandi and DelGiorno had committed certain crimes, including murders ordered by defendant Scarfo; (2) breaking the rules of La Cosa Nostra could result in a death sentence; and (3) Caramandi and DelGiorno believed their lives had been threatened. The Third Circuit held that this testimony was admissible for the reasons stated by the district court: to show Scarfo's leadership in the mafia, to show the grave consequences of conducting unapproved criminal activities, and to explain why DelGiorno [**23] and Caramandi began to cooperate despite the potential consequences they would suffer for betraying the Mafia. Id. at 1018. The court held that this testimony, while potentially damaging to the defendants, was "essential in the government's effort to establish the credibility of its disreputable, yet indispensable, witnesses." Id. at 1020. In the instant matter, the testimony was necessary to establish the witnesses' credibility, and was relevant in proving the existence of the RICO enterprise and some of the crimes charged. We find no prosecutorial misconduct in the elicitation of this testimony. Defendants also argue that the government dramatically and improperly buttressed its position on the intimidating nature of the defendants by having the witness Kathleen Residence appear in disguise. We find nothing improper in the prosecution's behavior. The government made no improper prefatory remarks concerning her "disguise," and there is no evidence suggesting that the government had anything to do with her fashion choice; instead, the defendants highlighted that information on cross examination. In an apparent effort to show that the government purchased new clothes for the [**24] witness in exchange for her testimony, the defendants inquired about her clothes. She responded that she wore the clothes so that no one [*1327] would recognize her and that she would never wear them again. In response to this, defendants did not object. Defendants are entirely responsible for whatever prejudice flowed from this testimony. We find no prosecutorial misconduct. Defendants also argue that the government improperly vouched for the credibility of its witnesses. In support of this argument, defendants cite Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967), in which the court awarded the defendant a new trial where the prosecutor said at trial,
Id. at 709-10 (emphasis omitted). Although that type of comment was clearly improper, the government's conduct in the instant matter is clearly distinguishable. First, the [**25] government made no such argument in our case. Second, to the extent that the prosecution bolstered the credibility of its witnesses, it did so as an appropriate response to defense attacks on the integrity of the prosecution. Throughout the trial, the defense suggested that the government manufactured the testimony of the cooperating witnesses, telling them exactly what to say regardless of its truth or falsity. The prosecution was within its rights in responding to this attack by eliciting rebuttal testimony from FBI witnesses and arguing in closing that the evidence indicated that FBI witnesses spoke the truth. n10 See DiPasquale, 740 F.2d at 1296 (prosecutor may not abuse the prestige of his office, but "principle of prosecutorial restraint does not free a defense attorney to argue with impunity that the government wrote and directed a play"). Thus, we find no evidence of prosecutorial misconduct. n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Prosecutor Gordon argued in his rebuttal:
(Tr. 11/16/88 at 175-76). [**26] n11 The Court also finds no merit to the contention that the prosecution pursued a theme of intimidation by assuring the jurors that because of their anonymity, they could feel free to convict the defendants. We find nothing in the record to support this position. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Defendants also claim that during its closing, the prosecution made prejudicial references to them. Specifically, the defense takes issue with Mr. Pichini's reference to Francis Iannarella as a "cold-blooded killer," Mr. Gordon's reference during rebuttal, to the defendants as "Mafia killers," and an alleged reference to Phillip Narducci as a "baby-faced killer." n12 A prosecutor's characterization of a defendant does not justify the granting of a new trial where the characterization is supported by the evidence and, in the context of the trial as a whole, produces no significant prejudice to the defendant. United States v. Taxe, 540 F.2d 961, 967-68 (9th Cir. 1976) (prosecutor's characterizations of defendant as a "scavenger", parasite", "fraud", and "professional con man", supported by the evidence and thus not prejudicial), cert. denied, 429 U.S. 1040, 50 L. Ed. 2d 751, 97 S. Ct. 737 (1977). See also United States v. Malatesta, 583 F.2d 748, 759 [**27] (5th Cir. 1978) (prosecutor calling defendant a "con man" and "hoodlum" supported by the evidence), cert. denied, 440 U.S. 962, 59 L. Ed. 2d 777, 99 S. Ct. 1508 (1979); United States v. Williams, 726 F.2d 661, 664 (10th Cir.) ("drug smuggler"), cert. denied, 467 U.S. 1245, 82 L. Ed. 2d 830, 104 S. Ct. 3523 (1984); United States v. Ong, 541 F.2d 331 [*1328] (2d Cir. 1976) ("Chinatown's chief corrupter for 20 years"), cert. denied, 430 U.S. 934, 51 L. Ed. 2d 780, 97 S. Ct. 1559 (1977). In the instant matter, the references were clearly supported by the record. