USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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Nos. 93-1618
93-2208
94-1506
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN A. SACCOCCIA,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya, Cyr and Boudin, Circuit Judges.
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Samuel Rosenthal, with whom Curtis, Mallet-Prevost, Colt &
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Mosle, Robert D. Luskin, and Comey Boyd & Luskin were on brief,
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for appellant.
Nina Goodman, Attorney, Dep't of Justice, and Michael P.
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Iannotti, Assistant United States Attorney, with whom Sheldon
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Whitehouse, United States Attorney, James H. Leavey, Assistant
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United States Attorney, and Michael E. Davitt, Assistant United
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States Attorney, were on brief, for the United States.
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June 28, 1995
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SELYA, Circuit Judge. A jury convicted defendant-
SELYA, Circuit Judge.
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appellant Stephen A. Saccoccia on racketeering, money laundering,
and related charges arising from his leadership of an
organization that laundered well over $100,000,000 in drug money
during the years 1986 through 1991. On appeal, Saccoccia
challenges his extradition, the timing of his trial, his
conviction, the forfeiture of certain assets, and the 660-year
sentence that the district court imposed. Finding that his
arguments do not wash, we affirm.
I. BACKGROUND
I. BACKGROUND
We sketch the bareboned facts in the light most amiable
to the government, see United States v. Ortiz, 966 F.2d 707, 710-
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11 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993), leaving
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much of the flesh and sinew for fuller articulation in connection
with our discussion of particular issues.
Appellant formerly controlled a network of precious
metals businesses located in Rhode Island, New York, and
California. He became enmeshed in money laundering through his
involvement with a fellow metalman, Barry Slomovits. At a point
in the mid-1980s, Slomovits was accepting millions of dollars in
cash each week from Duvan Arboleda, who represented a group of
Colombian drug lords (the Cali cartel). Slomovits used some of
this cash to purchase gold from appellant. By special
arrangement, the transactions were accomplished without
documentation.
In 1987, Arboleda and appellant agreed that they would
2
deal directly with each other. From that juncture forward,
appellant used his various businesses to cleanse money funnelled
to him by the Cali cartel and its emissaries (including Arboleda,
Fernando Duenas, and Raoul Escobar). Typically, Arboleda would
make large quantities of cash available to appellant; appellant
would send some of it to Slomovits in New York; Slomovits would
buy gold with the funds, resell the gold, and wire the proceeds
to accounts that appellant controlled. Slomovits received
apocryphal invoices from appellant's companies purporting to show
sales of gold for sums corresponding to the amounts of the wire
transfers.
Ahron Sharir, a manufacturer of gold chain, also washed
money for appellant. Appellant used Sharir's New York factory as
a drop-off point for incoming shipments of currency, and Sharir
laundered the cash by methods similar to those employed by
Slomovits. The shipments to Sharir's factory continued until
1988. From then on, the two men forsook the New York factory,
but continued to deal with each other. Appellant delivered cash
totalling over $35,000,000 to Sharir at other locations between
1988 and 1990.
By 1990, appellant's operations had expanded and had
become largely independent of Slomovits. Appellant would bid for
opportunities to launder money on behalf of the Cali cartel.
When the cartel accepted a bid, he or his couriers would receive
sacks of currency at prearranged delivery points. These
shipments ordinarily ranged between $50,000 and $500,000
3
(although one delivery totalled $3,000,000). The bills were
usually in small denominations. They would be counted,
transported to one of appellant's offices in California or Rhode
Island, then counted again, smurfed,1 and used to buy cashier's
checks payable to one of appellant's companies. These purchases
were made at various banks by underlings (e.g., David Izzi,
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Anthony DeMarco, James Saccoccio, Kenneth Saccoccio) in
accordance with instructions received from appellant or his wife,
Donna Saccoccia. After the checks had been deposited in a
company account, the money would then be wired to a foreign bank
designated by Arboleda or Duenas. Along the way, appellant would
deduct a commission that usually approximated ten percent of the
laundered cash. This completed "la vuelta," the term used by the
Cali cartel to describe a complete cycle of drug smuggling
activities.
The spring of 1991 marked the beginning of the end of
appellant's career in high finance. During the early stages of
his operation, the money received in New York was transported to
Rhode Island by armored car and then deposited in an account
standing in the name of a controlled corporation, Trend Precious
Metals (Trend), at Citizens Bank. Between January 1, 1990 and
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1The conspirators sought to avoid the currency transaction
reporting requirements applicable to large cash transactions,
see, e.g., 31 U.S.C. 5313 (1988); 31 C.F.R. 103.22(a)(1)
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(1994), by subdividing the cash into units of less than $10,000.
The process of breaking down a large amount of cash into smaller,
unreportable amounts a criminal act when done to avoid the
reporting requirements, see 31 U.S.C.A. 5324 (West Supp. 1995)
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is called "smurfing."
4
April 2, 1991, appellant and his wife wired over $136,000,000 out
of the Trend account to an assortment of foreign banks. Citizens
became suspicious and closed the account. In approximately the
same time frame, an employee of an armored car service warned
Richard Gizarelli, an unindicted coconspirator, that appellant
was under investigation. Gizarelli promptly informed appellant.
Notwithstanding these omens, appellant persisted. He
did, however, alter his modus operandi. Instead of using private
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couriers to transport cash from New York to Rhode Island, he sent
any of four men Izzi, Carlo DeMarco, Anthony DeMarco, or
Vincent Hurley, often (but not always) operating in pairs to
haul the money to Rhode Island. And, although appellant's
cohorts continued to purchase bank checks from various Rhode
Island financial institutions, appellant began to send the checks
to his offices in California by air courier, often in canisters
labeled as containing gold (to which appellant's henchmen added
slag or scrap metal to increase weight). Accomplices used the
money to purchase gold, which was then sold on the open market.
The proceeds were eventually wired back to one of appellant's
remaining Rhode Island accounts.
In August of 1991, appellant convened a meeting at his
mother's home. He showed the conferees (who included Donna
Saccoccia, Izzi, and the two DeMarcos) a videotape that had been
discovered accidentally in a nearby building. The tape reflected
an ongoing surveillance of the back entrance to appellant's
5
Cranston coin shop. He advised his colleagues to start using the
store's front entrance. Soon thereafter, appellant departed for
Switzerland. In short order, the authorities indicted and
extradited him.
After unsuccessfully seeking to postpone prosecution on
health-related grounds,2 appellant went to trial on November 4,
1992, in the United States District Court for the District of
Rhode Island, along with several other indicted coconspirators
(including his wife). Appellant's attorney became ill during
trial, and the court declared a mistrial as to appellant.3 The
new trial began on February 17, 1993, and resulted in his
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2The district court held a hearing regarding appellant's
professed ailments. Appellant had undergone a laminectomy at age
14 and had been hospitalized repeatedly during the next 20 years.
He suffered a relapse while he was incarcerated in Switzerland,
necessitating bed rest and medication. After being returned to
the United States, appellant claimed to have reinjured his back.
He also claimed that, on the eve of trial, a prison guard
assaulted him, aggravating his condition. The court heard
testimony from three physicians and concluded that "there [were]
no objective findings by any doctor that would confirm the
existence of any physical problem that would account for
[appellant's current] complaints of pain." Accordingly, the
court refused to grant a continuance.
3The first trial proceeded as to the other defendants. The
jury returned its verdict on December 18, 1992, convicting Donna
Saccoccia, Vincent Hurley, James Saccoccio, Kenneth Saccoccio,
Stanley Cirella and Anthony DeMarco on the RICO conspiracy count,
18 U.S.C. 1962(d), and finding each of them guilty on certain
other counts. Donna Saccoccia was convicted of 47 counts of
money laundering under 18 U.S.C. 1957 and 13 counts of money
laundering under 18 U.S.C. 1956(a)(2); Hurley was convicted of
one count of structuring transactions to avoid currency reporting
requirements, see 31 U.S.C. 5324(3), and one count of
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interstate travel in aid of racketeering, see 18 U.S.C. 1952;
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the two Saccoccios and Cirella were likewise convicted of
structuring violations under 31 U.S.C. 5324(3); and Anthony
DeMarco was convicted of filing false currency transaction
reports in violation of 31 U.S.C. 5324(2).
6
conviction. These appeals followed.
Saccoccia's appeals were consolidated for oral argument
with the appeals arising out of the first trial. See supra note
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3. Notwithstanding the obvious differences in the trial records
and in the posture of the prosecutions for example, appellant
was the leader of the money laundering organization; unlike most
of the others, he was not tried for currency transaction
reporting (CTR) offenses; and he was convicted in a trial
separate from that of his codefendants appellant seeks to
incorporate by reference eight arguments advanced by other
defendants. Because appellant's position is not substantially
similar to that of the codefendants, and because he has failed to
develop the idiosyncracies of his own situation, we deem five of
those arguments to have been abandoned.4 See United States v.
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David, 940 F.2d 722, 737 (1st Cir. 1991) ("Adoption by reference,
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however, cannot occur in a vacuum; to be meaningful, the
arguments adopted must be readily transferrable from the
proponent's case to the adopter's case."), cert. denied, 504 U.S.
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955 (1992).
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4The five waived asseverations comprise: (1) whether the
CTR charges, and the evidence engendered thereby, violated the
Fifth Amendment privilege against self-incrimination; (2) whether
the district court's jury instructions overlooked the teachings
of Reves v. Ernst & Young, 113 S. Ct. 1163 (1993); (3) whether
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the court erred in instructing the jury that coconspirators'
knowledge could be established by evidence of willful blindness;
(4) whether the court erred in determining the scope of the
charged conspiracy; and (5) whether the value of the washed funds
as calculated for sentencing purposes improperly included revenue
that the government conceded was legitimate in origin. In all
events, none of these contentions appears to have much bite.
7
Nevertheless, we are left with no shortage of food for
thought. Appellant has served up a bouillabaisse of other
offerings. We address his meatier propositions below, including
the three "incorporated" contentions that arguably have been
preserved. And although we do not deem detailed discussion
desirable, the record should reflect that we have masticated
appellant's remaining points and found them indigestible.
II. EXTRADITION
II. EXTRADITION
As a threshold matter, appellant maintains that his
trial and ensuing conviction violated the extradition treaty
between the United States and Switzerland, and, in the bargain,
transgressed the principles of dual criminality and specialty.
We reject these importunings.
A. Gaining Perspective.
A. Gaining Perspective.
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Further facts are needed to place appellant's
extradition-related claims into a workable perspective. On
November 18, 1991, a federal grand jury returned the indictment
that inaugurated this prosecution. Count 1 charged appellant,
his wife, and eleven associates with RICO conspiracy. See 18
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U.S.C. 1962(d) (1988). A RICO conspiracy, of course, requires
the government to prove, inter alia, an illicit agreement to
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conduct a pattern of racketeering activity. See United States v.
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Ruiz, 905 F.2d 499, 503 (1st Cir. 1990); see also 18 U.S.C.
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1962(c) (1988). Proof of a pattern demands that the prosecution
show "at least two acts of racketeering activity." 18 U.S.C.
1961(5) (1988). These acts, which must themselves comprise
8
violations of specified criminal statutes, see id. 1961(1)(B),
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are commonly referred to as "predicates" or "predicate acts."
See, e.g., Ruiz, 905 F.2d at 503.
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In the instant indictment, the alleged racketeering
activity comprised, among other specified predicate acts,
incidents of money laundering, see 18 U.S.C. 1956, 1957, CTR
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violations, see 31 U.S.C. 5324(1)-(3), and using travel and
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facilities in interstate commerce to promote these money
laundering ventures, see 18 U.S.C. 1952(a)(3). The grand jury
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also averred that the RICO conspiracy had been accomplished by
means that included failing to file the necessary CTRs for cash
transactions over $10,000. Counts 2-53 of the indictment charged
appellant and others with failing to file CTRs in specific
instances, see 31 U.S.C. 5324(1); counts 54-68 charged
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appellant with illegally structuring monetary transactions in
order to avoid the CTR reporting requirements, see id. 5324(3);
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counts 69-129 charged appellant and his wife with the use of
property derived from unlawful activities while engaging in
monetary transactions affecting interstate commerce, see 18
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U.S.C. 1956; counts 130-142 charged appellant and his wife with
money laundering in violation of 18 U.S.C. 1956(a)(2); and
counts 143-150 charged appellant and others with Travel Act
violations under 18 U.S.C. 1952(a)(3). The indictment also
contained forfeiture allegations under the applicable RICO and
money laundering statutes. See 18 U.S.C. 982, 1963.
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Six days after the grand jury returned the indictment,
9
Swiss authorities arrested the Saccoccias in Geneva. They
contested extradition on counts 1 through 68, and counts 143
through 150. On June 11, 1992, the Swiss Federal Tribunal (SFT)
granted extradition on all charges except those contained in
counts 2 through 68. The SFT reasoned that these 67 counts
constituted nonextraditable offenses because Swiss law did not
prohibit the underlying conduct. The SFT's discussion did not
specifically mention the forfeiture allegations.
The Swiss surrendered appellant to the United States.
He was transported to Rhode Island and arraigned on July 15. One
week later, the grand jury returned a superseding indictment.5
On July 30, the Justice Department, in the person of Michael
O'Hare, wrote to Tania Cavassini, a Swiss official, enclosing a
copy of the superseding indictment and inquiring whether it
required a waiver of the rule of specialty.
On December 1, 1992, apparently in response to an
inquiry from Cavassini, O'Hare transmitted a written assurance
that, although the court papers still formally listed appellant
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5The charges laid against appellant in the superseding
indictment closely paralleled those contained in the original
bill. Specifically, the grand jury accused appellant of RICO
conspiracy (count 1), failure to file CTRs (counts 2-9), filing
false CTRs (counts 10-22), unlawfully structuring monetary
transactions to evade filing requirements (counts 23-37),
engaging in monetary transactions using property derived from
illegal activities (counts 38-98), money laundering (counts 121-
33), and interstate travel in aid of racketeering (counts 134-
41). Like the original indictment, the superseding indictment
alleged violations of CTR requirements as predicate offenses for
the RICO conspiracy and Travel Act counts, and reiterated the
forfeiture allegations. However, the superseding indictment did
include several counts not directed at appellant (counts 99-120).
