917 F.

2d 691
135 L.R.R.M. (BNA) 2812, 117 Lab.Cas. P 10,417,
RICO Bus.Disp.Guide 7609,
31 Fed. R. Evid. Serv. 526

UNITED STATES of America, Appellee,

v.
John F. LONG and John S. Mahoney, Defendants-Appellants.
Nos. 998, 999, Dockets 89-1227, 89-1392.

United States Court of Appeals,

Second Circuit.
Argued March 28, 1990.
Decided Oct. 19, 1990.

Colleen P. Cassidy, The Legal Aid Soc., New York City, for defendantappellant John F. Long.
Lawrence M. Stern, New York City, for defendant-appellant John S.
Mahoney.
Joan McPhee, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty.,
S.D.N.Y., Jonathan Rosenberg, Asst. U.S. Atty., of counsel), for appellee.
Before OAKES and WINTER, Circuit Judges, and MUKASEY,* District
Judge.
WINTER, Circuit Judge:

Appellants John F. Long and John S. Mahoney were Teamsters officials in New
York City who allegedly misused their offices for private profits. After a
twelve-week jury trial before Judge Edelstein, they were convicted of
participating in and conspiring to participate in a racketeering enterprise in
violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. Secs. 1962(c) and (d) (1988), and a variety of other substantive
crimes connected with or arising out of the racketeering activity.
Appellants raise numerous issues, including errors in instructions to the jury,

Appellants raise numerous issues, including errors in instructions to the jury,

improper admission of unsealed surveillance tapes and hearsay evidence on
those tapes, improper admission of expert testimony on organized crime,
insufficiency of evidence on various counts, improper questioning of character
witnesses using hypothetical questions assuming the guilt of the defendants,
and judicial bias.1 The district court's instructions regarding the pattern element
of RICO, while proper at the time they were given, were not consistent with an
intervening decision of this court and were not harmless error. We also agree
that instructions regarding the testimony of Long's wife were erroneous and that
the district court improperly admitted prejudicial expert testimony regarding
organized crime families. Finally, the questioning of character witnesses in the
form of hypothetical questions assuming the guilt of the defendants was
improper. Accordingly, we reverse.

BACKGROUND
3

Appellants were indicted in 1988 on charges of participating in a racketeering

enterprise by committing and agreeing to commit numerous crimes between
1978 and 1987. The enterprise alleged was an association in fact consisting of
Long, Mahoney, Jesse David Hyman, Vincent Joseph Rotondo, and "others to
the Grand Jury known and unknown." Both appellants were charged with
conspiring to participate in (Count I) and participating in (Count II) the
racketeering enterprise in violation of RICO, 18 U.S.C. Secs. 1962(c) and (d).

The indictment contained ten other counts alleging substantive offenses,

including extortion, filing false tax returns, perjury and false statements under
oath. Because the claims of error implicate the statute of limitations and the
prejudicial effect of certain rulings, a fairly detailed description of the evidence
is necessary.

The government's proof focused on the criminal activities of Hyman, a dentist

who was convicted of extortion and loansharking in 1985 and thereafter
became the government's key witness in this case. Hyman testified that he had
previous associations with various organized crime families in Buffalo, paying
the families a percentage of profits on union dental care plans that Hyman set
up with the backing of the families. When he moved his criminal activities to
the New York area, Hyman developed a relationship with Rotondo, a member
of the DeCavalcante organized crime family in New Jersey.

In 1979, Rotondo arranged for a contractor, Ben Parness, with whom Rotondo
had an extortionate relationship described infra, to introduce Hyman to Long,
the Secretary-Treasurer of Teamsters Local 804 in New York City. Hyman
indicated to Long that he was a partner of Rotondo, and Rotondo attended a few

meetings between Hyman and Long. Hyman proposed a dental plan for Long's
union and requested that Long suggest other Teamsters locals that might be
interested in dental plans or pension funds.
7

Long thereafter introduced Hyman to Mahoney, who was Secretary-Treasurer

of Teamsters Local 808. Hyman reported to Rotondo and Rotondo's superior
John Riggi, then acting boss of the DeCavalcante family, that Mahoney was
willing to discuss business together. Rotondo responded, "[i]f you could do it,
God bless you. Nobody has been able to move Mahoney up until now." Hyman
told Mahoney that Hyman and Rotondo were partners. Hyman testified,
however, that Mahoney emphasized that he intended to do business only with
Hyman. Hyman shared the proceeds from the resulting criminal activities with
Rotondo and Riggi.

The alleged pattern of racketeering activity, see 18 U.S.C. Secs. 1961(1) and
(5), consisted of nine racketeering acts, five involving Long alone, one
involving Mahoney alone, and three involving Long and Mahoney.2 All but
three of the nine acts occurred outside the limitations period and must, under
RICO, see infra, be related to at least one of the three acts within the period to
be valid predicate acts.

Racketeering Act One, which occurred outside the limitations period, charged
Long with receiving at least $2,000 in kickbacks in 1981 for arranging for
Teamsters Local 804 to invest funds in Penvest, a pension fund management
company. Hyman testified that he agreed to pay Long a one percent cash
kickback for monies invested by Local 804 in Penvest. After Long gave Hyman
a check for $100,000 for Penvest, Hyman gave Long $2,000 in cash, or a two
percent kickback, to encourage Long's continuing participation in the scheme.
According to Hyman, eight or nine months later, Long invested additional
Local 804 money with Penvest, and Hyman gave Long $1,000 in cash.