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 We can find no evidence in the record that such a comment was made. Even the prosecution did refer to Narducci in that light, it would not amount to prosecutorial misconduct. The evidence showed him to be a killer, and the term "baby-faced" does not raise any irrational passions when connected with the term "killer." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Direct testimony from government witnesses suggested that defendants Iannarella and Narducci fatally shot several victims. For example, according to witnesses, Iannarella shot Robert Riccobene in the presence of Riccobene's mother who was screaming in horror, and then Iannarella smashed the mother in the head with his shotgun. (Tr. 11/11/88 at 115). In addition, the evidence suggested that [**28] Iannarella was involved in three other murders, and in one of these murders, he shot John Calabrese in the back. It would certainly be fair to characterize one who committed such acts as "cold-blooded." With regard to the reference to "Mafia killers," witnesses identified each defendant as a made member of the Mafia who participated in at least one (and usually several) Mafia-ordered murders or attempted murders. Again, based on the evidence, the prosecution fairly characterized them. In spite of these fair characterizations, the Court offered to give a cautionary instruction, and the defense declined. In addition, after making his comment about Iannarella, Mr. Pichini reemphasized that nothing in his closing argument was evidence; the closing, he stated, simply represents what the government submits the evidence to have shown. (Tr. 11/11/88 at 127). In the charge the Court told the jury:
(Tr. 11/17/88 at 31-32). The defendants were apparently satisfied with this instruction, and did not request further explanation or modification. We find no prosecutorial misconduct. Defendants also argue that the government's treatment of Mr. Simone amounted to prosecutorial misconduct. Specifically, the defense asserts that (1) the government introduced photographs in which Simone appears with various defendants; (2) that government witnesses alleged that Simone engaged in unlawful conduct; and (3) that the prosecutor in his rebuttal argument made a comment about Simone appearing in one of the photographs. Defendants claim that these actions "caused severe and undue prejudice and hostility" toward defendants and lead defense counsel, depriving all defendants of a fair trial. We disagree. By way of background information, racketeering act thirty-nine, in counts one and two of the instant indictment, charged defendants Scarfo and Iannece with the Hobbs Act [**30] extortion of Willard Rouse and Associates. In an earlier trial in May, 1987, a jury convicted Scarfo of this extortion. See United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988). Iannece was a fugitive at the time, and the government had never prosecuted him in connection with the Rouse extortion. In a separate federal trial earlier in 1987, a jury convicted former Philadelphia City Councilman Leland Beloff and his legislative aide Robert Rego, coconspirators in the Rouse extortion with Scarfo and Iannece. The testimony of cooperating government witnesses Thomas DelGiorno and Nicholas Caramandi was central to the convictions of all four men. Beyond implicating Scarfo, Iannece, Beloff, and Rego, however, DelGiorno and Caramandi also implicated Mr. Simone, both as a conduit between the coconspirators for receiving instructions and supervision and as a person who was to share a split of the extortion proceeds. It was clear to all concerned, at least by the end of the Beloff and Rego prosecution, if not sooner, that the testimony of DelGiorno and Caramandi, if believed, established [*1329] Mr. Simone as an unindicted coconspirator in the [**31] Rouse extortion scheme. Accordingly, before the Scarfo trial, the government filed a motion to disqualify Mr. Simone from representing Scarfo. Chief Judge Fullam, who had presided over the Beloff and Rego trial, concluded as follows:
