USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1215
UNITED STATES OF AMERICA,
Appellee,
v.
ALFRED M. GABRIELE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
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Selya, Cyr and Boudin
Circuit Judges.
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John A. MacFadyen for appellant.
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William C. Brown, Attorney, Department of Justice, with whom
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Sheldon Whitehouse, United States Attorney, and Michael E. Davitt,
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Assistant United States Attorney, were on brief for appellee.
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August 23, 1995
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CYR, Circuit Judge. Defendant Alfred Gabriele chal-
CYR, Circuit Judge.
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lenges various district court rulings underlying his convictions
for participating in a conspiracy in violation of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
1962(c), (d) (1991), and for engaging in six monetary transac-
tions in criminally derived property, id. 1957. We affirm.
___
I
I
BACKGROUND
BACKGROUND
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This is the third and final installment in the appel-
late proceedings arising out of the extensive money laundering
operation headed by Stephen Saccoccia from the mid-1980s until
late 1991. The earlier proceedings are reported in United States
_____________
v. Saccoccia, 58 F.3d 754 (1st Cir. 1995), and United States v.
_________ _____________
Hurley, __ F.3d ___ (1st Cir. 1995) [Nos. 93-1511, 93-1560, 93-
______
1561, 93-1562, 93-1563, 93-1616, 93-1617, 93-2006, 93-2207, 94-
1388, 94-1507, 94-1508 (1st Cir. July 20, 1995)]. After Gabriele
was indicted for alleged participation in the Saccoccia criminal
enterprise, he stipulated to the facts established by the govern-
ment at the two earlier trials involving Stephen Saccoccia and
his codefendants. We relate only the background information
material to Gabriele's involvement in the criminal enterprise.
The money laundering operation primarily functioned
through precious metals companies controlled by Saccoccia and
located in Los Angeles, New York, and Rhode Island. Colombian
drug dealers transferred huge sums to the Saccoccia organization
for laundering. Employing various techniques, such as purchases
2
of gold and cashier's checks, the Saccoccia organization laun-
dered the drug monies and funneled laundered funds back to
Colombia by circuitous techniques (e.g., multiple wire transfers
and interstate transportation). Some of the gold was delivered
to Recovery Technologies, Inc. ("RTI"), a precious metals dealer
located in Attleboro, Massachusetts, and controlled and operated
by Gabriele. The gold was kept in a safe purchased by Saccoccia
and installed at RTI with Gabriele's consent. At one point
Gabriele prophetically observed in relation to the gold deliver-
ies: "Steve [Saccoccia] is going to put us all in jail some
day."
In the summer of 1991, after learning that two of his
Rhode Island companies were under FBI video surveillance, Sac-
coccia pointed out the concealed surveillance cameras to Gab-
riele. Shortly thereafter, Saccoccia announced his intention to
acquire RTI from Gabriele and hired Gabriele as his employee.
Saccoccia then began to divert to RTI the cash and gold shipments
which could no longer be delivered undetected to the two Sac-
coccia companies.
The deliveries to RTI were monitored by Saccoccia
employees. Among the persons at RTI, Gabriele alone knew about,
and participated in counting, the cash and gold shipments from
Saccoccia. The shipments to RTI were recorded by Gabriele in
coded language. The coded records were kept in the desk in
3
Gabriele's private office, separate from all other RTI records.1
During this period, Gabriele again voiced concern that Saccoccia
"is going to put us all in jail."
From time to time Saccoccia instructed Gabriele to
transfer the large sums of cash kept in the RTI safe. On various
occasions Gabriele wired funds to designated banks at Saccoccia's
direction or turned over funds directly to Saccoccia couriers who
had been told to leave cash amounts for Gabriele. Saccoccia and
Gabriele discussed their ongoing cash transactions in a coded
conversation intercepted by the FBI in October 1991.
In due course, Gabriele was indicted on a RICO conspir-
acy charge, along with Saccoccia and others, and separately
charged with engaging in eight monetary transactions involving
criminally derived property. A jury convicted him of RICO
conspiracy and six monetary transaction charges.2
II
II
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1The secret records kept by Gabriele related also to the so-
called Saccoccia "pool account" at RTI. Normally, RTI would sell
gold for a client, place the proceeds in the pool account, and
immediately wire the funds directly to the client. The secret
pool account records revealed, however, that the proceeds due
Saccoccia remained in RTI's bank account for much longer periods
of time, awaiting Saccoccia's instructions to wire the funds
frequently to third parties.