10

Racketeering Act Two, also outside the limitations period, charged Mahoney
with receiving kickbacks between April 1982 and February 1983 in the form of
cash and a bank loan in return for investing Local 808 funds with Penvest. That
Act also charged Long with aiding and abetting Mahoney's wrongdoing by
persuading Mahoney to make the investment and by accepting $5,000 from
Hyman for vouching for Hyman to Mahoney. According to Hyman's testimony,
Hyman offered Mahoney one percent of the total of union pension fund money
invested with Penvest and assured Mahoney of making $30,000 to $40,000 per
year. Hyman also testified that Mahoney had stated that he needed money to
renovate a new home. Hyman said that he would give Mahoney $10,000 in
cash up front and enable Mahoney to get a home improvement loan for the

balance.
11

When the first investment installment was transferred to Penvest in the spring
of 1982, Hyman gave Mahoney $10,000 in cash. Hyman also paid Long $5,000
in cash for introducing Hyman to Mahoney and made cash payments to
Rotondo and Riggi. In addition, Hyman testified that he arranged for Mahoney
to receive a $20,000 home improvement loan from Sterling National Bank 3 and
gave Mahoney approximately $700 per month in cash to cover the payments on
that loan until February 1983.

12

Racketeering Act Three, again outside the limitations period, charged Mahoney
with receiving a $5,000 cash payment in December 1982 for agreeing not to
remove Local 808 funds from Penvest. Long also was charged in Act Three
with aiding and abetting Mahoney's receipt of the $5,000 and with receiving
$2,000 himself for his efforts to persuade Mahoney to keep the pension fund
money in Penvest. During the summer of 1982, Local 808 officials had
complained about Penvest's failure to provide financial reports and other
documentation regarding Local 808 pension funds. In the fall, Mahoney wrote
to Penvest requesting that all funds and assets belonging to the union pension
fund be returned. Hyman testified that he contacted Long and asked Long to
help persuade Mahoney not to withdraw the funds. Hyman testified that on
December 6, 1982, he paid Mahoney $5,000 in cash and assured Mahoney that
the union would get the financial reports it needed. Mahoney then indicated
that the local would make an additional investment in Penvest of $100,000.
Hyman testified that shortly after this matter was resolved with Mahoney,
Hyman gave Long approximately $2,000 in cash. Penvest received an
additional $100,000 investment from Local 808 in early 1983.

13

Racketeering Act Four, also outside the limitations period, charged Long with
receiving kickbacks in 1981 for persuading an official in Teamsters Local 277
to invest union pension funds in American Asset Management Company
("AAMC"), another investment management fund. Hyman testified that in 1978
or 1979 he developed a relationship with various employees of a New York
City brokerage house who would handle stock trading for pension funds
managed by AAMC. Hyman and one broker agreed that they would split the
broker's commissions. A one percent cash "fee" to the union people who
assisted Hyman in getting the funds invested with AAMC would be covered out
of the pension fund management fees. Hyman spoke with Rotondo, Long, and
other union contacts to seek business for AAMC. According to Hyman, Long
was instrumental in getting an officer of Teamsters Local 277 interested in
AAMC, and, when Local 277 placed its pension funds with AAMC, Long
received a $2,500 cash payment from AAMC through Hyman.

14

Racketeering Act Five, also outside the limitations period, charged Long with
receiving money in 1981 for assisting Emgee Pharmaceuticals, Inc., to avoid
unionization. A principal of Emgee Pharmaceuticals had contacted Hyman
regarding threats from AFL-CIO organizers, and Hyman sought Long's
assistance in resolving the situation. Hyman testified that he later gave Long
cash for appeasing the AFL-CIO organizer and for agreeing to provide Emgee
Pharmaceuticals with a "sweetheart contract" between the corporation and
Local 804.

15

Racketeering Act Six, outside the limitations period, charged Long with
receiving payments in 1979 and 1980 for assisting the principals of Bottom
Sportswear, Inc., to avoid unionization and picketing. Hyman testified that he
paid Long $3,500 for helping Hyman resolve an attempt at union organization
at Bottom Sportswear by arranging for a sweetheart Teamsters contract in 1979
and for other assistance in 1980.

16

Racketeering Act Seven, which was within the limitations period, charged
Long with extorting payments from maintenance contractor Parness from 1978
until 1987 for assistance that Long provided in getting Parness's company a
maintenance contract with United Parcel Service ("UPS"), whose workers were
represented by Long's local. Parness, who testified pursuant to an immunity
agreement with the government, stated that in the mid-1970's he had expressed
to his friend, Long, interest in getting a janitorial contract with UPS. When UPS
was seeking to hire outside contractors, Long told Parness to write to UPS and
have his business placed on the bidding list. Parness's company submitted a bid
and got a contract in 1974. According to Parness, his payments to Long ceased
when his company went into bankruptcy in 1976, but another company he
owned took over the UPS contracts and resumed cash payments to Long in
1978. Parness testified that in 1978 he arranged to put Long's wife, Olga, on the
payroll in a "no-show" job in lieu of the cash payments to Long.

17

Parness's relationship with Long thus substantially predated the formation of

the racketeering enterprise focusing on Hyman's activities. Parness testified that
he had met Rotondo at a social function and introduced him to Long. Rotondo
then introduced Parness to Hyman, and asked Parness to introduce Hyman to
Long. The government contends that Long's extortion of Parness became part
of the enterprise's racketeering activity. However, this contention is not heavily
supported by the record. Parness testified that starting in 1978 or 1979 he made
cash payments to Rotondo in connection with a contract Parness's company
obtained at a housing development in Staten Island. Hyman testified that Long
told Hyman about Long's receipt of payments from Parness and suggested that
there was an opportunity to make money by getting contracts for Parness's

company. He also testified that Rotondo stated that Rotondo and Long had
jointly assisted Parness with a labor problem and partly as a result of this
assistance had gotten Rotondo and Rotondo's son-in-law on Flair Maintenance's
payroll. However, there appears to have been no evidence that Hyman ever
acted on Long's invitation to get involved in the extortion of Parness.
18

Racketeering Act Eight, within the limitations period, charged Mahoney with
obstructing a federal grand jury inquiry when he appeared before it on July 14,
1983. The government contends that Mahoney lied to the grand jury about the
events alleged in Racketeering Acts Two and Three.