10
as a defendant in respect to the CTR counts (for which
extradition had been denied), the prosecution did not intend to
press those counts. O'Hare explained that the prosecutor would
offer no evidence of appellant's guilt on those charges, with the
result that "American law [will require] the judge to direct the
jury to find the defendant not guilty." The following day,
Cavassini advised that, under a "final decision" dated November
20, 1992, the SFT had "granted extradition of [appellant] for the
facts enclosed in the Count Nr. 1 of the Superseding Indictment."
Cavassini also indicated that appellant's local counsel in Geneva
agreed with the SFT's decision and had scotched any possibility
of a further appeal.
On February 2, 1993, before the start of the trial with
which we are concerned, the government moved to dismiss those
counts of the superseding indictment (counts 2-37) that charged
appellant with CTR offenses. The district court complied. The
matter resurfaced in a slightly different shape ten days later
when appellant's Swiss lawyer, Paul Gully-Hart, wrote to
Cavassini expressing concern that appellant's impending
prosecution on charges in which CTR violations were embedded as
predicates for other offenses would insult the rule of specialty.
On March 2, Gully-Hart wrote again, this time enclosing a copy of
the prosecution's opening statement to the petit jury. Cavassini
forwarded both of these letters to O'Hare. On March 8, Cavassini
spoke with O'Hare and voiced her concern that appellant might be
convicted under count 1 solely on the basis of CTR offenses.
11
The next day, Assistant United States Attorney James
Leavey, a member of the prosecution team, advised Judge Torres
that he had spoken with O'Hare. Without conceding the legal
validity of Gully-Hart's point, Leavey asked the court to
instruct the jury that CTR violations could not serve as
predicates for purposes of either the RICO or Travel Act counts.
When the court acquiesced, the government submitted a redacted
indictment that deleted all references to CTR offenses from the
RICO and Travel Act counts. Appellant nonetheless moved for a
mistrial, invoking the rules of dual criminality and specialty.
The district court denied the motion, explaining that
it had agreed to the government's proposal purely as an
accommodation. In the judge's view, the precautions were not
legally required because the SFT had been pellucid in authorizing
prosecution on the RICO count even though the claimed CTR
violations were prominently displayed therein as potential
predicates. The judge noted, moreover, that evidence of
appellant's CTR violations was in all events admissible in
connection with the substantive money laundering counts (as to
which extradition had been approved). Appellant resurrected the
issue in his motion for a new trial following the adverse jury
verdict. The court stood firm.
B. Dual Criminality and Specialty.
B. Dual Criminality and Specialty.
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Although the principles of dual criminality and
specialty are closely allied, they are not coterminous. We
elaborate below.
12
1. Dual Criminality. The principle of dual
1. Dual Criminality.
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criminality dictates that, as a general rule, an extraditable
offense must be a serious crime (rather than a mere peccadillo)
punishable under the criminal laws of both the surrendering and
the requesting state. See Brauch v. Raiche, 618 F.2d 843, 847
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(1st Cir. 1980). The current extradition treaty between the
United States and Switzerland embodies this concept. See Treaty
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of Extradition, May 14, 1900, U.S.-Switz., Art. II, 31 Stat.
1928, 1929-30 (Treaty).
The principle of dual criminality does not demand that
the laws of the surrendering and requesting states be carbon
copies of one another. Thus, dual criminality will not be
defeated by differences in the instrumentalities or in the stated
purposes of the two nations' laws. See Peters v. Egnor, 888 F.2d
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713, 719 (10th Cir. 1989). By the same token, the counterpart
crimes need not have identical elements. See Matter of
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Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986).
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Instead, dual criminality is deemed to be satisfied when the two
countries' laws are substantially analogous. See Peters, 888
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F.2d at 719; Brauch, 618 F.2d at 851. Moreover, in mulling dual
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criminality concerns, courts are duty bound to defer to a
surrendering sovereign's reasonable determination that the
offense in question is extraditable. See Casey v. Department of
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State, 980 F.2d 1472, 1477 (D.C. Cir. 1992) (observing that an
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American court must give great deference to a foreign court's
determination in extradition proceedings); United States v. Van
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13
Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987) (similar), cert.
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denied, 484 U.S. 1042 (1988).
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Mechanically, then, the inquiry into dual criminality
requires courts to compare the law of the surrendering state that
purports to criminalize the charged conduct with the law of the
requesting state that purports to accomplish the same result. If
the same conduct is subject to criminal sanctions in both
jurisdictions, no more is exigible. See United States v. Levy,
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905 F.2d 326, 328 (10th Cir. 1990), cert. denied, 498 U.S. 1049
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(1991); see also Collins v. Loisel, 259 U.S. 309, 312 (1922) ("It
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is enough [to satisfy the requirement of dual criminality] if the
particular act charged is criminal in both jurisdictions.").
2. Specialty. The principle of specialty a
2. Specialty.
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corollary to the principle of dual criminality, see United States
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v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988), cert. denied,
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489 U.S. 1027 (1989) generally requires that an extradited
defendant be tried for the crimes on which extradition has been
granted, and none other. See Van Cauwenberghe, 827 F.2d at 428;
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Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir.), cert. denied,
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479 U.S. 882 (1986). The extradition treaty in force between the
United States and Switzerland embodies this concept, providing
that an individual may not be "prosecuted or punished for any
offense committed before the demand for extradition, other than
that for which the extradition is granted . . . ." Treaty, Art.
IX.
Enforcement of the principle of specialty is founded
14
primarily on international comity. See United States v. Thirion,
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813 F.2d 146, 151 (8th Cir. 1987). The requesting state must
"live up to whatever promises it made in order to obtain
extradition" because preservation of the institution of
extradition requires the continuing cooperation of the
surrendering state. United States v. Najohn, 785 F.2d 1420, 1422
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(9th Cir.) (per curiam), cert. denied, 479 U.S. 1009 (1986).
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Since the doctrine is grounded in international comity rather
than in some right of the defendant, the principle of specialty
may be waived by the asylum state. See id.
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Specialty, like dual criminality, is not a hidebound
dogma, but must be applied in a practical, commonsense fashion.
Thus, obeisance to the principle of specialty does not require
that a defendant be prosecuted only under the precise indictment
that prompted his extradition, see United States v. Andonian, 29
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F.3d 1432, 1435-36 (9th Cir. 1994), cert. denied, 115 S. Ct. 938
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(1995), or that the prosecution always be limited to specific
offenses enumerated in the surrendering state's extradition
order, see Levy, 905 F.2d at 329 (concluding that a Hong Kong
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court intended to extradite defendant to face a continuing
criminal enterprise charge despite the court's failure
specifically to mention that charge in the deportation order).
In the same vein, the principle of specialty does not impose any
limitation on the particulars of the charges lodged by the
requesting nation, nor does it demand departure from the forum's
existing rules of practice (such as rules of pleading, evidence,
15
or procedure). See United States v. Alvarez-Moreno, 874 F.2d
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1402, 1414 (11th Cir. 1989), cert. denied, 494 U.S. 1032 (1990);
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Thirion, 813 F.2d at 153; Demjanjuk v. Petrovsky, 776 F.2d 571,
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583 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986).
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In the last analysis, then, the inquiry into specialty
boils down to whether, under the totality of the circumstances,
the court in the requesting state reasonably believes that
prosecuting the defendant on particular charges contradicts the
surrendering state's manifested intentions, or, phrased another
way, whether the surrendering state would deem the conduct for
which the requesting state actually prosecutes the defendant as
interconnected with (as opposed to independent from) the acts for
which he was extradited. See Andonian, 29 F.3d at 1435; United
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States v. Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988), cert.
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denied, 489 U.S. 1012 (1989); United States v. Paroutian, 299
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F.2d 486, 490-91 (2d Cir. 1962).
C. Applying the Principles.
C. Applying the Principles.
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A district court's interpretation of the principles of
dual criminality and specialty traditionally involves a question
of law and is, therefore, subject to plenary review in the court
of appeals. See Andonian, 29 F.3d at 1434; United States v.
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Khan, 993 F.2d 1368, 1372 (9th Cir. 1993); United States v.
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Abello-Silva, 948 F.2d 1168, 1173 (10th Cir. 1991), cert. denied,
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113 S. Ct. 107 (1992). Marching beneath this banner, appellant
16
urges that his conviction must be set aside for three related
reasons.6 None has merit.
1. Predicate Acts. Appellant's flagship contention
1. Predicate Acts.
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rests on the postulate that an offense which is itself
nonextraditable cannot serve as a predicate act in connection
with other, extraditable offenses; and that, therefore, the
government's use of nonextraditable CTR offenses as predicate
acts for purposes of the RICO and Travel Act counts crossed the
line into forbidden territory. Even if we assume, however, that
in some situations reliance on nonextraditable offenses as
predicates for other, extraditable offenses might run afoul of
dual criminality or specialty principles, the circumstances of
this case present no such problem.
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6There is some dispute whether alleged violations of the
principle of specialty can be raised by a criminal defendant.
See, e.g., Demjanjuk, 776 F.2d at 583-84 (questioning whether the
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person being extradited "has standing to assert the principle of
specialty"); Kaiser v. Rutherford, 827 F. Supp. 832, 835 (D.D.C.
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1993) (asserting that "[t]he rule of specialty is not a right of
the accused but is a privilege of the asylum state and therefore
[the defendant] has no standing to raise this issue") (internal
quotation marks omitted). We need not probe the matter of
standing for three reasons. First, while we take no view of the
issue, we realize that there are two sides to the story, and the
side that favors individual standing has much to commend it.
See, e.g., United States v. Rauscher, 119 U.S. 407, 422-24 (1886)
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(referring to specialty as a "right conferred upon persons
brought from a foreign country" via extradition proceedings);
Thirion, 813 F.2d at 151 & n.5 (to like effect); see also United
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States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1992)
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(suggesting the continuing vitality of the Rauscher decision).
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Second, the government has advised us that, for policy reasons,
it does not challenge appellant's standing in this instance.
Third, appellant's asseverations are more easily dismissed on the
merits. See Norton v. Mathews, 427 U.S. 524, 532 (1976)
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(explaining that jurisdictional questions may be bypassed when a
ruling on the merits will achieve the same result).
17
In general, we do not believe that there can be a
violation of the principle of specialty where the requesting
nation prosecutes the returned fugitive for the exact crimes on
which the surrendering nation granted extradition. So it is
here: the SFT twice approved appellant's extradition on counts
that prominently featured CTR offenses as predicates. This
approval to which we must pay the substantial deference that is
due to a surrendering court's resolution of questions pertaining
to extraditability, see, e.g., Casey, 980 F.2d at 1477 strongly
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suggests that the RICO and Travel Act counts, despite their
mention of predicates which, standing alone, would not support
extradition, are compatible with the criminal laws of both
jurisdictions. Though a Swiss official may informally have
fretted about the prospect of a RICO or Travel Act conviction
based on nonextraditable predicates, we are reluctant to conclude
on this gossamer showing that the SFT did not know and appreciate
the clearly expressed contents of the indictment when it
sanctioned extradition.
To clinch matters, the prosecution avoided any
potential intrusion on the principles of either dual criminality
or specialty by taking a series of prophylactic actions at trial.
The fourth redacted indictment removed all references to CTR
offenses from the compendium of charges pressed against the
appellant. The judge then reinforced this fumigation of the
indictment by advising the jurors that they should not concern
18
themselves with whether appellant had committed any CTR
offenses.7 These precautions purged any taint, and knocked the
legs out from under the line of reasoning that appellant seeks to
pursue.
2. Keeping Faith. Next, appellant asserts that the
2. Keeping Faith.
_____________
government infringed on the principle of specialty by breaking
its promise to the Swiss government and introducing evidence of
CTR violations at appellant's trial. Abstractly, we agree with
the core element of appellant's premise: the principle of
specialty requires the requesting state to abide by the promises
it makes to the surrendering state in the process of procuring
extradition. See Najohn, 785 F.2d at 1422. But, concretely, we
___ ______
are unable to discern any breach of faith in this instance.
Thus, we resist the conclusion that appellant would foist upon
us.
____________________
7The judge instructed the jury:
You have heard references during this trial
to currency transaction reporting
requirements and I should make it clear that
you are not being called upon to determine
whether the defendant violated or conspired
to violate any of those requirements.
Therefore, you may consider evidence
regarding the nature of currency transactions
with banks to the extent that such evidence,
in your view, may bear on the source of the
money involved and/or the purposes for which
the money may have been transferred or
transported. But in reaching your verdict,
you may not consider whether any such
transactions were or were not consistent with
transaction reporting requirements because, .
. . as I have just said, that is not an issue
in this case. . . .
19
To buttress the claim that the United States did not
keep its word, appellant avers that O'Hare's facsimile
transmission, sent on December 1, 1992, was the functional
equivalent of an assurance that the prosecutor would not present
any evidence to the jury regarding Saccoccia's noncompliance with
CTR requirements. Fairly read, the document despite its
iteration that the prosecutor "would present no evidence
regarding [Saccoccia's] guilt . . . on the charges for which
extradition was not granted" does not support appellant's
construction. O'Hare sent the transmittal in response to
Cavassini's expression of concern that appellant might be
convicted of charges for which extradition had been denied. His
reply, taken in context, see supra pp. 10-11, amounted to no more
___ _____
than an assurance against that possibility. To read a promise
_________________________
not to introduce any evidence relevant to CTR violations into
O'Hare's statement would necessitate wresting it from its
contextual moorings and unreasonably stretching its literal
meaning. We decline appellant's invitation to indulge in such
phantasmagoric wordplay.8
3. The Claimed "Prosecution." Appellant's third
3. The Claimed "Prosecution."
____________________________
contention is that the government violated the principle of
____________________
8Of course, appellant had already been extradited and the
Swiss authorities had already approved the superseding indictment
before this supposed promise was made. This places a further
obstacle in appellant's path: it strikes us as problematic
whether the breach of a promise made after the defendant has been
_____
extradited, without more, furnishes a basis for reversing an
ensuing conviction. In such circumstances, the surrendering
state, by definition, has not relied on the requesting state's
promise in deciding to return the defendant.
20
specialty because it prosecuted him for CTR offenses. Since the
nonextraditable CTR counts, as they pertained to appellant, were
dismissed before the second trial began, his claim is founded on
no more than the fact that his name appeared on the indictment
during the first trial. While this may literally be
"prosecution," it is prosecution in name only and we will not
carry hollow formalism to a point at which it engulfs common
sense. Consequently, we hold that the mere existence of an
unredacted indictment, under the circumstances of this case, is
no reason to invalidate Saccoccia's conviction. Cf. Tacket v.
