USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

Nos. 93-1618
93-2208
94-1506

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN A. SACCOCCIA,
Defendant, Appellant.

_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

_________________________

Before

Selya, Cyr and Boudin, Circuit Judges.

______________

_________________________

Samuel Rosenthal, with whom

________________
Mosle, Robert D. Luskin, and
_____ ________________

Curtis, Mallet-Prevost, Colt &

_______________________________

Comey Boyd & Luskin were

___________________

on brief,

for appellant.
Nina Goodman, Attorney,
_____________
Iannotti,
________

Assistant United

Whitehouse,
__________
United States

United States

Dep't of

Justice, and

States Attorney,

Michael P.
__________

with whom

Sheldon
_______

Attorney, James H. Leavey, Assistant

________________

Attorney, and Michael E. Davitt, Assistant United

__________________

States Attorney, were on brief, for the United States.

_________________________

June 28, 1995

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.

jury convicted

defendant-

_____________

appellant Stephen A. Saccoccia on racketeering, money laundering,

and

related

charges

arising

from

organization that laundered well

during

the

challenges

years

his

conviction, the

sentence that

1986

forfeiture of

the

leadership

of

an

over $100,000,000 in drug money

through

extradition,

his

the

1991.

On

timing

appeal,

of

his

certain assets, and

district court

imposed.

Saccoccia

trial,

his

the 660-year

Finding

that

his

arguments do not wash, we affirm.

I.
I.

BACKGROUND
BACKGROUND

We sketch the bareboned facts in the light most amiable

to the government, see United States v. Ortiz, 966 F.2d 707, 710___ _____________
_____

11 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993), leaving
_____ ______

much of the flesh and sinew for fuller articulation in connection

with our discussion of particular issues.

Appellant

metals

businesses

formerly

located

controlled a

in

Rhode

network

Island,

became enmeshed in money

New

California.

He

involvement

with a fellow metalman, Barry Slomovits.

in the mid-1980s, Slomovits was

cash

each week from Duvan

Colombian drug lords (the

this

cash

to

arrangement,

purchase

the

of precious

York,

laundering through his

At a point

accepting millions of dollars in

Arboleda, who represented

Cali cartel).

gold

transactions

and

from

Slomovits used

appellant.

were

a group of

some of

By

special

accomplished

without

documentation.

In 1987, Arboleda and

appellant agreed that they would

deal

directly

with each

appellant used his various

other.

From

that

juncture forward,

businesses to cleanse money funnelled

to him by the Cali cartel and its emissaries (including Arboleda,

Fernando Duenas,

make large

would

and Raoul Escobar).

quantities of cash available

send some of it to

buy gold with the funds,

Typically, Arboleda would

to appellant; appellant

Slomovits in New York; Slomovits would

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

laundered

Slomovits.

1988.

but

the

The

cash

shipments of currency, and

by methods

shipments to

From then on, the

similar

1988 and 1990.

those

Sharir's factory

two men forsook the

continued to deal with each other.

totalling over

to

$35,000,000 to Sharir at

Sharir

employed by

continued until

New York factory,

Appellant delivered cash

other locations between

By 1990,

appellant's operations

become largely independent of Slomovits.

opportunities to

launder

money on

had expanded and

had

Appellant would bid for

behalf of

the Cali

cartel.

When the cartel accepted

a bid, he or his couriers would receive

sacks

prearranged

of

shipments

currency

at

ordinarily

ranged

delivery

between

$50,000

points.

and

These

$500,000

(although

$3,000,000).

The bills

They

be

counted,

transported to one of appellant's offices in California

or Rhode

usually

Island,

one delivery

in

small

totalled

denominations.

then counted again, smurfed,1

would

and used to buy cashier's

checks payable to one of appellant's companies.

were

made at

Anthony

various

DeMarco,

banks by

James

underlings

Saccoccio,

were

These purchases

(e.g., David
____

Kenneth

Izzi,

Saccoccio)

in

accordance with instructions received from appellant or his wife,

Donna

Saccoccia.

After

company account, the

the checks

had

been deposited

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

laundered cash.

in

of the

This completed "la vuelta," the term used by the

Cali

cartel

to

describe

a complete

cycle

of

drug smuggling

activities.

The spring of 1991

appellant's career in high

his

marked the beginning of the

finance.

During the early

end of

stages of

operation, the money received in New York was transported to

Rhode

Island by

armored car

standing in the name of

Metals

and then

deposited in

an account

a controlled corporation, Trend Precious

(Trend), at Citizens Bank.

