Full opinion text
BOWNES, Circuit Judge. The case reaches us through two separate appeals: in the first, defendants Howard T. Winter, James Martorano, James DeMetri, Charles DeMetri, Elliot Paul Price, and Melvin Goldenberg appeal their convictions following a 46-day trial on grounds that will be outlined below; in the second, all six defendants appeal both the district court’s denial of their motion for a new trial and its denial of an evidentiary hearing on that motion. Because of the nature of the case, it is necessary to describe the indictment and recount the evidence presented at trial in some detail. THE INDICTMENT At the time it reached the jury, the indictment consisted of 42 counts. Count One charged that the appellants, as well as several others, were employed by and associated with an enterprise, as defined by 18 U.S.C. § 1961(4) of the Racketeer Influenced and Corrupt Organizations Act (RICO), which was engaged in and the activities of which affected interstate commerce. This enterprise was alleged to have been composed of individuals associated in fact to fix by bribery horse races at various race tracks and to profit from this activity by wagering on those races. The count further alleged that, from on or about December 1973 to on or about November 1975, these individuals conspired with each other and with the Government’s star witness, unindicted coconspirator Anthony Ciulla, to violate 18 U.S.C. § 1962(c) of RICO by conducting the affairs of the enterprise “through a pattern of racketeering activity.” As specifically outlined in the count, the alleged scheme involved betting on fixed races at East Coast tracks and also placing bets on the fixed races through illegal offtrack bookmakers throughout the country. Several defendants, including Winter and Martorano, were alleged to have financed Ciulla and others to fix races by bribing jockeys, trainers, owners, and racing officials to prevent specific horses from finishing in the top three positions in their respective races. Certain members of the enterprise, including Winter, were alleged to have utilized force and violence to ensure that bribed jockeys and trainers actually performed as promised. Winter and Martorano, among others, were named as having caused Ciulla to travel from Massachusetts to Nevada to meet with bookmakers, including Price and Goldenberg, to arrange the terms on which the outside wagering on fixed races would be handled, and to collect the resulting profits. To effectuate the scheme, several individuals would purchase large quantities of perfecta, exacta, trifeeta, or quinella tickets on the fixed races. Others, including Winter, would make telephone calls in interstate commerce and discuss wagering information on those races. Winter, Martorano, Ciulla, and others drew up lists of New England independent bookmakers whom the group would cheat by betting with them on races the group had fixed, and the Las Vegas members of the enterprise, including Price and Goldenberg, would cheat Las Vegas independent bookmakers in the same way. The winnings from wagering both inside and outside the track were brought to Motorama Sales, Inc., in Somerville, Massachusetts, and divided among the group. Motorama Sales, which was owned and controlled by Winter and Martorano, was used as a meeting place for the members of the enterprise. Finally, it was alleged that certain individuals, including Winter, Martorano, James DeMetri, Charles DeMetri, and Ciulla purchased a race horse, Spread The Word, for approximately $30,000, with the purpose of having the jockey hold it back so that it would finish poorly in several races; when the odds were high enough, it was to be entered in a race with inferior horses and allowed to win. Count One also contained 45 overt acts, all said to have been committed to effect the objects and purposes, and to be in furtherance of the conspiracy in violation of 18 U.S.C. §§ 1962(d) and 1963(a). The Government further developed its theory of the enterprise’s operations through these overt acts. The mechanics of 16 fixed races were set out in detail. Included in this were descriptions of three separate incidents of violence, in which certain members of the enterprise beat up a trainer and two jockeys as part of the scheme. Also described were trips taken by Ciulla to Las Vegas to make plans with and to pick up large winnings from Nevada bookmakers, including Price and Goldenberg. James Martorano was identified as the person responsible for investing the enterprise’s profits in legitimate businesses. An attempt by Ciulla, Winter, and Martorano to invest some of the enterprise’s profits through the purchase of the Squire Lounge, a topless, go-go establishment in Revere, Massachusetts, was outlined. As used in this chapter— (1) “Racketeering activity” means . . . (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate crfedit transactions), section 1084 (relating to the transaction of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of state or local law enforcement), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), sections 2314 and 2315 (relating to interstate transportation of stolen property), sections 2341-2346 (relating to trafficking in contraband cigarettes), sections 2421-24 (relating to white slave traffic).... In its final form, Count Two, which incorporated Count One by reference, charged Winter and Martorano with conducting the enterprise’s affairs through a pattern of racketeering activity as defined in 18 U.S.C. §§ 1961(1)(B) and 1961(5). This pattern included racketeering acts as charged in Counts Three through Forty-Two and Violations of 18 U.S.C. §§ 224, 1952, and 2. These activities were said to be violations of 18 U.S.C. §§ 1962(c) and 1963(a). The Government withdrew the forfeiture provisions of this count on the final day of trial. Counts Three through Forty-Two charged specific violations of 18 U.S.C. § 224 (Sports Bribery Act) and 18 U.S.C. § 1952 (Travel Act) and two violations resulting from the operation of the scheme. Most of the counts were based on incidents described as overt acts in Count One. Winter and Martorano were named in 38 of the counts, Price and Goldenberg in 15, and the DeMetris in only 2. The jury convicted each appellant on every count in which he was named. THE EVIDENCE Our review of the evidence, together with all legitimate inferences to be drawn from it, must be made in the light most favorable to th'e party prevailing below, the Government. E. g., United States v. Tedesco, 635 F.2d 902, 906 (1st Cir. 1980); United States v. Izzi, 613 F.2d 1205, 1206 (1st Cir.), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 793 (1980). Credibility choices must be resolved in favor of the verdict. United States v. Gonzalez, 617 F.2d 104,106 (5th Cir.), cert. denied, 449 U.S. 868, 101 S.Ct. 202, 66 L.Ed.2d 86 (1980); United States v. Beecroft, 608 F.2d 753, 756 (9th Cir. 1979). One of the few subjects on which the appellants and the Government agree is that the testimony of Anthony Ciulla was absolutely vital to the ease. Testifying under an informal grant of immunity, Ciulla described in detail a scheme that — not surprisingly — neatly dovetailed with the indictment. Formation of