___ ______
Delco Remy Div. of Gen. Motors Corp., 937 F.2d 1201, 1202 (7th
_____________________________________
Cir. 1991) (Bauer, C.J.) (quoting doggerel to the effect that
"[s]ticks and stones may break your bones, but names can never
hurt you").
This leaves appellant's argument that he was illegally
"prosecuted" because CTR offenses were included as predicate acts
for purposes of the RICO and Travel Act counts until the fourth
redacted indictment surfaced. As we have already observed,
however, it would have been perfectly proper for the government
to seek convictions on those counts based on CTR predicates.
Hence, appellant's argument is without merit.9
For these reasons, we find appellant's conviction free
from taint under the applicable extradition laws.
____________________
9If more is needed and we do not believe that it is the
evidence of CTR violations, by and large, was independently
admissible to support various aspects of the money laundering
charges and other substantive counts for which extradition was
explicitly approved.
21
III. THE COVETED CONTINUANCE
III. THE COVETED CONTINUANCE
Appellant contends that the district court arbitrarily
refused him a lengthy continuance prior to the start of the
second trial,10 leaving him with insufficient preparation time.
Our analysis of the record indicates that the court acted within
its discretion in scotching appellant's request.
A. Setting the Stage.
A. Setting the Stage.
_________________
At arraignment, two attorneys, Jack Hill and Brian
Adae, entered appearances as appellant's counsel. Soon
thereafter, Austrian authorities arrested Hill for money
laundering. Hill languished in prison from August through
November of 1992. During that interval, he could not communicate
with, or effectively assist, Saccoccia. Adae, who had originally
been enlisted as local counsel, stepped into the breach and acted
as lead counsel. Shortly after the first trial began, Adae
became ill. The court granted appellant's motion for a mistrial
and ordered a severance. The case proceeded to verdict vis-a-vis
the other defendants. See supra note 3.
___ _____
Naturally, the severance required a separate trial for
appellant. The district court proposed to start in early
February of 1993. Within a matter of days after the court
announced the schedule, Hill, recently released from an Austrian
prison, and Kenneth O'Donnell, a prominent Rhode Island defense
lawyer, entered appearances as appellant's counsel. On December
____________________
10Appellant does not assign error to the denial of the
continuances that he sought before the first (aborted) trial.
See supra note 2.
___ _____
22
10, 1992, appellant signed an extensive waiver of the potential
conflict of interest posed by Hill's representation of him at a
time when Hill himself faced charges of money laundering arising
out of activities undertaken in conjunction with appellant.
On the same day, the court held a hearing anent the
waiver. Among other things, appellant requested that his trial
be rescheduled to April of 1993 so that his defense team could
have more time to prepare. He claimed this extra time was
necessary to review financial documents, study surveillance
tapes, glean exculpatory evidence, and analyze inconsistencies in
the statements of government witnesses. The court granted only a
two-week extension, from February 3 to February 17, noting that
the original indictment had been returned in 1991 and that
counsel already had enjoyed a considerable period for
preparation. Subsequent requests for continuances were also
denied.
B. Applicable Legal Principles.
B. Applicable Legal Principles.
___________________________
Trial management is peculiarly within the ken of the
district court.11 That court has great latitude in managing
____________________
11As we wrote on an earlier occasion:
There is an important public interest in the
efficient operation of the judicial system
and in the orderly management of crowded
dockets. . . . The district judge is at the
helm, sensitive to the tides that ebb and
flow during a prolonged trial and
knowledgeable about systemic demands. He is,
therefore, the person best equipped to
balance the competing considerations.
United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990).
_____________ _____
23
its docket, including broad discretion to grant or withhold
continuances. Only "an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay"
constitutes an abuse of that discretion. Morris v. Slappy, 461
______ ______
U.S. 1, 11-12 (1983) (internal quotation marks omitted); see also
___ ____
United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990)
______________ _____
(explaining that an appellate court "must show great deference"
to district court decisions of this nature, and should overturn
such decisions "only for a manifest abuse of discretion"). For
present purposes, this means that the decision below must endure
unless the party who moved for the continuance can demonstrate
that, in withholding relief, the trial court indulged a serious
error of law or suffered a meaningful lapse of judgment,
resulting in substantial prejudice to the movant.12 See, e.g.,
___ ____
United States v. Saget, 991 F.2d 702, 708 (11th Cir.), cert.
______________ _____ _____
denied, 114 S. Ct. 396 (1993); United States v. Dennis, 843 F.2d
______ _____________ ______
652, 653 n.1 (2d Cir. 1988).
For the purpose of determining whether a denial of a
continuance constitutes an abuse of discretion, each case is sui
___
generis. See United States v. Torres, 793 F.2d 436, 440 (1st
_______ ___ _____________ ______
____________________
12The Seventh Circuit has gone so far as to term trial court
decisions denying continuances "virtually unreviewable." United
______
States v. Stevenson, 6 F.3d 1262, 1265 (7th Cir. 1993) (internal
______ _________
quotation marks omitted). We think this description heads in the
right direction but goes too far. See, e.g., United States v.
___ ____ _____________
Soldevila-Lopez, 17 F.3d 480, 490 (1st Cir. 1994) (reversing
_______________
district court's refusal to grant a continuance on the ground
that newly emergent evidence justified more time); Delaney v.
_______
United States, 199 F.2d 107, 115 (1st Cir. 1952) (finding that
______________
nationwide publicity had created a hostile atmosphere, and that,
therefore, the district court should have granted a continuance).
24
Cir.), cert. denied, 479 U.S. 889 (1986). A reviewing court must
_____ ______
look first at the reasons contemporaneously presented in support
of the request for the continuance. See United States v.
___ _____________
Lussier, 929 F.2d 25, 28 (1st Cir. 1991). Other relevant factors
_______
may include such things as the amount of time needed for
effective preparation, the amount of time actually available for
preparation, the amount of time previously available for
preparation and how assiduously the movant used that time, the
extent to which the movant has contributed to his perceived
predicament, the complexity of the case, the availability of
assistance from other sources, the probable utility of a
continuance, the extent of inconvenience to others (such as the
court, the witnesses, and the opposing party) should a
continuance ensue, and the likelihood of injustice or unfair
prejudice attributable to the denial of a continuance. See
___
United States v. Soldevila-Lopez, 17 F.3d 480, 488 (1st Cir.
______________ _______________
1994); Lussier, 929 F.2d at 28; United States v. Zannino, 895
_______ _____________ _______
F.2d 1, 13-14 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).
_____ ______
C. Analysis.
C. Analysis.
________
Here, balancing the relevant considerations leaves us
confident that the circumstances justified the refusal to grant a
continuance. And, moreover, the record belies appellant's
contention that the court's obduracy unfairly prejudiced his
rights by leaving him insufficient time to prepare for trial.
Appellant's most loudly bruited point is that the government
produced 1600 hours of wiretap audio tapes, and that he had only
25
67 days, which he translates as equalling 1608 hours, to listen
to them. Although this lament has some superficial plausibility,
we agree with the district court that, notwithstanding the number
of tapes, it was reasonable to expect defense counsel to be ready
for trial in February. We explain briefly.
The grand jury indicted appellant in November of 1991.
Thus, appellant's counsel, collectively, had far more than 67
days in which to work on the case. Moreover, the lawyers had the
not-inconsiderable benefit of a dress rehearsal, including
unlimited access to the full record of the first trial (in which
virtually the entire case against appellant was aired).
O'Donnell, one of appellant's new attorneys, was especially
familiar with the situation because he had represented a
codefendant who had been acquitted in a separate trial.
Furthermore, Hill and O'Donnell could and no doubt did confer
with counsel for the codefendants and with Attorney Adae. In
short, the means for efficacious preparation were tidily at hand.
Appellant's other assertions of supposed prejudice also
lack force. For example, his suggestion that a continuance might
have enabled him to receive a complete transcript of Agent
Shedd's conversation with Duenas overlooks the fact that the
government provided him with the entire transcript. See infra
___ _____
Part IV (E). His claim that more time was needed to obtain a
copy of a DEA report that he asserts would have bolstered the
testimony of an expert witness overlooks the fact that the expert
knew of the report and described its conclusions. See infra note
___ _____
26
18. His claim that a continuance would have enabled him to
obtain enhanced versions of two of the surveillance tapes before
trial, see infra Part IV (F), is completely unpersuasive given
___ _____
his assertion that the enhanced tapes, when received, were
"unclear" and "unintelligible." Appellant's Brief at 36. And,
finally, appellant's exhortation that a continuance would have
allowed him to investigate whether the laundered cash represented
gambling proceeds, as opposed to drug money, is unaccompanied by
any colorable basis for assuming that his supposition was
anything more than the most remote of possibilities.
In a nutshell, appellant has not made a sufficient
showing of undue prejudice to warrant us in second-guessing
either the district court's resolve to start the trial in mid-
February of 1993 or its decision to grant appellant a far more
modest delay than he requested. Since the record reflects no
pressing need for an extended continuance, and likewise fails to
demonstrate significant harm flowing from the lack of one, the
denial of the motion for a continuance cannot be said to have
substantially impaired appellant's defense. See, e.g., Dennis,
___ ____ ______
843 F.2d at 653 n.1. Thus, no cognizable error inheres.
D. Conflict of Interest.
D. Conflict of Interest.
____________________
Relatedly, appellant claims that the denial of a
continuance saddled him with conflict-ridden counsel. This
construct does not withstand scrutiny. To show an actual
conflict of interest, a criminal defendant "must demonstrate that
some plausible alternative defense strategy might have been
27
pursued" and "that this alternative strategy was not pursued
because of the attorney's other loyalties or interests." United
______
States v. Garcia-Rosa, 876 F.2d 209, 231 (1st Cir. 1989), cert.
______ ___________ _____
granted and judgment vacated on other grounds, 498 U.S. 954
_________________________________________________
(1990). Appellant cannot meet this standard.
Appellant sees the conflict of interest as centered in
Hill's need to protect himself at his client's expense.
Appellant supports this accusation by repeated reference to
Hill's indictment in Austria on charges that he conspired with
appellant to launder the fruits of unlawful activity but
appellant does not suggest any way in which this alleged conflict
of interest adversely affected Hill's representation of him at
trial. What is more, appellant's claim that he was faced with an
intolerable dilemma he could accept Hill as his counsel or
proceed to trial with an attorney who was untutored in the case
is flatly contradicted by the record.
Appellant insisted, time and again, despite the
district court's painstaking explanation of his right to
conflict-free counsel, that Hill was the advocate of his
choosing. Appellant told the court unequivocally that he
understood the potential conflict, but desired Hill's services.
And he adhered to his position notwithstanding the court's
entreaty to reconsider and its advice that he would be "better
off" with an attorney free of any ties to the situation.
Last but surely not least appellant executed a
written waiver stating that, after "[h]aving been fully advised
28
of the possible adverse consequences arising from the actual or
potential conflicts with which Hill is or may be encumbered," he
"knowingly, voluntarily, intelligently, and irrevocably [wishes]
to waive any and all such actual or potential conflicts of
interest for the purpose of retaining Hill as his counsel." When
a defendant knowingly selects a course of action, fully cognizant
of its perils, he cannot later repudiate it simply because his
case curdles. In the circumstances at bar, it is neither unfair
nor unjust to hold appellant to his words. Thus, the district
court's determination that appellant had voluntarily and
knowingly waived his right to conflict-free representation is
unimpugnable. See Holloway v. Arkansas, 435 U.S. 475, 483 n.5
___ ________ ________
(1978) (stating that "a defendant may waive his right to the
assistance of an attorney unhindered by a conflict of
interests").
Appellant has another arrow in this quiver. He reasons
that the court should have overlooked his waiver of conflict-free
counsel because Hill's continued representation constituted an
unwaivable constitutional transgression. To be sure, a few
courts have found a per se Sixth Amendment violation "where trial
counsel was implicated in the crime for which his client was on
trial." Soldevila-Lopez, 17 F.3d at 487 n.4 (citing cases). But
_______________
these cases tend to involve circumstances in which an attorney
has reason to fear that a vigorous defense of the client might
unearth proof of the attorney's criminality. See, e.g., United
___ ____ ______
States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Although
______ ________
29
Hill informed the court, in the vaguest of generalities, that he
feared being charged or called as a witness in appellant's case,
he provided no substantiation of these assertions, nor was he
able to explain how the hypothetical conflict would, at that
time, affect his representation of the appellant. Therefore, the
district court seems entirely justified in concluding that Hill's
representation of appellant would not be hampered by a realistic
foreboding that vigorous advocacy would uncover evidence of his
own crimes. Cf. William Shakespeare, Macbeth, Act I, sc. iii,
___ _______
ll. 133-34 (1605) (noting that "present fears are less than
horrible imaginings").
The sockdolager is that, wholly apart from Hill's
status, appellant was also represented at trial by another
lawyer, O'Donnell, who had no conflict of interest.13 In an
effort to scale this rampart, appellant suggests that O'Donnell,
too, had an actual conflict of interest arising out of his
previous representation of a codefendant, Raymond Marotto. By
December of 1992, however, Marotto, a bank employee charged with
failing to file CTRs, had been acquitted in a separate trial.
Appellant's convoluted explanation of how O'Donnell's concluded
representation of Marotto created a conflict of interest is
difficult to follow. He seems to be saying, without any citation
____________________
13At the December 10, 1992 waiver hearing, O'Donnell told
the court that he had been "independently retained by [appellant]
to be local counsel and co-counsel." He assured the court that
he would "independently advise [appellant] with respect to any
matters that might be affected by any potential conflict of
interest Mr. Hill might have."
30
to the record, that Marotto (who was not called to testify at
appellant's trial) could have been a material witness. We reject
this unfounded speculation.
As O'Donnell himself pointed out, Marotto's case turned
on whether he did or did not have a responsibility to file
CTRs. There is nothing in the record that suggests that Marotto
had any knowledge that might have been useful in appellant's
defense. We have routinely dismissed analogous conflict of
interest claims, see, e.g., Garcia-Rosa, 876 F.2d at 231 (so
___ ____ ___________
holding when defendant "provide[d] no substantiation" for his
assertion that his counsel had a conflict of interest that
manifested itself when he did not call as a witness a person whom
he previously had represented), and we dismiss appellant's claim
on the same basis. It is simply too flimsy.
