Full opinion text
MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge. I. Introduction...............................................................145 II. Facts.....................................................................145 A. Commission Trial......................................................145 B. 1990 Windows Trial....................................................146 C. Competency.............................................•..............146 1. Competency Hearing and Proceedings Before Judge Nickerson........146 2. Competency Rehearing ............................................147 D. Continued Defense Attempts to Delay Trial...............................148 E. 1993 Indictment.......................................................148 1. Charts Outlining 1990 ‘Windows” Indictment.........................149 a. 1990 Counts...................................................149 b. 1990 RICO Predicate Acts........... ..........................149 2. Charts Outlining 1993 Superseding Indictment........................149 a. 1993 Counts...................................................149 b. 1993 RICO Predicate Acts......................................149 F. Government Dismissal of 1990 Indictment.................................150 G. Pre-Verdict Statute of Limitations Claims by Defense......................150 H. Trial and Evidence Presented...........................................150 I. Jury Verdict..........................................................153 1. Items Upon Which the Jury Agreed.................................153 a. Items Proven.................................................153 b. Items Not Proven..............................................153 2. Items Upon Which Jury Could Not Agree............................153 J. Remand Pursuant to 18 U.S.C. § 3143....................................154 K. Posb-Verdict Defense Motions...........................................154 III. Statute of Limitations Issues................................................154 A. Law..................................................................154 1. Basic rules .......................................................154 2. Statute of Limitations and Superseding Indictments ...................155 3. Analogy to Double Jeopardy Law....................................157 B. Application of Law to Facts.............................................158 1. Posb-Verdict Statute of Limitations Claims — Charges Dismissed........158 2. Pre-Verdict Statute of Limitations Claims — Charges Remaining........159 a. Count One....................................................159 (1) Predicate Act Nine.........................................159 (2) Predicate Act Ten..........................................159 (3) Predicate Acts Eleven through Thirty-Three...................159 (4) Predicate Acts Thirty-Four through Thirty-Nine...............163 (5) Predicate Act Forty.........................................163 (6) Predicate Act Forty-One....................................163 b. Count Two....................................................164 c. Count Three..................................................164 d. Count Five....................................................164 e. Count Six.....................................................164 3. Charges Upon Which Jury Could Not Agree..........................165 IV. Competency Issues.........................................................166 A. Competency and Standing Trial..........................................166 B. Competency and Withdrawing from a Conspiracy..........................168 1. Law.............................................................168 2. Application of Law to Facts.........................................178 a. Relevant Facts.....'...........................................173 b. Jury Charge Offered...........................................173 c. Rejection of Proposed Withdrawal Charge........................173 d. Effect of Failure to Accept Proposed Charge......................173 C. Competency and Sentencing................. 173 D. New Evidence and Incompetency Claims..................................175 1. Relevant Facts.........-..........................■.................175 2. Law........ 176 3. Application of Laws to Facts........................................176 V. Conclusion................................................................177 Exhibit A: Completed Jury Verdict Sheet..........................................177 I. Introduction Found guilty by jury of racketeering (RICO), 18 U.S.C. § 1962(c), racketeering conspiracy, 18 U.S.C. § 1962(d), extortion conspiracy, 18 U.S.C. § 1951(a), labor payoff conspiracy, 18 U.S.C. § 371, and two counts of conspiring to murder in aid of racketeering, 18 U.S.C. § 1959(a)(5), defendant moves for: (1) dismissal of count four of the indictment; (2) a de novo determination of defendant’s competency to participate in his criminal proceedings, tantamount to a motion for new trial based upon purported “new” evidence; and (3) any other relief to which he may be entitled. Defendant’s motion is denied except that (1) count four of the indictment is dismissed on statute of limitations grounds and (2) a mistrial is granted as to RICO predicate acts two through five. II. Facts The defendant was raised in a decent family. He became a thug in his teens, quickly moving into leadership of the Genovese Crime Family by the 1980’s and control of a Commission of mob leaders coordinating mafia activities in the Northeast of the United States. He and his allies and subordinates dominated many industries and unions including those in the building trades such as windows, concrete, trucking; and trades associated with garbage collecting, painting, and conventions. With the assistance of corrupt union and business leaders and other gangland associates, the defendant earned millions of dollars from these activities as well as from loansharking, hijacking, gambling, and other , criminal conduct. A. Commission Trial By appointing street bosses to hide behind, and feigning mental incapacity, the defendant avoided prosecution for his crimes while other gang leaders were tried and sent to prison. In the mid-1980’s, for example, there was a government crack down on organized crime in New York. Several heads of New York’s crime families were prosecuted. See, e.g., United States v. Salerno, 868 F.2d 524, 528 (2d Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700 (1989); United States v. Langella, 804 F.2d 185, 186 (2d Cir.1986); see also, President’s Commission on Organized Crime, Interim Report to the President and Attorney General, The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering 31-32 (Oct. 1984)(federal investigation of money laundering scheme known as “The Pizza Connection”). Among those brought to trial was Genovese Crime Family street-boss Anthony “Fat Tony” Salerno. He, with several of his mafia cohorts, was indicted, found guilty, and sentenced to a term of one-hundred years imprisonment. See United States v. Salerno, 868 F.2d 524, 528 (2d Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700 (1989). In fact, the evidence at the instant trial demonstrated that Mr. Salerno, while a guilty criminal, was probably acting under the directions of defendant Gigante. B. 