the Enterprise. According to Ciulla, he first met with Winter in connection with this plan at a bar called the Back Room in Somerville in late 1973. There Ciulla agreed that he and his partner Barnoski, a fugitive at the time of the trial, would deal directly with jockeys and trainers in fixing horse races. Winter in turn agreed that he and his partners would finance the scheme, place outside bets with illegal bookmakers and collect money from them, and supply runners. Ciulla was to receive 50% of the profits, to be split with Barnoski, but be responsible for all losses. Winter was to split his half with his partners, whom he said included James Martorano. Within a month, the group met again, this time at Marshall Motors in Somerville. Winter and Martorano were among those present. Ciulla testified that, during a discussion about the roles that the various participants in the scheme would play, Winter and Martorano mentioned Price and Goldenberg as “significant bookmakers” who could be instrumental in moving money to illegal bookmakers. Ciulla testified that within the next two months, he traveled on Winter’s instructions to Las Vegas, Nevada, to meet Price and Goldenberg to learn the tracks on whose races the most money could be bet outside with illegal bookmakers. He described two meetings with Price at the Riviera Hotel and two meetings with Golden-berg at the Tropicana Hotel. Both men promised to obtain the information that Ciulla needed. Ciulla reported back to Winter and Martorano at Marshall Motors that Price and Goldenberg would inform him of the amounts of money that could be “moved” with illegal bookmakers in Las Vegas. He testified that he called Price at the Riviera and Goldenberg at the Tropicana within a week of his return from Las Vegas and learned the names of the tracks where the group would be able to move the most money. In April or May of 1974, Ciulla met Charles and James DeMetri and their brother Peter, now deceased, for the first time. This meeting occurred at the DeMetris’ truck refrigeration business, Boston Thermo-King; Winter and Barnoski were also present. Charles, James, and Peter DeMetri all agreed to participate in a race fixing scheme and to put in their names the horses that the group planned to buy. The DeMetri brothers were also in the racing business at that time and owned race horses. At a subsequent gathering in June of that year, Ciulla, in Winter’s presence, told all three DeMetris that the group planned to buy a race horse for approximately $30,-000. The DeMetris would own one-half interest in the horse, and the rest of the group, including Ciulla, Winter, and Barnoski, would own the other half. Ciulla explained that he intended to reduce the apparent value of the horse by several thousand dollars in order to deceive the public into not betting on it. This would be done by holding the horse in several races. The vastly underrated horse would then be allowed to win a race unexpectedly and produce large winnings for those few who bet on it — this group to include, of course, the participants in this scheme. Winter assured James, Charles, and Peter that they would be informed of the other races that Ciulla was fixing. Ciulla assured them that he would call them so that they could bet with outside illegal bookmakers, but that Winter and his associates would be entitled to half of their winnings. As a result of these meetings, the DeMetris supplied $15,000 of the $26,000 needed to purchase the horse Spread The Word in mid-June 1974. Louise Hicks, the DeMetris’ sister, was listed as the -owner on the bill of sale, and the horse was transported to the DeMetris’ farm in North Reading, Massachusetts. The Races. The indictment charged that the enterprise fixed twenty separate thoroughbred horse races: at Pocono Downs on August 12, 18, and 20, and September 8, 1974; at Lincoln Downs on August 1 and December 9,1974, and on March 20, 1975; at Rocking-ham Park on August 6, 1975; at Suffolk Downs on October 16, and November 6 and 15, 1974; at Garden State Park on January 11, February 4, 8, and 13, and May 22 and 23, 1975; and at Atlantic City Race Track on July 4, 12 and 17, 1975. Because the method Ciulla used to fix races changed very little from race to race, we will describe in detail only one such incident: the third race at Suffolk Downs on November 6, 1974, as charged in Count Twenty-One. Ciulla testified that, on the evening of November 5, he spoke by telephone with both Bamoski and Guy Contrada. Contrada told Ciulla that he believed that the next day’s third race could be fixed. At Ciulla’s request, Contrada identified five jockeys scheduled to ride in the race who had been receptive to bribes in the past. As was generally the case, Ciulla was unable to recall the names of any jockeys involved in this transaction without referring to the pertinent race chart. The next morning, Ciulla, accompanied by Richard Donati, met Contrada and Tommy Pizzi at Buddy’s Cafe in Revere, Massachusetts. Pizzi was scheduled to ride the favorite in the race. He felt that it would be difficult to hold the horse, but agreed to do so for $1,500 to $2,000. Ciulla gave Contrada money to bribe the other four jockeys he had identified, for amounts ranging from approximately $500 to $1,000. Contrada returned to the cafe from the track after paying off the four riders. Ciulla then traveled to Marshall Motors for a meeting that included Winter and possibly Martorano. He told the group to ready the bookmakers. Meanwhile, he studied the racing form and wrote out betting slips on which were noted the numbers of the horses that were not to be held. He then met the runners at or just outside the Marshall Motors garage and gave them their instructions: to purchase tickets on the horses indicated as close as possible to post time, to cash the tickets after the race, and to return with the winnings to the Winter Hill area. Ciulla also informed Winter and Martorano of his choice of Raven’s Nova as the outside bet and told them not to bet with the outside bookmakers any earlier than necessary. After the race, Ciulla met the runners, collected approximately $30,000 from them, and paid each a few hundred dollars for his services. At a later conversation with Winter and others, he learned that the total winnings inside and outside the track for this race totaled about $140,000. The Second Trip to Las Vegas. In late November 1974 Ciulla again traveled to Las Vegas where he met Price, Goldenberg, and Douglas Morello. He saw Price twice, on both occasions at the Riviera Hotel. At the first meeting, Ciulla informed Price that he was preparing to fix races at Garden State and that he wanted to know how receptive illegal bookmakers would be to accepting bets on those races. Price felt that Garden State would be a “very good” track for outside betting. Their second meeting took place the next day; Price said it would take him several days to obtain specific information on Garden State betting. Ciulla also met with Goldenberg at the Tropicana’s coffee shop on his first day in Las Vegas to discuss betting on races at the New Jersey track. Goldenberg agreed this would be “very beneficial” and asked Ciulla to contact him later for