E. The Mid-Trial Motion.
E. The Mid-Trial Motion.
____________________
At the close of the government's case, appellant
submitted a proffer in support of a renewed motion for a
continuance. The proffer suggested a global conspiracy "between
the Israeli intelligence services and the CIA," and asserted that
he had witnesses who "would testify about such matters as the
Israeli defense industry" and "[t]he method by which the building
of Israeli religious schools is financed by Hasidic Jews in the
United States who engage in money laundering." Appellant claimed
that his counsel needed time to investigate the matters described
in the proffer.
The district court found the proffer to be "too vague
31
and unsubstantiated to constitute a basis for granting a
continuance" because its "conclusory allegations" offered no
explanation as to its relevancy to the case. Moreover, the court
found no evidence that diligent efforts had been made to assure
availability of the testimony and documents in a proper time
frame. Hence, the court determined that the proffer afforded an
inadequate basis for the requested continuance.
We discern no abuse of discretion. While the proffer
weaves a tale of intrigue worthy of an Oliver Stone screenplay,
we are unable to distill sufficient relevance or likelihood of
success from its sinister allegations to suggest that a
continuance, if granted, would have proven useful.
IV. MONEY AND DRUGS
IV. MONEY AND DRUGS
In order to obtain a conviction on the money laundering
counts, as charged in the superseding indictment, the government
had the burden of proving that the laundered funds were derived
from the narcotics trade. See 18 U.S.C. 1956(a)(2). Appellant
___
challenges both the admissibility and the sufficiency of the
evidence introduced for this purpose. The challenge is
unavailing.
A. Standard of Review.
A. Standard of Review.
__________________
A district court has considerable discretion when
determining whether evidence is admissible. See United States v.
___ _____________
Paulino, 13 F.3d 20, 25 (1st Cir. 1994); Zannino, 895 F.2d at 16-
_______ _______
17; United States v. Nivica, 887 F.2d 1110, 1126 (1st Cir. 1989),
_____________ ______
32
cert. denied, 494 U.S. 1005 (1990). Where, as here, the court
_____ ______
finds that evidence is relevant, Fed. R. Evid. 401, but the
defendant nonetheless objects to it on the ground that its value
is overborne by the potential mischief it may cause, Fed. R.
Evid. 403, the trial court must "strike a balance between
probative worth and likely prejudice." Zannino, 895 F.2d at 16-
_______
17. The district court is the primary arbiter of how these
scales should be calibrated. On appeal, we will reverse its
determination only if admitting the evidence constituted a
palpable abuse of discretion. See United States v. De La Cruz,
___ _____________ ___________
902 F.2d 121, 124 (1st Cir. 1990); United States v. Rodriguez-
______________ __________
Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989). This is a
_______
difficult row to hoe: "Only rarely and in extraordinarily
compelling circumstances will we, from the vista of a cold
appellate record, reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and unfair
effect." Freeman v. Package Mach. Corp., 865 F.2d 1331, 1340
_______ ____________________
(1st Cir. 1988).
When no contemporaneous objection appears of record,
the complaining party's burden increases. In that situation,
appellate review is for "plain error." United States v.
______________
Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993), cert. denied, 114
_________ _____ ______
S. Ct. 2714 (1994); see also Fed. R. Crim. P. 52(b). When the
___ ____
plain error standard prevails, we reverse only if a miscue "so
poisoned the well that the trial's outcome was likely affected."
Sepulveda, 15 F.3d at 1188 (quoting United States v. Mejia-
_________ _____________ ______
33
Lozano, 829 F.2d 268, 274 (1st Cir. 1987)).
______
A different standard of review takes center stage when
a defendant challenges the sufficiency of the evidence supporting
his conviction. In that connection, the inquiry turns on
whether, "after assaying all the evidence in the light most
amiable to the government, and taking all reasonable inferences
in its favor, a rational factfinder could find, beyond a
reasonable doubt, that the prosecution successfully proved the
essential elements of the crime." United States v. O'Brien, 14
_____________ _______
F.3d 703, 706 (1st Cir. 1994). In performing the requisite
analysis, we do not assess the credibility of witnesses, see id.,
___ ___
nor do we force the government to disprove every reasonable
hypothesis of innocence, see United States v. Echeverri, 982 F.2d
___ _____________ _________
675, 677 (1st Cir. 1993).
B. National Origin Evidence.
B. National Origin Evidence.
________________________
Appellant contends that the prosecution made unfair use
of impermissibly suggestive innuendo and stereotypes about
Colombians, thereby inviting reversal. Appellant's argument
focuses on evidence adduced, or remarks made, at four different
points during his trial. First, appellant accuses the government
of eliciting testimony concerning the birthplaces of Escobar and
Garcia (both of whom were born in Colombia), while not inquiring
about any other individual's place of birth. Second, the court
permitted Sharir to testify that appellant told him to be careful
because he was dealing with Colombians, who would go after his
family if they were crossed. Third, when Donald Semesky, an IRS
34
agent, offered expert testimony as to the modus operandi of
_____ ________
Colombian drug cartels, he mentioned, among other things, that
two Colombian cartels control the illegal importation of cocaine
into the United States, and that their narcotics trafficking
generates much cash, necessitating money laundering. Fourth, the
government's summation hammered these same points.
Due to the singular importance of keeping our criminal
justice system on an even keel, respecting the rights of all
persons, courts must not tolerate prosecutors' efforts
gratuitously to inject issues like race and ethnicity into
criminal trials. See McClesky v. Kemp, 481 U.S. 279, 309 & n.30
___ ________ ____
(1987); United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990).
_____________ ___
Emphasizing a person's national origin not only may raise
concerns of relevancy, undue prejudice, and prosecutorial
misconduct, but also may pose issues of constitutional dimension.
See, e.g., United States v. Vue, 13 F.3d 1206, 1213 (8th Cir.
___ ____ _____________ ___
1994); United States v. Rodriguez Cortes, 949 F.2d 532, 541 (1st
_____________ ________________
Cir. 1991).
This does not mean, however, that all evidence touching
___
upon race or national origin automatically must be excluded. A
trial involves a search for the truth, and, as such, it cannot be
entirely antiseptic. The trick is to separate impermissible uses
of highly charged evidence from those uses that are proper and
permissible. See United States v. Alzanki, ___ F.3d ___, ___
___ _____________ _______
(1st Cir. 1995) [No. 94-1645, slip op. at 25-26]; Doe, 903 F.2d
___
at 25. Thus, while it has proven acceptable on occasion for a
35
prosecutor to introduce evidence of oppressive Kuwaiti customs to
buttress the reasonableness of the victim's professed belief, see
___
Alzanki, ___ F.3d at ___ [slip op. at 26], or to make an
_______
"unembellished reference to evidence of race simply as a factor
bolstering an eyewitness identification of the culprit," Doe, 903
___
F.2d at 25 (dictum), or to remark that an Iranian defendant
likely assumed that his "American wife" would not be searched at
customs, United States v. Tajeddini, 996 F.2d 1278, 1285 (1st
______________ _________
Cir. 1993),14 or to describe drugs as coming from Colombia to
give the jury a complete view of the conspiracy's endeavors to
import cocaine, see United States v. Ovalle-Marquez, 36 F.3d 212,
___ _____________ ______________
220 (1st Cir. 1994), cert. denied, 115 S. Ct. 1322 (1995),
_____ ______
aggressive prosecutors sometimes go too far. When that occurs,
courts must act. We have, for instance, reversed convictions
when, as in Rodriguez Cortes, the government's strategem
_________________
blatantly invited the jury to find the defendant guilty by reason
of his national origin. See Rodriguez Cortes, 949 F.2d at 541
___ ________________
(finding abuse of discretion in admission of defendant's
Colombian identification card); see also Vue, 13 F.3d at 1212-13
___ ____ ___
(reversing conviction because district court admitted testimony
____________________
14It is noteworthy that in Tajeddini the prosecutor made the
_________
challenged comment in an effort to rebut the defendant's protest
that he could not have known that he was smuggling heroin because
he did not try to hide the drugs in a secret compartment in his
luggage. See 996 F.2d at 1285. In that respect, Tajeddini
___ _________
resembles United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1986)
_____________ ____
(finding defendant's claim that he lacked the wherewithal to be a
major drug dealer properly rebutted by evidence about the modest
price of heroin in Pakistan, the practice among Pakistani dealers
of selling drugs on credit, and the tendency of all Pakistanis,
regardless of wealth, to dress alike).
36
tying defendant's ethnic group, the Hmong, to 95% of the local
opium trade); Doe, 903 F.2d at 23-27 (reversing conviction due to
___
admission of testimony on modus operandi of Jamaican drug gangs
_____ ________
and prosecutor's inflammatory comments thereon).
In determining the propriety of evidence implicating
ethnicity or national origin, context is critical. In the case
at bar, all the evidence about Colombia, viewed in context, was
properly admitted and used. By like token, the prosecutor's
comments were not beyond the pale.
Appellant's first contention is factually incorrect.
The prosecutor asked several witnesses other than Escobar and
Garcia (e.g., Sharir and Slomovits) where they were born. Seen
____
in this light, the casual questioning about place of birth, not
objected to at trial, cannot conceivably plunge to the plane of
plain error.
Similarly, Sharir's testimony that Saccoccia told him
to be wary because he was dealing with Colombians is highly
probative on the issue of appellant's knowledge that the
laundered funds were derived from illegal activities. Moreover,
common sense suggests that drug traffickers are more likely than,
say, Avon ladies, to harm the families of business associates if
a deal sours. It is, therefore, a gross exaggeration to declare
that the evidence had no purpose other than to suggest that
Colombians are prone to violence.
Similarly, Agent Semesky's testimony was relevant and
appropriate in several respects. First, it went a long way
37
toward explaining the nature of money laundering and the basis
for appellant's activities. This is a perfectly legitimate use
of evidence. See Doe, 903 F.2d at 19 & n.21 (citing cases).
___ ___
Even the testimony about the cartels' control over the American
drug trade was relevant on the issue of whether the cash that
appellant scrubbed clean was in fact derived from illegal
activities. The evidence could support a jury's plausible,
though circumstantial, inference of an illicit source of funds
based on appellant's repeated wire transfers of millions of
dollars in laundered money to a country that functions as the
nerve center of the world's traffic in cocaine.
The only remotely problematic references to Colombia
are those contained in the summation. For example, a prosecutor
stated:
[Agent Semesky] told you as an expert,
something you probably already knew, that
cocaine comes from Colombia. That it's run
by cartels in Colombia. That they ship the
money up here and it gets out into the
streets. That's the reason for all these ten
and twenty dollar bills. These are grams of
coke . . . .
Later on, after reminding the jurors that the case involved
roughly $100,000,000 "generated on the streets of New York that
is sent back to Colombia," a prosecutor posed a series of
rhetorical questions:
If we're not talking about cocaine, what are
we talking about? Is this from coffee
vendors? Is this money coming from people
out in the streets selling Colombian coffee?
Oh, I have had a good day today. Five
hundred thousand dollars, unfortunately, it's
all in twenty dollar bills. Think of the
38
change they had to give. This is a case
about Roberto Juri and Tulio Alzate and
Fernando Duenas and Stephen Saccoccia, not
Juan Valdez, ladies and gentlemen. The
evidence in this case and the only reasonable
inference you can draw is drug money.
Appellant did not interject a contemporaneous objection to any of
these comments.15
It strains credulity to suggest, as Saccoccia does,
that the prosecution was arguing that only drugs and coffee come
from Colombia. The remark about coffee vendors was obviously
intended to show the unlikelihood that any legitimate business
would generate the volume of cash that flowed through appellant's
operation. The quip about Juan Valdez,16 while an unnecessary
____________________
15The closing argument also contained the following passage:
[W]e are asking you to draw some outrageous
innuendo that because people are Colombians,
they are involved in cocaine. The Government
simply is not suggesting that. What we are
suggesting is based on the evidence, the
cocaine comes from Colombia. Juan Carlos
Garcia testified that he was born in Colombia
and Raoul Escobar testified that he was born
in Colombia. This defendant went on two
occasions he went to Colombia to discuss
money-laundering with Tulio Alzate and
Roberto Juri.
Although we cannot tell whether the prosecutor misspoke or
whether his remarks were mistranscribed, we believe that the
first sentence contains an error. The overall meaning of the
passage is clear in urging the jury not to make a prejudicial
inference based solely on nationality.
16We take judicial notice that the fictional Juan Valdez is
a prominent persona in coffee advertisements. See Fed. R. Evid.
___
201(b)(1); 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal
_______
Practice and Procedure 5105, at 489 (1977) (noting that facts
______________________
that are "generally known within the territorial jurisdiction of
the trial court" include those which "exist in the unaided memory
of the populace"). Clad in a serape and sombrero and accompanied
39
aside, cannot be said to emphasize emotion over facts. See Doe,
___ ___
903 F.2d at 25. Viewed as a whole, the prosecution's evidence
and comments about Colombia provide no basis for disturbing the
jury's verdict.
Before ending our elaboration we note, as an adscript,
that appellant himself is not Colombian, but is of Italian
ancestry. This mitigates one of the most serious dangers of
evidence about a person's national origin: that the jury will
believe the defendant is guilty because of stereotyping.
Appellant has not cited any case in which a court has reversed a
conviction due to evidence touching upon a national origin not
shared by the defendant. This is not to say that injustice and
unfair prejudice may never result from a conviction based on
improper use of evidence about the national origin of a
defendant's friends or business associates. But, the ricochet
effect of such evidence is likely to do less harm, on average,
than the direct impact of evidence about the defendant's country
of origin.
C. The Dog Show.
C. The Dog Show.
____________
Appellant faults the district court for admitting
evidence that Bosco von Schleudersitz (Bosco), a nine-year-old
German shepherd trained to detect narcotics,17 alerted to the
____________________
by his faithful donkey, Valdez regularly appears in supermarkets
and private kitchens to remind consumers of the virtues of
Colombian coffee.
17The dog's original trainer, a former Luftwaffe pilot,
named him after the German word for "ejection seat."
40
presence of drugs in bundles of cash brought to local banks by
appellant's henchmen. At trial Bosco's handler, Sgt. Edward
Conley, testified that he took Bosco to a bank in Cranston, Rhode
Island on March 23, 1990. Bosco "searched" several areas of the
bank, such as the vault and teller stations, and did not react.