19

Racketeering Act Nine, within the limitations period, charged Long with
obstructing justice by making false and misleading statements to a federal grand
jury on May 26, 1983. The government contends that Long falsely denied to
the grand jury that Hyman had offered Long money for investing union funds
in Penvest.

20

In addition to the racketeering charges, the indictment charged Long and

Mahoney with numerous substantive crimes set out in the margin,4 that largely
mirrored the charged RICO predicate offenses but also included false tax return
charges relating to Mrs. Long's "no-show" job with Parness.

21

Long and Mahoney were convicted on the two RICO counts. Long was
convicted on Count Three and Counts Seven through Twelve of extortion,
making false declarations before the grand jury, perjury, and filing false federal
income tax returns. He was acquitted of Racketeering Act Six, the Bottom
Sportswear charge. Mahoney was convicted of making false declarations before
the grand jury (Count Four) and perjury (Count Five). He was acquitted on the
Count Six charge of perjury in a 1984 deposition.

DISCUSSION
1. The RICO "Pattern" Charge
22

Appellants argue that the district court's charge on the RICO pattern
requirement, which did not require the jury to find relatedness between at least
two predicate acts, was prejudicial error. We agree. Appellants were convicted
of violating, and conspiring to violate, 18 U.S.C. Sec. 1962(c), which provides:

23

It shall be unlawful for any person employed by or associated with any

enterprise engaged in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly, in the conduct of

such enterprise's affairs through a pattern of racketeering activity....
24

18 U.S.C. Sec. 1962(c) (1988). A "pattern" of racketeering activity is defined in

the RICO statute as requiring "at least two acts of racketeering activity, one of
which occurred after the effective date of this chapter and the last of which
occurred within ten years ... after the commission of a prior act of racketeering
activity." 18 U.S.C. Sec. 1961(5) (1988).

25

At the time of trial, the law in this circuit was that the commission of two
racketeering acts furthering a RICO enterprise by themselves supplied the
elements of relatedness and continuity necessary to find a RICO "pattern."
United States v. Ianniello, 808 F.2d 184, 192 (2d Cir.1986), cert. denied, 483
U.S. 1006, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987). Judge Edelstein therefore
instructed the jury that it "need not find that these racketeering acts were related
to each other." He stated that the acts had only to be "in some way related to the
activities of the enterprise."5 These instructions were the subject of a pertinent
objection. Less than a month after appellants' convictions, this court, sitting en
banc, overruled Ianniello and held that

26 of two acts of racketeering activity without more does not suffice to establish a
proof
RICO pattern; that the concepts of relatedness and continuity are attributes of
activity, not of a RICO enterprise, and that a RICO pattern may not be established
without some showing that the racketeering acts are interrelated and that there is
continuity or a threat of continuity....
27

United States v. Indelicato, 865 F.2d 1370, 1381 (2d Cir.) (en banc ), cert.
denied, --- U.S. ----, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989); see also H.J. Inc. v.
Northwestern Bell Tel. Co., --- U.S. ----, 109 S.Ct. 2893, 2900-02, 106 L.Ed.2d
195 (1989). Under Indelicato and H.J. Inc., therefore, the government must
prove that two racketeering acts were related to each other ("horizontal"
relatedness) as well as related to the enterprise ("vertical" relatedness) and that
they resulted in or posed a threat of continuity of the criminal activity.6

28

In United States v. Tillem, 906 F.2d 814 (2d Cir.1990), and United States v.
Scarpa, 913 F.2d 993 (2d Cir.1990), we addressed pre-Indelicato instructions
based on Ianniello where defense counsel had not objected. In both cases, we
held that the instruction was not plain error calling for a reversal in the absence
of a contemporaneous objection. See e.g. Tillem, 906 F.2d at 824-26. In the
instant matter, a timely objection was made, and we must now decide whether
the failure to give an Indelicato relatedness instruction was prejudicial error.

29

The government argues that the charge as given sufficiently encompassed the
relatedness requirement of Indelicato and therefore was not erroneous. The
government's theory is that because the predicate acts had to be found to be
related to the enterprise under the instructions given, the jury necessarily found
interrelatedness among the acts. We disagree.

30

Although it may be, as the government argues, that the evidence is such that a
jury could have found the predicate acts to be interrelated, we have no
assurance that it did so, particularly since that instruction expressly stated that
the acts did not have to be related to each other but only had to be "in some way
related to the activities of the enterprise." See supra note 5. This plainly did not
satisfy the Indelicato requirements of proof of both "horizontal relatedness" and
threat of continuity of criminal activity.

31

The horizontal relatedness of the predicate acts is particularly critical in the

instant matter because only three of the alleged racketeering acts fall within the
statute of limitations period and, under RICO, each defendant must be
convicted of at least one racketeering act committed within the statutory period.
See 18 U.S.C. Sec. 3282 (1988); United States v. Persico, 832 F.2d 705, 714
(2d Cir.1987) (to prove violation of Section 1962(c), at least one predicate
offense must have occurred within five-year statute of limitations for noncapital
offenses), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227
(1988).