specific information. Ciulla testified that he telephoned Price at the Riviera during the first two weeks of December from the Rhode Island home of Robert Owen, a codefendant who pleaded guilty during the trial. From an identification exhibit offered by the Government, a toll call record, he specified the date of the call as December 4. During this call Price reported that he had made substantial progress with the illegal bookmakers. The Career of Spread The Word. Although Ciulla’s testimony on the scheme involving Spread The Word trickled out through six days of direct testimony, we recite only the highlights. In July 1974 arrangements were made for stabling and training Spread The Word at the DeMetris’ farm in North Reading, Massachusetts. It ran its first race at Rockingham Park in New Hampshire and, although the favorite, lost by about 20 lengths. Its jockey, Contrada, had a difficult time holding the horse and the stewards questioned him about its finish. After that, Spread The Word was run at a gallop for a mile or two before a race so as to exhaust it. In the two other races Spread The Word was entered at Rockingham, it finished last. Spread The Word was then entered in a claiming race at Penn. National race track in December of 1974. The necessary steps were taken to see to it that the horse would not be claimed; it finished fourth. Spread The Word was now eligible to run in starter handicap races and could no longer be claimed. Arrangements were made to have Spread The Word race at Garden State race track in New Jersey in January of 1975. It was entered in two races, held back in both and finished either last or next to last in each. The groundwork had now been laid and Spread The Word was put in a race to win on February 8, 1975, the ninth race at Garden State. Three jockeys were bribed to hold their mounts, just in case Spread The Word’s ability was not sufficient. The horse won as planned. The track winnings came to between $80,000 and $90,000 and about $400,000 were won on outside bets. Plans were made to run Spread The Word in the third race at Garden State on February 22 but hold it back so it would not win. By this time, however, the racing stewards had become suspicious and scratched the horse when they were informed that it belonged to Winter, Ciulla and “the rest of the group from the Boston area.” Thus ended Spread The Word’s racing career. The Final Trip to Las Vegas. Ciulla testified that sometime between February 14 and February 22,1975, he traveled from Boston to Las Vegas and met Price and Goldenberg. As was his custom, Ciulla met Price at a restaurant at the Riviera. Price told Ciulla that Winter had told him to expect Ciulla’s arrival. Although he still had several illegal bookmakers to call, he handed Ciulla approximately $100,000 in $100 bills, wrapped in several packages and placed in a brown bag. He also informed Ciulla that Winter had arranged credit for him at the Riviera so that he could gamble there. Ciulla met Goldenberg the next morning in the Tropicana’s coffee shop. Goldenberg handed Ciulla several white envelopes containing about $100,000 in $100 bills and told Ciulla that he had not been able to collect all the money due, but that runners were to pick up later whatever he was not able to collect during Ciulla’s stay. Price and Ciulla met again that evening in a bar at the Riviera. Price had not been able to collect any more money from the bookmakers he had contacted, but Winter had arranged for runners to bring the balance to Boston. Goldenberg and Ciulla met a second time the following evening at a restaurant in the Tropicana. Goldenberg mentioned that betting on the past few horses had helped him — apparently financially — because he was a “degenerate gambler” and had “blown” a lot of money. Before his departure, Ciulla also picked up $40,000 to $50,-000 from Morello. On his return, Ciulla met Winter, Martorano, Bamoski, and others at Marshall Motors. At this point in his testimony, Ciulla specified the date of this meeting as February 18 or 19, 1975. While at Marshall Motors, the approximately $250,000 that Ciulla had picked up in Las Vegas was distributed. Ciulla and Barnoski took one-half of the cash; Winter took the other half and divided it into sevenths. James Martorano took his share on the spot. Corroborating Ciulla. The remainder of the Government’s ease was aimed primarily at bolstering Ciulla’s story. We briefly review the testimony of some of the more important witnesses called for this purpose. The Government called as a witness a woman who had been employed as a secretary by Peter, Charles, and James DeMetri in 1973 and 1974. She testified that several meetings, attended by the three DeMetri brothers, Ciulla, and Winter, among others, were held at Boston Thermo-King during that period. She also mentioned that she overheard one conversation in which the group was discussing horses and that, when she left Thermo-King in August 1974, the DeMetris were in the process of building a track. Vincent Mara was called to recount Owen’s attempt to bribe him in order to prevent Spread The Word from being claimed. Mara stated that just as Owen arrived, he spotted a man he later learned was Ciulla driving by. The Government also presented the testimony of several jockeys whom Ciulla had paid off. Each described in detail the circumstances of several fixed races at various tracks; in each case Ciulla or an intermediary offered the jockey several hundred dollars to hold the horse he was riding out of the first three finishing positions. One rider testified that Ciulla paid him a bit more for one race so that he would not only hold his horse, but also serve as an “insurance rider” — one who watches the other bribed jockeys and prevents them from winning. Another testified that he had initially refused to hold the horses he was riding, but eventually relented when other jockeys began to box him in during races causing the horse he was riding to finish poorly. Many of the races discussed by these jockeys were not part of the indictment at all. An officer of the Pennsylvania state police testified that he observed Ciulla, Owen, Barnoski, and several others at Pocono Downs races in August 1974. On one of these dates, he observed one of Ciulla’s associates spend 16 of the 20 minutes the betting windows were open buying $3.00 tickets; when he finished, he had a stack of tickets “about the size of a loaf of bread.” Another witness, who served as one of Ciulla’s intermediaries, testified that Ciulla arranged for him to stable his race horse at the DeMetris’ farm when it was scheduled to run at Rockingham Race Track in August 1975. In fact, the witness, as well as his horse, was a guest of James DeMetri at Ciulla’s behest. The witness testified that James DeMetri picked him up at the airport and that they stopped for a drink on the way to North Reading; Ciulla and Barnoski both came into the bar later. When the witness returned to his home in New Jersey after the race, he left his horse at the DeMetri farm for an unspecified length of time, and James DeMetri refused to charge him for keeping the horse. The Government also put into evidence neatly organized charts, listing toll calls that