1990 Windows Trial On May 30, 1990, Mr. Gigante, along with fourteen others, was charged in a sixty-nine count indictment with illegally attempting to control New York’s window manufacture and installation industry through criminal racketeering, money laundering, extortion, mail fraud, and other improper acts. See, e.g., United States v. McGowan, 58 F.3d 8, 10 (2d Cir.1995). Of the sixty-nine counts in the “windows” indictment, defendant himself was charged in thirty-five. The indictment alleged a racketeering “enterprise” that was expansive, involving many crime family and non-crime family participants. One-hundred nine predicate acts were charged in support of the RICO counts. Defendant, it was alleged, took part in only some of these activities. As is often the case in racketeering prosecutions, many of the charged predicate racketeering acts mirrored the individual substantive counts in the indictment. See, e.g., United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984). C. Competency Immediately after filing of the 1990 indictment, defendant claimed he was incompetent to stand trial. As proof he relied in part on the fact that, starting in October of 1966, though prior records indicated no evidence of mental illness, defendant had begun a sporadic regime of psychiatric treatment. He would periodically check into psychiatric hospitals for intervals of a few days. Given the questions raised by this history and the representations made by defendant’s attorneys, Judge Raymond J. Dearie ordered a competency examination of Mr. Gigante under Section 4241(b) of Title 18 of the United States Code. Two psychiatrists were appointed by the court to assess the defendant’s mental health. The defense also had two psychiatrists examine the defendant. Based upon the information then available to them, all four experts concluded that defendant was not competent to be tried. The government urged the court to take into account information not available to the experts, that is, the defendant’s private behavior and his activities as boss of the Genovese Crime Family. Judge Dearie reserved ruling on the issue so that more information could be presented. Assessment of defendant’s competency prevented his going forward to trial with his co-defendants. His case was severed and thereafter transferred to Judge Eugene H. Nickerson. The other co-defendants, with the exception of one who was murdered, and two others who absconded for a period of time, proceeded to trial. By late 1991 they were convicted or had pleaded guilty. 1. Competency Hearing and Proceedings Before Judge Nickerson Extensive hearings on the issue of defendant’s competency were held by Judge Nickerson. Testimony of defense experts, doctors appointed by the court, and lay witnesses who 'knew the defendant and were familiar with his private-life, was considered. At the close of the hearings, defendant was found to have continuously feigned mental illness. He was ruled physically and mentally competent to be tried. United States v. Gigante, 1996 WL 497050 (E.D.N.Y. August 28, 1996). Trial was set for March 17, 1997. In early 1997, defendant underwent open heart surgery. To allow adequate time for rehabilitation the trial was postponed at his request until April 14, 1997. Prior to April 14, defendant moved for another adjournment because of his alleged continued ill health. The court granted the continuance, setting the case for trial on June 23, 1997, warning that no further continuances would be granted absent a showing of new circumstances. In spite of the court’s rulings, the defense again sought a postponement of trial based upon Mr. Gigante’s alleged incompetence. Claiming that the defendant now appeared to be suffering from a new affliction — Alzheimer’s disease — in addition to his other purported ailments, the defense made a further request that the trial be delayed. Judge Nickerson recused himself. The case was transferred to the undersigned on May 13, 1997. 2. Competency Rehearing Defendant submitted further information regarding his purported mental deficiency and physical problems. The only important new evidence was testimony of expert defense witnesses who had performed a series of experimental tests upon the defendant. One of these tests was a Positron Emission Tomographic (PET) scan of the defendant’s brain. PET scans are tools fairly new to science. They are radiographic images created by “computer analysis of photons detected from annihilation of positrons emitted by radionucldes [sic] incorporated into biochemical substances” and show the distribution of certain substances in a patient’s tissues. Stedman’s Medical Dictionary 1820 (26th ed.1995). Here, the .procedure was used to measure defendant’s brain metabolism and activity while he attempted to respond to questioning by a physician conducting the test. A radioactive sugar compound — fluorodeoxyglucose—was injected into defendant’s body. After a period of time, the compound made its way to defendant’s brain. From photograph-like cross-sectional images depicting the fluorodeoxy-glucose in the various parts of Gigante’s brain, a defense expert claimed he could measure where and how much brain activity occurred. Defense witness Professor Monte S. Buchsbaum of Mount Sinai School of Medicine interpreted the PET scans. According to Professor Buchsbaum’s interpretation, defendant was suffering from organic brain dysfunction, possibly due to Alzheimer’s disease or multi-infarct dementia. He could not pinpoint the cause of the abnormality; nor could he quantify its level. Whatever the specific problem and etiology, he claimed it rendered defendant incapable of being tried. A second defense witness, Dr. Wilfred G. Van Gorp of New York Hospital’s Cornell Medical Center, explained that he put defendant Gigante through a battery of interactive, neuropsychological tests, including the Portland Digit Recognition Test, the Warrington Face Recognition Test, the Warrington Word Recognition Test, and the Rey 15-Word Test, that were designed to ascertain whether defendant was malingering. Dr. Van Gorp testified that, based upon this series of examinations and their results, he concluded that defendant was not feigning incapacity, but in fact suffered from severe cognitive impairment. Neither Professor Buchsbaum nor Dr. Van Gorp ever analyzed the defendant’s blood to determine the amount of medication in his system at the time the tests were administered. Mr. Gigante was taking Thorazine, Restoril, Lanoxin, Teneormin, Pamelor, Dal-mane and other drugs at the time of the examinations. He had been taken potent psychotropic medications for a long period. Government witness, Jonathan Brodie, M.D., Ph.D., specializing in psychiatry, physiological chemistry, and neuroimaging at New York University Medical School, testified that the results of Dr. Van Gorp’s neuropsy-chological tests could have been corrupted by the medications; they effect cognitive skills necessary to evaluate Dr. Van Gorp’s tests. The defense produced no convincing testimony about the specific effect drugs taken by defendant had upon PET scans. From the limited information presented, there was no way to tell if, or how much, the results of the tests were skewed by the defendant’s medication. Defense experts’ findings were, in any