United States v. Scarfo, 1987 U.S. Dist. LEXIS 6698, No. 86-00453-04, hearing at 9-13 (E.D.Pa. April 14, 1987). Scarfo elected to continue to have Mr. Simone represent him. Miles Feinstein [**32] appeared with Mr. Simone as co-counsel, the defense followed Chief Judge Fullam's ruling, and Mr. Feinstein performed those representational functions from which the Court foreclosed Mr. Simone. In the instant matter, the same tension between the Code of Professional Conduct and Scarfo's Sixth Amendment rights arose because the Rouse extortion appeared in the indictment as a racketeering act. The government moved pretrial for the Court to place the same restraints on Mr. Simone's representation of Scarfo. Mr. Simone argued against the imposition of such strict limitations and other defense counsel supported him. No defendant supported the government's motion, and no defendant asked for a severance based upon possible prejudice resulting from Mr. Simone's participation in the trial. This Court ruled somewhat more liberally than Chief Judge Fullam. The Court allowed Mr. Simone to cross-examine DelGiorno and Caramandi but admonished him not to inject his own credibility into the proceedings. Likewise, the Court permitted Mr. Simone to make closing argument with the same restriction. (Tr. 9/9/88 at 51, 56). In addition, the Court colloquied Defendant Scarfo. After extensive discussion, [**33] Scarfo waived the right to call Mr. Simone as a witness, stated that he wanted Simone's representation although it could be limited and although Simone might be admonished, and stated that he understood that Simone might face a conflict of interest in the sense of protecting himself from accusations by witnesses to the possible detriment of Scarfo. (Tr. 9/9/88 at 52-57). The Court fully represented to Scarfo the risks inherent in allowing Simone to proceed as his counsel, but Scarfo adamantly declared that he wanted Simone as his attorney. The government also pointed out that some of its evidence consisted of photographs in which Mr. Simone appeared. No defendant objected at this time, and Scarfo understood that the Court would not permit his attorney to testify through speeches or questions as to his version of what was happening in these pictures. (Tr. 9/9/88 at 56-57). Defendants now contend that the government used photographs showing Mr. Simone with one or more of the defendants to prejudice the jury as to Simone's integrity, thereby causing the jury to discredit counsel's cross-examination and arguments. The government introduced over five hundred photographs in this case. Most [**34] of these photographs depicted groups of two or more defendants to show their association in fact. Mr. Simone, who was not a defendant, but who was implicated as a participant in the Rouse extortion, was depicted and identified in exactly four photographs in this trial. Government Exhibit 656 was a photograph depicting defendants Leonetti and [*1330] Virgilio, Robert Simone, and two other individuals outside Scarf, Inc. (Scarfo's concrete contracting company in Atlantic City, New Jersey) on June 15, 1986. Before admitting the photograph, the Court held a side bar at which the government made an offer of proof concerning Mr. Simone's depiction in the picture. The prosecutor noted that the picture showed Simone at Scarf, Inc. at the time of the Rouse extortion and, therefore, corroborated Caramandi's testimony concerning Simone's participation in the scheme. The Court agreed that the photograph had heavy probative value, implicitly outweighing the danger of unfair prejudice. After the sidebar, the defense appeared satisfied with the Court's resolution. (Tr. 10/7/88 at 10). The government then offered Exhibit 656, and the witness identified Leonetti, Virgilio and Simone without objection. Later, [**35] the Court admitted it without objection. (Tr. 10/7/88 at pp. 43-44, 83). Before its admission, Mr. Simone cross-examined the agent witness through whom the photo was admitted:
The witness answered: "I guess so." (Tr. 10/7/88 at p. 67). The Court properly performed the Rule 403 balancing test, and found that the probative value outweighed the danger of unfair prejudice. All evidence is inherently prejudicial; it is only unfair prejudice substantially outweighing probative value that permits exclusion of relevant evidence under Rule 403. United States v. Thomas, 676 F.2d 239, 244 (7th Cir. 1980); United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 62 L. Ed. 2d 83, 100 S. Ct. 128 (1979). These photographs were not likely to inflame the emotions of the jury, nor would they improperly imply any defendant's guilt. In fact, in his opening statement, Mr. Simone told the jury that it would be seeing his picture in photographs. He argued that the photographs