2At trial, Gabriele contended that Saccoccia, a long-time
RTI client, had been allowed to keep cash in the RTI safe because
the security systems at Saccoccia's Rhode Island companies were
temporarily off-line, and that the large amounts of cash he
handled for Saccoccia were not uncommon in the precious metals
industry. He maintained that the intercepted conversations were
inconclusive and that the inculpatory testimony from other
Saccoccia employees was unreliable.
4
DISCUSSION
DISCUSSION
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Gabriele takes the district court to task on several
rulings, which we discuss in turn.
5
A. Section 1957
A. Section 1957
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1. Mens Rea
1. Mens Rea
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First, he claims that the mens rea element under
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section 1957 is unconstitutionally vague, see, e.g., Kolender v.
___ ____ ________
Lawson, 461 U.S. 352, 357 (1983), and that the district court
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therefore erred in denying his pretrial motion to dismiss the
section 1957 charges. The crux of the argument is that section
1957 is a rather novel statute, in that it criminalizes conduct
by a person once removed from that of the person who generated
the criminally derived property. Thus, he argues, the proscribed
conduct is not likely to appear unlawful to an ordinary citizen.
Second, he contends that section 1957 is unconstitu-
tional on its face, in that it chills legitimate business trans-
actions because a prudent business person could never be sure how
many suspicion-arousing "red flags" would be enough to lead a
jury to infer that the person "knew" that a client or customer
was engaged in criminal activity. Alternatively he suggests that
persons engaged in honest business dealings would be forced to
rely on racial or ethnic stereotyping, as by refusing to do
business with "known" criminals.
Section 1957(a) prohibits "knowingly engag[ing] in a
monetary transaction in criminally derived property that is of a
value greater than $10,000 and is derived from specified unlawful
activity . . . ." 18 U.S.C. 1957(a). "Criminally derived
property" is "any property constituting, or derived from, pro-
6
ceeds obtained from a criminal offense." Id. 1957(f)(2). A
___
defendant may not be convicted under section 1957(a) unless he
knew that the transaction involved "criminally derived" property,
id. 1957(c), but he need not have known that the subject
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property was derived from "specified unlawful activity," id. The
___
denial of a pretrial motion to dismiss criminal charges is
reviewed de novo. See United States v. Aguilar-Aranceta, 957
__ ____ ___ _____________ ________________
F.2d 18, 21 (1st Cir.), cert. denied, 113 S. Ct. 105 (1992).
_____ ______
First, given the prominent "red flags" that signaled
the criminal nature of the Saccoccia money laundering operation
to Gabriele (e.g., knowledge of government surveillance; eva-
sionary tactics; large volumes of secreted cash), as well as the
strong evidence of Gabriele's mens rea ("some day Stephen Sac-
____ ___
coccia is going to put us all in jail"), the instant constitu-
tional challenge to the "knowledge" requirement under section
1987 has the ring of desperation. See United States v. Baker, 19
___ _____________ _____
F.3d 605, 614 (11th Cir. 1994) (rejecting comparable as-applied
challenge to 1957).
Second, the facial challenge to the statute is without
persuasive force. Section 1957 is but another in a substantial
line of federal criminal statutes whose only mens rea requirement
____ ___
is "knowledge" of the prior criminal conduct that tainted the
property involved in the proscribed activity. See, e.g., 18
___ ____
U.S.C. 2312 (prohibiting interstate transportation of automo-
biles "knowing the same to be stolen"); 2313 (same, for
receipt of such automobiles); 2314 (criminalizing interstate
7
transportation of goods "knowing the same to have been stolen,
converted, or taken by fraud"). Thus, Gabriele's policy argument
reduces to an attempt to second-guess the congressional decision
to criminalize a particular type of "knowing" conduct.