event, dubious, based upon speculative scientific theories lacking full development, research, and support. For instance, Professor Buchsbaum offered his opinion without having reviewed or compared any earlier PET scans of the defendant’s brain; the alleged “dysfunction” as seen in the PET scans may have benignly existed in Mr. Gigante when he was an active criminal. In addition, defendant’s PET scans were compared to those of a small group of people in order to ascertain if his brain was functioning “normally.” This “control” group apparently was not selected at random; most of its members grossly differed from defendant in age and background. • None, apparently, were under the influence of drugs. Dr. Van Gorp’s findings, too, were based upon speculative assumptions. For instance, he argued that since defendant seemed to be “trying” on the cognitive tests and scored slightly above the score of “chance” (that is, the score one might achieve by simply guessing), the conclusion was valid that malingering was not probable. None of the defendant’s experts took into account the extensive testimony received by Judge Nickerson proving that defendant’s mental difficulties had been feigned for many years. See United States v. Gigante, 1996 WL 497050, at *6 (E.D.N.Y. Aug.28, 1997)(“... Gigante deliberately feigned mental illness from the late 1960’s until at least September of 1991. As he has presented no convincing reason for the court to conclude otherwise, the court finds that the symptoms that Gigante has demonstrated since that time are also the product of malingering.”). The opinions of defendant’s experts were unreliable. They were not consistent with other evidence in the case. Assuming for the sake of this memorandum that their opinions met the Daubert test, they were not credible and were unpersuasive. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); John F. Fielder, Daubert Can Undermine Psychiatric Testimony, Nat. L. J., Sept. 22, 1997, at B14-15. Daubert provides a rule of admissibility, not one of mandatory probative force. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993). The defense failed to meet its burden of proving defendant incompetent. The parties were ordered to commence the trial on June 23, 1997, the date set by Judge Nickerson. D. Continued Defense Attempts to Delay Trial Defendant’s tactics of delay did not end with the repeated determination of his competence. On June 13, 1997 the defense sought another adjournment, based upon purported pre-trial publicity, which it argued had the potential to impact the impartiality of the jury. After a hearing, the motion was denied. Three days later, on June 16, the defense again moved for a continuance. Claiming that defendant had a new set of physical problems — potentially cancerous nodules on his thyroid, protrusion of his pacemaker, blood in his urine, and required dental care— the defense asked for jury selection to begin as scheduled, but for postponement of the trial until it could obtain further diagnoses from assorted medical professionals. After a hearing, the motion was denied. The trial proceeded as scheduled. Defendant’s physician remained in attendance throughout the trial. Continuances and recesses were granted whenever requested by defendant’s physician. E. 1993 Indictment As already noted, see supra section 11(C), the case against Mr. Gigante had been severed from that of the other defendants in the 1990 “windows” prosecution. The 1990 indictment remained pending throughout defendant’s competency proceedings. The government filed a superseding indictment against Mr. Gigante on June 10, 1993. The new indictment covered less ground than the 1990 indictment. The most obvious differences were that it consisted of many fewer counts (six) and charged only one defendant (Vincent Gigante). It did add charges of conspiracy to murder persons involved in organized crime, including leaders in the Gambino Crime Family, Gene Gotti and John Gotti, as well as Peter Savino, a long-time member of the Genovese Family. The new indictment, like the old, also alleged that Gigante was involved in racketeering and conspiring to racketeer. While in the 1990 indictment the racketeering “enterprise” was expansive, including members of four New York City crime families and union representatives, the racketeering “enterprise” alleged in the 1993 indictment was less far reaching, characterizing the enterprise simply as the Genovese Crime Family. In support of the racketeering and racketeering conspiracy counts in the new indictment, the government alleged forty-one predicate acts. As with the 1990 indictment, many of the predicate acts charged covered the same conduct charged in the substantive counts. More significantly, many of the counts and relevant predicate acts of the 1993 indictment included the same conduct charged in the 1990 “windows” indictment, An outline of the substantive charges and predicate racketeering acts of each relating to defendant Gigante is listed below. • For sake of clarity and comparison, some of the charges have been grouped and the dates pertaining to the allegations have been provided by way of range: 1. Charts Outlining 1990 “Windows” Indictment a. 1990 Counts b. 1990 RICO Predicate Acts 2. Charts Outlining 1993 Superseding Indictment a. 1993 Counts b. 1993 RICO Predicate Acts F. Government Dismissal of 1990 Indictment By the time defendant’s pretrial competency was determined, several years had passed since the filing of the original 1990 “windows” indictment. Dealing with both the old and new indictments at trial would have been difficult, time consuming, and potentially confusing to the jury. Nevertheless, the government could have proceeded to trial on both sets of charges. After considering its options, and with the consent of the defense, the government announced dismissal of the 1990 indictment, choosing to go to trial on the 1993 indictment alone. In moving to dismiss the “windows” indictment, the government did not ignore its allegations. It sought the benefit of the statute of limitations cut-off date applicable to the old indictment wherever permissible. Asserting that many of the 1990 charges were merely repleaded in the 1993 indictment, it claimed the earlier charges and their tolling of the statute of limitations should “carryover” to the to the 1993 prosecution. G. Pre-Verdict Statute of Limitations Claims by Defense During trial, the defense objected to relation-back to the 1990 charging instrument. It insisted that, on their face, many of the charges in the 1993 indictment fell outside the five-year statute of limitations period preceding its filing. It argued that the two documents were so different that relation-back was precluded. The defense arguments were critical with respect to two sets of allegations — those relating to the labor payoff scheme and to conspiracy to extort. The defense pointed out that the alleged labor payoffs charged in the 1993 indictment both as predicate acts in support of the RICO counts, and substantively as count six, were charged under a different subsection of law than the related charges in the 1990 indictment. Thus, they urged, no carry-over for statute of limitations purposes could be permitted. Defendant also challenged relation-back for the predicate acts