were irrelevant because mere association is not evidence of guilt. (Tr. 9/28/88 at 124-25). No defendant asked for a severance [**36] or a mistrial as a result of admission of any of these photographs. Because the defense did not object, we will not grant a new trial unless the admission of these photographs constituted plain error. United States v. Young, 470 U.S. 1, 15, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985) (under F.R.Crim.P. 52(b), the plain error exception to the contemporaneous objection rule should be used sparingly, in circumstances where a miscarriage of justice would otherwise occur). As the Court held in United States v. Helmel, 769 F.2d 1306, 1318-19 (8th Cir. 1985), surveillance photographs of defendants are relevant where they show coconspirators' physical association with each other, and tend to corroborate other evidence establishing the conspiracy. See also United States v. Thomas, 676 F.2d 239, 244 (7th Cir. 1980) (photographs relevant and admissible where they depict defendants together at warehouse where they stored stolen cars), cert. denied, 449 U.S. 1091, 6 L. Ed. 2d 820, 101 S. Ct. 887, (1981); United States v. Anderson, 676 F. Supp. 604, 607 (E.D.Pa. 1987) (photographs relevant and admissible where they corroborate other evidence of conspiracy); United States v. Odom, 348 F. Supp. 889, 894-95 (M.D.Pa. 1972) (photos depicting stab wounds [**37] had probative value to corroborate government witnesses), aff'd. 475 F.2d 1397 (3d Cir.), cert. denied, 414 U.S. 836, 38 L. Ed. 2d 72, 94 S. Ct. 182 (1973). The absence of any objection to the admission of the photograph further underscores the meritless nature of the defendants' position. Odom, 348 F. Supp. at 894. We find no prosecutorial misconduct. The second and third photographs, Government Exhibits 752 and 753, depict Mr. Simone and others on defendant Scarfo's boat on February 2, 1986 in Fort Lauderdale, Florida. Number 752 shows Simone, defendant Leonetti and two other men who are not defendants in this case. Number 753 shows Simone and defendant Salvatore Wayne Grande. These two photographs are two of a series of three photographs showing passengers in the same boat trip. The third photograph, Government Exhibit 751, shows defendants Iannece and Iannarella on the boat. These photographs were relevant to demonstrate [*1331] the association of Leonetti, Salvatore Grande, Iannece and Iannarella, and were also relevant to show the association of Iannece and Mr. Simone, specifically with regard to the Rouse extortion which was in its early stages at the time the photographs were taken. The government offered [**38] and the Court admitted these photographs without objection. (Tr. 10/21/88 at 144-45); (Tr. 11/8/88 at 64-65). For the reasons discussed supra, admission of the photographs was a proper discretionary act. The fourth photograph, Government Exhibit 759, depicts at a restaurant in Florida defendant Iannece, government witness Thomas DelGiorno, Robert Simone, and Philip McFillin, who had been identified as an LCN associate but who was not a defendant. This photograph was relevant to show the association of the defendants on various levels. It showed the association of McFillin with LCN members DelGiorno and Iannece. Testimony established that Scarfo, Leonetti, and Lawrence Merlino murdered Vincent Falcone in McFillin's residence (racketeering act three). Testimony also established that McFillin allowed the Mafia to use his pizza restaurant as the site of an LCN "making" ceremony in March, 1986. Thus, the photograph corroborated the testimony. In addition, this photograph shows an association between DelGiorno, Iannece, and Simone, all of whom were identified in testimony as the conspirators in the Rouse extortion, as far back as 1983. This photograph is corroborative of that association [**39] and tends to support the inference of a relationship of trust between the three that could blossom into an extortion conspiracy two or three years later. The government offered, and the Court admitted this photograph without objection. (Tr. 10/13/88 at pp. 43-44; 11/8/88 at pp. 43-64 to 43-65). For the reasons discussed supra, the Court did not err in admitting these photographs. Defendants also claim that during his rebuttal, prosecutor Gordon prejudicially showed a photograph to the jury of Mr. Simone with the Defendant Scarfo and said, "Look like a lawyer representing his client or does it look like somebody who might also be a friend?" n13 (Tr. 11/16/88 at 264). As noted previously, part of the relevancy of this photograph was to show the long-standing relationship of trust between Mr. Simone, Iannece, and DelGiorno in support of what the evidence showed to be their mutual participation in the Rouse extortion. Mr. Gordon