were made the day before, after, and of any race named in the indictment, and showing that they originated from several key locations, including the Rickshaw Inn, the Country Squire Motel, James Martorano doing business as Motorama Auto, and Barnoski’s, Owen’s, and Ciulla’s homes. These charts included calls made to Thermo-King, the Tropicana (but not the Riviera), Ciulla’s home, and to Charles DeMetri. The Defense. The Government established by direct examination, and the defense confirmed by cross-examination, that Ciulla was a liar, a cheat, and a convicted race-fixer who handed out not only money, but also cocaine and hashish, as bribes. The defense, however, consisted of more than outright denials by some of the defendants and wholesale character impeachment of the Government’s principal witness by all of them. During cross-examination, Ciulla was forced to admit that his story on direct was filled with a very large number of minor inaccuracies. Several of the defendants also introduced, or discovered through cross-examination of Ciulla, evidence that directly contradicted his testimony. To indicate the extent to which Ciulla’s testimony was undermined on some subjects, we mention some of the more striking inconsistencies in his story. Howard Winter’s attorney called a witness who produced a registration card from a Florida club showing that a Howard Winter had been a guest at the club from February 17 through February 25, 1975. Winter’s account and daily summary sheets reflected charges throughout the period. The witness also produced a charge folio and daily summary sheets for a James Martorano that indicated that he also had visited the club over the same period of time. She viewed a home movie of Winter and Martorano allegedly taken at the resort and testified that the club appeared in February 1975 as it did in the film, although it had since undergone substantial renovation. This evidence contradicted not only Ciulla’s testimony that he telephoned Winter at very specific locations in the Boston area over the two-day period surrounding the aborted Spread The Word race of February 22, 1975, but also his testimony that the money he picked up in Las Vegas was split among Winter, Martorano, and others on February 18 or 19 at Marshall Motors. Counsel for Charles DeMetri called as a witness the owner of a travel agency, who testified that he had booked Charles DeMetri on a tour, beginning with a meeting in Boca Raton, Florida, on February 19, 1975, and concluding with a cruise on the S.S. Statendam from February 21 to March 3, 1975. Another witness, who had actually been on the tour, produced Charles DeMetri’s stateroom assignment on the ship, as well as a photograph of Charles and his wife taken on board. The witness also presented a photograph taken of Charles and James DeMetri together in Boca Raton on the evening of February 20. James DeMetri’s attorney produced as a witness a business associate of both DeMetris who testified that he had flown to Florida with them on February 18 and remained with James DeMetri until February 20. On the morning of February 21, he and James returned to Boston. The testimony of these witnesses directly conflicted with Ciulla’s claim that he had called Charles DeMetri at his home on February 21 and 22, and James DeMetri at his home on February 22, to discuss his strategy on Spread The Word’s scheduled race of February 22. As discussed above, Ciulla also testified that soon after his return from his second meeting in Las Vegas, he called Price at the Riviera from Robert Owen’s home in Rhode Island. From a Government exhibit, he identified the date of the call as December 4. Price’s attorney produced Riviera Hotel records, including restaurant receipts signed by Ciulla and phone charges, that placed Ciulla at the Riviera itself as late as December 5. Despite the apparent holes in his testimony, however, the jury chose to believe Anthony Ciulla. This was their prerogative, and the case was properly submitted to them. CIULLA’S IMMUNIZED TESTIMONY Because Ciulla’s testimony was so vital to the Government’s case, we first address the appellants’ claims stemming from the Government’s grant of immunity to him. Ciulla testified on direct examination by the prosecutor that he had entered into an agreement with the Government, through the Special Attorney prosecuting the case, guaranteeing that in exchange for his “full and complete and truthful testimony, . . . no further charges would be brought” against him, that arrangements would be made for one state sentence to run concurrently with another state sentence, that he and his family would be relocated, and that he “would be subsidized by the federal government . .. until termination from the program.” (The federal witness protection program). Appellants’ first contention, that this agreement impermissibly circumvented the requirements of the federal immunity statute, 18 U.S.C. §§ 6001-6005, particularly § 6002, is quickly dispatched. Appellants point to no language in the statute, perhaps because there is none, requiring that federal prosecutors follow its procedures. The Government’s failure to use the statutory mechanism does not render its agreement with Ciulla unlawful. United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976); accord, United States v. Weiss, 599 F.2d 730, 735 n.9 (5th Cir. 1979); see Galanis v. Pallanck, 568 F.2d 234, 235-36 & n.1 (2d Cir. 1977). “The decision of whether to prosecute rests in the Executive Branch.” United States v. Librach, 536 F.2d at 1230. Nor do we find the fact that the agreement was not reduced to a writing signed by Ciulla fatal to its use here especially since Ciulla and the prosecutor apparently agreed completely on the terms of their deal. Because the Government revealed the contents of its arrangements with Ciulla before trial, and Ciulla reiterated its scope at trial, we do not see how appellants’ rights to either confrontation or due process were infringed. Finally, we disagree that the absence of a written agreement invited Ciulla to believe that the agreement was contingent on his performance to the Government’s satisfaction. The case of Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 57 L.Ed.2d 811 (1977), on which appellants primarily rely, is inapposite. In Boone a police detective who had no authority to bind the state promised the witness that hte would not arrest him for the crime under investigation or any other offense, and that he would use his influence with the Commonwealth Attorney to ensure that the witness would not be prosecuted. Id. at 449. The Boone court pointed out that “a promise .to recommend leniency (without assurance of it) may be interpreted by the promisee as contingent upon the quality of the evidence produced.” Id. at 451. That sort of situation is not presented here. The appellants also contend that using a nonstatutory grant of immunity permitted the Government to elicit from Ciulla while he was on the stand the statement that he had been immunized in return for his complete and truthful testimony; if immunized formally Ciulla would only have been able to state that he was protected unless he was found to have testified falsely. In the context of this case, we believe that the semantic difference between the two is a difference without a distinction. Ciulla’s statement did not, as appellants claim, allow the Government to vouch for its witness’s credibility. In the case on which appellants primarily rely, the Ninth Circuit noted that prosecutorial vouching for the credibility of a Government witness occurs in two ways: “the prosecution may place the prestige of the government behind the witness [by personal assurances of the witness’s veracity] or may indicate that information not presented to the jury supports the witness’s testimony.