Between January

1, 1990 and

____________________

1The conspirators
reporting
see,
___

requirements

e.g., 31
____

(1994),

U.S.C.

sought to avoid the

applicable to
5313 (1988);

currency transaction

large

cash transactions,

31 C.F.R.

103.22(a)(1)

by subdividing the cash into units of less than $10,000.

The process of breaking down a large amount of cash into smaller,

unreportable
reporting

amounts

a criminal

act when

requirements, see 31 U.S.C.A.

___

is called "smurfing."

done to

avoid the

5324 (West Supp. 1995)

April 2, 1991, appellant and his wife wired over $136,000,000 out

of the Trend account to an assortment of foreign banks.

became

suspicious and closed the account.

same time frame,

Richard

was

an employee

Gizarelli, an

of an armored

In approximately the

car service

unindicted coconspirator,

under investigation.

Citizens

warned

that appellant

Gizarelli promptly informed appellant.

Notwithstanding

these omens, appellant

did, however, alter his modus operandi.

_____ ________

persisted.

He

Instead of using private

couriers to transport cash from New York to Rhode Island, he sent

any

of four

Vincent

Izzi,

Carlo

Hurley, often (but not

haul the

cohorts

men

money

to

DeMarco, Anthony

DeMarco,

or

always) operating in

pairs

to

Rhode Island.

continued to

purchase

And,

bank checks

although

appellant's

from various

Rhode

Island financial institutions, appellant began to send the checks

to his offices in

labeled as

slag

California by air courier, often

containing gold (to which

or scrap metal to

money to purchase

in canisters

appellant's henchmen added

increase weight).

Accomplices used the

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

mother's home.

Saccoccia,

1991, appellant convened a meeting at his

He showed

the

conferees (who

ongoing

Donna

Izzi, and the two DeMarcos) a videotape that had been

discovered accidentally in a nearby building.

an

included

surveillance of

the

back

The tape reflected

entrance to

appellant's

Cranston coin shop.

He advised his colleagues to start using the

store's front entrance.

Switzerland.

In

Soon thereafter, appellant departed for

short

order, the

authorities

indicted

and

extradited him.

After unsuccessfully seeking to postpone prosecution on

health-related grounds,2

appellant went to trial

1992, in the

United States

Rhode Island,

along with

(including

his wife).

District Court for

several other

Appellant's

trial, and the court declared a

new

trial

began

on February

on November 4,

the District

indicted coconspirators

attorney became

ill during

mistrial as to appellant.3

17,

1993,

of

and

resulted in

The

his

____________________

2The

district court

professed ailments.

held a

hearing regarding

appellant's

Appellant had undergone a laminectomy at age

14 and had been hospitalized repeatedly during the next 20 years.

He suffered a relapse while
necessitating bed
the United
He

also

he was incarcerated in

rest and medication.

After

Switzerland,

being returned to

States, appellant claimed to have reinjured his back.

claimed that,

assaulted

him,

on

the

aggravating

eve of

his

trial,

condition.

a prison
The

court

guard

heard

testimony from three physicians

and concluded that "there [were]

no

doctor

objective

existence

findings by

of

any

any

physical

would

the

for

Accordingly,

the

first trial proceeded as to the other defendants.

The

complaints

that

would confirm
account

[appellant's current]

problem

that

of pain."

court refused to grant a continuance.

3The

jury returned its verdict on

Saccoccia,

Vincent Hurley,

December 18, 1992, convicting Donna

James Saccoccio,

Kenneth Saccoccio,

Stanley Cirella and Anthony DeMarco on the RICO conspiracy count,

18 U.S.C.
other

1962(d), and finding each of them

counts.

Donna Saccoccia

money laundering

was convicted

under 18 U.S.C.

laundering under 18 U.S.C.

guilty on certain
of 47

1957 and 13

1956(a)(2); Hurley

counts of

counts of money

was convicted of

one count of structuring transactions to avoid currency reporting

requirements,

see
___

31

interstate travel in aid

the

two

Saccoccios

structuring
DeMarco

was

U.S.C.

and

one

count

of racketeering, see 18 U.S.C.

___

and

Cirella

violations under
convicted

5324(3),

of

were

31 U.S.C.
filing

false

likewise

of

1952;

convicted

of

5324(3);

and Anthony

currency

transaction

reports in violation of 31 U.S.C.

5324(2).

conviction.

These appeals followed.

Saccoccia's appeals were consolidated for oral argument

with the appeals arising out of

3.

Notwithstanding

and in the posture

the first trial.