made proper argument concerning this picture, and the defense did not object. Furthermore, prior to Gordon's rebuttal, Attorney Simone made his closing remarks on behalf of Scarfo. In that argument, Simone asserted to the jury: "I'm not ashamed to say Mr. [**40] Scarfo's a personal friend of mine." (Tr. 11/16/88 at 117). Obviously, in making this argument, and improperly injecting his credibility into the proceedings, Mr. Simone did not consider his personal friendship with Scarfo to be prejudicial. In addition, throughout the trial, the defendant characterized the photographs and their associations as innocent gatherings of friends. Attorney Gordon's rebuttal was an appropriate response to that position. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Defendants actually allege that when making this comment, the prosecutor showed a photograph of Simone with Scarfo. Because this misstates the record, as no photograph was admitted which depicted Simone and Scarfo together, we will assume that defendants are referring to the photo and the comment to which we refer. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The defendants also assert that government witnesses made allegations of misconduct against Mr. Simone which, because he acted as lead counsel, severely prejudiced all defendants. Defendants cite specifically to one occasion where government witness Caramandi testified that the reason he began to cooperate with the government was that "Scarfo and Bobby Simone were going to kill me." (Tr. 10/29/88 at 124). At this point, [**41] the defense neither objected nor moved for a mistrial. Instead, the defendants and their attorneys erupted in derisive laughter, presumably to ridicule the witness and undermine his credibility. The government represented that no one expected Caramandi to claim that Mr. Simone was going to kill him. In previous trials when the government [*1332] asked Caramandi this question, he only mentioned concern about Scarfo. (See Tr. 10/31/88 at pp. 4-5). We accept these representations of the government and do not find that the prosecutors made any effort to discredit Mr. Simone. In addition, out of an abundance of caution, Mr. Pichini suggested and Mr. Simone agreed that the government should ask the witness a curative series of questions. Accordingly, when direct examination resumed the next day, Pichini asked Caramandi, among other things, whether Mr. Simone was one of the individuals that was going to kill him. Caramandi asserted that he was not. Apparently satisfied, the defense did not object to this resolution. Although defendants do not specifically refer to it, there was one other incident in the trial where a witness testified in an unflattering fashion about Mr. Simone. Thomas DelGiorno [**42] testified about the Rouse extortion and explained various aspects of Simone's participation. For example, Scarfo told DelGiorno that Simone had outlined the extortion scheme to him (Tr. 10/13/88 at 20); Iannece told DelGiorno he had discussed the Rouse extortion with Scarfo who determined that in distributing the proceeds, Mr. Simone would receive 10% (Tr. 10/13/88 at 22-23); and Scarfo told Caramandi to deal with Simone concerning City Councilman Beloff (Tr. 10/13/88 at 26-29). With the exception of an objection to a question concerning Mr. Simone's relationship with Beloff, the defense did not object to any of this testimony. Then DelGiorno described a meeting he had with Mr. Simone shortly after Beloff, Rego, and Caramandi were arrested for the Rouse extortion. Simone told DelGiorno he had a very serious problem with Rego who could really hurt him. DelGiorno offered to see Scarfo to get approval to kill Rego. He explained further that he did this because he thought Simone was asking to have Rego killed. Mr. Simone objected and asked that the Court strike the testimony because this was inadmissible opinion evidence. The Court granted the motion to strike and instructed the jury [**43] to disregard the testimony. Apparently satisfied with this resolution, no defendant moved for a mistrial or a severance. (Tr. 10/13/88 at 34-35). We conclude that this testimony did not unfairly prejudice defendants. First, the defendants did not object to the resolution of these matters. The absence of objection to remarks at the time of their utterance weighs heavily in the determination that they were not actually prejudicial. United States v. Odom, 348 F. Supp. 889, 894 (M.D.Pa. 1972), aff'd, 475 F.2d 1397 (3d Cir.), cert. denied, 414 U.S. 836, 38 L. Ed. 2d 72, 94 S. Ct. 182 (1973). Even had the defense objected, the remarks of the witnesses in the context of the entire trial would not constitute prejudice. We do not find that the testimony prejudicially compromised the