because the labor payoff scheme charged in 1990 was pleaded as a substantive count and not a RICO predicate act. As to the extortion conspiracy charges, set forth both as racketeering predicate acts and as a substantive count in the 1993 indictment, the defense claimed they had been pled much more broadly in the 1990 indictment than in the more recent one. Because, according to the defense, the 1990 allegations covered a larger agreement than that contemplated by the 1993 allegations, no relation-back to the earlier charging document could be permitted. A decision on statute of limitations issues was held in abeyance pending trial. As was conceded by the parties, the statute of limitations questions posed might be rendered moot depending upon the evidence and findings by the jury, given the nature of racketeering and conspiracy allegations. H.Trial and Evidence Presented The jury selection process was fashioned to avoid any apprehension of threats to the jurors. Jurors were anonymous and partially sequestered; names of the prospective jurors were shared only with the attorneys. See United States v. Barnes, 604 F.2d 121, 141 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980)(use of anonymous jury to protect the jurors and their impartiality); see also Nancy Gertner and Judith H. Mizner, The Law of Juries, 10-15 (“[t]he issue of juror anonymity has been raised most frequently during organized crime prosecutions in the Second Circuit”). Potential jurors were required to complete questionnaires listing background and personal information. The questionnaires, along with the oral voir dire provided the parties with a fair sense of the potential biases and beliefs of the prospective fact-finders. The jurors were at all. times relaxed, fully engaged in the trial, apparently convivial in their enjoyment of one another’s company and extremely serious in carrying out their duties. Each juror took extensive notes. Their requests during deliberations showed a complete grasp of the law and the evidence. Their findings were precise and in agreement with the court’s private analysis. Defendant, who previously had claimed to have been too ill to attend pre-trial hearings, was present throughout the jury selection process and subsequent trial. Both defense and government counsel tried the case with great skill, exercising the highest professional standards. Based on the evidence, the court did not credit the defense that counsel could not confer effectively with 'defendant during trial. At trial, the government presented eighteen witnesses. Well over two hundred-fifty exhibits, including surveillance photographs, tape-recordings of conversations of defendant’s co-conspirators, as well as many pages of documents and transcripts were admitted. The evidence relating to Mr. Gigante’s alleged illegal conduct in participating in murders prior to the mid-1980’s was not strong. By contrast, the evidence regarding his later conduct demonstrated without a reasonable doubt that Mr. Gigante had been the boss of the Genovese Crime Family since at least 1985 and that he was guilty of the crimes and predicate acts of which the jury found him guilty from that date forward. Testimony from former fellow organized crime membérs implicated defendant in the charged racketeering acts and conspiracies. Lucchese associate Peter Chiodo, former acting boss of the Lucchese Family, Alphonse D’Arco, and former Gambino Family under-boss, Salvatore “Sammy the Bull” Gravano, along with others associated with the mobs described the power held by Gigante and his deep involvement in the world of organized crime. Their testimony was based upon their personal dealings with defendant and his co-conspirators. These witnesses explained that the Genovese Crime Family, prior to and during Gigante’s tenure, engaged in extensive illegal money-making activities. According to them, the Genovese Family had a hand in controlling legitimate economic entities, including the Fulton Fish Market, garment district companies, night clubs and casinos, and the concrete and windows industry. None of these activities occurred, they explained, without the permission of the boss, the defendant. According to the former mafia member witnesses, the Genovese Family involved itself in the windows industry during the 1980’s by way of an arrangement referred to as the “windows club.” Window replacement companies run by Genovese Family members or associates made payments to the Lucchese Family and others who influenced local union decisions to permit cheaper non-union laborers to install windows. Genovese members obtained window replacement contracts for jobs with the New York City Housing Authority and other organizations that should have been handled by companies using union employees only. Bid-rigging, bribes, and extortion assured the extremely high profits shared with defendant. Mr. Gigante was responsible for all of these criminal dealings, consenting to, assisting in, and benefitting from the illegal activities of these Genovese-run entities and cooperating mafia gangs. Testimony also demonstrated defendant’s participation in several murder conspiracies. Among them was the conspiracy to murder John and Gene Gotti of the Gambino Family. During the 1980’s, the Gambino Crime Family boss, Paul Castellano, was killed. His murder had not been approved by the Commission made up of the leaders of each mafia family — a breach of one of the gangs’ cardinal rules. Testimony revealed that Mr. Gi-gante .and other Commission members agreed that those who murdered Castellano had to be hunted down and killed as punishment for the unsanctioned murder. When it was learned that the Gotti brothers, with the help of Gravano, were responsible for Castel-lano’s death,, arrangements were made by Mr. Gigante and the rest of the Commission to kill John and Gene Gotti. The first plan was not carried out because agents of the Federal Bureau of Investigation, after learning about the plot by way of clandestine tape-recording, warned the would-be victims. The second plan, a bombing to be facilitated by D’Arco, did not occur because the Gotti brothers were arrested. The evidence clearly demonstrated that defendant was also a leader in the conspiracy to murder Peter Savino, a former associate of the Genovese Family. Savino, who is now in the federal witness protection program, testified at trial by way of two-way closed circuit television. See United States v. Gigante, 971 F.Supp. 755 (E.D.N.Y., July 21, 1997)(television testimony permitted under the special circumstances of this case and because of the witness’ life-threatening illness). Savino had been ordered killed by Mr. Gigante because he had become a government informant. Revealed beyond doubt were the great lengths to which defendant went to appear incompetent in order to avoid detection and prosecution. For instance, throughout the 1970’s and 1980’s Mr. Gigante began cheeking into mental institutions for short visits, what other members of the gangs referred to as “tune-ups.” Defendant did this even though it was clear that he was capable mentally. Law enforcement witnesses who had watched Mr. Gigante on the street, in his club, and at his home, reported that he changed his behavior depending upon whether or not he was in public, or believed