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980). Neither was used here. The prosecutor merely requested Ciulla to describe his immunity agreement; he made no attempt to communicate the idea that the Government was thereby guaranteeing that Ciulla was being truthful. Unlike the appellants, we do not find our decision in United States v. Miceli, 446 F.2d 256 (1st Cir. 1971), relevant. In Miceli, the Government stated in its closing argument that the principal Government witness had made an arrangement to testify truthfully about the transaction in which he was involved. Id. at 261. We were unable to determine from the record whether this comment by the prosecutor (not, as here, by the witness) was intended to express his personal opinion about the witness’s veracity, which would be improper testimony by the Government attorney. In the absence of an objection, we refused to find that the remark was plain error. Id. We do not believe that the prosecutor’s questions here can colorably be characterized as testimony. Moreover, there was no vouching for Ciulla’s credibility by the prosecutor in his final argument. We find the situation here analogous to that in United States v. Craig, 573 F.2d 513 (7th Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 83, 58 L.Ed.2d 111 (1978), in which a key witness testified on direct examination that she understood that under the terms of her immunity agreement, “my testimony or evidence that I will give will not be held against me as long as I tell the truth.” Id. at 519. The Seventh Circuit did not view the prosecutor’s inquiry about the witness’s understanding of the agreement as a form of vouching by the Government, and noted that not only did it aid the jury, it also often provided a fertile subject for cross-examination. Id. We agree with this assessment. See United States v. Creamer, 555 F.2d 612, 617-18 (7th Cir.), cert. denied, 434 U.S. 833, 98 S.Ct. 118, 54 L.Ed.2d 93 (1977). But cf. United States v. Arroyo-Angulo, 580 F.2d 1137, 1146-47 (2nd Cir.) (cooperation agreement properly introduced only on redirect examination when witness’s veracity has been attacked; not reversible error in this case to introduce agreement on direct examination in view of inevitability of defense attacks on witness’s credibility and vigor of attacks actually made), cert. denied, 439 U.S. 913, 1005, 99 S.Ct. 285, 618, 58 L.Ed.2d 260, 681 (1978), 439 U.S. 1131, 99 S.Ct. 1052, 59 L.Ed.2d 93 (1979). Nor do we think that the trial judge’s jury instructions on Ciulla’s immunity were a form of “judicial vouching.” He repeated a key section of the agreement, adverted to the absence of a formal agreement, and strongly cautioned the jury to examine Ciulla’s testimony with great care. His instruction on this point benefited rather than injured the appellants. Further, the fact that the Special Attorney who reached the immunity agreement with Ciulla was also lead counsel for the Government at trial did not automatically make that attorney a witness in the case. Moreover, there was nothing to prevent the appellants from calling him to the stand, and there has been no showing that the Special Attorney was the only person competent to testify about the terms of the deal. Finally, we do not agree that, in light of the sustained, and in some instances, successful attack on Ciulla’s testimony, the Government knew or should have known that his testimony was false, thus triggering a duty to correct the record. In view of the great numbers of races, meetings, and phone calls recounted and the number of years between the events testified about and the trial itself, some errors in memory might be expected from any witness, without indicating that he or she was lying. THE LEGAL SUFFICIENCY OF COUNT ONE — THE RICO CONSPIRACY COUNT All appellants challenge Count One on the ground that the “case was tried as an invalid theory of RICO enterprise.” The basis for this claim ended with the decision of the United States Supreme Court in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), holding that the term “enterprise” as used in the Racketeer Influenced and Corrupt Organizations Act encompasses both legitimate and illegitimate enterprises. We find no merit in defendants’ claim that Count One is unconstitutionally vague on its face or as applied, particularly in the light of Turkette. The next RICO issue raised by all appellants is that Count One failed to allege any nexus between each defendant and two or more predicate crimes constituting a pattern of racketeering activity. This requires us to determine what must be charged in a RICO conspiracy count to make it legally sufficient. We start with the basics: It is an elementary principle of criminal pleading, that where the definition of an offence, [sic] whether it be at common law or by statute, “includes generic terms, it is not sufficient that the indictment shall charge the offence [sic] in the same generic terms as in the definition; but it must state the species, — it must descend to particulars. United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875). See also Russell v. United States, 369 U.S. 749, 765-66, 82 S.Ct. 1038, 1047-48, 8 L.Ed.2d 240 (1926). Here, as noted, the charge was conspiring to conduct the enterprise’s affairs through a pattern of racketeering activity. In Turkette the Supreme Court held: The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. 452 at 583, 101 S.Ct. 2528-29 (footnote omitted). A RICO conspiracy count must, therefore, charge an “enterprise” and “pattern of racketeering activity” separately. Enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “Racketeering activity” is defined exhaustively and specifically in 18 U.S.C. § 1961(1) (commonly referred to as “predicate crimes”). It includes “any act which is indictable under any of the following provisions of title 18, United States Code: . . . section 224 (relating to sports bribery) . . . section 1952 (relating to racketeering).... ” Section 1961(5) states that a “pattern of racketeering activity” requires 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 (excluding any period of imprisonment) after the commission of a prior act or racketeering activity[.] (emphasis added). The statute, however, does not make clear the extent of the activity in which each defendant must engage to be culpable as RICO conspirators: must each RICO conspiracy defendant agree that someone in the enterprise will commit two predicate crimes, must each member agree to commit two such acts individually, or must each member actually commit two such acts individually? Both the appellants and