credibility of Mr. Simone. The limited case law in this area supports our conclusion. In United States v. DeLuna, 763 F.2d 897, 916-17 (8th Cir.), cert. denied, 474 U.S. 980 (1985), the defendants claimed that they suffered irreparable damage and prejudice because a cooperating government witness testified concerning an alleged impropriety by the defendant's attorney. Among other things, the witness charged that a former partner [**44] of the defendant's lawyer asked him to lie under oath in another proceeding. The defendants moved for a mistrial and then a severance, and the Court denied both motions. The Eighth Circuit upheld the convictions, on the grounds that the exchange was brief in the context of the trial and that it did not constitute Fed.R.Evid. 404(b) material. Id. In United States v. Friedman, 593 F.2d 109 (9th Cir. 1979), a cooperating government witness accused the defendant's attorney, who was previously the witness's attorney, of encouraging him to falsely refuse to implicate the defendant. The defendant moved for a mistrial on the grounds that the prejudicial effect of this testimony vastly outweighed any probative value. The district court denied the motion. The Ninth Circuit examined the potential prejudice, the remedial effect of curative instructions, and the opportunity available to the appellant to minimize whatever prejudice resulted, and concluded that the statement did not unfairly [*1333] prejudice the defendant. Id. at 120-21. See also Jackson v. Scully, 781 F.2d 291, 298 (2nd Cir. 1986) (in light of curative measures, witness's one-sentence remark about defense counsel not prejudicial). [**45] In the instant matter, especially in light of the defendants' failure to timely object, and additionally because their contentions are without merit, we find no prosecutorial misconduct and no error. Defendants also argue that government witness Michael Madgin prejudiced them with his reference to Mr. Santaguida, counsel for defendant Frank Narducci, Jr. Shortly before trial began, the government learned from co-operating government witness Michael Madgin that Mr. Santaguida represented him in a state drug prosecution. During that trial, Madgin contended that he took the witness stand and lied under oath, falsely denying culpability, and that he did this with the foreknowledge and encouragement of his attorney. The government immediately reduced this information to a memorandum and provided it to the defense and the Court as potential Jencks/Brady material. In the instant case, the Court conducted a colloquy with defendant Frank Narducci and established that he was aware of this information and was nonetheless satisfied to proceed with Mr. Santaguida as his counsel. (Tr. 9/8/88 at 67-71). After informal discussions between the prosecution and the defense, they agreed that the prosecution [**46] would elicit the fact of the perjury on direct examination without mentioning Mr. Santaguida, and that the defense would avoid raising the issue. Nevertheless, one of the defense attorneys who cross-examined Madgin continually ventured into the area. (Tr. 10/20/88 at 114). At one point, the defense attorney asked him what the maximum sentence was that he faced. Madgin said that he did not know. Counsel pressed him to answer whether anybody had discussed the potential sentence with him. Madgin struggled to remember and then said: "Sure. Joe Saniquito (sic) went over it with me." Counsel said, "Fair enough" and continued his cross-examination. No one referred to the perjury at this point, and Madgin did not explicitly identify Mr. Santaguida as his lawyer. No defendant objected or moved for a mistrial or a severance. (Tr. 10/20/88 at 140). At this stage, defendants claim that the government, through Madgin, gave the jury the impression that the defense attorneys and the defendants condoned Madgin's perjury. We find this contention meritless. Counsel for a defendant, not the government, brought out this information. Counsel pressed the witness on the issue of whether he knew his maximum [**47] prison exposure, asking incredulously, "You never -- nobody ever told you that." Madgin then responded that Joe Santaguida had told him. This was a direct and appropriate response to the question. Furthermore, no one linked Santaguida to the perjury. It is doubtful that the jury associated this case as the case in which the witness admitted lying under oath. Such a connection is purely speculative, and the likelihood of prejudice is slight. In addition, it is hornbook law that injection of inadmissible evidence attributable to the conduct of the defense is not reversible error. All American Life & Casualty Co. v. Oceanic Trade Alliance Council International Inc., 756 F.2d 474, 479-80 (6th Cir.), cert. denied, 