he was being watched. Testimony indicated that out in the street he often wore an old bathrobe, shuffled about in slippers, and stared off into the distance mumbling to himself. Meanwhile, when defendant thought he was “behind closed doors” he was observed as savvy, interacting normally with natural family members, friends, and criminal associates, perusing ledger books, playing cards, talking on the telephone, ordering about members of his mob and criminal associates, and taking part in Commission meetings. He demonstrated normal and detailed concerns for those he loved, such as by planning for his daughter to be admitted to the college of her choice and by expressing concern about whether his paramour was following their doctor’s orders. He exercised meticulous and detailed control of the day-to-day operations of a huge criminal enterprise. Required was the ability and intellectual capacity equivalent to that of the Executive Officer of a large conglomerate corporation. There was overwhelming evidence that Mr. Gigante feared being overheard or having his name repeated on government wire-taps and “bugs” and that he took extraordinary steps to prevent this from happening. To limit the chance of being recorded he directed that the Commission stop meeting to discuss ordinary business — such as details of the control of the windows or construction industry — but gather only sparingly for critical matters to limit the chance of being recorded. In order to keep defendant’s name from government tape-recordings, Mr. Gigante announced his edict: speaking Vincent Gigante’s name aloud would be enough to get a person killed. Those who needed to refer to defendant in conversation pointed to their chin or used a sobriquet such as “the robe” or “my aunt.” Illustrative of defendant’s techniques, Peter Savino testified that on one occasion he was taken into the men’s toilet by defendant to talk about the “windows club” scheme. Mr. Gigante walked into the men’s room, turned the water on in the sink “full blast” to create noise, and then whispered into Savino’s ear. He shrewdly questioned Savino about details of the “windows club” operations. While obviously coherent during the conversation, according to Savino, the tone changed at the end; Defendant instructed Savino to tell others that he, Mr. Gigante, was crazy. Typically, defendant telephoned from public phones chosen at random after 11:00 p.m. He was chauffeured about the city when he was not presiding at this hangouts. Mr. Gigante was, and acted the role of, a criminal lord. But, unlike some other criminal leaders, he carefully covered his tracks with great skill. The defense presented no evidence except for a few documents of little significance. Defendant’s attorneys did not attempt to demonstrate defendant’s incompetence except by having him sit impassively in a wheelchair in the courtroom, ostensibly oblivious to all that went on. Consistent with the claim that he was incompetent, they took pains never to consult with him in public. I. Jury Verdict It was apparent throughout the trial that the jury listened closely to the testimony and carefully scrutinized the evidence. As already indicated, extensive notes were taken by all jurors after being instructed on the advantages and disadvantages of note-taking. Questions from the jury room during deliberations displayed thoughtfulness and diligence; the jurors carefully and methodically worked their way through the detailed verdict sheet. Special jury verdict questionnaires, such as the one in this case, that allow jurors to “record their specific dispositions of the separate predicate acts charged, in addition to their verdict of guilt or innocence on the RICO” charges, are an important tools in administering complex criminal RICO cases. United States v. Ruggiero, 726 F.2d 913, 922-23 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984). On the verdict sheet the jury was required to list whether, as to each count, they found the defendant guilty or not guilty. For the predicate acts they were instructed to make a finding of proven or not proven. As to any act charged either as a separate count or a predicate act that was conspiratorial in nature, the jury was required to determine when, if at all, the conspiracy ended. A copy of the verdict sheet presented to the jurors in this case with the jurors’ answers is set forth at the end of this opinion as Appendix A. After deliberating for several days, the jury returned its verdict, was polled, and was dismissed. There was no objection from either side. The court instructed the jurors that they were free to discuss the case but that the court recommended that they do not. As they were each day at the trial, they were ehauffeured from the court garage to their homes, where, having done their duty, like Cineinnatus of old, they quietly retired to their well-earned privacy. 1. Items Upon Which the Jury Agreed a. Items Proven The jury concluded that defendant was guilty of all six of the counts in the 1993 indictment. As required, it also made special findings regarding the dates until which the conspiracies lasted. For the racketeering conspiracy count it found that the conspiracy lasted until June, 1993; for the count relating to the conspiracy to murder Peter Savino it found that it lasted until July, 1991; for the count relating to the conspiracy to murder the Gotti brothers it found that the conspiracy lasted until January, 1988; for the windows industry extortion conspiracy count it found that it lasted until June, 1989; and for the labor payoff conspiracy count it found that the conspiracy lasted until June, 1988. As to the forty-one predicate racketeering acts in support of the substantive racketeering count, the jury found that the government proved thirty-two. These were predicate acts nine, ten, eleven through thirty-three, thirty-four through thirty-nine, forty and forty-one. Since some of these predicate acts were conspiracies, the jury was also required to make findings as to the ending dates for each of them. For predicate act nine, the conspiracy to murder Peter Savino, it found that the conspiracy lasted until July, 1991; for predicate act ten, the conspiracy to murder John Gotti and others, it found that the- conspiracy lasted until January, 1988; as to predicate act forty-one, the extortion conspiracy, it found that the conspiracy lasted until June, 1989. b. Items Not Proven The jury agreed that the government failed to prove predicate racketeering acts one, six, seven, and eight relating to the murders in the early 1980’s of Jerry Pappa, Frank Narducci, Rocco Marinucci, and Enrico Carini. 