32

The predicate acts that fall within the statutory period--Long's obstruction of
justice, Mahoney's obstruction of justice, and Long's extortion of Parness--are
the most vulnerable to a claim of horizontal unrelatedness, either to themselves
or to the various kickback charges. Indeed, our recent decision in United States
v. Biaggi, 909 F.2d 662, 685-86 (1990), held as a matter of law that the
requisite RICO pattern could not be proven simply by showing an offense and a
subsequent denial of that offense alleged as an obstruction of justice. We held
that a crime and a denial of that crime constitute only sporadic rather than
continuing criminal activity. A precise Biaggi objection--a single offense
followed by a denial of the offense cannot as a matter of law be a pattern--was
not made in the district court. However, while the legal claim of insufficiency
may have been waived, appellants preserved their right to a correct charge to
the jury on the relatedness of an offense to a subsequent denial for purposes of
proving a RICO pattern.7

33

The horizontal relatedness of the obstructions of justice to the earlier crimes

was challengeable on other grounds. The obstructions might easily have been

viewed as quintessentially solo acts of self-preservation rather than as part of,

and related to, the extortion and kickback schemes. In addition, the threat of
continuity of the enterprise's criminal activities posed by the obstructions of
justice might have been deemed by the jury to be minimal or non-existent
because a continuation of those activities in the face of the ongoing
investigation would have been foolhardy. Indeed, except for the Parness
extortion, the various kickback schemes appear to have ceased well before the
obstructions of justice.
34

Long's extortion of Parness, the evidence of which was barely sufficient to

support a finding of guilt, see infra note 8, was also arguably unrelated to the
other acts and to the enterprise. Parness was paying off Rotondo on some
matters and introduced Rotondo to Long. Parness thereafter put Rotondo and
Rotondo's son-in-law on the Flair Maintenance payroll in return for Rotondo's
and Long's mutual assistance with a labor matter. Rotondo then had Parness
introduce Long to Hyman for purposes of committing the various racketeering
acts that are outside the limitations period. Long in turn invited Hyman to
participate in getting kickbacks from Parness, although Hyman never availed
himself of that particular opportunity. The Parness extortion thus played a role
in the origin of the enterprise and was regarded by Long and Hyman as
associated with their other kickback schemes, or so a trier of fact might find.
Although sparse, the evidence of horizontal relatedness is thus legally sufficient
in light of the elasticity of the pattern requirement. See, e.g., United States v.
Kaplan, 886 F.2d 536 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1127,
107 L.Ed.2d 1033 (1990).

35

The fact that only three of the alleged Racketeering Acts are within the
limitations period thus eliminates any possibility that the RICO pattern
instruction was harmless. A pattern instruction containing the horizontal
relatedness element was critical in the instant matter.

36

The RICO conspiracy counts must also be reversed. A conspiracy to violate

Section 1962(c) requires that some member or members of the conspiracy
engaged in, or agreed to engage in, a pattern of racketeering activity. See 18
U.S.C. Secs. 1962(c) and (d). The erroneous RICO pattern instruction
prevented the jury from validly determining whether the requisite pattern
existed. In addition, although the statute of limitations for RICO conspiracy
does not begin to run until the accomplishment or abandonment of the
objectives of the conspiracy, see United States v. Persico, 832 F.2d at 713;
United States v. Bortnovsky, 879 F.2d 30, 36 n. 11 (2d Cir.1989), erroneous
pattern instructions may have caused the jury to find that the conspiracy
continued to within five years of the indictment. Because the predicate acts

within the limitations period were found to be part of a pattern on invalid

instructions, the jury may also have mistakenly found that those acts were in
furtherance of the conspiracy.
37

Accordingly, appellants' convictions on the substantive RICO and RICO

conspiracy counts must be reversed.

2. The Olga Long Instruction

38

Long contends that the district court improperly instructed the jury regarding
the testimony of his wife, Olga Long, as a witness for the prosecution. Mrs.
Long had been subpoenaed to testify before the grand jury, and she testified at
trial that she had signed a cooperation agreement with the government under
which she agreed to testify in exchange for immunity from prosecution. Her
brief substantive testimony related to the Parness extortion charge and the false
income tax filing charges.

39

In his summation, counsel for Long referred to Mrs. Long's nervous demeanor
on the stand and stated, "Mrs. Long, you saw that nice, nice lady, good woman,
put on the stand by the government.... The government gives her an immunity
agreement, puts that lady on the stand." A few moments later counsel stated of
Mrs. Long, "She's put on, again under an immunity agreement, if she didn't
testify she'd be subject to prosecution...." The court interrupted sua sponte and
instructed the jury, "You may ignore that last comment. Ignore it completely. I
don't want to make any further comment on that score." The next morning, the
court gave the jury the following instruction, which had been submitted by the
government:

40

During [Long's counsel's] summation he stated that Ms. Olga Long was
subpoenaed. As you have heard during the trial, Olga and John Long are
married and as a result of that relationship Olga Long could not and was not
subpoenaed by the government at any time.

41

Mrs. Long could not be compelled to testify against her husband and had the
absolute right to refuse to testify. Mrs. Long chose to testify, appeared
voluntarily and waived the marital privilege.

42

Long's counsel immediately objected. At the next recess, he moved for a

mistrial and requested a further charge to the jury indicating that had Mrs. Long
invoked her marital privilege she could have been indicted by the government.
The motion and request were denied. That was error.

43

We see nothing improper in defense counsel's attempting to deflect the impact

of Mrs. Long's appearance as a witness by arguing that it was a quid pro quo for
her immunization against criminal charges, and the jury should not have been
told to disregard it. Nevertheless, that ruling alone might amount to harmless
error. However, the subsequent instruction to the jury conveyed the entirely
false message that she had volunteered to testify against her husband even
though she could have freely invoked the marital privilege. The instruction thus
suggested that Mrs. Long was ready and willing to testify against her husband
when, in fact, she was effectively compelled to do so to avoid prosecution and
possible incarceration. Although the jury knew of the cooperation agreement,
the instruction given by the district court invited the jury to disregard the plain
implications of that agreement.