See supra note

___ _____

the obvious differences in the trial records

of the prosecutions

for

example, appellant

was the

leader of the money laundering organization; unlike most

of

others,

the

reporting (CTR)

separate

he

defendants.

by

not

offenses;

from that

incorporate

was

of

tried

and

he

for

was

currency

convicted

his codefendants

reference

eight

Because appellant's

transaction

in

trial

appellant seeks

arguments

advanced

position is

by

to

other

not substantially

similar to that of the codefendants, and because he has failed to

develop

those

the idiosyncracies of his own situation, we deem five of

arguments to have been

abandoned.4

See
___

United States v.
_____________

David, 940 F.2d 722, 737 (1st Cir. 1991) ("Adoption by reference,
_____

however,

arguments

cannot

adopted

occur

must

in

be

vacuum;

readily

to

be

meaningful,

transferrable

from

the

the

proponent's case to the adopter's case."), cert. denied, 504 U.S.

_____ ______

955 (1992).

____________________

4The five
CTR charges,

waived asseverations
and the

comprise:

(1)

evidence engendered thereby,

whether the

violated the

Fifth Amendment privilege against self-incrimination; (2) whether

the district
of Reves
_____
the

court's jury instructions

v. Ernst & Young,

_____________

court erred

in

113 S. Ct. 1163

instructing the

knowledge could be established

(4)

whether

the court

overlooked the teachings

(1993); (3) whether

jury that

coconspirators'

by evidence of willful blindness;

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.

Nevertheless, we are left with no shortage of food

thought.

Appellant has

offerings.

We address

the three

And

desirable,

a bouillabaisse

contentions that

although we

the record

up

of

other

his meatier propositions below, including

"incorporated"

preserved.

served

for

should

do

not deem

reflect that

arguably

have

been

detailed

discussion

we have

masticated

appellant's remaining points and found them indigestible.

II.
II.

EXTRADITION
EXTRADITION

As

trial

and

a threshold

matter, appellant

ensuing conviction

between the United

violated

the

maintains that

his

extradition treaty

States and Switzerland, and,

in the bargain,

transgressed the

principles of dual

criminality and

specialty.

We reject these importunings.

A.
A.

Further

facts

extradition-related

November 18, 1991,

that inaugurated

his wife, and

U.S.C.

the

Gaining Perspective.
Gaining Perspective.
___________________

claims

are

needed

into

to

a workable

this prosecution.

eleven associates

1962(d) (1988).

government to

prove,

Count 1

905 F.2d 499,

appellant's

perspective.

a federal grand jury returned

On

the indictment

charged appellant,

with RICO conspiracy.

See
___

18

A RICO conspiracy, of course, requires

inter alia,
_____ ____

an illicit

conduct a pattern of racketeering activity.

Ruiz,
____

place

503 (1st Cir.

agreement to

See United States v.

___ _____________

1990); see also

___ ____

18 U.S.C.

1962(c)

(1988).

Proof of a pattern demands that the prosecution

show "at least two acts

1961(5)

(1988).

These

of racketeering activity."

acts,

which

18 U.S.C.

must themselves

comprise

violations of specified criminal

are

commonly referred

to as

statutes, see id.

___ ___

"predicates" or

See, e.g., Ruiz, 905 F.2d at 503.

1961(1)(B),

"predicate acts."

___

____

____

In

activity

the

instant indictment,

comprised,

among

other

incidents of money laundering,

violations, see 31
___

U.S.C.

interstate

laundering

ventures, see 18 U.S.C.

___

instances,

appellant

see
___

commerce

to

others

31

with

U.S.C.

with illegally

predicate

1956,

acts,

1957, CTR

using travel

promote

1952(a)(3).

the RICO conspiracy

transactions over $10,000.

appellant and

specified

5324(1)-(3), and

in

means that included failing

alleged racketeering

see 18 U.S.C.
___

facilities

also averred that

the

these

and

money

The grand jury

had been accomplished

to file the necessary CTRs

by

for cash

Counts 2-53 of the indictment charged

failing to

file

5324(1);

structuring

CTRs

counts

in

specific

54-68

charged

monetary transactions

in

order to avoid the CTR reporting requirements, see id.

___ ___

counts

69-129 charged

property

derived

monetary

transactions

U.S.C.

money

counts

appellant and

from

his wife

with the

5324(3);

use of

unlawful

activities

while engaging

in

affecting

interstate

commerce,

18

see
___

1956; counts 130-142 charged appellant and his wife with

laundering in

143-150

violations

violation

of 18

charged appellant

under 18 U.S.C.

Six days after the

and

others

1952(a)(3).

contained forfeiture allegations

money laundering statutes.

