Full opinion text
OPINION OF THE COURT GREENBERG, Circuit Judge. I. FACTUAL AND PROCEDURAL HISTORY A. FACTUAL HISTORY Richard P. Console, Edward C. Curcio, and Morton Markoff appeal from judgments of conviction and sentences entered in the district court on September 28, 1992. We have jurisdiction under 28 U.S.C. § 1291. The background of the case is as follows. Console and Curcio were partners in a law firm (the “firm”) located in Berlin, New Jersey, and Markoff was an osteopathic physician who practiced in nearby Clementon, New Jersey. Console started the firm in 1973, and soon began hiring other associates, some of whom later became partners. Cur-eio joined the firm in 1978 and became a partner in 1982. Philip LiVolsi was another partner. The firm developed a relationship with Markoff in the 1970’s, which continued into the 1980’s. Markoff referred accident victims to the firm for legal services, and the firm referred clients to Markoff for medical services. When treating a client of the firm, Markoff sent the client’s medical bills to the firm, which in turn sent them to the client’s insurance company for the payment of the client’s personal injury protection (“PIP”) benefits pursuant to New Jersey’s No-Fault law governing claims for injuries from automobile accidents.' When making a claim on behalf of a client seeking “special damages,” the firm also sent the medical bills either to the client’s or the defendant’s insurance company to support claims for pain and suffering or other “special damages” sustained by the client. Markoff received the PIP payments corresponding to the medical bills he sent to the firm, and the firm retained a share of any recovery made for a claim. B. PROCEDURAL HISTORY In 1985, federal agents searched the firm, and in April 1989, a grand jury indicted Curcio and Markoff along with four code-fendants: LiVolsi, the firm’s legal administrator (Peter Hulmes), and two of Markoffs employees (Virginia Knowlton and Carmella Lombardi). The indictment charged the defendants with violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the federal mail fraud statute, 18 U.S.C. §§ 1341-42, perpetrated in connection with a scheme to defraud insurance companies by submitting inflated medical bills on behalf of accident victims represented by the firm. On April 24, 1990, LiVolsi agreed to plead guilty to one count of RICO and two predicate acts of mail fraud and to testify before a new grand jury. This grand jury returned a superseding indictment on August 23, 1990, charging two additional defendants, Console and Kathy Baldwin-Sabath, an employee of the firm, with the commission of offenses. Subsequently there were two jury trials in the United States District Court in this ease. Count 1 of the final superseding indictment charged the appellants and the codefendants with conducting and participating in the conduct of an enterprise consisting of the firm and Markoffs medical practice (the “Law Firm-Markoff Enterprise”) through a pattern of racketeering activity involving multi-pie acts of mail fraud. 18 U.S.C. §§ 1962(c) and 2. Similarly, Count 2 charged the appellants and the codefendants with conspiring to conduct the affairs of the Law Firm-Markoff Enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(d). The indictment also charged each of the appellants with multiple counts of mail fraud. 18 U.S.C. §§ 1341 and 2. Prior to the first trial, the appellants moved to dismiss the indictment by reason of alleged prosecutorial misconduct. The district court heard argument on the motions and decided to review all grand jury transcripts in camera. But the government provided 14 of the more than 100 transcripts it produced without colloquy. The government informed the district court that these 14 transcripts had been irreparably water damaged and lost while in the court reporter’s possession. In response to motions regarding this incident, the district court held hearings in December 1989 and January 1990. In an opinion filed on April 11, 1990, the district court held that any prosecutorial misconduct before the grand jury was harmless. The first trial began on February 26,1991. During this trial, Knowlton agreed to plead guilty to one count of mail fraud. The jury returned its verdict in June 1991. Markoff was convicted of the RICO counts and 24 counts of mail fraud but he was acquitted of 11 mail fraud counts. Console and Curcio also were acquitted of certain mail fraud counts. The jury, however, did not reach a verdict on the RICO counts and certain mail fraud counts against Console, Curcio, and Hulmes, and consequently the court declared a mistrial as to these counts. The jury acquitted Sabath and Lombardi on all counts. Following his conviction, Markoff learned that during jury deliberations a juror had obtained information regarding the case from her sister-in-law who was an attorney and had shared that information with other jurors. In September 1991, the district court held hearings to determine the nature of this communication, whether it was prejudicial, and whether Markoffs convictions should be set aside. During in camera proceedings, the district court questioned each juror individually. Based on the jurors’ in camera testimony, the district court determined that one • of the jurors made a remark during deliberations indicating that she. had discussed the case with her sister-in-law who was an attorney. Nonetheless, the court held that the juror’s comment had not prejudiced Markoff, and thus it denied his motion to set aside his convictions. Although the juror who mentioned her sister-in-law’s comments during deliberations testified in camera that other jurors had read newspapers during the trial, the court also denied Mar-koffs request for a second jury inquiry to investigate these allegations. Following his convictions, Markoff entered into a cooperation agreement with the government and agreed to testify against Console, Curcio, and Hulmes at a second trial. Console moved to dismiss the charges against him on double jeopardy grounds pri- or to the second trial, but the district court denied his motion. The district court also denied Cureio’s severance motion. The second trial began on February 25, 1992, and the jury returned its verdict on May 21,1992, convicting Console and Curcio on both RICO counts. The jury also convicted Console and Curcio of eight counts of mail fraud and four counts of mail fraud, respectively. The jury, however, acquitted Hulmes of all charges except, for one which the court then dismissed. The court sentenced the three appellants to lengthy' prison terms on September 25, 1992, and required Console and Markoff to pay restitution to the victims of their RICO and mail fraud violations. The judgments of conviction were entered on the docket on September 28, 1992, and the appellants timely appealed. II. DISCUSSION A. FAILURE TO ESTABLISH A RICO ENTERPRISE The appellants argue that the evidence was insufficient to support their convictions for violations of 18 U.S.C. § 1962(c) and (d), because the government failed to establish the existence of a RICO “enterprise.” Section 1962(c) prohibits “any person employed by or associated with any enterprise” affecting interstate or foreign commerce from conducting or participating “in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Section 1962(d) makes it unlawful to conspire to violate Section 1962(c) or the other substantive provisions of RICO. RICO defines an “enterprise” as “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). In United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981), the Supreme Court stated that an enterprise “is an entity separate and apart from the pattern of activity in which it engages,” and that it is “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” In United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.), cert. denied, 464 U.S. 849,104 S.Ct. 157, 78 L.Ed.2d 145 (1983), “we construed Turkette to require proof of each of the three sub-elements referred to by the Court in this passage”: (1) proof of an ongoing organization, (2) proof that the associates function as a continuing unit, and (3) proof that the enterprise is an “entity separate and apart from the pattern of activity in which it engages.” United States v. Pelullo, 964 F.2d 193, 211 (3d Cir.1992) (citing Riccobene, 709 F.2d at 221-24). Thus, although the proof used to establish the existence of an enterprise and a pattern of racketeering “may in particular eases coalesce,” proof of a pattern of racketeering activity “does not necessarily” establish the existence of an enterprise. Id. In this case, the government alleged that the RICO enterprise was an association in fact composed of the law firm and Markoffs medical practice and designed “to enrich its members through the pursuit of personal injury business.” Govt. Br. at 13. The appellants argue, however, that the evidence did not demonstrate (1) “that there was any kind of organizational structure for decision-making,” (2) that the appellants associated together on more than “an ad hoc basis,” or (3) that the “enterprise existed separate and apart from the racketeering activity alleged.” Markoff Br. at 9,12. Thus, according to the appellants, “[a]ll that was shown was that the medical practice and the lawyer’s office combined to commit mail fraud on an ad hoe basis.” Id. at 12. The existence vel non of a RICO enterprise is a question of fact for the jury. Riccobene, 709 F.2d at 222. In this case, both the jury that convicted Markoff of RICO violations (Trial I), and the jury that convicted Console and Curcio of RICO violations (Trial II) determined that the government established the existence of the RICO enterprise beyond a reasonable doubt. We must sustain these determinations “if there is substantial evidence, taking the view most favorable to the Government, to support [them].” Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); see United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir.1990) (citing Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); United States v. Leon, 739 F.2d 885, 890 (3d Cir.1984)), cert. denied, — U.S. -, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). Thus, we must review the evidence introduced at trial, drawing all reasonable inferences in favor of the prosecution, to determine whether there is substantial evidence to support the existence of a RICO enterprise. As we stated in Riccobene, 709 F.2d at 222, “[e]ach of the [three] elements enumerated by the Supreme Court describes a separate aspect of the life of the enterprisé.” The first element requires proof of an “ongoing organization.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. To satisfy this element, the government must show that some sort of structure exists within the group for the making of decisions, whether it be hierarchical or consensual. There must be some mechanism for controlling and directing the affairs of the group on an ongoing, rather than an ad hoc, basis. Riccobene, 709 F.2d at 222. The government introduced ample evidence at both trials of the existence of an organizational structure within the Law Firm-Markoff Enterprise. The evidence indicates that Markoff and Console met in the early 1980’s. Govt.App. at 309 (Trial II); 798 (Trial I). At that meeting, Markoff agreed to inflate the bills of the law firm’s clients in exchange for continued patient referrals from the firm. Id. at 310-13 (Trial II); 791-98 (Trial I). Following this meeting, Console and Markoff supervised the execution of this agreement. Id. at 50-66, 313-15, 410-413, 432-92 (Trial II); 790-876 (Trial I). Under Markoffs supervision, his employees falsified patient bills and charts to meet the specifications communicated by Console, LiVolsi and various employees of the firm. Govt.App. at 31-66, 432-92 (Trial II); 730-67, 826-35, 849-60, 869-75, 877-87 (Trial I). Under Console’s direction, attorneys referred clients to Mar-koff, specified the dates and charges that should be reflected on their bills, and coached clients to make false statements regarding the extent of their medical treatment to support fraudulent insurance claims. Govt.App. at 204-39, 432-92 (Trial II); 791-99, 817, 826-34, 849-60, 869-75, 888-98 (Trial I). Thus, at each trial the government established the existence of an ongoing organization, the first element required to prove the existence of a RICO enterprise. The second element of the Supreme Court’s definition of a RICO enterprise requires proof “that the various associates function as a continuing unit.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. To satisfy this element, the government must demonstrate “that each person performed] a role in the group consistent with the organizational structure established by the first element and which furthers the activities of the organization.” Riccobene, 709 F.2d at 223. The government also introduced sufficient evidence to satisfy this requirement at each of the trials. The evidence indicates that between 1981 and 1985, Console, Markoff, Curcio, LiVolsi, and various employees of the firm and the Markoff practice each performed roles within the enterprise structure and through their roles advanced the scheme to defraud insurance companies through the submission of falsified records, inflated bills, and false statements by patients. Console and Mar-koff devised the scheme and directed its execution. Govt.App. at 38-39, 47-55, 58-65, 310-315, 432-92 (Trial II); 791-99, 817-34, 846-60, 869-75, 877-98 (Trial I). Curcio referred clients to Markoff and coached them to 'make false statements regarding their medical treatment. Id. at 204-39 (Trial II); 888-98 (TriaM). LiVolsi met with Markoff and his employee in' charge of billing to communicate the dates and charges that should be reflected on patient bills. Id. at 39-50, 462-70 (Trial II); 826-34, 847-51 (Trial I). Other-firm employees also delivered lists of patient records requiring falsification to Markoffs office, and discussed the required changes with Markoffs employees over the phone. Id. at 39-50, 55-57 (Trial II); 745-57, 795-97, 864-75 (Trial I). Employees of the Markoff practice then falsified the records, which subsequently would be submitted to the insurance companies. Id. at 35-66 (Trial II); 730-57, 877-98' (Trial I). Thus, there is substantial evidence to support the juries’ determinations “that the various associates [in the Law Firm-Markoff Enterprise] functioned] as a continuing unit.