2. Items Upon Which Jury Could Not Agree The remaining racketeering predicate acts, numbers two through five alleged in support of counts one and two, charged defendant with taking part in conspiracies to murder Anthony Caponigro, Fred Salerno, John “Keys” Simone, and Frank Sindone. These persons allegedly killed Angelo Bruno, the Boss of the Philadelphia Crime Family, without seeking permission from the Commission. The jury was. not able to agree upon whether the government proved the charges. Without objection, the court and the parties agreed to dismiss the jury despite non-agreement as to these charges. Thus, there was a mistrial on these predicate acts. Fed. R.Crim.P. 26.3; see also Oregon v. Kennedy, 456 U.S. 667, 672-673, 102 S.Ct. 2083, 2087-2088, 72 L.Ed.2d 416 (1982); United States v. Huang, 960 F.2d 1128, 1135 (2d Cir.1992). J. Remand Pursuant to 18 U.S.C. § 3143 Upon the return of the verdict, pursuant to Section 3143 of Title 18 of the United States Code, defendant was remanded to the custody of the Attorney General to await sentencing. He was permitted to self-surrender within twenty-four hours of the order of the court to the Federal Correctional Institution in Butner, North Carolina, out of a sense of humanity, to allow defendant time to be alone with his family prior to sentencing. While at the facility in Butner, defendant was examined over an extended period by the psychiatric and medical staff pursuant to Section 4244(b) of Title 18 of the United States Code. On September 16, 1997, a Forensic Evaluation (Report) containing the findings of Staff Psychiatrist, Peter N. Bar-boriak, M.D., Ph.D., and Staff Clinical Psychologist, Mark Hazelrigg, Ph.D., of the Mental Health Division of the Federal Correctional Institution was delivered to the court and the parties. The report reflected and summarized the procedures that were administered dining the assessment period, the staffs interactions with defendant, background information about Mr. Gigante, including his mental health history, defendant’s own behavior while at the facility and, finally, the Butner staff’s psychological assessment of defendant. Malingering, Hypnotic (Benzodiazepine) Dependence, Possible Psychotic Disorder, and Dementia Not Otherwise Specified (Provisional), as well as Antisocial Personality Disorder was the tentative diagnosis. K. Post-Verdict Defense Motions In addition to the claims raised by the defense during trial regarding alleged statute of limitations violations, the defendant moved post-trial for dismissal of count four of the indictment on the basis of a statute of limitations time bar, sought a de novo adjudication of the issue'of defendant’s competence at trial based upon alleged “new” evidence of mental illness contained in the Butner Report, and sought, any additional relief to which he was entitled. III. Statute of Limitations Issues A. Law 1. Basic Rules Statutes of limitations “limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of [criminal] acts.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970); see also William D. Ferguson, The Statute of Limitations Saving Statutes 7-59 (1978)(whether “the defendant received timely notice to enable him to secure and preserve evidence to meet the claim”). It is unjust to force defendants to answer “charges when the basic facts may have become obscured by the passage of time.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). A five year statute of limitations applies to federal non-capital crimes, unless specifically provided otherwise. See 18 U.S.C. § 3282. In order to avoid a Section 3282 bar, the government must file an indictment within five years of the conclusion of a criminal act. The issue of what constitutes the conclusion of a criminal act can provide difficulties, particularly in RICO and conspiracy cases. For a finding of guilt in a RICO case it must be shown that a defendant committed or aided and abetted in at least two criminal predicate acts in a pattern of criminal activity in furtherance of a particular criminal enterprise. See, e.g., United States v. Persico, 832 F.2d 705, 714 (2d Cir.1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988). The predicate acts must relate temporally to one another, being separated by no more than ten years. 18 U.S.C. § 1961(5). Even though the predicate acts may be ten years apart, the general statute of limitations still applies to the last predicate act. Thus, in order to overcome a time bar, at least one of the predicate acts in furtherance of the racketeering scheme must occur within five years of the filing of the charges. See, e.g., United States v. Persico, 832 F.2d 705, 714 (2d Cir.1987). For conspiracies, the general rule is that the crime is concluded when the conspiracy has been abandoned or its purposes accomplished. See, e.g., Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912); United States v. Rastelli, 870 F.2d 822, 832, 838-40 (2d Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989); United States v. Persico, 832 F.2d 705, 713 (2d Cir.1987). This rule applies in racketeering conspiracies. See, e.g., United States v. Salerno, 868 F.2d 524, 534 (2d Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700 (1989); Note, When Will the Idling Statute of Limitations Start Running in RICO Conspiracy Cases?, 10 Cardozo L. Rev. 2167 (1989). 2. Statute of Limitations and Superseding Indictments The statute of limitations issue becomes more complex when the government files more than one indictment against a criminal defendant. There is no statute approving the common practice of issuing superseding indictments. See, e.g., United States v. Rojas-Contreras, 474 U.S. 231, 237, 106 S.Ct. 555, 559, 88 L.Ed.2d 537 (1985)(J. Blackmun concurring)(“the term ‘superseding indictment’ refers to a second indictment issued in the absence of a dismissal of the first”); United States v. Lytle, 677 F.Supp. 1370 (N.D.Ill.1988)(“[d]espite the universal use of the ‘superseding’ label, no statutory recognition of the concept exists”). Superseding indictments are permitted so long as the filing of the subsequent indictment does not prejudice or harass a defendant. See United States v. Grady, 544 F.2d 598, 602 n. 4 (2d Cir.1976)(“[t]wo indictments may be outstanding at the same time for the same offense if jeopardy has not attached to the first indictment,” but “vindictive reindictment by a prosecutor may violate due process”). A subsequent indictment covering the same conduct as the first does not change the earlier indictment’s tolling effect. See, e.g., United States v. Panebianco, 543 F.2d 447, 454 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977). So long as a superseding indictment contains charges that are not substantially broader than those in a superseded indictment, the earlier statute of limitations cut-off date of the superseded indictment applies to the superseder. See, e.g., United States v. Panebianco, 543 F.2d 447, 454 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977); United States v. Grady, 544 F.2d 598, 602 (2d Cir.1976). As one court put it: “the superseding indictment relates back to the filing date of the original indictment so long as a strong chain of continuity links the earlier and later charges.” United States v. O’Bryant, 998 F.2d 21, 24 (1st Cir.1993). Relating-back comports with the rule that a defendant must be given fair and timely notice of the charges against him. See United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986)(“notice is the touchstone in deciding whether a superseding indictment substantially changes the original charges”); see also United States v. Italiano, 894 F.2d 1280, 1283 (11th Cir.)