Conley then took Bosco to a room in which a bag containing $9,000
was located, and, when he instructed Bosco to search for drugs,
the dog "showed a strong, positive aggressive alert, shaking the
bag, ripping it apart, grabbing the money in his mouth, and
ripping the money." According to Conley, a similar search, with
similar results, took place on April 20, 1990, at a different
bank in Johnston, Rhode Island. In each instance, the currency
to which Bosco reacted had been brought to the bank by
appellant's associates in order to purchase cashier's checks.
To meet this testimony, appellant called two experts
who attacked the reliability of Bosco's response. One of these
witnesses, Thomas Knott, testified that the manner in which
Conley orchestrated the sniff tests did not properly control
against the possibility of a false alert. The second expert, Dr.
James Woodford, criticized the testing protocol because the sniff
tests were not verified by chemical field tests. Woodford also
testified as to the widespread contamination of United States
currency with illegal drugs and the tenuous nature of the link
between a canine alert and a conclusion that particular currency
derived from narcotics trafficking ("[I]f there were drugs on
41
that money, it doesn't mean that it is drug money.").18
Appellant insists that the probative value of the dog
sniff evidence is substantially outweighed by its prejudicial
effect, and that the district court erred in refusing to exclude
the evidence under Fed. R. Evid. 403. This claim deserves
serious attention, for recent decisions about the evidentiary
value of a trained dog's alert to currency are not uniform.
Compare, e.g., United States v. U.S. Currency, $30,060.00, 39
_______ ____ ______________ __________________________
F.3d 1039, 1041-43 (9th Cir. 1994) (noting widespread
contamination and concluding that "the probative value of a
positive dog alert in currency forfeiture cases in Los Angeles is
significantly diminished"); United States v. Carr, 25 F.3d 1194,
_____________ ____
1215 (3d Cir.) (Becker, J., concurring in part and dissenting in
part) (stating that "a substantial portion of United States
currency now in circulation is tainted with sufficient traces of
controlled substances to cause a trained canine to alert"), cert.
_____
____________________
18Appellant criticizes the district court for prohibiting
Dr. Woodford from testifying more fully about a Drug Enforcement
Administration (DEA) report that found one-third of the bills in
a random sample of currency to be contaminated by cocaine. See
___
Jones v. DEA, 819 F. Supp. 698, 720 (M.D. Tenn. 1993) (citing DEA
_____ ___
report). This criticism is overblown. The court permitted the
witness to describe the report's conclusions and to indicate that
he had relied on those findings. See Fed. R. Evid. 703
___
(authorizing reliance on facts or data "of a type reasonably
relied upon by experts in the particular field in forming
opinions or inferences upon the subject"). The court's decision
to preclude attribution of the report was well within its
discretion. Moreover, because the report was available to
appellant despite the government's alleged failure to disclose it
in a timeous manner, the rule of Brady v. Maryland, 373 U.S. 83
_____ ________
(1963), does not profit appellant's cause. See Sepulveda, 15
___ _________
F.3d at 1178 ("The lack of demonstrable prejudice sounds the
death knell for a `delayed discovery' claim."); Devin, 918 F.2d
_____
at 289 (similar).
42
denied, 115 S. Ct. 742 (1994); and Jones v. DEA, 819 F. Supp.
______ ___ _____ ___
698, 721 (M.D. Tenn. 1993) (suggesting that "continued reliance
of courts and law enforcement officers on dog sniffs to separate
`legitimate' currency from `drug-connected' currency is logically
indefensible") with, e.g., United States v. $67,220.00 in U.S.
____ ____ ______________ ___________________
Currency, 957 F.2d 280, 285-86 (6th Cir. 1992) (noting that "a
________
positive dog reaction [to currency] is at least strong evidence
of a connection to drugs"); United States v. $215,300 U.S.
______________ ______________
Currency, 882 F.2d 417, 419 (9th Cir. 1989) (upholding forfeiture
________
based in part on a canine alert to currency), cert. denied, 497
_____ ______
U.S. 1005 (1990); and United States v. Hernando Ospina, 798 F.2d
___ _____________ _______________
1570, 1583 (11th Cir. 1986) (finding canine sniff evidence to be
both probative and helpful to the jury in concluding that
laundered money constitutes drug proceeds).
In the end, we reject appellant's asseveration. We do
not think that the district court, based on the information of
____________________________
record in this case, abused its discretion in admitting the
_____________________
canine sniff evidence.19
Even though widespread contamination of currency
plainly lessens the impact of dog sniff evidence, a trained dog's
____________________
19Because appellant neither introduced nor proffered the
materials discussed by other courts suggesting that a very high
percentage of United States currency is contaminated with drug
residue, see, e.g., Carr, 25 F.3d at 1215 n.6 (reviewing
___ ____ ____
estimates suggesting that between one-third and 97% of United
States currency is drug-contaminated); United States v. $639,558
______________ ________
in U.S. Currency, 955 F.2d 712, 714 n.2 (D.C. Cir. 1992)
_________________
(similar), those materials could not inform the district court's
decision. Cf. Carr, 25 F.3d at 1202 n.3 (declining to take
___ ____
judicial notice that nearly all currency contains detectable
traces of illegal narcotics).
43
alert still retains some probative value. Ordinary experience
suggests that currency used to purchase narcotics is more likely
than other currency to have come into contact with drugs. Here,
moreover, the evidence supports an inference that Bosco's
frenzied reaction was caused by more than a mere trace of
contamination.
The record contains corroboration of Bosco's olfactory
evidence. Several witnesses testified that ordinary human senses
could detect something unusual about the money that appellant's
associates brought to the banks. One teller testified that he
occasionally noticed that the money felt "dusty . . . almost
floury from pizza dough, that type of feeling." Another teller
reported that she noticed an odor or fragrance, akin to that of
an orchid. This evidence, along with Conley's testimony that the
dog did not react in other areas of the banks, buttressed the
lower court's belief that the dog sniff evidence had probative
force.
Conversely, though the dog sniff evidence likely
bolstered the prosecution's case and served to inculpate the
defendant, we are not convinced that it presented a substantial
risk of unfair prejudice. See generally Rodriguez-Estrada, 877
___ _________ _________________
F.2d at 156 ("By design, all evidence is meant to be prejudicial;
it is only unfair prejudice which must be avoided."). After all,
______
the court allowed appellant to call two expert witnesses who
debunked Bosco's reaction to the currency. If, on one hand, the
jury believed the experts, it doubtless discounted the value of
44
the canine alert. If, on the other hand, the jury disbelieved
appellant's experts, it was entitled to place a greater value on
the canine sniff. See, e.g., Quinones-Pacheco v. American
___ ____ ________________ ________
Airlines, Inc., 979 F.2d 1, 5 (1st Cir. 1992) (explaining that
_______________
"expert opinion testimony, even if not directly contradicted, is
not ordinarily binding on a jury").
In any event, considering the high degree of deference
we owe to a district court's balancing of probative value against
unfairly prejudicial effects, see Rodriguez-Estrada, 877 F.2d at
___ _________________
156, we cannot say that the trial court abused its wide
discretion in admitting the evidence of Bosco's reaction to the
currency delivered by appellant's associates.
D. Testimony of Juan Carlos Garcia.
D. Testimony of Juan Carlos Garcia.
_______________________________
Juan Carlos Garcia, a participant in the money
laundering activities, testified for the government at
appellant's trial. Garcia said that in 1987, while living in the
United States, he began working for his brother-in-law, Fernando
Duenas. Following Duenas' orders, Garcia would respond when
paged on his beeper, arrange to retrieve a quantity of cash, and
deposit the money in one of several bank accounts maintained
under the names of Duenas, Duenas' wife (Garcia's sister), or
Duenas' brother. By the end of 1987 the cash had mushroomed from
$10,000-$20,000 per shipment to $150,000-$200,000 per shipment.
Garcia met appellant for the first time in May 1989.
With Duenas' blessing, the two men agreed that appellant would
accept bundles of cash from Garcia and send the money to
45
Colombia. On countless occasions thereafter, appellant received
money from Garcia and redirected it to accounts controlled by
Duenas.
At trial, the district court permitted Garcia, over
objection, to testify that, in 1988, Duenas told him that a man
named "Caesar" would call and give him something other than
money. Garcia knew Caesar because Caesar had brought money to
him on a previous occasion. Caesar called and informed Garcia
that he would be delivering a kilogram of cocaine. Subsequently,
Caesar handed Garcia a shopping bag containing a block of a
granular substance, beige in color. Garcia tried to sell the
merchandise, as directed by Duenas, but he was unable to do so.
He eventually delivered the package to another individual on
Duenas' instructions.
Appellant assigns error to the trial court's admission
of the testimony anent the package. The assignment of error has
twin foci: (1) the conversations between Duenas and Garcia, and
(2) Caesar's assurance that the package contained cocaine.20
We believe that the court lawfully admitted the evidence.
The Evidence Rules provide that "a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy" is not considered hearsay. Fed. R. Evid.
801(d)(2)(E). Here, the first prong of the rule is satisfied.
____________________
20The court gave limiting instructions referable to this
evidence, telling the jury that it could only be considered on
the issue of whether the money appellant laundered was in fact
the proceeds of narcotics trafficking.
46
The record contains adequate evidence that Duenas, Garcia, and
Caesar were involved in a single conspiracy to launder money. By
joining that conspiracy at a later date, appellant effectively
adopted coconspirator declarations previously made. See United
___ ______
States v. Murphy, 852 F.2d 1, 8 (1st Cir. 1988), cert. denied,
______ ______ _____ ______
489 U.S. 1022 (1989); see also United States v. Baines, 812 F.2d
___ ____ _____________ ______
41, 42 (1st Cir. 1987) ("[A] conspiracy is like a train. When a
party knowingly steps aboard, he is part of the crew, and assumes
conspirator's responsibility for the existing freight or
conduct regardless of whether he is aware of just what it is
composed.").
The second prong of the rule is also satisfied; the
statements were made during and in furtherance of the very
conspiracy that appellant joined. For one thing, we have held
that "when a number of people combine efforts to manufacture,
distribute and retail narcotics, there is a single conspiracy, a
`chain conspiracy,' despite the fact that some of the individuals
linking the conspiracy together have not been in direct contact
with others in the chain." United States v. Rivera-Santiago, 872
_____________ _______________
F.2d 1073, 1080 (1st Cir.), cert. denied, 492 U.S. 910 (1989).
_____ ______
For another thing, money laundering and narcotics trafficking are
symbiotic activities, each of which may require the other in
order to continue. Duenas' efforts to have Garcia sell the
cocaine for him and the group's ongoing campaign to launder money
can rationally be seen as adjacent links in the lengthy chain
that binds up the narcotics trafficking cycle. Thus, the
47
district court acted within its proper province in deeming both
activities part of the same conspiracy, and in holding that the
attempted narcotics sale was in furtherance of it. Consequently,
the challenged statements were properly admitted under Rule
801(d)(2)(E).
We note, moreover, as did the district court, that a
statement made by an unavailable declarant21 falls outside the
hearsay exclusion if the statement "at the time of its making . .
. so far tended to subject the declarant to civil or criminal
liability . . . that a reasonable person in the declarant's
position would not have made the statement unless believing it to
be true." Fed. R. Evid. 804(b)(3). Duenas' and Caesar's
statements to Garcia were tantamount to admissions that they were
dealing cocaine. Because such statements were against the
declarants' penal interest, they came within the encincture of
Rule 804(b)(3) and were admissible on that basis.
Finally, appellant's suggestion that the admission of
Garcia's testimony abridged the Confrontation Clause is off base.
It is well settled that a statement falling within a firmly
rooted hearsay exception will not be held to violate the
Confrontation Clause. See Ohio v. Roberts, 448 U.S. 56, 66
___ ____ _______
(1980); Puleio v. Vose, 830 F.2d 1197, 1204-05 (1st Cir. 1987),
______ ____
cert. denied, 485 U.S. 990 (1988). It is equally well settled
_____ ______
that the exceptions for coconspirator declarations and for
____________________
21The district court made an explicit, warrantable finding
that Duenas was unavailable for trial. Caesar, whose last name
is unknown, apparently has disappeared into thin air.
48
declarations against penal interest are both firmly rooted in our
jurisprudence. See Bourjaily v. United States, 483 U.S. 171, 183
___ _________ _____________
(1987) (discussing coconspirator exception); United States v.
_____________
Innamorati, 996 F.2d 456, 474 n.4 (1st Cir. 1993) (discussing
__________
declaration against interest exception), cert. denied, 114 S. Ct.
_____ ______
1073 (1994).
E. Testimony of Agent Shedd.
E. Testimony of Agent Shedd.
________________________
In the late 1980s, the DEA set up a network of sham
corporations ostensibly to provide a money laundering service to
underworld elements. DEA Special Agent James Shedd participated
in this reverse sting operation (dubbed "Operation Pisces").
Duenas dealt with the Pisces network in 1987 and 1988. At trial,
a prosecutor suggested that Shedd would testify as follows: "Mr.
Duenas told him that ninety-nine percent of the money that he was
turning over to the undercover agent was, in fact, drug money."
On the basis of this representation, the lower court denied a
motion in limine by which the defense sought to exclude Shedd's
__ ______
testimony regarding Duenas' statements. Shedd told the jury
about thirty-seven transactions in which Duenas supplied cash
that the DEA undercover operation laundered for him. Shedd also
described several conversations with Duenas in which Duenas
reportedly said that he laundered money for Colombian drug
traffickers and "that ninety-nine percent of the money that
money-launderers deal in Bogota comes from narcotics proceeds."
During cross-examination, appellant's counsel
49
challenged Shedd about this statement. Shedd and Duenas
conversed in Spanish, and some of their conversations had been
recorded. Defense counsel called Shedd's attention to one such
conversation. The translation indicated that Duenas made the
contested comment during a discussion in which he explained that,
although it was against the law, foreign currency routinely
circulated in Colombia. He apparently added: "Logically, the
[foreign] currency that circulates the most over there . . . is
the dollar . . . which ninety-nine percent of it comes from drug
dealing." Shedd responded that his direct testimony had been
premised not on a single discussion, but on an overall impression
gained from a lengthy conversation with Duenas.22 Appellant
then moved to strike Shedd's testimony. Judge Torres denied the
motion.
Appellant maintains that the district court made no
fewer than four errors in connection with this testimony. First,
appellant posits that Duenas' statements were barred by the
hearsay rule. This claim fails. The court was warranted in
finding that these were coconspirator declarations and, thus,
admissible under Rule 801(d)(2)(E). See, e.g., Sepulveda, 15
___ ____ _________
F.3d at 1180; Ortiz, 966 F.2d at 714-15.