Gabriele further claims that the district court erred
in rejecting proposed jury instructions defining the section 1957
"knowledge" element with greater precision.3 As he did not
adequately renew his objections to the charge prior to the time
the jury retired to deliberate, see Fed. R. Crim. P. 30, we
___
review for plain error. See United States v. O'Connor, 28 F.3d
___ _____________ ________
218, 220-21 (1st Cir. 1994).4
The district court carefully instructed the jury that
Gabriele could not be convicted unless he "knew that the money or
property involved in [the particular] monetary transaction was
obtained from the proceeds of some criminal offense," and that
the "knowledge" element was not met merely by a finding that
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3Gabriele requested instructions (i) defining "knowing" as a
"clear and certain perception of fact or truth," not a mere
suspicion, Request No. 18; (ii) that he had no duty to investi-
gate the legality of the Saccoccia enterprise, Request No. 19;
and (iii) that he could not be convicted unless the jury found
that he knew it was a criminal offense to engage in monetary
transactions in criminally derived property, Request No. 18A
(citing Cheek v. United States, 498 U.S. 192 (1991)).
_____ _____________
4Gabriele did not object to the definition of "knowing,"
following the jury charge. See supra note 3. Although he
___ _____
clearly delineated the grounds for objecting to numerous other
jury instructions, see infra Section II.B.2, he simply renewed
___ _____
his objections to Requests 18A and 19 by reference. See O'Con-
___ ______
nor, 28 F.3d at 221 (under Fed. R. Crim. P. 30, party must state
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distinctly the grounds for objecting, and may not rely on previ-
ous written articulation of grounds).
8
Gabriele "might have known," "should have known," or "could have
known." Like terms denoting other mens rea elements, "knowledge"
____ ___
is not readily susceptible to a more precise definition than is
derived from the connotation suggested by the term itself. Our
review confirms that the district court instruction in all
respects delineated the appropriate "knowledge" element for
application by the jury. See United States v. Noone, 913 F.2d
___ _____________ _____
20, 30 (1st Cir. 1990) (refusal to give requested instruction not
reversible error if instruction given was substantially correct
and substantially covered defendant's request), cert. denied, 500
_____ ______
U.S. 906 (1991).5
Finally, Gabriele contends that the jury instruction on
"willful blindness" was error.6 Since the government adduced no
evidence that Gabriele had engaged in any particular conduct for
the purpose of precluding his acquisition of actual knowledge
that Saccoccia was engaged in unlawful activities, Gabriele
argues that the "willful blindness" instruction necessarily
____________________
5Since the 1957 mens rea requirement includes no "wilful-
____ ___
ness" element, a Cheek instruction, see supra note 3, would have
_____ ___ _____
been improper as a matter of law. See United States v. Brandon,
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17 F.3d 409, 448 (1st Cir.) (noting that requested instruction
which includes an incorrect statement of the law should not be
given), cert. denied, 115 S. Ct. 80 (1994).
_____ ______
6The instruction stated, inter alia: "In deciding whether a
_____ ____
defendant acted knowingly, you may infer that the Defendant had
knowledge of a fact if you find that [he] deliberately closed his
eyes to a fact that otherwise would have been obvious to him."
Further, the court cautioned the jury: "It's up to you to decide
whether . . . this Defendant deliberately closed his eyes to a
fact and, if so, what inference should be drawn. It's important,
____ _________ ______ __ _____
however, to bear in mind that mere negligence or mistake in
failing to learn a fact is not sufficient." (Emphasis added.)
9
suggested that the jury could convict if it found that he "should
have known" that the gold and cash he received from Saccoccia
derived from criminal activity. Once again, we review for plain
error.7
A willful blindness instruction is warranted if (1) the
defendant claims lack of knowledge; (2) the evidence would
support an inference that the defendant consciously engaged in a
course of deliberate ignorance; and (3) the proposed instruction,
as a whole, could not lead the jury to conclude that an inference
of knowledge was mandatory. See United States v. Brandon, 17
___ _____________ _______
F.2d 409, 452 (1st Cir.), cert. denied, 115 S. Ct. 80 (1994);
_____ ______
United States v. Richardson, 14 F.3d 666, 671 (1st Cir. 1994).
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Gabriele concedes that the first and third elements were met but
argues that the instruction was improper because the government
failed to prove that though confronted with various "red flags,"
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7The following colloquy occurred at side-bar immediately
after the jury charge:
[Defense counsel]: I specifically object to
. . . the willful blindness, so-called con-
scious avoidance instruction. I incorporate
by reference all of the argument that I made
in support of that objection that was made at
the conference, at the charge conference.
