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United States v. Provenzano

decided: September 1, 1982.

UNITED STATES OF AMERICA
v.
NUNZIO PROVENZANO, APPELLANT IN 81-2411 AND IRVING COTLER, APPELLANT IN 81-2412



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Adams and Weis, Circuit Judges and Conaboy,*fn* District Judge.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

In this appeal from their RICO convictions, defendants raise a number of issues, including denials of a severance, denial of psychiatric examinations of government witnesses, and defective affidavits supporting warrants for wiretaps. Another complaint is that not all of the twelve grand jurors who voted for indictment attended every session at which evidence was received. Although we do not find that circumstance sufficient to vitiate the indictment, we suggest that in the future, grand jury absentees be required to read transcripts of missed sessions. There being no reversible error in any of defendants' contentions, however, we permit the convictions to stand.

Appellants and two others were indicted for violations of 18 U.S.C. ยง 1962(c), as well as conspiracy. The charges arose out of defendants' activities in obtaining illegal payments from four trucking companies in order to secure labor peace. After a lengthy jury trial, two of the defendants were convicted. Two others were acquitted.

Appellant Nunzio Provenzano served in various capacities in Teamsters Union Local 560 in northern New Jersey, progressing from business agent to secretary-treasurer, and then to president in 1975. The other appellant, Irving Cotler, was the owner of several trucking companies which had no contracts with Local 560. During the period covered by the indictment, the labor contract between Local 560 and signatory companies contained a "city man rule." This provision required any trucking company hauling iron, steel, and special commodities within the jurisdiction of Local 560 to secure express authorization for its operations from the union. Absent such permission, a company was required to utilize the services of a Local 560 "city man" during pickup and delivery.

Ray Dee acted as the North Jersey agent for All States Trucking Company. In 1972, after Provenzano became the union's business agent, the permanent "city man" assigned to All States was discharged. Sometime after this, Dee began making payments to defendant Cotler in exchange for All States' freedom to operate without the use of a city man. In 1975, All States expanded its operation, and began using an additional agent named Joe Mabus. He made payments to Provenzano through another intermediary until he was imprisoned in early 1975. After that occurred, Mabus made no further payments, and a few months later, Local 560 struck All States. The strike ended when All States' president discharged Mabus and agreed to use city men. The Ray Dee agency's transactions, however, were not affected by the strike.

About a year later, All States' vice-president met with Provenzano in a preliminary step to reopen an iron and steel agency in Local 560's area. The company's overtures were rejected until a few weeks later when Ray Dee, Jr. arranged a meeting between the vice-president and Cotler. For $100 per day, Cotler said All States would not need a city man for any of its shipments. He then took the vice-president to Local 560's office, where they conferred with Provenzano, who stated that Cotler was a "good friend" and advised the vice-president to "listen to what he is telling you." For the next three years, All States arranged to have Ray Dee, Jr. pay Cotler $100 per day in addition to Dee's own payments to protect his agency.

In 1975, another trucking company, T.I.M.E.-D.C., began special commodity operations in North Jersey and hired Joe Szapor as its agent. Through Teamster contacts, Szapor had a meeting with Provenzano and three other men. The agent was assured he would be contacted, and sometime later, Szapor was introduced to Cotler. Cotler said he would be collecting for Local 560, and told Szapor not to travel to the union. During the next year, Cotler was given $500 per month and T.I.M.E. was able to avoid using city men.

When T.I.M.E.'s business began to prosper, Cotler said the monthly payment should be increased. T.I.M.E. acquiesced and continued to make pay offs until April 1979. During this same period, T.I.M.E. had a number of grievances with Local 560. Szapor protested to Provenzano about these problems since T.I.M.E. was making its regular payments. Provenzano told Szapor to resolve the grievances at the terminal level. When Szapor then spoke to a Local 560 business agent, the grievances were settled.

Between 1977 and 1979, similar arrangements were made with two other trucking companies, Helms Express and Mason and Dixon, which paid Cotler through the Szapor and Ray Dee agencies, respectively. Mason and Dixon paid a fixed weekly fee, but Helms was required to remit a percentage of its revenues.

The jury convicted Cotler and Provenzano on both counts of the indictment. On appeal, the defendants allege numerous trial errors. Cotler contends he was prejudiced by denial of his motions for severance made both before and during the trial. He also asserts that the warrants used to secure court-authorized wiretaps were not supported by adequate grounds. He further argues that the district court erred in refusing to order psychiatric examinations of Ralph Picardo and Joseph Szapor, two witnesses who testified for the government. Finally, he contends his privacy rights were violated by Szapor's use of recording devices during their conversations.

Provenzano also argues that there should have been a severance. In addition, he contends that there was insufficient evidence to show that the "enterprise" was conducted "through a pattern of racketeering activity" as required by RICO. As his last point, he asserts that the trial judge erred in declining to disclose grand jury minutes and transcripts. The defense contends that there were two justifications for disclosure. First, some of the witnesses who testified before the first grand jury were not called before the succeeding indicting grand jury; and second, not all of the twelve jurors who voted for indictment were present at every session of the indicting grand jury.

I. THE SEVERANCE ISSUE

A.

Cotler argues that he was the victim of a concerted attack at trial by the other three defendants, which, when combined with the government's effort, meant that he was being prosecuted by four parties instead of one. He points to the other co-defendants' derogatory remarks about him and their efforts to disassociate themselves from him at the trial. In particular, Cotler says that the co-defendants' tactics in taking the witness stand, and their pointed comments about being unable to cross-examine him, emphasized his decision not to testify.

We are not persuaded, however, that there was a real antagonism in the defense strategies of this case. Rather, they were complementary, for if the jury had been persuaded that Cotler alone received the payoffs and was unconnected with any of the other defendants, there would have been a failure of proof on the conspiracy and RICO counts. Not only his co-defendants, but Cotler as well, would have walked away from the indictment had sole culpability been fastened on him.

In short, the "ganging up" theory is unconvincing when it is realized that Cotler stood to benefit if the jury accepted the co-defendants' theory that he was off on a frolic of his own. Indeed, in his summation, Cotler's counsel argued that none of the money went to any of the co-defendants. In light of the overwhelming evidence against Cotler, putting as much distance between him and the defendant union officials was probably the best strategy to avoid conviction.

Cotler relies on United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978), to support his contention that antagonistic defenses can prejudice co-defendants to such a degree that they are denied a fair trial. But, as the court in Crawford noted, such defenses must conflict "to the point of being irreconcilable and mutually exclusive." Id. (citations omitted). That is just not the situation here. In United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 846, 30 L. Ed. 2d 83, 92 S. Ct. 148 (1971), we rejected a similar argument saying, "the mere presence of hostility among defendants" is insufficient to require separate trials. That is especially true in this case, where the hostility exhibited at the trial, if accepted by the jury, would be advantageous to the co-defendants.

B.

Provenzano takes a different tack on the severance issue. He contends that if there had been separate proceedings, Cotler would have testified. The fact that the trials were joined, and that Cotler exercised his right not to testify, Provenzano argues, amounted to an infringement on his rights of confrontation and compulsory process. At an earlier stage in the joint trial, Cotler's attorney did represent to the court that if there were separate trials, Cotler would take the stand at the request of any defendant. Counsel apparently later had second thoughts on this matter and declined to proceed nonjury as to Cotler's own case. Provenzano reasons that if Cotler had been tried first, there would have been no fifth amendment problem thereafter. But a defendant cannot compel a co-defendant to testify even if their trials are severed, United States v. ...


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