_____
Appellant's second contention is that Duenas'
statement, in its true form, was irrelevant because it was
____________________
22Shedd also offered the following syllogism: "Ninety-nine
percent of the money, of the U.S. dollars that's in Colombia is
drug money. He's a money launderer, then ninety-nine percent of
the money that he launders comes from drug money."
50
nothing more than a gross generalization about the Colombian
economy. We disagree. Though courts are sometimes cautious
about admitting abstract data as proof of what actually happened
in an individual case, a percentage like "ninety-nine percent" is
quite powerful, and far surpasses the usual test that evidence is
relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. Trial courts are afforded wide
discretion in determining whether evidence clears this low
threshold, see United States v. Tierney, 760 F.2d 382, 387 (1st
___ _____________ _______
Cir.), cert. denied, 474 U.S. 843 (1985), and we will disturb an
_____ ______
exercise of that discretion only if manifest abuse appears, see
___
Sepulveda, 15 F.3d at 1194; United States v. Griffin, 818 F.2d
_________ _____________ _______
97, 101 (1st Cir.), cert. denied, 484 U.S. 844 (1987).
_____ ______
Under this deferential standard, the district court
acted within its lawful powers in deeming Duenas' statements
relevant to the issue of whether the money appellant laundered
was in fact derived from narcotics trafficking. Duenas' remark,
even in the diluted form that was heralded on cross-examination,
has at least some probative value in ascertaining whether the
drug trade was the source of the funds that appellant washed,
much as the fact that a lake is contaminated has some probative
value in ascertaining whether a stream that feeds the lake is
contaminated.
Appellant's third sally alleges error in Shedd's
51
explanation that his initial testimony about Duenas' statement
was based on an overall impression from several hours of
conversation. Although a witness is generally not permitted to
testify about his subjective interpretations of what has been
said by another person, he may do so if his opinion is rationally
based on his perception and is helpful either to an understanding
of his testimony or to the determination of a fact in issue. See
___
United States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980), cert.
_____________ ___ _____
denied, 454 U.S. 844 (1981). In this case, we conclude that the
______
district court acted lawfully in leaving the testimony intact.
Shedd tendered his explanation of Duenas' statement in
direct response to a question by appellant's counsel on cross-
examination. The answer was not followed by a timely objection
or motion to strike. While appellant challenged Shedd's
qualifications to offer an opinion about Duenas' state of mind in
a subsequent motion to strike, this was too late. See United
__________ ___ ______
States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (holding that
______ _____
Evidence Rule 103 requires that objections be made at the time
evidence is offered); United States v. Parodi, 703 F.2d 768, 783
_____________ ______
(4th Cir. 1983) (same). The proper time to have registered an
objection to Shedd's explanation was immediately after it was
uttered. Accordingly, any objection to the explanation has been
waived. And, moreover, even if the court erred in permitting the
answer to stand, it looms as harmless beyond all doubt in the
context of a very efficacious cross-examination.
Appellant's final contention is that the prosecution
52
knowingly offered Shedd's testimony despite having a transcript
that refuted it, and, to make a bad situation worse, deliberately
withheld the transcript from the defense. Having carefully
examined the record, we find no valid reason to conclude that the
prosecution intentionally mischaracterized Shedd's proposed
testimony during the in limine hearing, and no hint of
__ ______
prosecutorial misconduct in the handling of the transcript. At
any rate, it is perfectly clear that defense counsel obtained the
unexpurgated transcript in ample time to conduct a very effective
cross-examination on the following day. There was no prejudice
and, hence, no reversible error. See Devin, 918 F.2d at 290.
___ _____
F. The Wiretap Tapes.
F. The Wiretap Tapes.
_________________
The district court allowed the prosecution to introduce
tape recordings of two conversations in which Saccoccia's
employees made reference to drugs. The tapes are not entirely
audible, and the parties disagree about what was said during two
potentially significant conversations. The government asserts
that, in a discussion that took place at Trend's offices, Kenneth
Saccoccio referred to cash that he and Hurley were counting as
"fuckin' drug money." Appellant claims that this portion of the
tape was inaudible. The other conversation took place at
Saccoccia Coin Company. In it, Stanley Cirella spoke to Stephen
Pizzo about an ongoing investigation of appellant's organization.
According to the government, Cirella declared that "he" a
pronoun that we take in context to refer to Saccoccia had told
him that "they [the authorities] ain't doin' this [conducting the
53
investigation] because of the coke, they're doin' this because of
the washing of money." Appellant contends that Cirella said
"gold" rather than "coke."
The issue on appeal is whether the district court
abused its discretion in allowing the taped conversations to be
presented to the jury in conjunction with the government's
transcript. In appellant's view, the inaudible portions of the
tapes are so critical as to make the rest more misleading than
helpful. See United States v. Carbone, 798 F.2d 21, 24 (1st Cir.
___ _____________ _______
1986). Having listened to the tapes, see United States v.
___ ______________
Carbone, 880 F.2d 1500, 1503 (1st Cir. 1989), cert. denied, 493
_______ _____ ______
U.S. 1078 (1990), we believe that they are reasonably audible and
that the judge appropriately left their interpretation to the
jury. What was or was not said during a tape-recorded
conversation is ordinarily a question of fact, not a question of
law.
Appellant's fallback position is that, even if the
government accurately transcribed the tapes, the lower court
erred in failing to tell the jury that any statements about the
source of the laundered money were relevant only to the speakers'
subjective beliefs. This position hinges on the premise that, in
the absence of a concinnous foundation showing the speakers'
knowledge, the comments cannot constitute proof vis-a-vis Stephen
Saccoccia (who did not participate in the discourse) as to
whether the money in fact emanated from drug transactions.
We disagree with appellant's premise for two reasons.
54
First, Evidence Rule 104(b) provides that "[w]hen the relevancy
of evidence depends upon the fulfillment of a condition of fact,
the court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of
the condition." In addressing foundational issues, the trial
judge acts as a gatekeeper, examining the evidence and deciding
"whether the jury could reasonably find the conditional fact . .
. by a preponderance of the evidence." Huddleston v. United
__________ ______
States, 485 U.S. 681, 690 (1988). The conditional fact may be
______
based on "reasonable inference from the circumstantial evidence."
Onujiogu v. United States, 817 F.2d 3, 5 (1st Cir. 1987); see,
________ ______________ ___
e.g., Veranda Beach Club Ltd. Partnership v. Western Sur. Co.,
____ _____________________________________ _________________
936 F.2d 1364, 1372 (1st Cir. 1991).
In light of the wide discretion afforded to trial
judges in deciding whether an adequate foundation has been laid,
see Real v. Hogan, 828 F.2d 58, 64 (1st Cir. 1987), we think that
___ ____ _____
Judge Torres acted unexceptionably in determining that the jury
could rationally infer that appellant's employees would not refer
to the cash as "drug money" without some basis in fact. The men
who made the statements were substantially involved in
appellant's operation and could easily have had opportunities to
learn of the money's origins.
As we have indicated, there is a second reason why
appellant is mistaken insofar as he sees personal knowledge about
the source of the funds as a prerequisite to general
admissibility of the comments. Both statements were made by
55
coconspirators and are thus admissible under Evidence Rule
801(d)(2)(E) without a showing of personal knowledge. See United
___ ______
States v. Goins, 11 F.3d 441, 443-44 (4th Cir. 1993), cert.
______ _____ _____
denied, 114 S. Ct. 2107 (1994) (holding that the personal
______
knowledge requirement of Evidence Rule 602 "does not apply to
statements of a co-conspirator admissible as non-hearsay under
Rule 801(d)(2)(E)"); cf. Brookover v. Mary Hitchcock Memorial
___ _________ ________________________
Hosp., 893 F.2d 411, 415-18 (1st Cir. 1990) (finding no
_____
requirement of personal knowledge for admission of a statement
under Rule 801(d)(2)(D)).
For these two reasons the challenged statements were
properly before the jury, and the court acted appropriately in
refusing appellant's proposed limiting instruction.
G. The Sufficiency of the Evidence.
G. The Sufficiency of the Evidence.
_______________________________
Viewing the evidence as a whole and keeping in mind
that the prosecution's burden of proof can be satisfied by either
direct or circumstantial evidence, see O'Brien, 14 F.3d at 706,
___ _______
we conclude that a rational factfinder could determine beyond a
reasonable doubt that the money appellant laundered was in fact
derived from the narcotics trade.
Rehashing the evidence would serve no useful purpose.
We do take special note, however, that appellant's money-washing
operation matched Agent Semesky's description of how Colombian
drug rings traditionally laundered ill-gotten gains, and that, as
the district court observed, it is difficult to conceive of any
non-narcotics-related business that could create a comparable
56
cascade of creased currency. That the waves of cold cash
typically appeared in well-worn bills of small denomination makes
the tie tighter. Then, too, the jury heard competent evidence
that Duenas, who furnished money for appellant to launder,
himself performed monetary ablutions for narcotics traffickers
(and, on one occasion, supplied cocaine for an associate to
sell). The canine alert to currency that appellant's associates
had gathered furnished some added support for the theory that the
money emanated from drug sales. Finally, appellant's own
employees suggested on two occasions that the washed funds were
linked to narcotics.
Taken in the ensemble, these pieces of evidence provide
an adequate foundation on which the jury could build a finding
that appellant laundered drug money. Jurors, after all, are not
expected to resist commonsense inferences based on the realities
of human experience. See Veranda Beach Club, 936 F.2d at 1372
___ ___________________
("The law is not so struthious as to compel a factfinder to
ignore that which is perfectly obvious."); United States v.
_____________
Ingraham, 832 F.2d 229, 240 (1st Cir. 1987) (similar), cert.
________ _____
denied, 486 U.S. 1009 (1988).
______
V. FORFEITURE
V. FORFEITURE
The court bifurcated appellant's trial, separating the
substantive criminal charges from the forfeiture claims.
Appellant waived his right to trial by jury on the latter counts.
All counsel assured the judge that they had no additional
evidence to present at the second anticipated phase of the trial
57
and, therefore, that the hearing on forfeiture would "be purely a
matter of legal argument." Accordingly, the judge scheduled
arguments for March 26, 1993.
On the assigned date, appellant was before a California
court in connection with a separate action. His counsel objected
to proceeding in appellant's absence. See Herring v. New York,
___ _______ ________
422 U.S. 853, 863-65 (1975) (remarking a defendant's
constitutional right to make a closing argument, even in a bench
trial); Fed. R. Crim. P. 43(a) ("The defendant shall be present
at . . . every stage of the trial including . . . the imposition
of sentence . . . ."). Specifically, counsel stated that (1) he
required appellant's assistance "in responding to whatever it is
the government may say about the evidence as it relates to the
law that's going to be argued," and (2) appellant might wish to
exercise his right to make a closing statement. The court then
offered to proceed on the understanding that appellant's counsel
could make incremental arguments at the sentencing hearing, with
appellant present.23 When counsel persisted in his original
position, the court terminated the session.
The disposition hearing was held on May 12, 1993.
Appellant was present throughout. The district court determined
that he should forfeit all the money laundered during the life of
____________________
23Noting that forfeiture is part of the sentencing process,
and that Saccoccia would be present for sentencing, the court
suggested to defense counsel that "to the extent the sentencing
includes the potential for forfeiture order, you can be heard on
that issue just as you would on any other sentencing issue at
that time."
58
the conspiracy, and, using bank records, fixed the amount at
$136,344,231.86. See United States v. Saccoccia, 823 F. Supp.
___ _____________ _________
994, 1006 (D.R.I. 1993). At the government's urging, the court
subsequently amended the forfeiture order to specify substitute
assets for forfeiture.24 See 18 U.S.C. 1963(m) (1988).
___
Appellant assigns error. He strives to persuade us,
inter alia, that applicable extradition doctrines barred
_____ ____
forfeiture; that the court ignored the strictures of due process;
and that the forfeiture order swept too broadly. We are not
convinced.
A. Extradition/Forfeiture.
A. Extradition/Forfeiture.
______________________
Appellant asserts that the forfeiture entered against
him violates the rule of specialty because it is tantamount to
prosecution and conviction for an offense on which extradition
was neither sought nor granted. He also suggests that the
principle of dual criminality prohibits the forfeiture because
Swiss law does not render a defendant criminally liable for
forfeiture by reason of unlawful money transfers. These
initiatives fail because they ignore the irresistible conclusion
that, at least for present purposes, criminal forfeiture is a
____________________
24In discussing substitutions, Saccoccia seeks to
incorporate by reference his codefendants' plaint that the court
improperly allowed the government to add property subject to
forfeiture while the cases were on appeal. We reject this
remonstrance. The district court did not "amend" its judgment,
but, rather, ordered forfeiture of substitute assets based on a
supportable finding that appellant had transferred forfeited
proceeds beyond the jurisdiction of the court. Contrary to
appellant's intimation, this procedure did not insult his
constitutional entitlement to due process, nor did it run afoul
of the Double Jeopardy Clause.
59
punishment, not a separate criminal offense.
We think that the genealogy of modern criminal
forfeiture is important. The device is born out of the mating of
two historically distinct traditions. One parent is civil
forfeiture, an in rem proceeding rooted in the notion that
__ ___
property used in, or intimately associated with, criminal
activity acquires a taint, and that such property is therefore
forfeitable even if not owned by the miscreant. See United
___ ______
States v. Sandini, 816 F.2d 869, 872 (3d Cir. 1987). The second
______ _______
parent is old-hat criminal forfeiture, which traditionally
operated as an incident of a felony conviction in personam
__ ________
against a convicted defendant, requiring him to forfeit his
property to the crown. See United States v. Nichols, 841 F.2d
___ _____________ _______
1485, 1486 (10th Cir. 1988). The forfeiture provisions of RICO
combine both traditions because they act in personam against the
__ ________
defendant, yet require a nexus between the forfeited property and
the crime.25 See id. at 1486-88 (reviewing historical aspects
___ ___
of forfeiture); Saccoccia, 823 F. Supp. at 1001.
_________
Partially as a result of this mixed heritage, courts
have struggled to categorize the resultant hybrid modern
criminal forfeiture as either a punishment for, or an element
____________________
25The district court imposed forfeiture pursuant to both a
money laundering statute, see 18 U.S.C. 982, and a RICO
___
statute, see id. 1963. Although there are some slight
___ ___
differences in the operation of the two statutes, see Saccoccia,
___ _________
823 F. Supp. at 1001-05, these differences do not affect our
analysis of the extradition issues. For simplicity's sake, we
refer only to the RICO forfeiture statute. Nonetheless, our
discussion is equally applicable to criminal forfeiture under the
money laundering laws.