the Government agree that the conspiracy analysis in United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), is instructive on this question. Unfortunately, the appellants and the Government do not agree on what the Fifth Circuit meant in Elliott. In Elliott the court faced a gargantuan criminal scheme involving 6 defendants, 37 unindicted coconspirators, and, significantly, over 20 different criminal endeavors ranging from arson to murder to stealing meat and shirts. The court noted that, under pre-RICO conspiracy concepts, it doubted that a single conspiracy could be proved. Id. at 902. Under RICO, however, a conspiracy of such diverse parts could exist, but “[t]o be convicted as a member of an enterprise conspiracy, an individual, by his words or actions, must have objectively manifested an agreement to participate, directly or indirectly, in the affairs of an enterprise through the commission of two or more predicate crimes.” Id. at 903 (emphasis in original). The Government argues that Elliott requires that a RICO conspiracy be established by proof that each defendant agreed to commit personally two or more predicate crimes constituting a pattern of racketeering activity. The appellants, while grudgingly admitting that the Government’s view might be the least that Elliott requires, argue strenuously that the case should be read to require a defendant to manifest his agreement to participate in a RICO conspiracy by actually committing two or more predicate crimes. In view of the fact that coconspirators need not have accomplished their underlying criminal goals to be found guilty of conspiracy, we find it difficult to accept the appellants’ argument. See United States v. Cruz, 568 F.2d 781, 782-83 (1st Cir. 1978) (agreement is necessary to make out a conspiracy, but not to make out substantive crime; proof of substantive crime unnecessary to make out a conspiracy). We have found the rationale in Cruz applicable to RICO conspiracies. United States v. DeVincent, 632 F.2d 155, 159 (1st Cir. 1980) (substantive count, which did not allege conspiracy, separate from RICO conspiracy charge, in which actual commission of or attempt to commit substantive crime unnecessary). Requiring one to knowingly join an enterprise and agree to commit two or more predicate crimes provides sufficient protection to those who might otherwise be convicted through guilt by association. We, therefore, hold that a RICO conspiracy count must charge as a minimum that each defendant agreed to commit two or more specified predicate crimes in addition to charging an agreement to participate in the conduct of an “enterprise’s” affairs through a “pattern of racketeering activity.” We now turn to Count One. Paragraph 1(e) charges that all defendants were employed by and associated with an enterprise as defined by title 18, United States Code, Section 1961(4), which enterprise was engaged in and the activities of which affected interstate commerce, to wit, a group of individuals associated in fact to fix horse races by bribery at various race tracks in the United States and to profit therefrom by wagering on the fixed races. This was sufficient to charge a RICO enterprise. Paragraph 2 charges a conspiracy to violate 18 U.S.C. § 1962(c). Paragraph 3 charges that as part of the conspiracy the defendants would conduct “the enterprise’s affairs through a pattern of racketeering activity.” Paragraphs 4 through 12 allege specific predicate crimes committed by each defendant: Winter is charged with six (HI 4, 5, 7, 8, 10, and 11); Martorano with four (HH 4, 5, 8 and 10); Price with two (Ilf 5 and 9); Goldenberg with two (HI 5 and 9). James and Charles DeMetri are, however, named only in paragraph 12 (originally H 13). We have no difficulty finding that, except as to the DeMetris, Count One is legally sufficient. We next consider the sufficiency of Count One as it affects the DeMetris. The only paragraph in which the DeMetris are mentioned is number 12, which states: 12[13]. It was further part of the conspiracy that the defendants Howard T. Winter, John Martorano, James Martorano, William Barnoski, Joseph M. McDonald, James L. Sims, Charles DeMetri, James DeMetri and unindicted co-conspirator Anthony Ciulla would purchase the horse Spread The Word for approximately $30,000, enter the horse in several races where it was planned that it would finish well out of the money because the horse would be held by the jockeys riding it in these races, and finally enter the horse in a race against inferior horses where it was planned that the horse would then win the race. We find it difficult to construe this as alleging an agreement to commit even one predicate crime; clearly, it does not specify two predicate crimes. This paragraph is devoid of the words “bribery,” and “fix or fixed races” that permeate the other paragraphs of Count One. The Government attempts to circumvent this omission by asserting that the DeMetris were properly charged with the commission of two predicate offenses in Counts Five and Thirty-Two of the indictment. Count One, however, does not incorporate by reference either Count Five or Count Thirty-Two and neither of them refers to Count One. Only Count Two, which does not name the DeMetris as defendants, incorporates Count One by reference. The indictment as drawn does not admit of Counts Five and Thirty-Two being used as predicate crimes for Count One. “Each count in an indictment is regarded as if it was a separate indictment.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). “Each count must stand on its own, and cannot depend for its validity on the allegations of another count not specifically incorporated.” United States v. Fulcher, 626 F.2d 985, 988 (D.C.Cir.1980), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 116 (1981); United States v. Huff, 512 F.2d 66, 69 (5th Cir. 1975). We note also that out of forty-five overt acts, the DeMetris were named only in one, number 23, which states simply that they, along with other defendants, entered the horse Spread The Word in the ninth race at Garden State on February 8, 1975. We find Count One legally insufficient as to Charles and James DeMetri because it fails to charge that they agreed to commit two predicate crimes. It must, therefore, be dismissed as to them and their convictions on it reversed. The next question is whether there was misjoinder of the DeMetris. Federal Rule of Criminal Procedure 8(b) permits joinder if the defendants “are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” The key words are the “same series of acts or transactions.” We have here an indictment which originally consisted of fifty substantive counts, with forty-one of them going to the jury along with the RICO conspiracy count. Although the DeMetris were charged on two substantive counts, Five and Thirty-Two, Thirty-Two charges only that they traveled from Massachusetts to New Jersey to engage in the scheme described in Count Five: “to bribe jockeys in the ninth race at Garden State Park, Cherry Hill, New Jersey, on February 8, 1975.” The indictment alleged that twenty different races at various race tracks had been fixed (Counts Three through Twenty-Two). Defendants Winter and Martorano were