U.S.C.

under the

See 18 U.S.C.
___

The

1956(a)(2); and

with Travel

Act

indictment also

applicable RICO

and

982, 1963.

grand jury returned the indictment,

Swiss

authorities

contested

extradition on

through 150.

granted

counts

arrested

Saccoccias in

counts 1

through 68,

On June 11, 1992, the

extradition on

2 through

constituted

the

68.

all

conduct.

and counts

those contained

reasoned that

nonextraditable offenses

prohibit the underlying

They

143

Swiss Federal Tribunal (SFT)

charges except

The SFT

Geneva.

The

these 67

because Swiss law

counts

did not

SFT's discussion did

specifically mention the forfeiture allegations.

in

not

The Swiss

surrendered appellant to the

United States.

He was transported to Rhode Island and arraigned on July 15.

week later,

On

the grand

July 30,

O'Hare,

copy

jury returned a

the Justice

of

the superseding

superseding indictment.5

Department, in

wrote to Tania Cavassini,

One

the person

of Michael

a Swiss official, enclosing a

indictment

and

inquiring whether

it

required a waiver of the rule of specialty.

On

December

inquiry from Cavassini,

that, although

1, 1992,

apparently

O'Hare transmitted

the court papers still

in

response to

a written

an

assurance

formally listed appellant

____________________

5The charges
indictment
bill.

closely

laid

against

appellant

paralleled those

Specifically, the grand

in

the

contained in

jury accused

superseding

the original

appellant of

RICO

conspiracy (count 1),

failure to file CTRs (counts

false

10-22),

CTRs

transactions
engaging
illegal

to

evade

in monetary

unlawfully

filing

structuring

requirements

transactions using

monetary

(counts

23-37),

property derived

from

activities (counts 38-98), money laundering (counts 121-

33), and
41).

(counts

2-9), filing

interstate travel in

Like the

original indictment, the

alleged violations of CTR

the RICO

aid of racketeering

superseding indictment

requirements as predicate offenses for

conspiracy and Travel

forfeiture allegations.

(counts 134-

Act counts,

and reiterated

the

However, the superseding indictment

did

include several counts not directed at appellant (counts 99-120).

10

as

defendant

in

respect

to

the

CTR

counts

(for

which

extradition had been

denied), the prosecution did

press

O'Hare explained

those counts.

not intend to

that the prosecutor would

offer no evidence of appellant's guilt on those charges, with the

result

jury

that "American law [will require] the judge to direct the

to

find the

Cavassini advised

defendant not

guilty."

that, under a "final

The

following day,

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

appellant with CTR offenses.

matter

when

resurfaced in a

appellant's

Cavassini

prosecution on charges

The district court complied.

slightly different shape

Swiss

expressing

2-37) that charged

lawyer,

concern

Paul

that

ten days later

Gully-Hart,

appellant's

in which CTR violations

The

wrote

to

impending

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.

forwarded both of these letters to O'Hare.

spoke

Cavassini

On March 8, Cavassini

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

Leavey, a

that

member of the

he had

validity

of

instruct

the

predicates

When the

day, Assistant

Attorney James

prosecution team, advised

spoken with

O'Hare.

Gully-Hart's

point,

jury

United States

that

CTR

Judge Torres

Without conceding

the legal

Leavey

asked

the

court

to

violations

could

not

serve

as

for purposes of either the RICO or Travel Act counts.

court acquiesced,

indictment that deleted

the government submitted

all references to CTR offenses

a redacted

from the

RICO

and Travel Act counts.

Appellant nonetheless

moved for a

mistrial, invoking the rules of dual criminality and specialty.

The

it

had

district court denied

agreed

to

accommodation.

the

In the

the motion, explaining that

government's

judge's view,

proposal

purely

as

the precautions were

an

not

legally required because the SFT had been pellucid in authorizing

prosecution

on the

violations

were

predicates.

appellant's

connection with

even

noted,

violations

was

the substantive

in all

the

therein

moreover,

that

events

claimed

as

CTR

potential

evidence

of

admissible

in

money laundering counts

approved).

motion for a new

though

displayed

judge

which extradition had been

issue in his

count

prominently

The

CTR

RICO

(as to

Appellant resurrected the

trial following the

adverse jury

verdict.

The court stood firm.

B.
B.

Dual Criminality and Specialty.

Dual Criminality and Specialty.
______________________________

Although

specialty

are

the

principles

closely allied,

they

of

dual

criminality

and

are not

coterminous.

We

elaborate below.

12

1.
1.

Dual
Dual

Criminality.
Criminality.