44

Such an instruction is in no sense harmless. Although the government contends

on appeal that Mrs. Long's testimony was merely "cumulative," the substance
or credibility of her testimony is only a minor part of the issue. The very fact of
a person waiving the marital privilege and testifying against his or her spouse is
itself highly damaging whether or not the testimony supports the government's
case or particular counts in only a marginal way. Pains should have been taken
to enable the jury to evaluate her appearance fairly. The instruction given had
the opposite effect and affected all the counts against Long.8

3. Electronic Surveillance Tapes

45

Appellants argue that the district court erroneously admitted tapes of

conversations intercepted pursuant to court-ordered surveillance of Hyman's
office. The error claimed is that the tapes lacked the requisite judicial seal and
were inadmissible hearsay.

46

We turn first to the issues raised by the absence of a judicial seal. Pursuant to
the procedures mandated in 18 U.S.C. Sec. 2518(8)(a),9 the recordings had
been originally sealed by court order at the expiration of the surveillance
orders. The tapes then were unsealed by judicial order for use in the Rotondo
trial. An affidavit of FBI Special Agent David Stone indicates that upon
completion of that trial, the tapes were resealed by an FBI agent and thereafter
maintained "in a sealed and secure condition in a confidential storage area." The
tapes were not, however, resealed by judicial order.

47

Before trial, Long moved to suppress the tape-recorded evidence on the ground
that the recordings had not been judicially resealed following the Rotondo trial.
Judge Edelstein denied the pretrial motion, finding no statutory requirement of
resealing. A month after his ruling, we held in United States v. Scopo, 861 F.2d

339, 347 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1957, 104 L.Ed.2d
426 (1989), that there is a resealing requirement. We stated that "once the trial
level proceedings to which the unsealing order pertained have concluded, the
tapes should be resealed in order to preserve their integrity should their
admission be sought in another trial."
48

Nevertheless, the tapes may be admissible. The purpose of the sealing

requirement is to ensure the integrity of evidence obtained by electronic
surveillance by providing judicial supervision to prevent alteration. See United
States v. Ojeda Rios, --- U.S. ----, 110 S.Ct. 1845, 1849, 109 L.Ed.2d 224
(1990); Scopo, 861 F.2d at 347. Even after surveillance tapes have been used in
another judicial proceeding, they may not be admitted into evidence without a
judicial seal "or a satisfactory explanation for the absence thereof," 18 U.S.C.
Sec. 2518(8)(a). See Scopo, 861 F.2d at 347. Because it is clear that the tapes
here did not have a judicial seal when they were admitted at trial, we must
determine whether the government has presented a "satisfactory explanation"
for the absence of such a seal.

49

We believe that the government's failure to obtain a judicial sealing of the tapes
is satisfactorily explained by a "good faith, objectively reasonable
misunderstanding" of the statutory requirements. Ojeda Rios 110 S.Ct. at 1850.
Scopo had not yet been decided at the conclusion of the Rotondo trial, see id.,
and the government was understandably not alerted to our interpretation of the
statute. Because that interpretation was not obvious on the face of the statute,
we are satisfied that judicial seals were absent because of a good faith
misunderstanding as to the statutory requirements.

50

However, the integrity and reliability of the tapes must be assured. Agent
Stone's affidavit is extremely cursory, and we believe the matter to be of
sufficient importance to require an evidentiary hearing involving live witnesses
where appropriate. Accordingly, in the event of a new trial, the district court
should hold an evidentiary hearing regarding the chain of custody and integrity
of the tapes. If satisfied that they have not been tampered with and are
otherwise reliable, the court should admit them into evidence.

51

Appellants also argue that admission of the tape-recorded evidence violated the
hearsay rule because the conversations did not constitute statements offered
against appellants made "by a coconspirator ... during the course and in
furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). Whether a statement
was "in furtherance" of a conspiracy is a question of fact to be determined by
the court by a preponderance of the evidence, see United States v. Beech-Nut
Nutrition Corp., 871 F.2d 1181, 1198 (2d Cir.), cert. denied sub nom. Lavery v.

United States, --- U.S. ----, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989), and the
district court's determination will not be reversed unless clearly erroneous, see
United States v. Salerno, 868 F.2d 524, 537 (2d Cir.), cert. denied, --- U.S. ----,
110 S.Ct. 56, 107 L.Ed.2d 24 (1989). Co-conspirator statements may be found
to be in furtherance of the conspiracy within the meaning of Rule 801(d)(2)(E)
if they "prompt the listener to respond in a way that facilitates the carrying out
of criminal activity," United States v. Rahme, 813 F.2d 31, 35 (2d Cir.1987),
although the listener need not be a member of the conspiracy, see Beech-Nut,
871 F.2d at 1199.
52

The tapes here involved conversations in Hyman's offices at Resource Capital

Corp. In them, Hyman speaks to his secretary, his business partner, various
employees, and others. The conversations concern the conduct of the alleged
enterprise, such as scheduling meetings with Long and Mahoney, obtaining the
loan for Mahoney, discussing means of obtaining cash for payoffs, and
reassuring members of the conspiracy. We are satisfied that these conversations
facilitated the carrying-out of the conspiracy in question, and the district court's
findings were therefore not clearly erroneous.

4. Expert Testimony on Organized Crime

53

Appellants argue that the district court abused its discretion by admitting expert
testimony regarding organized crime. We agree that the testimony was
improperly admitted.