(notice is the “central policy underlying the statutes of limitations”), cert. denied, 498 U.S. 896, 111 S.Ct. 246, 112 L.Ed.2d 205 (1990). The effect of notice is not reduced if the charges in both documents are substantially the same. United States v. Davis, 953 F.2d 1482, 1491 (10th Cir.), cert. denied, 504 U.S. 945, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992). Once adequate notice has been given in the first indictment, defendants know that they “will be called to account for their activities and should prepare a defense.” United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976). So long as nothing is done by way of multiple indictments to “draw the defendant’s attention away from” the nature of the allegations against him, there is no reason not to allow relation-back. United States v. O’Neill, 463 F.Supp. 1205, 1207 (E.D.Pa.1979). Ascertaining whether charges in a superseding indictment substantially broaden those in an earlier indictment, thereby vitiating the earlier notice, can be difficult. Required is a careful analysis, not only of the statutes under which the defendant is charged, but of the actual language of the superseded and superseding charging documents. See United States v. italiano, 894 F.2d at 1282 (11th Cir.1990)(“For purposes of the statute of limitations, the ‘charges’ in the superseding indictment are defined not simply by the statute under which the defendant is indicted, but also by the factual allegations that the government relies on to show a violation of the statute.”); see also United States v. Castellano, 610 F.Supp. 1359, 1381 (S.D.N.Y.1985)(complexity of indictment' requires close individual scrutiny of each count in superseding indictment). The court’s experience and common sense are useful tools in the enterprise. Among the questions to be addressed are: Would a reasonable defendant be surprised by new allegations? Was it likely that the evidence would be substantially different or unavailable? Were the burdens of defense appreciably enhanced? There are a wide range of cases where relation-back has been allowed. For instance, in United States v. Panebianco, 543 F.2d 447, 454 (2d Cir.1976), a superseded indictment tolled the statute of limitations for a superseding indictment even though the new indictment “added a few other defendants and some more overt acts” in furtherance of a conspiracy. Relation-back was also allowed in United States v. Robilotto, 828 F.2d 940, 949 (2d Cir.1987), when a superseding indictment made “minor technical changes” to a prior indictment and did not prejudice the defendant. In United States v. Gengo, 808 F.2d 1, 3-4 (2d Cir.1986), a new indictment correcting the time frame of an alleged income tax evasion conspiracy and adding “new objects of the conspiracy” did not substantially broaden the charges against the defendant. United States v. Davis, 953 F.2d 1482 (10th Cir.1992), held that “[a]n indictment is not amended impermissibly by a superseding indictment which names a greater or lesser number of defendants as coconspirators or contains a slightly different mix of closely related statutory violations as objects of the conspiracy, provided the essential nature of the conspiracy alleged in the first indictment remains the same.” In United States v. Sears, Roebuck & Co., 785 F.2d 777, 779 (9th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986), substitution in a superseding indictment of “the general false statement provision in 18 U.S.C. § 1001 for the more specific false statement provision in 18 U.S.C. § 542” was allowed as an appropriate notice-based carryover. ' While such cases are instructive, none of them deal with the specific issues raised during trial by the defense in motions to dismiss. In addition, they do little to delineate the outer parameters of permissible ranges of modification. Cf. United States v. Lytle, 677 F.Supp. 1370, 1376 (N.D.Ill.1988)(while there are ample eases quoting the “substantial similarity” rule language, very few actually do more “than state their conclusions as to whether or not particular superseding indictments fit that description, without describing in sufficient detail the differences between the earlier and later indictments that underlie those conclusions”). The court of appeals for the Second Circuit has suggested that courts examine “cases dealing with variances between indictments issued by a grand jury and later amendments of indictments permitted by trial courts” when determining if a superseding indictment materially changes earlier charges. United States v. Grady, 544 F.2d 598, 602 (2d Cir.1976). The law permitting amendments to indictments may not be particularly useful in difficult statute of limitations cases. As was pointed out in Grady, amendments to indictments are only permitted for minor changes that are “trivial” or “innocuous.” 544 F.2d 598, 602 (2d Cir.1976); see also 1 Charles Alan Wright, Federal Practice and Procedure § 127, at 419-421 (2d ed. 1982 & Supp.1997). The test is different for statute of limitations issues: superseding indictments get the benefit of an earlier statute of limitations if they do not “substantially broaden” an earlier filed charge. There is substantial space between changes which are “trivial” and those that do not “substantially broaden.” See United States v. Lytle, 677 F.Supp. 1370, 1376 n. 12 (N.D.Ill.1988)(criticizing the language of “trivial” and “innocuous” as it relates to superseding indictments; such language should not be used to mark “the outer limits of the government’s ability to change the factual allegations in a superseding indictment”); see also United States v. Rojas-Contreras, 474 U.S. 231, 240, 106 S.Ct. 555, 560, 88 L.Ed.2d 537 (1985)(J. Blackmun con-curringXa superseding indictment, as compared to a superseded indictment, may allege “additional charges” or make “material changes” affecting the type of defense be presented). 3. Analogy to Double Jeopardy Law The law relating to the Fifth Amendment’s Double Jeopardy Clause may provide a useful analogy. The Constitution’s Double Jeopardy Clause protects against two major evils — second prosecution after acquittal or conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Not only is the government prohibited from twice imposing a penalty upon a defendant for the same crime, it may not retry a defendant on charges once the defendant has been tried and found guilty, or tried and acquitted. See Ex Parte Lange, 18 Wall. 163, 85 U.S. 163, 173, 21 L.Ed. 872 (1873)(“[t]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it”); cf. United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 2149, 135 L.Ed.2d 549 (1996)(in rem civil forfeitures not criminal in nature for Double Jeopardy Clause); see generally Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 24.1, at 65-66 (1984). As in the case of relation-back of a superseding indictment, one of the purposes of the Double Jeopardy Clause is to protect against harassment and inconvenience to defendants of repeated threats of prosecutions. Determining when crimes constitute the “same offense” in double jeopardy and statute of limitations relation-báck cases is useful in the solution in both categories of issues. Cf. United States v. Rojas-Contreras, 474 U.S. 231, 236-37, 106 S.Ct. 555, 558, 88 L.Ed.2d 537 (1985)(return of superseding indictment that differed from superseded indictment did not effect timetables under Speedy Trial Act’s thirty day rule for commencement of trial since defendant was not “prejudiced by the change”). The landmark double jeopardy decision is Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). It