The

principle

of

dual

_________________

criminality

dictates that,

offense must be a

punishable

general rule,

serious crime (rather than a

under the criminal laws

the requesting

(1st Cir.

as a

state.

1980).

See Brauch
___ ______

The current

Extradition, May

14, 1900,

mere peccadillo)

of both the surrendering and

v. Raiche, 618 F.2d

______

extradition

United States and Switzerland embodies this

of

an extraditable

843, 847

treaty between

concept.

U.S.-Switz.,

the

See Treaty
___

Art. II,

31 Stat.

1928, 1929-30 (Treaty).

The principle of dual

the

laws of

copies

of one

the surrendering

another.

Thus,

criminality does not demand that

and requesting

dual

states be

criminality will

carbon

not

be

defeated by differences in the instrumentalities or in the stated

purposes of the two nations' laws.

713,

719 (10th Cir. 1989).

crimes

need

not

have

By the

identical

Extradition of Russell, 789

________________________

Instead,

surrendering

State,
_____

elements.

F.2d

801,

laws are

See
___

803

Matter of
__________

(9th Cir.

substantially analogous.

719; Brauch, 618 F.2d at 851.

______

criminality

offense

same token, the counterpart

1986).

dual criminality is deemed to be satisfied when the two

countries'

F.2d at

See Peters v. Egnor, 888 F.2d

___ ______
_____

concerns,

courts

sovereign's

are

reasonable

in question is extraditable.

980 F.2d 1472, 1477

American court must

Peters, 888
______

Moreover, in mulling dual

duty

bound

to

determination

defer to

that

the

See Casey v. Department of

___ _____
_____________

(D.C. Cir. 1992)

give great

See
___

deference to

(observing that an

a foreign

court's

determination in

extradition proceedings); United States v. Van

______________
___

13

Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987) (similar),

____________

cert.
_____

denied, 484 U.S. 1042 (1988).

______

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.

the

same

conduct

is

subject

jurisdictions, no more is

905 F.2d

to criminal

exigible.

326, 328 (10th Cir. 1990),

sanctions

See United States

___ _____________

in

If

both

v. Levy,
____

cert. denied, 498 U.S. 1049

_____ ______

(1991); see also Collins v. Loisel, 259 U.S. 309, 312 (1922) ("It
___ ____ _______
______

is enough [to satisfy the requirement of dual criminality] if the

particular act charged is criminal in both jurisdictions.").

2.
2.

Specialty.
Specialty.
_________

The

principle

of

specialty

corollary to the principle of dual criminality, see United States

___ _____________

v. Herbage, 850 F.2d

_______

489

U.S.

1027 (1989)

1463, 1465 (11th Cir. 1988),

generally

requires that

cert. denied,
_____ ______

an extradited

defendant be tried for

granted, and

Quinn
_____

the crimes on which extradition

none other.

See Van Cauwenberghe, 827 F.2d at 428;

___ ________________

v. Robinson, 783 F.2d

________

479 U.S. 882 (1986).

United States

776, 783 (9th

offense committed

Cir.), cert. denied,

_____ ______

The extradition treaty in force between the

and Switzerland

that an individual

has been

may not

embodies this concept,

be "prosecuted or

before the demand for

providing

punished for

any

extradition, other than

that for which the extradition is granted . . . ."

Treaty,

Art.

IX.

Enforcement of

the principle of

14

specialty is

founded

primarily on international comity.

813 F.2d 146,

"live

151 (8th

up to

whatever

extradition"

because

extradition

requires

surrendering state.

(9th

Since

Cir.)

Cir. 1987).

promises

it

preservation

the

The requesting state

made

in

of

the

continuing

order

to

must

obtain

institution

cooperation

of

of

the

United States v. Najohn, 785 F.2d 1420, 1422

_____________
______

(per curiam),

the doctrine

See United States v. Thirion,

___ _____________
_______

cert. denied,
_____ ______

is grounded

479 U.S.

in international

1009 (1986).

comity rather

than in some right

of the defendant, the principle

may be waived by the asylum state.

Specialty,

dogma,

Thus, obeisance to

See id.
___ ___

like dual criminality,

but must be applied in

the principle of

offenses

order, see
___

court

that the

enumerated

specialty does not

criminal

require

the precise indictment

to

enterprise

cert. denied, 115 S. Ct. 938

_____ ______

prosecution always be

limited to

in

state's

the

Levy, 905 F.2d

____

intended

a hidebound

his extradition, see United States v. Andonian, 29

___ _____________
________

F.3d 1432, 1435-36 (9th Cir. 1994),

(1995), or

is not

a practical, commonsense fashion.

that a defendant be prosecuted only under

that prompted

of specialty

surrendering

at 329

extradite

charge

extradition

(concluding that a

defendant to

despite

the

face

specific

court's

Hong Kong

continuing

failure

specifically to

mention that

charge in the

deportation order).