Should I put them on the record or incorpo-
rate them by reference?
Court: Your arguments? You mean as far as
incorporated that by reference?
[Defense counsel]: Thank you.
We have held that counsel must comply with the requirements of
Rule 30 unless the district court expressly forbids it. See
___
O'Connor, 28 F.3d at 221.
________
10
he nonetheless said "I don't want to know what they mean." He is
mistaken, however. See, e.g., id. at 671 (finding no plain error
___ ____ ___
in instructing jury on "willful blindness" where evidence indi-
cated that defendant had been presented with a succession of
"flags of suspicion" in business dealings). There was no plain
error in the district court instruction that "knowledge" could be
inferred if the jury were to find that Gabriele consciously
avoided the import of the conspicuous "red flags" involved here
(e.g., government surveillance, large stores of cash, use of
coded language).8
2. Motion for Judgment of Acquittal
2. Motion for Judgment of Acquittal
________________________________
The pre-1992 version of section 1957(f)(1) defined
"monetary transaction" as "the deposit, withdrawal, transfer, or
exchange, in or affecting interstate or foreign commerce, of
funds or a monetary instrument . . . by, through or to a finan-
cial institution (as defined in section 5312 of title 31) . . .
." 18 U.S.C. 1957(f)(1) (1988).9 Gabriele contends that the
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8To the extent that Gabriele suggests that a willful blind-
ness instruction was unwarranted because the government presented
direct evidence of actual knowledge (viz., Gabriele's repeated
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statements about "jail"), we note that the jury was free to
discredit the more direct evidence, yet find the requisite
"knowledge" based solely on a reasonable inference of willful
blindness.
9RTI is a "financial institution" for 1957(f)(1) purposes.
See 31 U.S.C. 5312(a)(2)(N) (term includes "a dealer in pre-
___
cious metals"). Gabriele's reply brief argues that these cash
shipments were made "to him at RTI," not to RTI. As Gabriele did
not make this argument, either in the district court or in his
opening brief on appeal, it is deemed waived. See United States
___ _____________
v. De Masi, 40 F.3d 1306, 1312 (1st Cir. 1994) (issues not raised
_______
in trial court cannot be raised on appeal); id. at 1318 (issues
___
initially raised in appellate reply brief deemed waived).
11
government's evidence merely showed as to five of the six
counts of conviction under section 1957 that he received cash
________
shipments from Saccoccia, counted and held them for safekeeping,
____
then returned them through Saccoccia's emissaries. Although mere
receiving and holding comes within the broader definition of
"transaction" found in the money laundering statute, see 18
_____ __________ _______ ___
U.S.C. 1956(c)(3) ("transaction" includes "delivery by,
________
through, or to a financial institution") (emphasis added),
__
Gabriele argues that the language of section 1957(f)(1) clearly
contemplates something more; namely, evidence that the defendant
____
in some manner further facilitated the laundering process itself;
for example, by commingling a cash "deposit" with the financial
institution's own funds, altering the form of the property
deposited (e.g., by purchasing gold or a cashier's check), or
transferring the deposit, or its proceeds, to third parties, as
by wire transfer.
The denial of a Rule 29 motion for judgment of acquit-
tal is reviewed de novo to determine whether any rational fact-
__ ____
finder could have found that the evidence presented at trial,
together with all reasonable inferences, viewed in the light most
favorable to the government, established each element of the
particular offense beyond a reasonable doubt. See United States
___ _____________
v. Hernandez, 995 F.2d 307, 311 (1st Cir.), cert. denied, 114 S.
_________ _____ ______
Ct. 407 (1993).
Gabriele cites neither legislative history nor authori-
ty for the contention that the statutory term "deposit" was used
12
in its specialized sense so as to reach only bank deposits.10
The plain language of section 1957(f)(1) explicitly criminalizes
the knowing acceptance of a "transfer . . . to" a "financial
________
institution," such as RTI, see 31 U.S.C. 5312, knowing that the
___
transfer involved criminally derived property. See United States
___ _____________
v. Bohai Trading Co., 45 F.3d 577, 581 (1st Cir. 1995). We see
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no significance in the fact that Congress chose to insert in
section 1956(c)(3) an illustrative list of the types of covered
____________
"transfers," id. 1956(c)(3) ("the term 'transaction' includes .