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528. Finally, the third element of the enterprise requirement demands proof that the enterprise is an “entity separate and apart from the pattern of activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2529. As we understand this last requirement, it is not necessary to show that the enterprise has some function wholly unrelated to the racketeering activity, but rather that it has an existence beyond that which is necessary merely to commit each of the acts charged as predicate racketeering offenses. The function of overseeing and coordinating the commission of several different predicate offenses and other activities on an on-going basis is adequate to satisfy the separate existence requirement. Riccobene, 709 F.2d at 223-24. This requirement is satisfied by the evidence that both the firm and the Markoff practice coordinated the commission of multiple predicate offenses, see Govt.App. at 31-66, 204-39, 432-92 (Trial II), 730-67, 791-99, 817, 826-35, 849-60, 869-75, 877-898 (Trial I), and continued to provide legitimate services during the period in which they were engaged in racketeering activities, id. at 67, 373-74 (Trial II), 730-67 (Trial I). Thus, the evidence introduced at each trial supports the juries’ determinations that the three elements of the enterprise requirement were established. The appellants, however, also argue that the government failed to allege and establish a RICO enterprise consistent with the definition contained in Section 1961(4). Specifically, they argue that under Section 1961(4), an association in fact between two legal entities, like a law firm and a medical practice, is not a RICO enterprise. Markoff Br. at 13. As noted above, Section 1961(4) defines an “enterprise” as “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). According to the appellants’ construction of this section, “[a]n enterprise can be either a legal entity or an association-in-faet between nonlegal entities,” but not an association in fact between legal entities. Markoff Br. at 13. As the government points out, Govt.Br. at 16, we rejected this restrictive definition of a RICO enterprise in United States v. Aimone, 715 F.2d 822, 828 (3d Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3585, 82 L.Ed.2d 883 (1984). Aimone involved a challenge to an indictment alleging the existence of an enterprise composed of “a group of individuals and a corporation associated in fact.” Id. Like the appellants in this case, the appellants in Aimone argued that an enterprise could consist of either a legal entity or an association in fact, but not both. Id. We held that the indictment charged “a proper statutory enterprise” because an association in fact could be composed of legal as well as non-legal entities. Id. Moreover, “[t]he Supreme Court has stated that ‘[tjhere is no restriction upon the associations embraced by the definition’ in section 1961(4).” Id. (quoting Turkette, 452 U.S. at 580, 101 S.Ct. at 2527). Accordingly, the association in fact between the law firm and Markoffs medical practice constitutes a RICO enterprise under Section 1961(4). B. EVIDENCE SUPPORTING CURCIO’S CONVICTIONS 1. RICO Convictions Curcio challenges the sufficiency of the evidence supporting his substantive RICO and RICO conspiracy convictions, contending that the government “failed to connect [him] ... to the RICO conspiracy.” Curcio Br. at 21. As we noted above, we review challenges to the sufficiency of evidence to determine “whether, viewing the evidence in a light most favorable to the government, there was substantial evidence upon which a reasonable jury could have based its verdict.” United States v. Pungitore, 910 F.2d at 1129. We reject Curcio’s argument and find that there was sufficient evidence to support his convictions under 18 U.S.C. § 1962(c) and (d). A conviction under 18 U.S.C. § 1962(c) requires proof of four essential elements: (1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated, either directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that he or- she participated through a pattern of racketeering activity. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir.1989) (citing R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1352 (5th Cir.1985)). To satisfy the second element or “association” requirement of section 1962(c), the defendant “ ‘must be shown to have been aware of at least the general existence of the enterprise named in the indictment.’ ” United States v. Eufrasio, 935 F.2d 553, 577 n. 29 (3d Cir.) (quoting United States v. Castellano, 610 F.Supp. 1359, 1401 (S.D.N.Y.1985) (emphasis added)), cert. denied, — U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991). Similarly, a conviction under 18 U.S.C. § 1962(d) for conspiracy to violate section 1962(c) requires proof “that the individual defendants knowingly agreed to participate in the ‘enterprise’ through a pattern of racketeering.” Riccobene, 709 F.2d at 220-21 (emphasis added). The evidence, introduced at the second trial sufficiently established that Curcio was “aware” of the existence of the Law Firm-Markoff Enterprise, “knowingly agreed” to participate in the conduct of the enterprise through a pattern of racketeering, and participated in the conduct of the enterprise through a pattern of racketeering activity. Curcio testified that he was “a trial attorney functioning as a partner” in the law firm between 1982 and 1991, Curcio App. at 15, and that prior to 1982 the firm employed him as an associate, id. at 13. Although he denied knowledge of any conspiracy between the firm and the Markoff medical practice, he acknowledged that he and his children had been treated by Markoff, and that during his tenure at the firm, Markoff was the treating physician for approximately 600 of the firm’s cases, ten percent of the firm’s total caseload. Govt.App. at 556-558. Moreover, four of Curcio’s clients who had been involved in auto accidents testified that the firm referred them to Markoff. Id. at 165 (William George), 205 (David Gousha), 257 (Joyce Joiner), 280-83, 291-92 (Janice Wolfe). These clients also testified that pri- or to arbitration proceedings regarding their insurance claims, Curcio advised them to lie about the nature of their injuries and the extent of their medical treatment. Id. at 171-183 (William George), 210-12 (David Gousha), 252-70 (Joyce Joiner), 291-301 (Janice Wolfe). Furthermore, Curcio’s secretary testified that on one occasion, Curcio asked her to contact Markoffs office and have them “increase a bill on a client’s case.” Id. at 110. When the secretary relayed the request to Markoffs employee, Marie Maugeri, Maugeri said “‘[a]ll right,’ and hung up.” Id. at 111. Curcio argues that the evidence is insufficient to connect him to the RICO enterprise because the law firm’s activity was not “entirely unlawful,” “none of the conduct attributed to Curcio is intrinsically unlawful,” the circumstantial evidence of Curcio’s membership in the conspiracy' did not exclude other equally plausible inferences, and the testimony regarding Curcio’s knowledge of and participation in the RICO enterprise was not credible. Curcio Br. at 22-27. We reject this argument. First of all, the activity of a RICO enterprise need not be entirely illegal. In fact, as the Supreme Court recognized in Turkette, “RICO’s primary purpose is to ‘address the infiltration of legitimate business by organized crime.’” Riccobene, 709 F.2d at 221 (quoting Turkette, 452 U.S. at 591, 101 S.Ct. at 2532). We have recognized that ‘[t]he mere fact that a defendant works for a legitimate enterprise and commits racketeering acts on the business premises does not establish that the affairs of the enterprise have been conducted “through” a pattern of racketeering activity.’ United States v. Cauble, 706 F.2d 1322, 1332 (5th Cir.1983). Instead, the government must show that a person ‘is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise; or ... the predicate offenses are related to the activities of that enterprise.’ United States v. Provenzano, 688 F.2d 194, 200 (3d Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 492, 74 L.Ed.2d 634 (1982) (quoting United States v. Scotto, 641 F.2d 47, 54 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981)). United States v. Jannotti, 729 F.2d 213, 226 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Curcio-was able to commit the predicate acts of mail fraud only “by virtue of his position in the enterprise,” and the predicate acts were intimately “related” to the firm’s personal injury practice and Markoffs medical practice. Thus, although the law firm’s activity was not entirely illegal, the evidence regarding Curcio’s association with the firm supports an inference that he was aware of the Law Firm-Markoff Enterprise, knowingly agreed to participate in its conduct through a pattern of racketeering activity, and participated in its conduct through a pattern of racketeering activity. Second, a substantial portion of Curcio’s activities were “intrinsically unlawful.” These “intrinsically unlawful” activities included the activities charged in four counts of mail fraud for which he was convicted and four instances of subordination of perjury. Third, the circumstantial evidence sufficiently supported the jury’s determination that Curcio knowingly agreed to participate in the Law Firm-Markoff Enterprise through a pattern of racketeering. Proof of agreement in a RICO proceeding may be established by circumstantial evidence to the same extent permitted in traditional conspiracy cases. It is well-established that one conspirator need not know the identities of all his co-conspirators, nor be aware of all the details of the conspiracy in order to be found to have participated in it. Riccobene, 709 F.2d at 225 (citations omitted). See also United States v. Adams, 759 F.2d 1099, 1114 (3d Cir.) (citing Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 275, 92 L.Ed. 154 (1947)), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 (1985). We find that a reasonable jury could have credited the testimony regarding Cur-cio’s association with the Law Firm-Markoff Enterprise, and that this testimony was sufficient to indicate that Curcio was aware of the enterprise, knowingly agreed to participate in it, and knowingly participated in its conduct through a pattern of racketeering activity- 2. Mail Fraud Convictions Curcio also challenges the sufficiency of the evidence supporting his conviction for mail fraud in conjunction with the personal injury claims of William George and David Gousha. George and Gousha were two of Curcio’s clients who testified that Curcio showed them fraudulent documentation vastly overstating the medical treatment they had received from Markoff and told them to corroborate these documents by making false statements at an upcoming arbitration proceeding regarding their insurance claims. Govt.App. at 171-83 (William George), 210-12 (David Gousha). Curcio argues that Gousha “recanted” his testimony regarding Curcio’s conduct and that the evidence against Curcio was “in equipoise.” Curcio Br. at 23 n. 6. Gousha testified that during the arbitration proceeding Curcio acknowledged inconsistencies between Gousha’s testimony regarding his medical treatment and two different versions of Gousha’s medical bills. Curcio App. at 54. This testimony, however, is not incompatible with Gousha’s earlier testimony that Curcio showed him a fraudulent bill and counseled him to make false statements to corroborate it. Moreover, Gousha’s testimony was consistent with George’s. Finally, even if the evidence were in equipoise, we would not be required to reverse unless the evidence proved insufficient for a reasonable jury to find the defendant guilty. Pungitore, 910 F.2d at 1129. In this ease, the evidence more than sufficiently supported Curcio’s conviction for mail fraud. C. DENIAL OF CURCIO’S MOTION FOR SEVERANCE Curcio argues that the district court abused its discretion by denying his motion for severance prior to the second trial because the jury could not ‘“reasonably be expected to compartmentalize the evidence as it relate[d] to separate defendants in view of its volume and limited admissibility.’” United States v. Sandini 888 F.2d 300, 307 (3d Cir.1989) (quoting United States v. De Larosa, 450 F.2d 1057, 1065 (3d Cir.1971), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 800 (1972)), cert. denied, 494 U.S. 1089, 110 S.Ct. 1831, 108 L.Ed.2d 959 (1990). Specifically, Curdo argues that he was prejudiced because: (1) the government’s case did “not include substantial independent evidence of his guilt,” and (2) the. government introduced testimony against Console on mail fraud counts for which Curdo already had been acquitted at the first trial. Curdo Br. at 29. Motions to sever are governed by Fed.R.Crim.P. 14, which permits the trial court to grant a defendant’s motion for severance if it appears that the defendant will be prejudiced by a joint trial with other defendants. It is important to recognize that there are two separate determinations to bé made when a defendant on appeal urges that he is entitled to a reversal because the district court denied a pretrial severance motion! Since the district court acted on the basis of the record before it at the'time of the motion, we must first determine from that record whether the court abused its discretion in denying the severance. Then, if there was an abuse of discretion, we must consider whether the defendant was prejudiced by the order denying severance. Sandini 888 F.2d at 305. In determining whether the district court abused its discretion by denying Curcio’s motion for severance, “we keep in mind that' a trial court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants,- ... [and that] [t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy.” Eufrasio, 935 F.2d at 568. See Zafiro v. United States, — U.S. -, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). In this case, as in Eufrasio, the public interest in a joint trial substantially outweighed the possibility of prejudice to the defendant. Id. at 569. The -indictment charged both Curdo and Console with RICO violations related to the Law Firm-Markoff Enterprise, and, as we have discussed, there was substantial independent, evidence of Curcio’s guilt. See Sandini 888 F.2d at 307. Thus, we find no basis in the record to indicate that the district court abused its discretion in denying Curcio’s motion for severance. Moreover, even if the district court abused its discretion by denying Curcio’s motion, to obtain a reversal, Curdo “must demonstrate ‘clear and substantial prejudice resulting in a manifestly unfair trial.’ ” Sandini 888 F.2d at 307 (quoting United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981)) (emphasis in Sandini). Curdo has not met this heavy burden, as “[prejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant” or some evidence adduced is “more damaging to one defendant than others.” Eufrasio, 935 F.2d at 568 (citing Sandini 888 F.2d at 307; United States v. Sebetich, 776 F.2d 412, 427 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988)). Furthermore, the limiting instructions given by the district court prior to the introduction of evidence that the jury could not consider against Curdo helped to “compartmentalize” the evidence and thus diminished any potential prejudice to Curdo. See, e.g., Console App. at 255-62, 277, 281. D. ADMISSIBILITY OF THE ACCIDENT BOOK The “Accident Book” is a spiral notebook which was kept by employees of Markoff’s practice. Console App. at 76-221. One of the columns on each page listed the date of an accident patient’s first visit to Markoffs office. Id. The government used the Accident Book, id., and a chart summarizing relevant entries in the book, id. at 222-31, to establish that patient bills predating the date recorded in the Accident Book as the patient’s first visit were fraudulent. Rule 801 of the Federal Rules of Evidence defines hearsay as a “statement, other than one made by a declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801 prohibits the admission of an out-of-court statement offered to prove the truth of the matter asserted because the statement is inherently untrustworthy: the declarant may not have been under oath at the time of the statement, his or her credibility cannot be evaluated at trial, and he or she cannot be cross-examined. Pelullo, 964 F.2d 193, 203 (3d Cir.1992). The Accident Book is hearsay because the entries are written out-of-court statements offered to prove the date when accident patients first visited the Markoff office. Console and Curcio argue that the district court in the second trial erred by admitting the Accident Book under the business record exception to the hearsay rule. Fed.R.Evid. 803(6). This exception for “Records of Regularly Conducted Activity” authorizes the admission of: [a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The appellants argue that the Accident Book was inadmissible hearsay because the government did not produce a witness “qualified” to give the foundation testimony required by Rule 803(6) and thus failed to introduce the foundation evidence required for the admission of the Accident Book as a business record. Console Br. at 18-27; Cur-cio Br. at 34-39, 43. They also argue that even if the Accident Book qualified as a business record, it was inadmissible under Rule 803(6) because “the method or circumstances of [its] preparation indicate lack of trustworthiness.” Id. at 27-31. We exercise plenary review over the district court’s interpretation of the Federal Rules of Evidence, but review a ruling based on a permissible interpretation of a rule for abuse of discretion. United States v. First, 886 F.2d 558, 571 (3d Cir.1989) (citing In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 265 (1983), rev’d on other grounds sub nom. Mat-sushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990). See also Petruzzi’s IGA v. Darling-Delaware Co., 998 F.2d 1224, 1237 (3d Cir.), cert. denied, - U.S. -, 114 S.Ct. 554, 126 L.Ed.2d 455 (1993). Rule 803(6) does not require the foundation evidence for the admission of a business record to be provided by the record’s custodian. Instead, the rule authorizes parties to elicit the evidence from any “other qualified witness.” Fed.R.Evid. 803(6). We have recognized that the term “other qualified witness” should be construed broadly, and that a qualified witness “ ‘need not be an employee of the. [record-keeping] entity so long as he understands the system.’ ” Pellulo, 964 F.2d at 201 (quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶803(6)[02], at -803-178). Thus, a qualified witness only need “have familiarity with the record-keeping system” and the ability to attest to the foundational requirements of Rule 803(6). Id. at 201-02. The foundation requirements to which a qualified witness must attest are: (1) [that] the declarant in the records had knowledge to make accurate statements; (2) that the declarant recorded statements contemporaneously with the actions which were the subject of the reports; (3) that the declarant made the record in the regular course of the business activity; and (4) that such records were regularly kept by the business. Furst, 886 F.2d at 571 (citing Rule 803(6)). The district court did not abuse its discretion by admitting the Accident Book and the summary chart derived from it. Sharon Campbell, the witness through whom the Accident Book was introduced into evidence, was a “qualified witness.” Markoff employed her for seven years as a file clerk, a therapist, a receptionist, and a clerk in the “legal department.” Govt.App. at 971-72. Her testimony indicates that through her work, she became familiar with the office record-keeping system and the various forms and documents regularly kept by the office. Govt.App. at 972-80, 990-95; Console App. at 237-53, 272-75, 306-12. Campbell’s familiarity with the office record-keeping system enabled her to attest to each of the four foundation requirements for the admission of the Accident Book as a business record. Campbell testified that her mother, who also was a Markoff employee, first created the book in 1980 to organize the “legal department” by providing a record of certain key dates including: the date of the patient’s accident; the date of the patient’s first visit to Markoffs office; and the dates on which the legal department sent certain documents to the patient’s attorney. Console App. at 238-44; 306-08. Campbell also testified that the office receptionist generally entered the date of a patient’s first visit when the patient came in or at the end of the receptionist’s shift. She then identified the Accident Book entries that she had made and those that her mother had made. Id. at 245-47. Finally, Campbell testified that while she was employed in the “legal department” of the Mar-koff practice, she relied on the Accident Book and inserted information in the book when “something was overlooked.” Id. at 249-53, 310-12. Based on this experience, she concluded that the Accident Book was “85 to 95 percent” accurate. Id. at 310. Campbell’s testimony satisfied the foundation requirements of Rule 803(6) because it “demonstrate^] that the records [in the Accident Book] were made contemporaneously with the act the documents purported] to record by someone with knowledge of the subject matter, that they were made in the regular course of business, and that such records were regularly kept by the business.” Pelullo, 964 F.2d at 201. The government also called three other employees of the Markoff office who had made entries in the Accident Book, and their testimony regarding the book corroborated Campbell’s. Console App. at 324-33, 349-55, 369-75. Furthermore, although the evidence indicates that the Accident Book was not completely accurate, the circumstances of its production indicate that it was sufficiently reliable to constitute a business record. Finally, the appellants’ argument that the Accident Book was inadmissible under Rule 803(6) because the employees who made entries in the Accident Book and in other business records used to fill in omissions in the Accident Book relied on information provided by patients lacks merit. Rule 803(6) does not require that the person transmitting the recorded information “be under a business duty to provide accurate information.” United States v. Patrick, 959 F.2d 991, 1001 (D.C.Cir.1992). Instead, “it is sufficient if it is shown that ... [the] standard practice was to verify the information provided,” id., or that the information transmitted met the requirements of another hearsay exception, Fed.R.Evid. 805. See Michael H. Graham, Federal Practice and Procedure: Federal Rules of Evidence § 6757, at 643 (1992). In this case, there was testimony indicating that the existing file of someone who was not a hew patient was retrieved and forwarded to Markoff, and no new medical history chart was prepared. Console App. at 327, 373. This procedure indicates that when the receptionist did not have personal knowledge of whether a patient’s visit was his or her first, there was a process for ascertaining this information. Moreover, a patient’s statement that he or she is visiting a doctor for the first time satisfies the requirements of another hearsay exception, Rule 803(4), which provides that “[statements made for purposes of medical diagnosis or treatment and describing medical history” are not excluded by the hearsay rule. See Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271-72 (5th Cir.1991). During oral argument, Console argued at length that the information obtained from the patients for the Accident Book was only significant for billing purposes, and thus was in itself hearsay, which in view of Fed.R.Evid. 805 was inadmissible. The record indicates, however, that the information taken from the patient for the Accident Book was given to Markoff for use when he saw the patient. Console App. at 324-25. Indeed, at the trial Console did not even cite Fed.R.Evid. 805 to object to the Accident Book on the ground that it contained “[year-say included within hearsay” so that the included hearsay itself was required to conform to an exception to the hearsay rule. Rather, his objection was general. Overall we are satisfied that the circumstances of the Accident Book’s creation and the source of its contents, i.e., patients and business records created based on the personal knowledge of Markoffs employees and patients, provide sufficient indicia of trustworthiness to satisfy the business record exception. The appellants analogize this case to Pelul-lo and Furst, Console Br. at 19-21, Curdo Br. at 35-36, 38-39, two cases in which we held' that the foundation requirements of Rule 803(6) had not been satisfied. But this case is distinguishable from Pelullo because in Pelullo the government sought to introduce bank-generated records of wire transfers through an FBI agent who “did not purport to have familiarity with the record-keeping system of the banks, nor ... attest to any of the other requirements of Rule 803(6).” Pelullo, 964 F.2d at 201-02. Furst is also distinguishable because in Furst “neither witness called by the government [to lay a foundation for the purported business records] had any knowledge as to the accuracy of the information on which the ... documents were based or as to the knowledge of the persons who prepared the records,” Furst, 886 F.2d at 572, and “the government did not call a single employee to explain the origin of the data reflected in the documents,” id. at 572 n. 18. Consequently it cannot be contended successfully on the basis of either Pelullo or Furst that the district court abused its discretion in the admission of the Accident Book and the summary chart based on it. E. ADMISSION OF OTHER INSTANCES OF FRAUD Console and Curcio argue that the admission of prejudicial evidence of prior “bad acts” in violation of Fed.R.Evid. 404(b) taints their convictions. First, they challenge the admission of firm files containing allegedly inflated bills submitted to the firm by doctors other than Markoff. Console Br. at 34. Four guidelines set forth by the Supreme Court' govern the admission of prior “bad acts”: (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (8) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted. United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988)). Rule 404(b) provides that: [ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We review the district court’s decision to admit evidence of prior “bad acts” for abuse of discretion. Sampson, 980 F.2d at 986 (citing United States v. Traitz, 871 F.2d 368, 389 (3d Cir.1989), cert. denied, 493 U.S. 821, 110 S.Ct. 78, 107 L.Ed.2d 44 (1989)). Console and Cureio argue that the files containing bills submitted by other doctors were not introduced for a proper purpose under Rule 404(b) and were irrelevant under Rule 402. We, however, disagree. Although the prosecutor may not have clearly “articulate[d] a way in which the tendered evidence logically tend[ed] to establish or refute a material fact in issue,” the court did. It held that the files were admissible -under Rule 404(b) as evidence of knowledge, intent, plan, scheme, and design. Govt.App. at 525-31; Console App. at 489-532. Rule 404(b) “is inclusive, not exclusive,” Sampson, 980 F.2d at 886, and Console’s argument that knowledge and intent were not at issue in this ease lacks merit. Console’s and Curcio’s knowledge of the fraudulent bills submitted to them by Markoff and their intent to defraud the insurance companies to whom they submitted these claims were central issues in this case. Evidence that Console and Cureio received and submitted fraudulent bills from other doctors tended to support the finding that Console and Gurcio knew Markoffs bills were fraudulent and that they intentionally submitted them to insurance companies as part of a broader plan to defraud insurance companies through fraudulent personal injury claims. Moreover, the files satisfy the requirements of Rules 402 and 