In the same vein, the principle of specialty does not impose

limitation

on

the

particulars of

requesting nation, nor does it demand

existing

the

charges

lodged

any

by the

departure from the forum's

rules of practice (such as rules of pleading, evidence,

15

or

procedure).

See United States

___ _____________

v. Alvarez-Moreno,
______________

874 F.2d

1402,

1414 (11th Cir. 1989), cert. denied, 494 U.S. 1032 (1990);
_____ ______

Thirion, 813 F.2d at

_______

153; Demjanjuk v. Petrovsky, 776

_________
_________

F.2d 571,

583 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986).
_____ ______

In the last analysis,

boils down to whether,

the

court

in

prosecuting the

the

which the

under the totality of the

requesting state

reasonably

defendant on particular charges

surrendering state's

way, whether the

then, the inquiry into specialty

manifested intentions, or,

surrendering state would

circumstances,

believes

contradicts the

phrased another

deem the conduct

requesting state actually prosecutes

that

for

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

______

States v. Cuevas, 847

______
______

denied,
______

489 U.S.

F.2d 1417, 1427-28 (9th Cir.

1012 (1989);

United States v.
_____________

1988), cert.
_____

Paroutian, 299
_________

F.2d 486, 490-91 (2d Cir. 1962).

C.
C.

Applying the Principles.

Applying the Principles.
_______________________

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.

Khan,
____

993

See Andonian,
___ ________

F.2d 1368,

29 F.3d

1372 (9th

Cir.

at 1434; United States v.

______________

1993); United States v.

______________

Abello-Silva, 948 F.2d 1168, 1173 (10th Cir. 1991), cert. denied,
____________
_____ ______

113 S. Ct. 107

(1992).

Marching beneath this

banner, appellant

16

urges that his

reasons.6

on

be set aside

for three

related

None has merit.

1.
1.

rests

conviction must

Predicate Acts.
Predicate Acts.
_______________

the

postulate

that

Appellant's flagship

an

offense

which

contention

is

itself

nonextraditable

with other,

cannot serve

extraditable

government's

use of

acts for purposes

line

in

as a

offenses;

reliance

in connection

therefore,

offenses

the

as predicate

counts crossed the

Even if we assume, however, that

on

nonextraditable

other, extraditable

dual criminality

that,

of the RICO and Travel Act

situations

predicates for

and

nonextraditable CTR

into forbidden territory.

some

predicate act

offenses

offenses might run

or specialty principles,

as

afoul of

the circumstances

of

this case present no such problem.

____________________

6There
principle of

is some

dispute whether

specialty can

be raised

alleged violations
by a

of the

criminal defendant.

See, e.g., Demjanjuk, 776 F.2d at 583-84 (questioning whether the

___ ____ _________
person being extradited "has standing to assert the
specialty");

principle of

Kaiser v. Rutherford, 827 F. Supp. 832, 835 (D.D.C.

______
__________

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

quotation

marks omitted).

We need

standing for three reasons.

issue, we
side

to raise this issue")

First,

not

(internal

probe the

matter

of

while we take no view of the

realize that there are two sides to the story, and the

that

favors individual

standing has

much to

commend it.

See, e.g., United States v. Rauscher, 119 U.S. 407, 422-24 (1886)
___ ____ _____________
________
(referring
brought

to

specialty

from a

as

foreign country"

Thirion, 813 F.2d at 151 &

_______
States
______

v.

(suggesting

the continuing

does not

challenge

conferred

upon

via extradition

persons

proceedings);

n.5 (to like effect); see also United

___ ____ ______

Alvarez-Machain,
_______________

Second, the government has

it

a "right

504

U.S.

655,

vitality of the

659-60

(1992)

Rauscher decision).
________

advised us that, for policy

appellant's standing

in this

reasons,

instance.

Third, appellant's asseverations are more easily dismissed on the

merits.

See
___

Norton
______

v.

Mathews,
_______

427

(explaining that jurisdictional questions

U.S.

524,

(1976)

may be bypassed when a

ruling on the merits will achieve the same result).

17

532

In

violation

nation

general,

of the

we do

principle

that

of specialty

the surrendering

here:

the SFT twice

prominently

approval

nation granted

there can

where the

prosecutes the returned fugitive for

which

that

not believe

requesting

the exact crimes on

extradition.