___ ________
. . a transfer . . . and with respect to a financial institution
includes . . .") (emphasis added), then chose not to repeat that
________
list in the non-illustrative definition appearing in section
1957(f)(1) ("the term `monetary transaction' means the deposit,
_____
withdrawal, or transfer . . .") (emphasis added).
Further, given its particular intention to target money
laundering in these companion statutes, we see no basis for the
conjecture that section 1957(f)(1) was intended to proscribe only
the conduct of those transferees who actually "launder" the cash
or other property deposited (i.e., effect an alteration in its
form). The evidence in this case clearly established that
Saccoccia arranged to "transfer" these large cash sums for the
very purpose of having RTI hold the cash safe from the recent-
ly discovered government surveillance at Saccoccia's two Rhode
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10Not only is there no indication that the term "deposit"
was used in this specialized sense, but it is significant, we
think, that non-conventional financial institutions, such as
precious metals dealers including RTI were expressly
covered by the statute.
13
Island companies for eventual laundering in the normal course.
We think this evidence demonstrated "deposits" or "transfers"
sufficient to satisfy the statute. For these reasons, the motion
for judgment of acquittal was properly denied.
14
B. RICO Conspiracy
B. RICO Conspiracy
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1. The "Conduct or Participate" Instruction
1. The "Conduct or Participate" Instruction
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Section 1962(c) makes it a criminal offense "for any
person employed by or associated with any enterprise [affecting
interstate commerce] to conduct or participate, directly or
___________ ________ __
indirectly, in the conduct of such enterprise's affairs through a
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pattern of racketeering activity." 18 U.S.C. 1962(c) (emphasis
added). Gabriele argues that it was error to instruct the jury
that it need not find that he "directed" the Saccoccia enterprise
since "an enterprise is operated not just by upper management but
also by lower rung participants who act on the direction of upper
management." See Reves v. Ernst & Young, 113 S. Ct. 1163, 1170,
___ _____ ______________
1172 (1993) (independent accounting firm must be shown to have
"participated" in, or played "some part in directing," the
enterprise). Although Gabriele preserved the present claim with
a timely Rule 30 objection, it is foreclosed by recent circuit
precedent. See Hurley, __ F.3d at ___ [slip. op. at 12-13]
___ ______
(finding no plain error, noting that Reves has no relevance to
_____
defendants who were "employees," as distinguished from indepen-
dent or outside participants like the accounting firm in Reves)
_____
(citing United States v. Oreto, 37 F.3d 739, 750 (1st Cir. 1994),
_____________ _____
cert. denied, 115 S. Ct. 1161 (1995)).
_____ ______
The government introduced ample evidence unchal-
lenged on appeal that Gabriele, unlike the accounting firm in
Reves, was not an independent "outsider" but a full-fledged
_____
"employee" of the Saccoccia enterprise, as evidenced by Sac-
15
coccia's anticipated "purchase" of RTI from Gabriele and his
instructions to underlings to leave cash for Gabriele. Even
employees not engaged in directing the operations of the RICO
_________
enterprise are criminally liable if they are "plainly integral to
carrying [it] out." See id. The district court gave precisely
___ ___
this instruction. See Reves, 113 S. Ct. at 1173.11
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2. Other RICO-Related Instructions
2. Other RICO-Related Instructions
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Gabriele contends that the district court declined to
give five other jury instructions which were essential to enable
the jury to differentiate section 1957 from RICO conspiracy
"two offenses occupying opposite ends of the white collar [crime]
spectrum." Brief for Appellant at 46. Although this challenge
was duly preserved as well, we will reverse only if the requested
jury instructions represented substantially correct statements of
the applicable law not substantially covered in the instructions
given, and their omission seriously undermined Gabriele's ability
to mount a defense. See Brandon, 17 F.3d at 448; see also Noone,
___ _______ ___ ____ _____
913 F.2d at 30. We discern no error.
Request No. 6 would have precluded conviction unless
the jury found that RTI was part of the RICO enterprise, on the
___
theory that Gabriele could not have "participated" unless he
"directed" a component part of the enterprise. Thus, it was
predicated on an incorrect view of the law. See supra Section
___ _____
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11To the extent Gabriele is intimating that Reves did not
_____
determine whether an employee's contribution to the enterprise
may be so insignificant as not to constitute "participation," id.