403. There was ample evidence to connect them to Console and Cureio, and their probative value was not “substantially outweighed”' by the danger of unfair prejudice to the defendants. See Petruzzi’s IGA, 998 F.2d at 1237. Appellants also argue that the district court erred in admitting the testimony of Michael Keeler, one of the firm’s former personal injury clients, who testified that Console, Cureio, and the doctor to whom they referred him helped him to submit an inflated insurance claim. This evidence was admissible under Rule 404(b) on the same basis as the files . containing inflated bills from doctors other than Markoff, and satisfied the requirements of Rules 402 and 403. Moreover, although appellants argue that Keeler’s testimony regarding statements made by the doctor to whom he was referred are inadmissible, hearsay, we conclude that they are admissible statements by a coconspirator. See United States v. Gambino, 926 F.2d 1355, 1360-62 (3d Cir.) (citing Rule 801(d)(2)(E); Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987)), cert. denied, — U.S. -, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991). Console and Cureio contend that the hearsay statements themselves were the sole evidence of a conspiracy among Console, Cureio, and the doctor to whom they referred Keel-er. Keeler’s testimony regarding statements made by Consolé and Cureio prior to Keel-er’s appointment with the doctor, and the inflated medical bill submitted by the doctor, however, provide ample independent evidence of the existence of a conspiracy among the appellants and Keeler’s doctor. Govt. App. at 602-52. Thus, without reaching the issue of whether the doctor’s hearsay statements alone could establish the existence of a conspiracy, Gambino, 926 F.2d at 1361, we conclude that the district court did not abuse its discretion by admitting Keeler’s testimony regarding the doctor’s statements. F. GOVERNMENT’S CROSS-EXAMINATION OF CONSOLE REGARDING HIS CONTEMPT HEARING Prior to the first trial, New Jersey Superior Court Judge E. Stevenson Fluharty held Console in contempt for failing to comply with a court order requiring the firm to deposit $16,000 a month in a fund created for his former law partner, LiVolsi, subsequent to LiVolsi’s departure from the firm. At both the first and second trials, the prosecutor cross-examined Console regarding this incident. At the second trial, Console objected to the prosecutor’s reading of excerpts from the transcript of the contempt hearing out-of context, and, in response to this objection, the court ordered the prosecutor to read all of Judge Fluharty’s findings. Console App. at 690-702. Judge Fluharty’s findings included statements indicating that Console was in charge of the firm’s policies and daily operations and that his testimony was not credible. On the basis of these statements, Console argues that Judgé Fluharty’s findings were inadmissible under Rules 404(b) and 608(b), and that the district court abused its discretion by permitting the cross-examination regarding the contempt hearing and ordering the prosecutor to read all of Judge Fluharty’s findings. Console Br. at 54. Console’s position lacks merit because he “invited” any error which occurred in the use of Judge Fluharty’s opinion. Although Console objected to any cross-examination regarding the contempt proceeding at his first trial, at his second trial Console actually caused the extensive use of the evidence of the proceeding. Without seeking to introduce Judge Fluharty’s opinion into evidence, the prosecutor began using excerpts from the opinion to cross-examine Console. Only after Console objected to the prosecutor’s reading of selected portions of the transcript did the district court order the prosecutor to read all of Judge Fluharty’s findings. Moreover, although the prosecutor never introduced the transcript of the contempt hearing into evidence, Console chose to do so on redirect. “Thus, if there was any error at all, it was ‘invited error’ and cannot now be a basis for reversal.” Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767, 772 (3d Cir.1975). “A defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where, as here, it is not clear that the defendant was prejudiced thereby.” United States v. Lewis, 524 F.2d 991, 992 (5th Cir.1975), cert. denied, 425 U.S. 938, 96 S.Ct. 1673, 48 L.Ed.2d 180 (1976). G. HEINTZ’S TESTIMONY REGARDING A PHONE CONVERSATION WITH CURCIO Curcio argues that the district court in the second trial erred in admitting the testimony of Markoffs employee, Kimberly Heintz, regarding her telephone conversation with.Curcio. Heintz testified that after she sent a report, to Curcio regarding one of his clients, a man who identified himself as Curcio called her. Govt.App. at 138-41; Curcio App. at 86-88. According to Heintz, this man stated that he had received the report she sent and “requested a bill to go along with the report on his client for treatment from a period of May 1983 through September of 1984 or into September of 1984.” Govt.App. at 139. When Heintz retrieved the patient’s billing card, she found records of only a few treatments in May 1983. Id. However, Markoff instructed her to prepare a bill for treatment covering the entire period. Id. at 140. Curcio argues that the district court erred in admitting Heintz’s testimony regarding the phone conversation because Heintz was not competent to testify on this matter. Curcio Br. at 40 (citing Fed.R.Evid. 104). However, as the government points out, Cur-cio’s actual complaint is that testimony regarding the phone conversation was inadmissible because the requirements of Fed. R.Evid. 901 were not satisfied. Govt.Br. at 33. Rule 901(a) provides that in order to be admissible, evidence must be authenticated or identified “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Thus, based on Rule 901, Heintz’s testimony regarding the content of her phone conversation was inadmissible, unless there was sufficient evidence to support a finding that the phone conversation was in fact a phone conversation between Heintz and Cureio. “[I]t is well settled that telephone calls may be authenticated by circumstantial evidence as well as by direct recognition of the person calling.” United States v. Alper, 449 F.2d 1223, 1229 (3d Cir.1971) (citing United States v. Frank, 290 F.2d 195 (3d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961)), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972). ‘The issue for the trial judge in determining whether the required foundation for the introduction of the evidence has been established is whether the proof is such that the jury, acting as reasonable men, could find its authorship as claimed by the proponent. The scope of appellate review upon this issue is confined to determining whether the admission constituted abuse of judicial discretion in determining that a prima facie case had been made out.’ United States v. Addonizio, 451 F.2d 49, 72 (3d Cir.) (quoting Carbo v. United States, 314 F.2d 718, 743 (9th Cir.1963)), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). We conclude that the district court did not abuse its discretion by admitting Heintz’s testimony regarding the phone conversation. As stated in the Advisory Committee Notes on Rule 901, “a document or telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him.” Fed.R.Evid. 901 advisory committee note ex. (4). In this case, the content of the conversation combined with the caller’s self-identification sufficiently supported a finding that Cureio was the caller. H. EXCLUSION OF EXTRINSIC EVIDENCE TO IMPEACH GOVERNMENT WITNESS Markoff argues that the district court in the first trial erred by excluding testimony of his employee Kathy Daley on the basis of Fed.R.Evid. 608(b). Markoff Br. at 47. Markoff represented to the district court that Kathy Daley would testify that his billing secretary, Marie Maugeri, gave Daley false medical receipts so that Daley could submit a false insurance claim. Govt.App. 1017-23. In earlier testimony, Maugeri had denied falsifying her own insurance claims. Id. at 1021. The district court ruled that Daley’s proposed testimony was barred by Rule 608(b) because it was extrinsic evidence which Markoff sought to introduce to impeach Maugeri’s credibility. Id. at 1021-22. Rule 608(b) provides that “[s]peeifie instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime ... may not be proved by extrinsic evidence.” But as the government concedes, “evidence barred by Rule 608(b) solely for impeachment can be admitted if it is otherwise relevant to a material issue.” Govt.Br. at 65. For example, in United States v. Anderson, 859 F.2d 1171, 1178 (3d Cir.1988), we noted that extrinsic evidence may be introduced as evidence of a witness’s bias or interest in the case. Markoff sought to introduce Daley’s testimony to rebut testimony indicating that Markoff was aware of the Law Firm-Markoff Enterprise and knowingly agreed to participate in the conduct of its affairs through a pattern of racketeering. Although Daley’s testimony did not involve a fraud charged in the indictment, it may have been probative of Markoffs knowledge of the fraudulent billing practices of his employees. Thus, arguably the district court abused its discretion by using Rule 608(b) to exclude testimony that was relevant to a material issue in the ease, Markoffs knowledge. Nonetheless, we need not reach this issue because even if the district court erred in its decision, in the context of this case, the error on this minor point was harmless due to the compelling evidence supporting Markoffs RICO convictions. In this regard we observe that evidence that someone else also may have submitted a false insurance claim, if germane at all, would have had, at most, tangential significance at this trial in view of the volume of evidence implicating Markoff. I. REFUSAL TO PROVIDE SPECIAL VERDICT FORM AT FIRST TRIAL Console argues that the district court’s denial of his request for a special verdict form at his first trial resulted in a violation of his Fifth Amendment double jeopardy and due process rights. Console was charged with over 40 predicate acts of mail fraud but the indictment only charged 11 “separately as substantive mail fraud offenses.” Console Br. at' 55-56. Console requested that the court give the jury a special verdict form, allowing it to render a “verdict” on each of the more than 40 predicate acts. Inasmuch as the district court denied this request, the jury did not render a specific “verdict” on any of the predicate acts not charged separately as mail fraud offenses. Although the jury had the opportunity to “acquit” the appellants of predicate acts charged separately as mail fraud offenses, the jury could not “acquit” them of the predicate acts not charged as separate offenses. Thus, Console argues that by denying his request for a special verdict form and allowing him to be retried for the predicate acts on which the jury was not permitted to render a verdict at his first trial, the district court violated his Fifth Amendment double jeopardy and due process rights. Console’s position lacks merit. The double jeopardy clause of the Fifth Amendment provides that no person shall “be sub-ject for the same offense to be twice put in jeopardy of life or limb.” The clause affords a defendant three basic protections: [It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 49B, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)) (citation and internal quotation marks omitted). See United States v. Dixon, — U.S. -, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). None of these protections precluded Console’s retrial on the RICO counts because he was not acquitted or convicted on them at the first trial, and he therefore also was not punished for the RICO offenses charged in the counts. “[A] retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause.” Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242 (1984) (citing Logan v. United States, 144 U.S. 263, 297-98, 12 S.Ct. 617, 627-28, 36 L.Ed. 429 (1892)). It has been established for 160 years, since the opinion of Justice Story in United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165 (1824), that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity which permitted a trial judge to terminate the first trial and retry the defendant, because the ends of justice would otherwise be defeated. Id. 468 U.S. at 323-24, 104 S.Ct. at 3085. Console argues that the “district court’s unjustified refusal to allow the first jury to separately consider each predicate act ... deprived him of ... the right to have one’s case decided by the first jury empaneled.” Console Br. at 63 (citing United States v. Jorn, 400 U.S. 470, 474, 91 S.Ct. 547, 551-52, 27 L.Ed.2d 543 (1971)). However, a defendant has no right to a verdict on the elements of an offense. United States v. Riccobene, 709 F.2d at 228. The district court has discretion in determining whether to submit special interrogatories to the jury regarding the elements of an offense. Riccobene, 709 F.2d at 228. “[E]ven where the opposing party does not object, the court is not required to submit special questions to the jury.” Id. There is no evidence that the court abused its discretion in denying Console’s request, as the jury already was faced with the difficult task of resolving multiple RICO and mail fraud counts against multiple defendants. Markoff App. at 67-72. Moreover, even when special interrogatories regarding RICO predicates are submitted to the jury, the court is permitted to give an instruction to the jury to answer the interrogatories only after it votes to convict, thereby alleviating the danger of prejudice to the defendant. In this case, the district court submitted to the jury a special interrogatory listing the predicates within the statute of limitations because for a RICO conviction the govemment had to prove at least one predicate within the statute of limitations. Govt.App. at 935-36. But the court instructed the jury to specify which of the racketeering acts it found to constitute a pattern of racketeering only if it found Console guilty of a RICO count. Id. at 932-33. Thus, even if this spe