tells us whether two charges constitute the same offense, providing a double jeopardy bar. See Rutledge v. United States, 517 U.S. 292, —, 116 S.Ct. 1241, 1245, 134 L.Ed.2d 419 (1996). Blockburger involved sales of narcotics under two statutes: one, selling without a written order and two, selling other than in the stamped package; prosecution under one statute did not preclude prosecution under the other. The Blockburger test is: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)(discussed in context of double jeopardy punishment); see also United States v. Dixon, 509 U.S. 688, 697-700, 113 S.Ct. 2849, 2856-58, 125 L.Ed.2d 556 (1993)(“same elements” of Blockburger test discussed in context of double jeopardy). There was a period during which the Court strayed from Blockburger. It applied what has become known as the “same conduct” test. See Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548 (1990)(failure to reduce speed conviction barred involuntary manslaughter prosecution). Subsequent prosecution would be prohibited “if, to establish an essential element of an offense charged ... the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 495 U.S. 508, 510, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548 (1990). Grady v. Corbin was short-lived. It was overturned by United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993)(possession of cocaine is a basis for criminal contempt and for the substantive offense of possession). Corbin was abandoned because it lacked precedential basis and, as applied, was deemed unworkable. United States v. Dixon, 509 U.S. 688, 709, 113 S.Ct. 2849, 2863, 125 L.Ed.2d 556 (1993); see also Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (m5)(Blockburger test). Comparison of elements for double jeopardy analysis becomes difficult in the context of modern, complex criminal cases. These situations do not easily lend themselves to Block-burger’s “same elements” test. More varied considerations must be taken into account when resolving double jeopardy questions in “multi-layered” prosecutions, particularly those involving conspiracy or RICO charges. See United States v. Macchia, 35 F.3d 662, 668 (2d Cir.1994)(“no dominant factor or single touchstone”); United States v. Russotti, 717 F.2d 27, 33 (2d Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984)(“both the enterprise and the pattern of activity alleged in the [earlier] indictment must be the same as those alleged in the [later] indictment”)(emphasis in original). For conspiracy cases in the Second Circuit, double jeopardy consideration involves assessment of eight factors: (1) the criminal offenses charged in successive indictment; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) existence of common overt acts; (6) the geographic scope of the activities; (7) the common objectives of the charged activities; and (8) the degree of interdependence between the conspiracies. United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985); see also United States v. Macchia, 35 F.3d 662, 667-72 (2d Cir.1994)(applying Korfant). Under this Second Circuit approach in RICO cases, both the racketeering enterprise and the pattern of activity charged in the first indictment must be essentially the same as that set out in the second' indictment for there to be a Fifth Amendment violation. United States v. Russotti 717 F.2d 27, 33 (2d Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984); see also United States v. Orena, 876 F.Supp. 20, 23 (E.D.N.Y.1995). Similarity of enterprise is determined by the language of the charging instruments. The similarity of pattern of racketeering activity is not so easily determined. Russotti requires consideration of five factors in ascertaining whether the pattern of racketeering activity is the same. United States v. Russotti 717 F.2d 27, 33 (2d Cir.1983). These are: (1) the time of the various activities charged as parts of separate patterns; (2) the identity of persons involved in the activities; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activities took place. • United States v. Russotti, 717 F.2d 27, 33 (2d Cir.1983)(citing United States v. Dean, 647 F.2d 779 (8th Cir.1981)). While the underpinnings of the Double Jeopardy Clause of the Fifth Amendment are somewhat different from the rationale supporting statutes of limitations, they are essentially the same in their design to assure fairness to the defendant. These “same offense” concepts of double jeopardy are instructive and can be borrowed in deciding whether a superseding indictment alleges the same conduct as a superseded indictment. If a former charge so tracks a subsequent charge that conviction or acquittal under the former would bar prosecution under the latter because of the Double Jeopardy Clause, the charges should also be construed as substantially similar for statute of limitations relation-back purposes. B. Application of Law to Facts Application of Section 3282 of Title 18 of the United States Code to the 1993 indictment, without taking relation-back possibilities into account, would require finding June 10; 1988 as the statute of limitations cut-off date. Any acts that were charged in the 1990 indictment, however, which are “sufficiently similar” to those charged in the 1993 indictment have a statute of limitations cutoff of May 30, 1985. 1. Post-Verdict Statute of Limitations Claims — Charges Dismissed By way of post-verdict motion the defendant has moved to dismiss count four of the indictment charging defendant with conspiring to murder John and Gene Gotti. With respect to this charge, the jury made two findings: (1) that defendant was part of that conspiracy; and (2) that the conspiracy ended in January, 1988. Since the statute of limitations starts to run once a conspiracy has ended, United States v. Salerno, 868 F.2d 524, 534 (2d Cir.1989), the government had to have filed charges for this crime by January, 1993. It did not. Pled only in the June 10, 1993 indictment, and not in that of 1990, the five year window preceding the filing of the charges closed on June 10, 1988 — several months after the conspiracy to kill the Gotti brothers ended. Whenever a jury returns a verdict of guilty upon charges that are time-barred, those charges must be dismissed. See Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). Substantive count four must be dismissed. The defense’s post-trial Rule 29 motion as to this count is granted. 2. Pre-Verdict Statute of Limitations Claims — Charges Remaining During trial the defense asserted that some of the remaining charges — specifically those predicate acts and substantive counts pertaining to labor payoffs and conspiring to extort — also raised statute of limitations problems. No ruling was rendered as to these claims. Given the jury’s findings, the relation-back issues raised by the defense during trial are essentially moot. While it is not necessary for the final resolution of this case, a discussion of these arguments is appropriate since the issues raised may have significance should there be a retrial, a. Count One Count one of the indictment is a substantive racketeering count. The jury found that the defendant committed at least two related predicate acts under the racketeering statute. See United States v. Long, 917 F