60
of, a criminal offense. The majority view regards criminal
forfeiture for narcotics offenses under 21 U.S.C. 853 as part
of the punishment imposed on a defendant. See, e.g., United
___ ____ ______
States v. Elgersma, 971 F.2d 690, 694 (11th Cir. 1992) (holding
______ ________
that "criminal forfeiture is part of the sentencing process and
not an element of the crime itself"); United States v. Hernandez-
_____________ __________
Escarsega, 886 F.2d 1560, 1576-77 (9th Cir. 1989) (similar),
_________
cert. denied, 497 U.S. 1003 (1990); Sandini, 816 F.2d at 875
_____ ______ _______
(similar). Other straws in the wind blow in the same direction.
See, e.g., Alexander v. United States, 113 S. Ct. 2766, 2772
___ ____ _________ ______________
(1993) (characterizing a RICO forfeiture order against a
pornography merchant as "a punishment for past criminal
conduct"); United States v. Kingsley, 851 F.2d 16, 18 n.2 (1st
_____________ ________
Cir. 1988) (noting in dictum that "in personam criminal
__ ________
forfeiture . . . is intended to directly punish persons convicted
of a criminal offense by forcing them to forfeit the proceeds
obtained as a result of that offense"). Withal, there remains
some nagging doubt about whether forfeiture is strictly a
punishment as opposed to a separate substantive charge. See,
___
e.g., Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617,
____ ________________________ _____________
628 n.5 (1989) (stating in dictum that "forfeiture is a
substantive charge in the indictment against a defendant"); Fed.
R. Crim. P. 31(e) advisory committee's note (noting committee's
assumption that "the amount of the interest or property subject
to criminal forfeiture is an element of the offense to be alleged
and proved").
61
We resolve that doubt favorably to the government to
the extent necessary to rebut Saccoccia's claims. Thus, we hold
that, for purposes of extradition law, forfeiture is neither a
free-standing criminal offense nor an element of a racketeering
offense under RICO, but is simply an incremental punishment for
that proscribed conduct. Consequently, a defendant may be
subjected to a forfeiture order even if extradition was not
specifically granted in respect to the forfeiture allegations.
We base this ruling primarily on three pillars: the weight of
authority counsels in this direction; the punitive aspects of
criminal forfeiture predominate (among other things, RICO
forfeiture retains the functional traits of a punishment since it
is definitively imposed only after the defendant's guilt has
otherwise been determined); and, finally, treating criminal
forfeiture as a punishment in the extradition milieu is
consistent with the emphasis that the doctrine of dual
criminality places on the unlawfulness of the defendant's
conduct, and, correspondingly, on the lack of any requirement
that a crime have identical elements or penalties in the two
jurisdictions, see Collins, 259 U.S. at 312; Levy, 905 F.2d at
___ _______ ____
328.
It follows, therefore, that appellant was properly
subjected to a criminal forfeiture order even if he was not
extradited on forfeiture charges and even if Swiss law does not
provide for criminal forfeiture under comparable circumstances.
B. Procedural Aspects.
B. Procedural Aspects.
__________________
62
Appellant also declaims that the procedure employed
with regard to the forfeiture order deprived him of four
intertwined rights: the right to present a closing argument, the
right to be present to assist counsel during the closing
argument, the right to entry of a verdict of forfeiture, and the
right to be present for entry of a verdict. This quadrat of
complaints is unavailing.
The first two grievances are not supported by the
record. Even though appellant was absent on March 26, the court
offered his counsel the opportunity to make further arguments at
the disposition hearing (at which appellant was in attendance).
Affording appellant this opportunity satisfied his right to make
a closing statement and his right personally to assist counsel.
The fact that appellant chose not to avail himself of the
afforded opportunity is beside the point.
Appellant's next contention arises out of the idea that
the court violated Fed. R. Crim. P. 32(b) and 31(e) by ordering
forfeiture without entering a special verdict. Because appellant
did not object to the district court's decision to make an oral
forfeiture order followed by a written decision, however, our
review is limited to a hunt for plain error. See United States
___ _____________
v. Taylor, ___ F.3d ___, ___ (1st Cir. 1995) [No. 93-1381, slip
______
op. at 6-7]; Griffin, 818 F.2d at 99.
_______
To be sure, Rule 31(e) requires that a special verdict
be returned when the indictment or information contains a
forfeiture allegation. But, Rule 31(a) makes it transpicuously
63
clear that this requirement is geared to jury trials. See Fed.
___
R. Crim. P. 31(a) (stating that the verdict "shall be returned by
the jury to the judge in open court"). When the judge is the
factfinder, the procedure for making factual determinations is
governed by Fed. R. Crim. P. 23(c). That rule provides:
In a case tried without a jury the court
shall make a general finding and shall in
addition, on request made before the general
finding, find the facts specially. Such
findings may be oral. If an opinion or
memorandum of decision is filed, it will be
sufficient if the findings of fact appear
therein.
Fed. R. Crim. P. 23(c).
In the instant case, the judge entered an oral order,
followed very shortly by a written memorandum limning his
findings of fact. In our opinion, this procedure did not
constitute plain error. See, e.g., Gibbs v. Buck, 307 U.S. 66,
___ ____ _____ ____
78 (1939); see also Aoude v. Mobil Oil Corp., 862 F.2d 890, 895
___ ____ _____ _______________
(1st Cir. 1988) (observing that reversal "would be an empty
ritual" once the lower court had remedied its original error and
belatedly made written findings). Thus, we deny appellant's
request that the forfeiture order be vacated on this score.
C. Extent of the Forfeiture.
C. Extent of the Forfeiture.
________________________
Appellant maintains that the "proceeds" subject to RICO
forfeiture should not include all the funds laundered by his
organization, but only the organization's profit. He does not
dwell on this thesis, instead electing to incorporate the
codefendants' argument to this effect. We, too, prefer not to
linger. The district court treated this contention at length,
64
and we find ourselves in substantial agreement with the reasoning
explicated in that court's opinion. See Saccoccia, 823 F. Supp.
___ _________
at 1001-03.
VI. SENTENCING
VI. SENTENCING
Without objection, the district court predicated its
sentencing calculations on the November 1, 1992 edition of the
federal sentencing guidelines.26 See United States v.
___ _______________
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any
__________
ex post facto problem, a defendant is to be punished according to
the guidelines in effect at the time of sentencing."). The court
compiled appellant's criminal history score and placed him in
category II. Turning to the other side of the grid, the court
started with the money laundering guideline. Since appellant had
been convicted under 18 U.S.C. 1956(a)(2)(A), he had a base
offense level (BOL) of 23. See U.S.S.G. 2S1.1(a)(1). The court
___
then added 13 levels because the value of the laundered funds
exceeded $100,000,000, see id. 2S1.1(b)(2)(N), and three levels
___ ___
premised on a finding that appellant knew (or believed) that the
funds were derived from narcotics sales, see id. 2S1.1(b)(1).
___ ___
Finding appellant to be the organizer and leader of the money
laundering enterprise, the court escalated four levels pursuant
to U.S.S.G. 3B1.1(a). Finally, citing appellant's unsuccessful
attempt to use his medical history as a device for extracting a
____________________
26In large part, the district judge adopted the calculations
recommended by the probation department. We concentrate on how
the court arrived at the guideline sentencing range (GSR), and do
not differentiate between the judge's original thinking and his
acceptance of the probation department's ideas.
65
continuance, see supra note 2, and stressing that the feigned
___ _____
illness occurred shortly after the court had denied appellant's
request for postponement of the trial on other grounds, Judge
Torres went up two levels for obstructing justice. See U.S.S.G.
___
3C1.1. These calculations yielded an adjusted offense level of
45 for the money laundering counts.
The court then turned to the RICO conspiracy count.
Inasmuch as the applicable guideline, id. 2E1.1, prescribes the
___
use of an offense level equal to the greater of 19 or the
adjusted offense level for the underlying conduct (here, money
laundering), appellant's adjusted offense level remained
unchanged. The court took a similar look at the Travel Act
counts with a similar result (the applicable guideline, U.S.S.G.
2E1.2, directs the use of an offense level equal to the greater
of 6 or the adjusted offense level for the underlying conduct).
At the bottom line, then, the counts of conviction produced a
total offense level (TOL) of 45. See id. 3D1.2(d), 3D1.3(b).
___ ___
A TOL of 43 or higher requires the imposition of a
sentence of life imprisonment regardless of the offender's
criminal history category.27 See U.S.S.G. Ch.5, Pt.A
___
____________________
27The Sentencing Commission recently submitted to Congress
proposed guideline amendments that apparently would reduce the
sentence mandated for conduct of the kind at issue here. See 60
___
Fed. Reg. 25,074, 25,085-86 (1995). The proposed changes will
become effective on November 1, 1995, absent congressional action
to the contrary. See 28 U.S.C. 994(p) (1988). The Commission
___
has not yet decided whether the changes, if they become law,
should apply retrospectively. See 60 Fed. Reg. at 25,074. If
___
the amendments are eventually determined to warrant retroactive
application, appellant may then be in a position to seek
appropriate relief in the district court. See United States v.
___ ______________
66
(Sentencing Table). However, the offenses of conviction in this
case all carry maximum sentences less than life. When, as in
this instance, the maximum sentence for each offense of
conviction is lower than the minimum punishment mandated by the
applicable GSR, the guidelines require imposition of consecutive
sentences "to the extent necessary to produce a combined sentence
equal to the total punishment." Id. 5G1.2(d). Applying this
___
principle, the district court concluded that sentences on the
several counts of conviction should run consecutively to the
extent necessary to effectuate a life sentence. Because the
sentencing guidelines prescribe life in prison for persons who,
like appellant, sport a TOL of 43 or higher, whereas all the
counts of convictions have statutory maxima that are expressed in
terms of a finite number of years, the court imposed the longest
possible sentence on each count and ran the sentences consecutive
to one another. The result: an incarcerative sentence of 660
years.28
Appellant assails this sentence on manifold grounds.
His principal lines of attack are that mandatory life sentences
____________________
Connell, 960 F.2d 191, 197 n.10 (1st Cir. 1992); United States v.
_______ _____________
Miller, 903 F.2d 341, 349 (5th Cir. 1990). We express no opinion
______
on the subject, but merely note the possibility and proceed
without further reference to what the future may bring.
28The district court imposed this type of sentence rather
than attempting to estimate the length of appellant's life and
then fashioning a sentence of corresponding duration. We find no
fault with this approach. Despite the superficial severity of a
660-year sentence, it is neither more nor less than the
functional equivalent of life without parole. We treat the
sentence in this light in evaluating its correctness under the
guidelines and its harshness for Eighth Amendment purposes.
67
under the guidelines are illegal; that the district court
misconceived its authority in imposing sentence; that the court
violated the Ex Post Facto Clause; and that the court erred in
making an upward adjustment for obstruction of justice.
A. The Mandatory Life Sentence.
A. The Mandatory Life Sentence.
___________________________
Appellant contends that the imposition of a mandatory
life sentence is illegal both because Congress disavowed
consecutive sentences and because, in all events, a life sentence
in the circumstances of this case insults the Eighth Amendment's
proscription against cruel and unusual punishment. Neither of
these contentions is convincing.
1. Congressional Intent. It is apodictic that the
1. Congressional Intent.
____________________
sentencing guidelines cannot sweep more broadly than Congress'
grant of power to the Sentencing Commission permits. See United
___ ______
States v. Cooper, 962 F.2d 339, 342 (4th Cir. 1992). Thus, if a
______ ______
guideline conflicts with a statute, the latter prevails. See
___
Stinson v. United States, 113 S. Ct. 1913, 1918-19 (1993); United
_______ _____________ ______
States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992), cert. denied, 113
______ _____ _____ ______
S. Ct. 1830 (1993). Appellant perceives such a collision here.
In his view, Congress mandated a strong statutory preference for
concurrent sentences, and the Sentencing Commission's instruction
that fixed-year sentences should be imposed consecutively to
effectuate life imprisonment, see U.S.S.G. 5G1.2(d), must yield
___
the right of way to Congress' expressed preference.
Appellant hinges this conclusion on Congress' enactment
of two statutory provisions, namely, 28 U.S.C. 994(l)(2) &
68
994(v) (1988). We think he reads the cited statutes with much
too sanguine an eye. Neither statute prohibits the imposition of
consecutive sentences. Rather, section 994(l)(2) merely declares
the "general inappropriateness" of consecutive sentences for a
conspiracy and its object offense, and section 994(v) merely
directs the Commission to "limit[] consecutive terms of
imprisonment" for convictions on related general and specific
offenses.29 While these statutes arguably imply a general
_______
congressional preference for concurrent sentences, they do not,
as appellant intimates, outlaw consecutive sentences. On the
contrary, the statutory scheme leaves ample room for courts,
following the lead of the Sentencing Commission, to deploy
consecutive sentences in appropriate circumstances.
Two observations show the virtual inevitability of this
conclusion. In the first place, U.S.S.G. 5G1.2 became effective
only with the consent of Congress. We consider this to be
powerful evidence that Congress itself saw no inconsistency
between the guideline provision and the statutory scheme. See
___
United States v. Luedecke, 908 F.2d 230, 233 (7th Cir. 1990). In
_____________ ________
the second place, Congress minced no words in ceding the
Commission discretion to determine what particular circumstances
____________________
29To the extent appellant's argument is based on a claimed
congressional preference for concurrent sentences in connection
with conspiracy and its object offenses, and in connection with
general and specific offenses, the 36 consecutive ten-year
sentences imposed for separate violations of 18 U.S.C. 1957 are
unaffected. These sentences total 360 years. Barring a lifespan
of biblical proportions, appellant's time on this mortal coil
will not exceed so lengthy an interval.
69
would trigger the need for consecutive sentences. See 18 U.S.C.
___
3584(a) (1988) (providing in part that "if multiple terms of
imprisonment are imposed on a defendant at the same time . . .
the terms may run concurrently or consecutively"); see also
___ ____
United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir. 1993)
______________ _______
(holding that section 3584(a) authorizes the Sentencing
Commission "to write guidelines that say when, and to what
extent, [incarcerative] terms should be concurrent or
consecutive").