___
at 1173 n.9, we need note only that Gabriele's participation was
by no means insignificant.
16
II.B.1. Whether or not RTI was part of the RICO enterprise,
there was ample evidence from which the jury could find that
Gabriele "participated" as a Saccoccia employee who was "plainly
integral to carrying out" the enterprise even though he did not
"direct" its operations. Id.
___
Request No. 9 proposed to instruct the jury that
Gabriele's commission of two predicate acts, without more, would
_______ ____
not establish his agreement to "participate" in the RICO enter-
prise. Request No. 12 would have precluded conviction unless the
jury found that Gabriele "knew of the conspiracy's essential
features, general scope, and overall goals." These requests were
substantially covered by the final charge, which repeatedly
reminded the jury that acquittal was required unless it found
that Gabriele "under[stood] the unlawful nature of the plan" and
entered into a "mutual agreement" to accomplish "some unlawful
purpose."
Request No. 16 stated that "a person who may have
furnished goods, money, or services to another person who he
knows is or will be engaged in criminal activity and that these
goods or services may be used in that activity does not by
furnishing such goods, money or services necessarily become a
member of the conspiracy." See Direct Sales Co. v. United
___ _________________ ______
States, 319 U.S. 703 (1943). The truism underlying the requested
______
instruction is that the seller's mere knowledge of the existence
of a conspiracy is not in itself sufficient to convict him as a
conspirator; the seller must also have intended that the sale
17
promote the unlawful goals of the conspiracy. See, e.g., United
___ ____ ______
States v. Garcia-Rosa, 876 F.2d 209, 216 (1st Cir. 1989), cert.
______ ___________ _____
denied, 493 U.S. 1030, cert. granted and vacated on other
______ _____ _______ ___ _______ __ _____
grounds, 498 U.S. 954 (1990). Nonetheless, as we have noted, the
_______
Direct Sales Co. instruction normally is not essential if the
_________________
trial court advises the jury that the defendant cannot be con-
victed absent a finding that he joined the conspiracy with intent
to further its unlawful purposes. Brandon, 17 F.3d at 448-49.
_______
The jury charge repeatedly brought home the latter point.
Request No. 20 stated a "theory of the defense," in
Gabriele's words; namely "that the Government has failed to prove
. . . that the defendant agreed to participate in the [conspira-
cy] . . . or that he had knowledge that his transaction may have
involved criminally derived property." As a theory of the
defense, the request overreached by attempting to coopt the
court. To the extent the request purposed a "reasonable doubt"
standard, it was surplusage, since the charge delineated the
requisite elements under section 1962(c) and (d), and repeatedly
instructed the jury that the government had the burden of proving
each element beyond a reasonable doubt. See United States v.
___ _____________
Long, 977 F.2d 1264, 1272 (8th Cir. 1992) (where lack of knowl-
____
edge is defense, jury instructions on conspiracy, intent, and
specific intent adequately covered "theory of the defense").12
There was no instructional error relating to the RICO conspiracy.
____________________
12Since there was no instructional error, Gabriele's "cumu-
lative error" claim goes nowhere.
18
C. The Motion for Mistrial and the
C. The Motion for Mistrial and the
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Privilege Against Self-Incrimination
Privilege Against Self-Incrimination
____________________________________
Finally, Gabriele argues that the district court
violated his Fifth Amendment privilege against self-incrimination
by stating to the jury, following the close of the government's
case: "You may return to the jury room for your afternoon recess
and we will hear the rest of the story." (Emphasis added.) See
___ ____ __ ___ _____ ___
Griffin v. California, 380 U.S. 609 (1965); United States v.
_______ __________ ______________
Lavoie, 721 F.2d 407, 410 (1st Cir. 1983), cert. denied, 465 U.S.
______ _____ ______
1069 (1984). Gabriele insists that the jury necessarily drew the
improper inference that he would take the stand to "tell his
story," whereas in fact he rightfully elected not to testify. He
adds that the district court instruction given in lieu of his
request for a mistrial was inadequate, because the court merely
noted that a defendant bears no burden of proof in a criminal
case, while failing to emphasize that no adverse inference may be
drawn from a defendant's decision to exercise his constitutional
right not to testify at trial.