So

approved appellant's extradition on

featured CTR

offenses

as

be a

it is

counts

predicates.

This

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

suggests

that

mention of

the RICO

and

predicates which,

extradition,

are

jurisdictions.

compatible

Though a

fretted about the

Travel Act

counts,

despite their

standing alone, would

with

Swiss

prospect of

the criminal

official

a RICO or

not support

laws

of

both

may informally

have

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,

potential intrusion on the

the

prosecution

avoided

any

principles of either dual criminality

or specialty by taking a series of prophylactic actions at trial.

The

fourth redacted

offenses

from

indictment

the compendium

removed all

of

charges

references to

CTR

pressed against

the

appellant.

The judge

then reinforced

this

fumigation of

indictment by advising

the jurors that

they should not

the

concern

18

themselves

with

whether

appellant

had

committed

offenses.7

These

precautions purged any taint,

any

CTR

and knocked the

legs out from under the line of reasoning that appellant seeks to

pursue.

2.
2.

Keeping Faith.
Keeping Faith.
_____________

government infringed

its promise to the

CTR violations at

the

core

on the

Next, appellant

asserts that the

principle of specialty

by breaking

Swiss government and introducing

evidence of

appellant's trial.

element of

appellant's

Abstractly, we

premise:

the

principle

specialty requires the requesting state to abide by the

it

makes to the surrendering

extradition.

are

Thus,

us.

unable

state in the

See Najohn, 785 F.2d at 1422.

___ ______

to discern

we resist the

any breach

of

agree with

of

promises

process of procuring

But, concretely,

faith in

conclusion that appellant

we

this instance.

would foist upon

____________________

7The judge instructed the jury:

You have
to

heard references during

currency

this trial

transaction

reporting

requirements and I should make it clear

you are

not being

called upon

whether the defendant

to

violate

Therefore,

any
you

to determine

violated or

of

those

may

that

conspired

requirements.

consider

evidence

regarding the nature of currency transactions

with banks to the
in your view,

extent that such evidence,

may bear on the

source of the

money involved and/or the purposes

the

money

may

transported.
you

may

not

have

been

But in reaching
consider

for which

transferred

or

your verdict,

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

keep

its

word,

transmission,

claim that the

appellant

sent

equivalent of an

on

avers

December

United States did

that

1, 1992,

O'Hare's

was

the

not

facsimile

functional

assurance that the prosecutor would not present

any evidence to the jury regarding Saccoccia's noncompliance with

CTR

requirements.

Fairly read,

iteration

that

regarding

[Saccoccia's] guilt

extradition

was

the

prosecutor

not granted"

the

"would

. .

. on

does

document

present

despite its

no

evidence

the charges

for which

not support

appellant's

construction.

Cavassini's

convicted

O'Hare

expression

sent

of

the

transmittal

concern

that

in

response

to

might

be

appellant

of charges for which extradition had been denied.

His

reply, taken in context, see supra pp. 10-11, amounted to no more

___ _____

than

not

an assurance against that possibility.

_________________________

to introduce

O'Hare's

statement

contextual

meaning.

any evidence

moorings

To

relevant to CTR

read a promise

violations into

would

necessitate

wresting

and

unreasonably

stretching

We decline appellant's

it

from

its

its

literal

invitation to indulge

in such

phantasmagoric wordplay.8

3.
3.

contention

The Claimed "Prosecution."

The Claimed "Prosecution."
____________________________

is

that the

government

violated

Appellant's

third

the principle

of

____________________

8Of course,

appellant had

already been extradited

and the

Swiss authorities had already approved the superseding indictment

before this supposed
obstacle

promise was

in appellant's

made.

path:

it

This

strikes

places a
us as

further

problematic

whether the breach of a promise made after the defendant has been
_____
extradited,
ensuing
state,

without more,

conviction.

In

by definition, has

furnishes
such

a basis

for reversing

circumstances, the

not relied on

an

surrendering

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

dismissed

no

before the second trial began, his claim is founded on

more than the fact

during

the

first

"prosecution,"

carry

they pertained to appellant, were

trial.

to a

Consequently, we

unredacted indictment,

no reason to

While

point at

hold that

"[s]ticks

hurt you").

this

may

literally

and we will not

which it

engulfs common

the

mere existence

invalidate Saccoccia's conviction.

(Bauer, C.J.) (quoting

and stones may break

be

only

under the circumstances of

Delco Remy Div. of Gen. Motors Corp.,

_____________________________________

Cir. 1991)

appeared on the indictment

it is prosecution in name

hollow formalism

sense.

that his name

this case, is

Cf. Tacket
___ ______

937 F.2d 1201, 1202

doggerel to

your bones, but

of an

the effect

v.