54

Judge Edelstein ruled that the government's first witness, F.B.I. Special Agent
James Kossler, might testify as an expert on organized crime families under
Federal Rules of Evidence 702 and 70310 and that such testimony was also
permissible under Rule 403.11 Agent Kossler's testimony described the division
of La Cosa Nostra into families, some of which operated in New York and New
Jersey. He went on to describe the hierarchical structure of such a family,
including the respective roles of "the boss," "the underboss," "the consiglieri,"
"capos" and "soldiers." He defined the difference between "made members"
and "associates" and the meaning of "vouching," "sit downs" and "sweetheart
contracts." He stated that organized crime families engage in gambling,
loansharking, theft, fencing and labor racketeering. Finally, he identified
Rotondo as an underboss of the DeCavalcante crime family.

55

We fail to see how Agent Kossler's testimony assisted the jury either "to
understand the evidence or to determine a fact in issue" as required by Rule
702. See supra note 10. The claimed nexus between the crimes charged and
organized crime families appears to be the fact that Rotondo was a "made

member" of the DeCavalcante family and Hyman was an "associate." Rotondo

introduced Hyman to Long so they could arrange the various kickback schemes
and the two "sweetheart contracts." Long in turn introduced Hyman to
Mahoney for the same purpose. In return for Rotondo's introductions, Hyman
shared with Rotondo and his superior, Riggi, the ill-gotten gains.
56

We agree that the fact that Rotondo had contacts in organized labor as a result
of his position in the DeCavalcante crime family and demanded a fee for his
services was relevant background to explain to the jury how and why he was
able to facilitate Hyman's various schemes by introducing him to Long. Hyman,
however, could have testified to that fact, and there was no need to call an
expert to explain the hierarchical structure of organized crime families, their
jargon, the various unrelated criminal activities in which they engage, and so
forth. The sharing of the proceeds from illegal kickback schemes with those
who facilitate them is hardly a unique arrangement found only where "made
members" introduce "associates" to crooked labor leaders. Indeed, recent
highly-publicized scandals in New York City have involved payments to
political leaders in exchange for their services as facilitators of corrupt schemes.
See Biaggi, 909 F.2d at 673, 683 (payments to political officials for
"introductions" and for "securing favorable action from other public officials");
United States v. Friedman, 854 F.2d 535, 550-51 (2d Cir.1988) (one percent of
proceeds of government contract to political leader who served as
"peacemaker"), cert. denied, --- U.S. ----, 109 S.Ct. 1637, 104 L.Ed.2d 153
(1989). We do not believe that a New York jury needs expert testimony to
understand that those who facilitate or broker kickback schemes may expect a
commission from the proceeds. "Sweetheart contracts" are also not the unique
product of organized crime, the term being a general one used to refer to corrupt
collective bargaining agreements. See, e.g. Bauer Welding and Metal
Fabricators, Inc. v. NLRB, 358 F.2d 766, 769 (8th Cir.1966) (sweetheart
contracts are "contracts not in the employees' best interest which are sometimes
entered into between dishonest union officials and management").

57

Moreover, Hyman's payments to Rotondo, while necessary to invoke his

assistance, were relevant only as background information. Had Rotondo acted
as an unpaid broker on Hyman's behalf, none of the charges against Long or
Mahoney would have been weakened. In fact, the expert testimony had no
probative value with regard to the charges against Mahoney because he had
indicated to Hyman an unwillingness to be involved with Rotondo, and
Rotondo himself had told Hyman that Mahoney had previously declined to
cooperate.

58

In addition to being only marginally relevant, Agent Kossler's extensive

descriptions of organized crime families were substantially prejudicial.

Although Rotondo played only an introductory role in facilitating Hyman's
relationship with Long, calling Agent Kossler as the first prosecution witness
had the effect of implicating Long and Mahoney as part of a much larger
criminal organization and associating them with all of the sinister aspects and
activities of that criminal organization. It thus operated less to aid the jury than
to prejudice it.
59

The government relies heavily upon United States v. Daly, 842 F.2d 1380 (2d
Cir.), cert. denied sub nom. Giardina v. United States, 488 U.S. 821, 109 S.Ct.
66, 102 L.Ed.2d 43 (1988). In Daly, Agent Kossler's testimony also identified
organized crime families in the New York area, described their membership
rules and conduct, explained some mob jargon, and described their infiltration
of labor unions by crime families. Daly upheld admission of Agent Kossler's
testimony as expert testimony and found no error in the determination that the
likely prejudice from such testimony would not outweigh its probative value.
Id. at 1388-89. In Daly, the Gambino crime family was charged as the RICO
enterprise, id. at 1383, and Kossler's testimony was helpful to the jury's
evaluation of the evidence regarding that family. Id. at 1388. However, the
enterprise alleged in the instant case was not a crime family, and the sharing of
proceeds from Hyman's illegal activities with Rotondo was the sole nexus with
organized crime. The need for Agent Kossler's explanations was thus quite
different.

60

The fact that the agent did not testify about the particular facts of the instant
matter does not reduce the prejudice. This sort of generalized information--by
definition not directly related to the case at hand--was quite prejudicial in a case
with so thin a nexus to organized crime. For example, because it was
generalized, cross-examination could not blunt its prejudicial effect. The
evidence thus clearly had an adverse impact "beyond tending to prove the fact
or issue that justified its admission into evidence." United States v. Figueroa,
618 F.2d 934, 943 (2d Cir.1980).

61

We appreciate that the district court has considerable discretion in balancing

probative value against prejudicial effect and in evaluating the need of the jury
for expert testimony, and that criminal conduct may be a proper subject of such
testimony. Daly, supra; United States v. Roldan-Zapata, 916 F.2d 795 (2d
Cir.1990). At the time of Agent Kossler's testimony, however, the court had
before it only the indictment and an offer of proof, neither of which
demonstrated relevancy. Greater inquiry should have been made as to the
degree to which the hierarchy, jargon and general criminal activities of
organized crime families would be relevant.