Whether a statement in the presence of the jury in-
fringed upon the privilege against self-incrimination is a
question normally reviewed de novo. See United States v. Glantz,
__ ____ ___ _____________ ______
810 F.2d 316, 320 n.2 (1st Cir.), cert. denied, 482 U.S. 929
_____ ______
(1987). On the other hand, the denial of a motion for mistrial
is reviewed for abuse of discretion. See United States v.
___ ______________
Rullan-Rivera, ___ F.3d ___, ___ (1st Cir. 1995) [No. 94-1890,
_____________
1995 U.S. App. LEXIS 18434, at *4 (1st Cir. July 21, 1995)]. As
19
Gabriele interposed no timely objection,13 however, we review
only for plain error. See Fed. R. Crim. P. 52(b). In all
___
events, we find neither plain error nor abuse of discretion in
the denial of the motion for mistrial.
First, the colloquial expression utilized by the trial
judge ("we will hear the rest of the story") plainly was intended
merely to inform the jury that though the government's case had
been completed, the defense as distinguished from the defen-
_______
dant's testimony had yet to be heard. Although appellate
review is plenary, Glantz, 810 F.2d at 320 n. 2, we think it
______
would be imprudent to attribute the more ominous import now urged
by Gabriele on appeal, in light of the view apparently taken by
the trial court and counsel at the time. See United States v.
___ _____________
Robinson, 485 U.S. 25, 30-31 (1988) (noting, in context of
________
challenge to ambiguous statements of prosecutor arguably
constituting improper comment on defendant's exercise of privi-
lege against self-incrimination "we do not think that an
____________________
13The government argues that the challenged comment must be
viewed as innocuous because even the defense failed to perceive
________
the statement as an infringement upon Gabriele's privilege
against self-incrimination, as evidenced by the fact that the
defense objected solely on the ground that the jury might con-
strue the statement as shifting the burden of proof to the
defense. Gabriele responds that he delayed his Fifth Amendment
objection until the defense rested, because he had not yet
decided whether to take the stand.
We think the delay in interposing an objection on the Fifth
Amendment ground effected a waiver. Whether or not Gabriele ever
took the stand, the district court's statement (as construed by
Gabriele) could have had a coercive effect upon his decision
whether to testify. Thus, had the alleged Fifth Amendment
infringement been perceived, it seems clear that it would have
been more advantageous to raise it before that decision had to be
______
made.
20
appellate court may substitute its reading . . . for that of the
trial court and counsel"). Thus, we think it would amount to
impermissible conjecture to conclude that the jury understood the
trial judge's reference to the "rest of the story" as "'a comment
on the failure of the accused to testify.'" See Glantz, 810 F.2d
___ ______
at 322 (noting that the challenged comment must be "manifestly
intended or . . . of such character that the jury would naturally
_________
and necessarily take it to be a comment on the failure of the
___________
accused to testify") (emphasis added) (citation omitted). It
would be particularly problematic to do so here, since the
defense clearly signaled that it perceived the statement to be
objectionable at the time only because the jury might take it as
a license to shift the burden of proof. We believe, therefore,
that an appellate court would be overreaching were it to attrib-
ute to the jury the more ominous interpretation now proposed by
the defense. See Robinson, 485 U.S. at 30.
___ ________
Second, even assuming the jury so interpreted the
judge's statement, the preliminary instructions emphatically
charged that "a defendant has a right to remain silent . . .
[and] you should understand that if he does not [take the witness
stand], you should not draw any inferences from that." The final
charge once again stated that "the fact that a defendant has, in
this case, . . . chosen to exercise [the privilege against self-
incrimination] should not be considered in any way by you as
proving anything one way or the other." Thus, we see no sound
basis for departing from the customary presumption that juries
21
follow their instructions. See Rullan-Rivera, ___ F.3d at ___
___ _____________
[No. 94-1890, 1995 U.S. App. LEXIS 18434, at *5 (1st Cir. July
21, 1995)]. Accordingly, the district court did not abuse its
discretion in denying the motion for mistrial.
The district court judgment is affirmed.
___ ________ _____ ________ __ ________
22