charged with bribing jockeys in all twenty races; Price and Goldenberg were charged with bribery in seven races. As to these four defendants, with or without a RICO conspiracy count, the indictment fairly alleged the “same series of acts or transactions.” But we fail to see how Counts Five and Thirty-Two bring the DeMetris within the “series.” The evidence shows that active participation by the DeMetris in race fixing was limited to the scheme using the horse Spread The Word. We think it significant that they were not specifically named in paragraph 10 of Count One as those who were to share in the winnings from the fixed races. The prejudice to the DeMetris in being joined as RICO conspirators and tried as part of a massive race fixing conspiracy is obvious. Count One included charges, substantiated by Ciulla’s testimony, of the use of force and violence to ensure compliance with the bribes. The DeMetris were not implicated in this in any way. This case is totally different from Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960), in which the court held that the dismissal of a conspiracy count does not result in misjoinder as a matter of law. In Schaffer there were three substantive counts and one conspiracy count. The district court dismissed the conspiracy count at the end of the Government’s case for failure of proof. In sustaining the finding of no prejudice by the district court and the court of appeals, the Court noted “the proof was carefully compartmentalized as to each petitioner.” Id. at 515, 80 S.Ct. at 947. That is not the case here; Ciulla’s testimony flowed over the DeMetris like a river overrunning its banks. In King v. United States, 355 F.2d 700 (1st Cir. 1966), we observed: A joinder of offenses, or of defendants, involves a presumptive possibility of prejudice to the defendant, and of benefit to the court, by which term we include the government and the public. Although the two matters are disparate and difficult to compare, the prejudice may be relatively small, compared to the benefit, and hence tolerable. Id. at 703. We do not think the prejudice to the DeMetris was within tolerable limits. With the RICO conspiracy count eliminated, the only link between the DeMetris and the other defendants was their joint participation in fixing one out of twenty races. Unlike Schaffer, the conspiracy count here went to the jury. In fact, after making the Petrozziello determination, the court told the jury, “[y]ou may now consider all the evidence introduced at this trial in making your determination as to any of the defendants’ participation in the offenses charged.” The court thereby wrapped the DeMetris and the other defendants in the same blanket. The DeMetris were prejudiced beyond rescue in two ways. The RICO conspiracy count marked them indelibly as members of a massive race fixing ring that employed bribery and force and violence as its modus operandi, and the number of substantive counts and proof of fixed races in which they were not implicated could only have overwhelmed the judgment of the jury so as to make it extremely unlikely that they could consider the evidence as to the one race in which the DeMetris were involved dispassionately and in isolation. The convictions of James and Charles DeMetri are reversed. There is one other challenge to the indictment, mainly implicating Count One, to be considered. Goldenberg claims that he was deprived of his right to be tried on the indictment as returned by the Grand Jury because the court “substantially” modified it after the evidence was closed and before submitting it to the jury. It is “the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1, [7 S.Ct. 781, 30 L.Ed. 849]; United States v. Norris, 281 U.S. 619 [50 S.Ct. 424, 74 L.Ed. 1076]; Stirone v. United States, 361 U.S. 212 [80 S.Ct. 270, 4 L.Ed.2d 252].” Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240 (1962). Ancillary to this “is the rule that a portion of an indictment that the evidence does not support may be withdrawn from the jury and this is not an impermissible amendment, provided nothing is thereby added to the indictment, and that the remaining allegations charge an offense.” 1 C. Wright, Federal Practice and Procedure § 127, at 274-75 [hereinafter Wright]; see Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926); United States v. Coast of Maine Lobster Co., 557 F.2d 905, 909-10 (1st Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977). We examine the “modifications” of which Goldenberg complains. The deletion of paragraph 12 in Count One did not affect him at all because he was not named therein. His argument that the word “defendants” — which is followed by five names in apparent apposition — could include him is spurious. Overt Act 6 originally stated: “On August 1, 1974, Anthony Ciulla telephoned John Martorano from Rhode Island and told him to bet the horse Olympia Mike across the board through bookmakers Melvin Goldenberg, Douglas Morello and Elliot Paul Price in Las Vegas, Nevada.” The court deleted everything after the words Olympia Mike. It also struck from the indictment Overt Act 13 in which it was alleged that an untried defendant (Joseph M. McDonald) stated that a jockey, Edward Donnally, “should be killed and his body placed in the backstretch at Suffolk Downs as a warning to other jockeys.” The court also deleted Overt Act 17, which implicated by name only defendant Winter; John Martorano, not a defendant, was also named. These deletions were clearly a matter of form, not substance; they in no way changed or altered the indictment as to Goldenberg. JOINT ISSUES ON TRIAL INSTRUCTIONS We next consider three questions raised by all appellants jointly concerning certain instructions by the trial court to the jury. The Petrozziello Determination. On the twenty-first day of trial, at the close of Ciulla’s testimony, the trial judge told the jury that it could consider all of the evidence introduced at trial when determining the participation of any of the defendants in the offenses charged. All defense counsel objected. In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), we held that, in accordance with Federal Rule of Evidence 801(d)(2)(E), the trial judge rather than the jury must determine whether out-of-court declarations of coconspirators should be admitted against a defendant. Id. at 22. Because the judge is ruling on admissibility, not guilt or innocence, he or she is to use the ordinary civil standard in deciding whether a conspiracy has been proven: “if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy,” then the statement is admissible. Id. at 23. The appellants argue first that the trial judge did not apply the standard of proof mandated in Petrozziello. In the course of the bench conference on this issue, he told counsel: I am only charged with finding that it is more likely than not that there is a conspiracy and that the defendants took part in it. I’m also charged to some extent with assessing his [Ciulla’s] credibility. And I do not find that he is so inherently incredible as to not even allow the case to go to the jury. What you are arguing ... is a Motion for Judgment of Acquittal, (emphasis added). The judge reiterated