474 U.S. 819, 88 L. Ed. 2d 55, 106 S. Ct. 67 (1985); United States v. Nichols, 695 F.2d 86, 92 (5th Cir. 1982); United States v. Lerma, 657 F.2d 786, 788 (5th Cir. 1981), cert. denied, 455 U.S. 921, 102 S. Ct. 1279, 71 L. Ed. 2d 463 (1982). Having deliberately pursued a line of inquiry that created a risk for prejudice, the defense cannot later seek relief from the results of that strategy. Again, because the defendants did not object, we would grant a new trial only if we committed plain error. We can find no error and thus [**48] deny defendants' motion. The defendants also contend that prosecutor Gordon's rebuttal argument concerning a five hundred-piece puzzle and the use of an exhibit was confusing and prejudicial, and enabled the jury to disregard the Court's jury instructions. In his opening for the government, Mr. Wicks [*1334] compared the evidence to pieces of a puzzle. In his closing, Mr. Jacobs, counsel for Salvatore Merlino argued that some pieces of the puzzle were missing; therefore, he argued, there was reasonable doubt. In rebuttal Mr. Gordon conceded that there were pieces missing but suggested to the jurors that if only eight pieces of a five hundred-piece puzzle were missing they likely would not have a reasonable doubt as to what the puzzle depicted. (Tr. 11/16/88 at 304-05). Mr. Jacobs objected and asked that the Court immediately give a curative instruction. (Tr. 11/16/88 at 307). In an abundance of caution, the Court gave a curative instruction. (Tr. 11/16/88 at 308-09). The defense did not request a further instruction and did not move for a mistrial. Throughout the jury charge, the Court instructed the jury concerning reasonable doubt. (See e.g., Tr. 11/17/88 at 11-13). The defense did [**49] not object to the Court's explanation of reasonable doubt. It is pure speculation to conclude that Mr. Gordon's brief reference to the puzzle analogy during rebuttal argument prevented the jury from following the Court's instructions. Therefore, we deny defendants' motion. Sufficiency of the Evidence Several defendants raise various arguments concerning the sufficiency of the evidence presented against them. Defendants request acquittals under F.R.Crim.P. 29 and/or new trials under F.R.Crim.P. 33. n14 In determining sufficiency of the evidence, the Court is not to weigh the evidence or determine credibility of witnesses, but rather to give the government the benefit of all reasonable inferences and view the evidence in the light most favorable to the government; the Court must then determine whether a rational jury could conclude beyond a reasonable doubt that the defendant committed the crimes charged. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457, (1942); United States v. Stewart, 806 F.2d 64, 67 (3d Cir. 1986); United States v. Grayson, 795 F.2d 278, 281 (3d Cir. 1986), cert. denied, 479 U.S. 1054, 93 L. Ed. 2d 978, 107 S. Ct. 927 (1987). We will address each defendant's arguments in turn. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 In pertinent part, F.R.Crim.P. 33 provides that "the court on motion of a defendant may grant a new trial to that defendant if required by the interests of justice." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**50] Defendant Pungitore argues that the evidence against him as to racketeering act five (Narducci murder) was insufficient to sustain a verdict guilt because the government presented conflicting testimony regarding his participation in the Narducci murder. Thomas DelGiorno testified that defendant Pungitore told him that he, Joseph Pungitore, and Salvatore Testa shot Frank Narducci, Sr. (Tr. 10/10/88 at 119). He also testified that Testa confirmed that Testa and Pungitore were the two who shot Narducci. Nicholas Caramandi, however, testified that Testa told him that the second shooter was not Joseph Pungitore. Defendant Pungitore argues that this conflicting evidence is insufficient to establish guilt because the jury was forced to "guess" as to the accuracy of the two contradictory accounts. Defendant's position is meritless. Defendant misunderstands the distinction between the sufficiency and the quality of evidence. This Court may not grant a motion for acquittal based on conflicting testimony, that is, testimony of a questionable quality; it is up to the jury to weigh conflicting testimony, determine credibility, and ultimately draw factual inferences. United States v. Beck, [**51] 615 F.2d 441, 448 (7th Cir. 1980). See also United States v. Adamo, 742 F.2d 927, 935 (6th Cir. 1984), cert. denied, 469 U.S. 1193, 83 L. Ed. 2d 975, 105 S. Ct. 971 (1985) (weighing conflicting evidence not relevant with regard to Rule 29 insufficiency standard). The Court must grant a motion for acquittal only when the evidence, viewed