We will not flog a dead horse. Because Congress gave
the Sentencing Commission expansive authority to promulgate
guidelines specifying when sentences should be consecutive or
concurrent, and then directed sentencing courts to refer to the
guidelines in order to determine whether "multiple sentences to
terms of imprisonment should be ordered to run concurrently or
consecutively," 28 U.S.C. 994(a)(1)(D), the court below
possessed the power indeed, the responsibility to impose a
series of consecutive sentences effectuating the clearly
expressed command of U.S.S.G. 5G1.2.
2. The Eighth Amendment. Appellant bemoans his
2. The Eighth Amendment.
______________________
sentence as mocking the Eighth Amendment's proscription against
cruel and unusual punishments. This ululation is more cry than
wool.
In Solem v. Helm, 463 U.S. 277 (1983), the Supreme
_____ ____
Court held that "as a matter of principle . . . a criminal
sentence must be proportionate to the crime for which the
70
defendant has been convicted." Id. at 290. This opinion did not
___
usher in a regime of strict proportionality review applicable to
all criminal sentences, for the Court restricted its holding to
penalties that are "grossly" or "significantly" disproportionate
to the underlying criminal activity. Id. at 288, 303. The Court
___
did not in any way, shape, or form, then or thereafter, suggest
that the Eighth Amendment requires a precise calibration of crime
and punishment in noncapital cases.
Solem looms as the high water mark of the
_____
proportionality approach. In the pre-Solem era, the Court
_____
consistently recognized the legislature's primacy in determining
the appropriate punishment for criminal behavior, see e.g.,
___ ____
Rummel v. Estelle, 445 U.S. 263, 274 (1980); Hutto v. Davis, 454
______ _______ _____ _____
U.S. 370, 374 (1982) (per curiam), and the Court has sounded much
the same note in the post-Solem era, see, e.g., Harmelin v.
_____ ___ ____ ________
Michigan, 501 U.S. 957, 962 (1991) (opinion of Scalia, J.)
________
(expressing the view that the length of the sentence actually
imposed in respect to a felony conviction is entirely a matter of
legislative prerogative); id. at 998-99 (opinion of Kennedy, J.)
___
(similar; listing cases). Throughout, the Justices have made it
quite clear that strict judicial scrutiny of statutorily mandated
penalties in noncapital cases is not to be countenanced. See,
___
e.g., Gore v. United States, 357 U.S. 386, 393 (1958). The
____ ____ _____________
Constitution does not require legislatures to balance crimes and
punishments according to any single standard, or to achieve
perfect equipoise. Indeed, the Solem Court itself acknowledged
_____
71
the need for judges to "grant substantial deference to the broad
authority that legislatures necessarily possess in determining
the types and limits of punishment for crimes." Solem, 463 U.S.
_____
at 290.
The Court also has sounded two cautionary notes.
First, "[t]he inherent nature of our federal system" necessarily
produces "a wide range of constitutional sentences." Id. at 291
___
n.17; see also Rummel, 445 U.S. at 282. Second, "Eighth
___ ____ ______
Amendment judgments should not be, or appear to be, merely the
subjective views of individual [judges]; judgment should be
informed by objective factors to the maximum possible extent."
Coker v. Georgia, 433 U.S. 584, 592 (1977); accord Solem, 463
_____ _______ ______ _____
U.S. at 290. For these reasons, "a reviewing court rarely will
be required to engage in extended analysis to determine that a
sentence is not constitutionally disproportionate." Id. at 290
___
n.16.
The Justices' most recent pronouncements fully support
the conclusion that serious crimes may result in the imposition
of sentences as severe as life imprisonment without working any
constitutional insult. In Solem, the Court explicitly contrasted
_____
the defendant's "relatively minor" offenses, id. at 296-97, with
___
"very serious offenses" such as drug trafficking, id. at 299, and
___
suggested that statutes providing for life imprisonment might be
applied constitutionally to inveterate drug dealers or other
violent criminals, id. at 299 n.26.
___
Harmelin, fairly read, emits an even clearer signal.
________
72
There, the Court considered the application of the constitutional
prohibition against cruel and unusual punishment to a mandatory
sentence of life imprisonment without parole imposed in a
narcotics case against a defendant who possessed more than 650
grams of cocaine. See Harmelin, 501 U.S. at 961. Justice
___ ________
Scalia, in an opinion joined on this point by the Chief Justice,
rejected the extended proportionality analysis developed in Solem
_____
and declared that nothing in the Eighth Amendment guarantees
proportionate sentences. See id. at 965. He concluded that
___ ___
"Solem was simply wrong," id., because the Eighth Amendment
_____ ___
provided protection with respect to modes and methods of
punishment, not the length of incarceration, see id. at 966-67.
___ ___
Justice Kennedy, joined by Justices O'Connor and Souter, wrote a
concurring opinion that, when combined with Justice Scalia's
opinion, aggregated the five votes necessary to uphold Harmelin's
sentence. Justice Kennedy thought that stare decisis counseled
_____ _______
adherence to a "narrow proportionality principle," id. at 996,
___
one that recognizes that the "Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it
forbids only extreme sentences that are `grossly
disproportionate' to the crime," id. at 1001 (quoting Solem).
___ _____
After noting the grave harm to society wreaked by illegal drugs,
Justice Kennedy found nothing "grossly disproportionate" in
either the length nor the mandatory nature of Harmelin's
sentence. See id. at 1001-08.
___ ___
A dispassionate application of Harmelin to this case
________
73
defeats appellant's attack on the constitutionality of his
sentence. Although the Justices in Harmelin disagreed on the
________
status of proportionality review under the Eighth Amendment, a
majority found insufficient disproportionality to forestall a
mandatory sentence of life without parole for possession of over
650 grams of cocaine. With this as a reference point,
appellant's sentence can hardly be deemed "grossly
disproportionate" to the underlying conduct conduct which, by
all accounts, significantly facilitated narcotics trafficking on
a Brobdingnagian scale.30
To say more would be supererogatory. We know that
Harmelin is not an aberration; in Hutto, another case that
________ _____
teaches much the same lesson, the Court upheld, against a
proportionality attack, a sentence of 40 years in prison for
possessing nine ounces of marijuana with the intent to distribute
it. 454 U.S. at 374. We also know that Congress not the
judiciary is vested with the authority to define, and attempt
to solve, the societal problems created by drug trafficking
across national and state borders. The Supreme Court has made it
plain that the use of severe penalties as part of the legislative
armamentarium does not constitute cruel and unusual punishment.
____________________
30Appellant's reliance on United States v. Heath, 840 F.
_____________ _____
Supp. 129 (S.D. Fla. 1993), is misplaced. In Heath, the district
_____
court, after expressing concern over the proscription against
cruel and unusual punishment, declined to impose a life sentence
as directed by the guidelines, and instead departed downward by
extrapolating from the sentencing table. See id. at 130-32. We
___ ___
deal with appellant's claim that the court below should have
departed downward in Part VI(B), infra.
_____
74
See, e.g., Harmelin, supra; Hutto, supra; see also United States
___ ____ ________ _____ _____ _____ ___ ____ ______________
v. Munoz, 36 F.3d 1229, 1239 (1st Cir. 1994), cert. denied, 115
_____ _____ ______
S. Ct. 1164 (1995). Under this light, the flimsiness of
appellant's Eighth Amendment challenge becomes apparent.
B. The Refusal to Depart.
B. The Refusal to Depart.
_____________________
As a general rule, "a district court's refusal to
depart, regardless of the suggested direction, is not
appealable." United States v. Romolo, 937 F.2d 20, 22 (1st Cir.
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1991). There is, of course, an exception that applies "if the
record supports an inference that the sentencing court's failure
to depart did not represent an exercise of factfinding or
discretion, but was instead the product of a court's
miscalculation about whether it possessed the authority to
depart." United States v. Amparo, 961 F.2d 288, 292 (1st Cir.),
_____________ ______
cert. denied, 113 S. Ct. 224 (1992); accord United States v.
_____ ______ ______ ______________
Pierro, 32 F.3d 611, 618-19 (1st Cir. 1994), cert. denied, 115 S.
______ _____ ______
Ct. 919 (1995). Appellant attempts to wedge his case within the
dimensions of this exception on the ground that the sentencing
court believed, erroneously, that it lacked discretion to impose
concurrent sentences. This claim misconstrues the record.
In United States v. Quinones, 26 F.3d 213 (1st Cir.
______________ ________
1994), we held that a court may deviate from U.S.S.G. 5G1.2 "if,
and to the extent that, circumstances exist that warrant a
departure." Id. at 216. Although Quinones had not yet been
___ ________
decided when Judge Torres sentenced Saccoccia, we are satisfied
that he understood this principle and anticipated our holding.
75
At the disposition hearing, appellant argued that the
district court had authority under 18 U.S.C. 3584(a) to depart
downward and impose concurrent sentences on all counts
notwithstanding the terms of U.S.S.G. 5G1.2. The court
acknowledged that it possessed such authority, but it concluded
(appropriately, we think) that because the guidelines required
consecutive sentences in appellant's case, it could only impose
concurrent sentences if the case satisfied the conditions for a
downward departure, that is, if it found mitigating circumstances
not considered by the Sentencing Commission. See U.S.S.G.
___
5K2.0. Discerning no such mitigation, the court eschewed a
downward departure. In other words, the court realized that it
could impose concurrent sentences as a specie of downward
departure, cf. Quinones, 26 F.3d at 216 (authorizing the
___ ________
imposition of consecutive sentences as a specie of upward
departure), but it chose not to do so because, in its judgment,
the facts did not warrant a downward departure.
This ends our jaunt. Inasmuch as the district court
correctly understood that it possessed the power to depart from
the GSR but made a discretionary decision to refrain from
exercising that power, we lack jurisdiction to address
appellant's claim. See Pierro, 32 F.3d at 619 (explaining that a
___ ______
discretionary refusal to depart by a judge who recognizes his
power, but who says, in effect, that the case before him is not
"sufficiently unusual to warrant departing," is not reviewable on
appeal).
76
C. Ex Post Facto Concerns.
C. Ex Post Facto Concerns.
______________________
Appellant seeks to incorporate an argument advanced on
appeal by his codefendants to the effect that the district
court's sentencing determinations abridged the Ex Post Facto
Clause, U.S. Const. art. I, 9, cl. 3. In appellant's view, the
court's error lay in increasing his TOL based on an amendment to
the money laundering guideline, U.S.S.G. 2S1.1(b)(1),31 that
did not become effective until November 1, 1991 during the
lifespan of the conspiracy, but subsequent to the last proven
instance of money laundering. This criticism fails for at least
three reasons.
First, appellant did not broach the topic at
sentencing. He has, therefore, waived it. See United States v.
___ _____________
Dietz, 950 F.2d 50, 55 (1st Cir. 1991) (explaining that "in
_____
connection with sentencing as in other contexts, . . . arguments
not seasonably addressed to the trial court may not be raised for
the first time in an appellate venue"); accord, e.g., United
______ ____ ______
States v. Piper, 35 F.3d 611, 620 n.6 (1st Cir. 1994), cert.
______ _____ _____
denied, 115 S. Ct. 1118 (1995); Sepulveda, 15 F.3d at 1202.
______ _________
Second, appellant was not only the mastermind of the
money laundering ring, but also its chief executive officer,
____________________
31The amendment inserted the words "or believed" into
section 2S1.1(b)(1), see U.S.S.G. App. C, Amend. No. 378 (1992),
___
with the result that the guideline, subsequent thereto, read in
pertinent part: "If the defendant knew or believed that the
___________
funds were the proceeds of an unlawful activity involving the
manufacture, importation, or distribution of narcotics or other
controlled substances, increased [his BOL] by 3 levels."
(Emphasis supplied to show added language).
77
comptroller, sales manager, and director of operations. The
weight of the evidence heavily preponderates in favor of a
finding that appellant knew and believed of the money's origins.
___
Indeed, appellant wholly fails to demonstrate how and where the
district court erred in determining his level of "knowledge or
belief," or why the guideline revision makes any real difference
in his case. This failure typical of litigants who attempt to
___________
incorporate by reference arguments which, if made in earnest,
deserve individualized attention is fatal to appellant's cause.
See, e.g., Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a
___ ____ _______
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
Third, even if appellant were somehow to surmount the
two hurdles we have just described, he could prevail only upon a
showing of plain error. See United States v. Olano, 113 S. Ct.
___ _____________ _____
1770, 1776-78 (1993); United States v. Olivier-Diaz, 13 F.3d 1,
______________ ____________
5-6 (1st Cir. 1993). Given the strict requirements that attend
amelioration under the plain error doctrine, and the substantial
discretion invested in appellate courts with regard to the
doctrine's use, see generally Taylor, ___ F.3d at ___ [slip op.
___ _________ ______
at 6-7], plain error is plainly absent here. Put bluntly, we
detect nothing in appellant's belated assault that causes us to
question "the fundamental fairness or basic integrity of the
proceeding below in [any] major respect." Id. at ___ [slip op.
___
at 7].
D. Obstruction of Justice.
D. Obstruction of Justice.
______________________
78
Appellant's fourth line of attack suggests that the
sentencing court erred in elevating his offense level for
obstruction of justice. This sortie is moot. The only practical
effect of the adjustment is to raise the TOL from 43 to 45.
Since life imprisonment is mandatory at or above TOL 43, see
__ __ _____ ___
U.S.S.G. 5G1.2; see also U.S.S.G. 5A, comment. (n.2) ("An
___ ____
offense level of more than 43 is to be treated as an offense
level of 43."), canceling the enhancement would accomplish
nothing.
It is this court's settled practice not to address an
allegedly erroneous sentencing computation if, and to the extent
that, correcting it will neither change the defendant's sentence
nor relieve him from some unfair collateral consequence. See,
___
e.g., Sepulveda, 15 F.3d at 1199; United States v. Bradley, 917
____ _________ _____________ _______
F.2d 601, 604 (1st Cir. 1990). We believe that this philosophy
is fully applicable in a situation where, as here, correction of
an allegedly erroneous finding would not eliminate the certainty
of a mandatory sentence of life imprisonment. Courts should not
tilt at windmills.
VII. CONCLUSION
VII. CONCLUSION
We need go no further. Having scoured the record and
carefully considered appellant's entire asseverational array
(including some arguments not specifically discussed herein), we
detect no reversible error. As we see it, appellant was lawfully
extradited, fairly tried, justly convicted, and appropriately
punished.
79
Affirmed.
Affirmed.
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80