later in the same conference that he felt it more likely than not that the declarant and the defendants were members of a conspiracy between December 1973 and November 1975 when the statements in question were made and that the statements were made in furtherance of the conspiracy. He found that Ciulla’s testimony was credible and supported by independent evidence of toll records, registrations, and race charts and “that each defendant and each coconspirator had been involved sufficiently by nonhearsay evidence, including 801(d)(2) statements, which sufficiently indicate their involvement in this criminal enterprise.” Such evidence left “very little choice except for the jury to believe him [Ciulla] or not.” It is apparent that the trial judge understood the standard set out in Petrozziello, but the timing of his decision was premature. He repeatedly relied on the “more likely than not” standard in making his decision, but made that decision based on the most important evidence in the Government’s case, Ciulla’s testimony. In United States v. Ciampaglia, 628 F.2d 632 (1st Cir.), cert. denied, 449 U.S. 956, 1038, 101 S.Ct. 365, 618, 66 L.Ed.2d 221, 501 (1980), decided over a year after the trial in this case, we held that the trial court should make its final Petrozziello determination at the close of all the evidence, out of the hearing of the jury. Id. at 638. We noted in Ciampaglia that in adopting the “more likely than not” test, “we have implicitly anticipated that the defendant’s evidence would be taken into consideration”; finding out-of-court declarations admissible after hearing only the prosecutor’s evidence “would render almost meaningless any difference between the standard announced in Petrozziello and the prima facie standard that it replaced.” Id. Thus appellants’ first argument merges with their second: that the trial judge refused to consider any of the defendants’ evidence when making the Petrozziello ruling. In Ciampaglia the defendant-appellant’s failure to object at trial to the timing of the district court’s finding barred him from raising the point on appeal in the absence of plain error. Here, defense counsel specifically objected to the court making preliminary findings about the coconspirators without first hearing all the evidence, or at least hearing the evidence on the membership of the alleged conspiracy. Nevertheless, we do not agree that the trial judge committed reversible error in making the ruling during the Government’s case. In this regard, we are influenced by the fact that the court was operating without the benefit of controlling legal precedent on this point. We note also that defense counsel did not request a reconsideration of the court’s ruling’ when all the evidence in the ease had been presented. Of greatest importance to our decision, however, is the fact that we believe that a Petrozziello finding at the close of all the evidence in the case would háve reached the same conclusion. Most of the evidence presented by the appellants was directed at attacking Ciulla’s credibility. Several of the appellants took the stand to deny either the occurrence of, or Ciulla’s version of, the events described in the principal witness’s testimony. Evidence was also introduced that, if believed, would directly contradict some of Ciulla’s statements. In United States v. Mackedon, 562 F.2d 103, 105 n.2 (1st Cir. 1977), we noted in passing that we did not “understand why a court would be barred from finding a preponderance simply because all or most of the prosecution’s case depends upon the credibility of one witness.” We find here that the trial judge was not prevented from finding a preponderance in this case merely because the Government’s case hinged on Ciulla’s testimony. Moreover, we believe that in the context of this case, the judge implicitly made such a finding by permitting the conspiracy charge to go to the jury. In light of the judge’s understanding of the Petrozziello standard, and his instructions to the jury, it is apparent that he would not have permitted the jury to consider the hearsay evidence if he had changed his mind and come to the conclusion that a preponderance of the evidence no longer supported the finding of a conspiracy. While the district courts will of course now follow the rule enunciated in Ciampaglia, we cannot, for the reasons stated, say that there was any reversible error in the procedure followed here. Jury Instructions on Count One. All remaining appellants also claim that the jury instructions on the RICO conspiracy count were fatally defective. We find nothing mortal, only one surface wound that does not come close to reversible error. The trial judge began his instructions on Count One by reading 18 U.S.C. §§ 1962(c) and (d). The terms “enterprise,” “conduct,” “racketeering activity,” “pattern of racketeering,” and “interstate commerce” were correctly defined. The court then explained the elements of conspiracy and the proof required generally and in the context of this case. The Count One instruction was complete, even-handed, clear, and, except as discussed below, correct. Therefore, under the statutes, as distinguished from a simple conspiracy statute, you must find that the defendants did more than simply agree to join this conspiracy. You must find the following: that a defendant by his words or actions must have objectively manifested an agreement to wilfully participate, directly or indirectly, in the affairs of an enterprise through the commission of two or more offenses which make up the pattern of racketeering activity in this case, that is, the bribery charges, the travel and use of interstate telephone charges, which are charged throughout the indictment, (emphasis added). Appellants contend that the italicized portion of the instruction erroneously incorporated the substantive Counts Three through Forty-Two into Count One. As already noted, there can be no assumed or implied incorporation of one count into another. But the question here is not the legal sufficiency of the indictment; it is clear that Count One charged Winter, Martorano, Price, and Goldenberg with the requisite two predicate crimes. As to these appellants, the substantive counts were not necessary to flesh out an otherwise incomplete conspiracy count as they were for the DeMetris. As we read this part of the instructions, the jury was instructed that it could not find the appellants guilty of conspiracy unless it first found that they actually committed two predicate crimes. This was error in light of our holding that a RICO conspiracy count must allege only an agreement to commit two predicate crimes, not their actual commission. The error, however, benefitted the appellants; it required the Government to prove more than was necessary. Indeed, this is what appellants have urged is required for a RICO conspiracy. Appellants’ claim of error as to the mid-deliberation instruction has not even a semblance of validity. On the second day of deliberations the jury requested “the legal definition of a conspiracy.” Contrary to appellants’ assertions, the court did not merely repeat its original conspiracy instruction. It used, insofar as possible, different words and phrases to