5.
62Hypothetical Questioning of Character Witnesses
63

The district court permitted and itself pursued questions to several defense
character witnesses that required the witnesses to assume the guilt of the
appellants. In light of our recent decision in United States v. Oshatz, 912 F.2d
534 (2d Cir.1990), this questioning was error. We detail the questioning for
purposes of determining whether the error was harmless, an issue discussed in
the conclusion to this opinion.

64

The first instance of this form of questioning was during the testimony of
government witness Milton Weinstein, an accountant for Local 808. On crossexamination by the defense, Weinstein gave some character testimony
favorable to appellant Mahoney. On redirect, the prosecutor asked Weinstein,
"If you were to review the evidence in this case ... and you were to learn from
that evidence that a corrupt agreement did exist between John Mahoney and
Jesse Hyman, would that change your opinion of John Mahoney?" When
defense counsel objected, Judge Edelstein stated, "You opened the door.... This
is appropriate cross-examination." Weinstein responded that such evidence
would change his opinion and that Weinstein would have resigned as
accountant for the funds had he suspected any such corruption. The prosecutor
further asked, "And, would it change your opinion of Mr. Mahoney ... if you
were to learn that Mr. Mahoney lied to the FBI and to the grand jury and to
others regarding the manner in which he obtained a loan from Sterling National
Bank?" to which Weinstein responded, "It certainly would."

65

A second instance involved hypothetical questions assuming Long's guilt.

David Vega, a UPS truck driver and member of Local 804, was called by Long
and gave testimony relevant to the Bottom Sportswear allegation of
Racketeering Act Six. Vega explained that under their union contract Local 804
members must honor picket lines and that he did not know of any instance in
which Long interceded with a Local 804 member or with UPS management on
behalf of an employer whose premises were being picketed. On redirect
examination, Vega testified that it would have been "out of character" for Long
to have encouraged union members to ignore picket lines.

66

On recross, the government pursued questions regarding whether Vega's

opinion of Long's character would change were Vega to learn that Long "had
invested the union dues of union members in a particular company in exchange
for cash kickbacks" and "had in fact urged UPS supervisors to cross a picket
line in order to help out an employer" and had "accepted cash kickbacks in
exchange for providing a sweetheart contract" to Emgee Pharmaceuticals. The
district court overruled Long's objections and stated that defense counsel had

"opened the door" to questions regarding Vega's view of Long's character.

67

A third instance of questioning with hypotheticals assuming an appellant's guilt

involved Brian O'Dwyer, an attorney for Local 808 and administrator of the
Local 808 pension fund. O'Dwyer was called by Mahoney and testified on
direct examination that Local 804's "good experience" with Penvest had been in
his view "an excellent recommendation" of Penvest because Local 804 "had a
reputation of being probably the cleanest, most efficient Teamster local in the
United States." O'Dwyer did not mention John Long in that testimony.

68

On cross-examination by the government, O'Dwyer answered "Yes" to the

question,

69 testified on direct examination that that recommendation that John Mahoney

You
told you he had received from John Long meant something to you because Local
804 had a reputation as being among the cleanest and most efficient Teamster locals
in the country, do you remember that testimony?
70

The government then asked if it would change O'Dwyer's opinion of Local 804
to learn that "one of the principal officers of that local, the secretary-treasurer,
John Long, accepted bribes and kickbacks in exchange ... for giving sweetheart
contracts to employers." When O'Dwyer responded, "No, it wouldn't. I couldn't
believe that of John Long," Judge Edelstein overruled Long's objection to the
line of questioning and directed the witness, "Assume that is a fact." The
government then asked O'Dwyer to assume that the evidence in the criminal
case proved that Long had accepted money in exchange for providing
sweetheart contracts. O'Dwyer twice again responded that it would not change
his opinion. When asked if it would change his opinion "to learn that Mr. Long
had accepted bribes and kickbacks in exchange for an agreement to invest his
union's fund in Penvest," O'Dwyer responded that he "really can't conceive" of
"ever thinking that of John Long." Judge Edelstein then had the following
exchange with O'Dwyer:

THE COURT: You're an attorney, Mr. O'Dwyer?

71
THE WITNESS: I am, Judge.
72
73 COURT: You know about hypotheticals don't you. And you know about
THE
questions that ask you to assume facts, don't you?
THE WITNESS: I do, your Honor.
74
THE COURT: You're being asked to assume facts.
75

76 WITNESS: It's hard for me to assume this fact, your Honor. As a man it's very
THE
difficult for me to understand this.
77 COURT: I find it very difficult to understand your answer. Assume these facts
THE
and give your answer.
A: Assuming all the facts it would change my opinion.
78
79

A witness for Long, John Wallace, experienced similar questioning by the

government and the court. Wallace, a UPS porter and Local 804 member,
testified that Long was "well known, well respected and well liked" in response
to questions from Long's counsel as to whether Long was well known to
members of the union and to UPS management. Wallace testified that he did not
know of any instance in which Long had interceded with UPS management on
behalf of an employer. Wallace also testified that he had known Long for over
twenty years but would not lie for Long.

80

On cross-examination, the government asked Wallace if his opinion of Long

would change were he to become "aware that John Long had accepted cash
kickbacks in exchange for investing union members' dues in a particular
investment company." When the witness repeatedly protested that he "wouldn't
believe it," the court ordered him to assume the fact as posed by the
government and respond to the question. When Wallace answered that his
opinion of Long was so high that even the government's suggested proof would
not change his view, the court intervened again, accused Wallace of answering
evasively, and expressed disbelief of Wallace's responses. Wallace then finally
answered "yes" to a series of questions premised on purported conduct for
which Long was on trial.

CONCLUSION
81

We reverse as to all counts. For reasons stated supra, the RICO and RICO
conspiracy counts must be reversed.