in a light most favorable to the prosecution, is so scant, so insufficient, that the jury could only speculate as to the defendant's guilt. As long as a rational jury could conclude beyond a reasonable doubt that the government has proved all elements of the offense charged, the motion should be denied. United States v. Martorano, 596 F. Supp. 621, 624 (E.D.Pa. 1984), aff'd, 767 F.2d 63 (3d Cir. 1985), cert. denied, 474 U.S. 949, 88 L. Ed. 2d 296, 106 S. Ct. 348 (1985) [*1335] (1985). In the instant matter, if the jury chose to believe the testimony of Thomas DelGiorno, the evidence was clearly sufficient to sustain the verdict. Therefore, we deny defendant Pungitore's motion. Defendant Pungitore also argues that the evidence of collection of unlawful debt number five was insufficient because the prosecution offered no proof of the legal rate of interest in Pennsylvania and did not request that the Court take judicial [**52] notice of the rate. At trial the Government presented evidence that Joseph Pungitore and Michael Madgin were partners in a usurious loan business that loaned money at various rates, including annualized rates of 104% and 156% per year. During jury instructions, The Court charged the jury, in pertinent part, as follows:
(Tr. 11/17/88 at 62-63). No defendant objected to this charge during the trial, and defendants have failed to persuade the Court that it invaded the province of the jury. The prosecution is not required to prove Pennsylvania law as though it were an adjudicatory fact; rather, the Court is required to take judicial notice of relevant statutory and case law of any state without plea or proof. 1 J. Weinstein & M. Berger, Evidence § 200(02) at 200-8 (1988) (citing Schultz v. Tecumseh Products, 310 F.2d 426, 433 (6th Cir. 1962)); United States v. Atwell, 71 F.R.D. 357, 361-62 (D.Del. 1976), aff'd. 559 F.2d 1209 (3d Cir. 1977). The Court took notice of Pennsylvania's usury laws and provided the jury with an accurate and comprehensible synopsis of those laws. n15 The Court did not direct a verdict for the prosecution on the point, but merely told the jury that if it believed the testimony of the government concerning rates in excess of 100%, that rate would exceed by two times the lawful rate in Pennsylvania. Because this was an entirely accurate [**54] summation of the law, and because the Court [*1336] did not instruct the jury to accept the testimony of the government's witnesses, defendant's position is without merit. n16 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 As the Government correctly points out in its brief at pages 30-31, Pennsylvania's usury laws are complex. Basically, 41 Pa. Stat. Ann. § 201 (Purdon Supp. 1988) establishes a general rule that 6% per annum is the maximum lawful rate of interest that may be charged on cash loans of $ 50,000 or less. Higher interest rates are unenforceable unless they are authorized by statute. This general rule is subject to a host of exceptions, such as special rates, both fixed and flexible, for loans by various types of financial institutions and retail merchants. None of these exceptions apply and no defendant suggested otherwise. Furthermore, Pennsylvania's RICO statute makes it a crime to collect debts which arise from the lending of money at a rate of interest exceeding 25% per annum unless such a rate is expressly authorized by law. 18 Pa. Cons. Stat. Ann. § 911(h)(1)(iv) (Purdon 1983). As a matter of Pennsylvania common law, an agreement is unenforceable if it cannot be performed without violating a statute. Gramby v. Cobb, 282 Pa. Super. 183, 422 A.2d 889, 892 (1980). See also Bauman & Vogel, C.P.A. v. DelVecchio, 423 F. Supp. 1041, 1044 (E.D.Pa. 1976); Fitzsimons v. Eagle Brewing Co., 107 F.2d 712, 713 (3d Cir. 1939). There are only a handful of exceptions to the Pennsylvania RICO statute's 25% per annum interest ceiling (e.g., loans to business corporations for true business purposes, loans collateralized by the pledge of securities, etc.) and none of these exceptions were applicable to the facts of the instant case. Therefore, loans at an interest rate of more than 50% per annum (i.e., twice the enforceable rate under Pennsylvania law using 25% as the enforceable rate) are unlawful debts as defined in 18 U.S.C. § 1961(6) and used in 18 U.S.C. §§ 1962(c) and (d). [**55] n16 We also must point out that the defense had notice and opportunity to assist the Court in determining the applicable Pennsylvania law and chose not to address the issue at any time during the trial. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Count Six of the indictment charged that defendant Ciancaglini did distribute and cause to be distributed fifty pounds of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and |