82

With regard to Long's convictions for substantive crimes, they must also be
reversed in light of the multiple errors. Although the expert testimony had some
probative value in light of his relationship with Rotondo, it was prejudicial in
that it invited the jury to take a somewhat exaggerated view of Long's criminal
activities. In addition, the hypothetical questioning of his character witnesses
must be viewed in light of Oshatz as undermining the presumption of innocence
with regard to the non-RICO counts. Finally, as discussed in the body of the
opinion, the district court's instruction regarding Mrs. Long's testimony misled

the jury by creating the false impression of a witness ready and willing to
testify against her spouse. This impression seriously tainted all the counts.
Whether any one of these errors would, absent the others, have been harmless is
irrelevant in light of the cumulative prejudice caused.
83

We also reverse Mahoney's convictions for perjury and false statements. Agent
Kossler's testimony had no probative value in light of Mahoney's affirmative
disassociation from Rotondo. It was, therefore, substantially prejudicial. The
hypothetical questioning of character witnesses also was prejudicial and related
to Mahoney's entire relationship with Hyman as well as to the obstruction of
justice count. Moreover, the evidence was that Long initiated Mahoney's
participation in the enterprise, and the indictment named Long as an aider and
abetter in two of the three racketeering acts involving Mahoney. If Long were
found guilty, Mahoney's conviction would probably follow. We believe,
therefore, that the tainting of the jury's consideration of the evidence against
Long likely affected its consideration of the evidence against Mahoney. Again,
we believe the cumulative prejudice calls for reversal on all counts.

84

The effect of the Biaggi decision on the various counts against each defendant,
see note 7 supra, must be determined in the first instance by the district court,
should the government elect to retry the defendants.

The Honorable Michael B. Mukasey, United States District Judge for the
Southern District of New York, sitting by designation

Mahoney also challenges his sentence, arguing that his sentence enhancement
was based on insufficient evidence and that he was denied a fair hearing on that
issue. These claims are mooted by our reversal

Although Mahoney was initially charged with Long in Racketeering Act Six,
the government withdrew the charge as to Mahoney prior to the conclusion of
its direct case

Hyman testified that he arranged for the loan application to be submitted to a

particular loan officer and that he had his company's lawyer write a letter to the
bank to explain away a problem in Mahoney's credit report

Count Three charged Long with extortion in connection with the payments
from Parness to Long and his wife in violation of 18 U.S.C. Secs. 1951 and 2.
Count Seven charged Long with making false declarations before the grand
jury on May 26, 1983, see 18 U.S.C. Sec. 1623, and Count Eight charged him

with perjury at a 1987 deposition during which he was questioned about

whether Hyman had offered him any inducement to recommend his services to
Mahoney, see 18 U.S.C. Sec. 1621. Counts Nine through Twelve charged Long
with filing false tax returns reflecting salary income for his wife from Parness's
company in 1983, 1984, 1985, and 1986, in violation of 26 U.S.C. Sec.
7206(1). Count Four charged Mahoney with making false declarations before
the grand jury on July 14, 1983, see 18 U.S.C. Sec. 1623, and Counts Five and
Six charged him with perjury during depositions in 1987 and 1984, see 18
U.S.C. Sec. 1621
5

The instructions stated:

[T]he government must prove beyond a reasonable doubt ... that the defendant
conducted or participated in the affairs of the enterprise through a pattern of
racketeering activity. A pattern of racketeering activity requires that the
defendant in question committed at least two acts of racketeering within ten
years of each other.
You need not find that these racketeering acts were related to each other.
However, the government must prove beyond a reasonable doubt that either the
racketeering acts were in some way related to the activities of the enterprise or
that the defendant in question was able to commit the racketeering acts solely
by virtue of his position or involvement in the affairs of the enterprise.

Indelicato applies retroactively. See Griffith v. Kentucky, 479 U.S. 314, 107
S.Ct. 708, 93 L.Ed.2d 649 (1987)

Under Biaggi, it appears that a pattern of racketeering activity cannot be proven

with regard to Mahoney because Racketeering Acts Two and three, outside the
limitations period, involved the same subject matter as was the basis for the
obstruction of justice charge, which is within the period. As for Long, a pattern
finding cannot be based on a finding of relatedness between the obstruction of
justice and Racketeering Act One, which involve the same subject matter

In addition, the proof of the Parness extortion by Long was not overwhelming.
Parness and an employee of his maintenance company, Douglas Lea, also
testified regarding Long's relationship with Parness. Viewing the evidence in
the light most favorable to the government, Parness made payments to Long
partly out of friendship, partly for help Long provided in running Parness's
business, and partly to get and keep a lucrative janitorial contract with UPS for
that business. Parness testified that he did not know if Long did anything to
ensure that Parness's company would get the UPS contract and that Parness
unilaterally increased payments to Long when the UPS business increased

18 U.S.C. Sec. 2518(8)(a) provides that "[i]mmediately upon the expiration of

the period of the [surveillance] order, or extensions thereof, such recordings
shall be made available to the judge issuing such order and sealed under his
directions." That section further provides:
The presence of the seal provided for by this subsection, or a satisfactory
explanation for the absence thereof, shall be a prerequisite for the use or
disclosure of the contents of any wire, oral, or electronic communication or
evidence derived therefrom....

10

Fed.R.Evid. 702 provides that an expert witness may testify as to "scientific,

technical, or other specialized knowledge" where such testimony "will assist
the trier of fact to understand the evidence or to determine a fact in issue."
Fed.R.Evid. 703 provides:
The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.

11

Fed.R.Evid. 403 provides that relevant evidence "may be excluded if its

probative value is substantially outweighed by the danger of unfair
prejudice...."