(7th

that

names can never

This leaves appellant's argument

that he was illegally

"prosecuted" because CTR offenses were included as predicate acts

for

purposes of the RICO and

redacted

indictment

however, it

to

Travel Act counts until the fourth

surfaced.

As

we

have already

would have been perfectly proper

seek convictions

on those

counts based

observed,

for the government

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

evidence

of

admissible
charges and

and we do not believe that it is

CTR violations,
to support

and

various aspects

other substantive

explicitly approved.

by

large, was
of the

counts for which

the

independently

money laundering

extradition was

21

III.
III.

THE COVETED CONTINUANCE

THE COVETED CONTINUANCE

Appellant contends that the district

refused

second

Our

him

a lengthy

continuance prior

trial,10 leaving him

to

court arbitrarily

the start

of the

with insufficient preparation time.

analysis of the record indicates that the court acted within

its discretion in scotching appellant's request.

A.

Setting the Stage.

A.

Adae,

Setting the Stage.

_________________

At

arraignment, two

entered

appearances

thereafter,

laundering.

Austrian

Hill

November of 1992.

attorneys,

as

appellant's

authorities

languished

Jack

arrested

in prison

from

Hill and

Brian

counsel.

Hill

Soon

for

August

money

through

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

became

counsel.

ill.

Shortly after

the

first trial

began, Adae

The court granted appellant's motion for a mistrial

and ordered a severance.

the other defendants.

The case proceeded to verdict vis-a-vis

See supra note 3.

___ _____

Naturally, the severance required a separate trial

for

appellant.

February

The

district

of 1993.

court proposed

Within

announced the schedule, Hill,

prison, and

matter of

to

days

in

early

after the

court

recently released from an Austrian

Kenneth O'Donnell, a prominent

lawyer, entered appearances as

start

Rhode Island defense

appellant's counsel.

On December

____________________

10Appellant
continuances

does not

that he

assign

sought before

See supra note 2.

___ _____

22

error to

the

the first

denial of

the

(aborted) trial.

10, 1992,

appellant signed an extensive waiver

conflict of interest posed

of the potential

by Hill's representation of him

time when Hill himself faced charges of money

at a

laundering arising

out of activities undertaken in conjunction with appellant.

On the same

waiver.

Among other

be rescheduled

have

more time

necessary

to

day, the

review

hearing anent

things, appellant requested that his

to April of 1993

to

court held a

prepare.

financial

so that his

He claimed

documents,

the

trial

defense team could

this

extra time

study

was

surveillance

tapes, glean exculpatory evidence, and analyze inconsistencies in

the statements of government witnesses.

The court granted only a

two-week

February 17, noting that

extension, from February 3 to

the original

counsel

indictment

already

preparation.

had

had

been returned

enjoyed

Subsequent

requests

in

1991

considerable

for

and

that

period

for

continuances were

also

denied.

B.
B.

Applicable Legal Principles.

Applicable Legal Principles.
___________________________

Trial management

district court.11

That

is peculiarly

court

has great

within the ken

latitude in

____________________

11As we wrote on an earlier occasion:

There is an important public interest

efficient
and

in

operation
the

dockets.

judicial system

orderly management

. . .

during

of

to the
a

tides

prolonged

that ebb

and

trial

and

knowledgeable about systemic demands.

therefore,

the

crowded

The district judge is at the

helm, sensitive
flow

of the

in the

person

best

He is,

equipped

balance the competing considerations.

to

of the

managing

United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990).
_____________
_____

23

its

docket,

including broad

continuances.

expeditiousness

discretion

to

grant or

withhold

Only "an unreasoning and arbitrary insistence upon

in the face of a

constitutes an abuse of

justifiable request for delay"

that discretion.

Morris v.
______

Slappy, 461
______

U.S. 1, 11-12 (1983) (internal quotation marks omitted); see also

___ ____

United States
______________

v.

(explaining that

Devin, 918
_____

F.2d

280,

291

an appellate court "must

to district court

(1st Cir.

show great deference"

decisions of this nature, and

such decisions "only for

should overturn

a manifest abuse of discretion").

present purposes, this means that the decision below must

unless the

party who moved

for the continuance

that,

in withholding relief, the trial

error

of

law

or

suffered

United States v.
______________

Saget, 991
_____

denied, 114 S. Ct. 396 (1993);

______

652, 653 n.1 (2d Cir. 1988).

For

endure

can demonstrate

court indulged a serious

meaningful

resulting in substantial prejudice to

1990)

lapse

the movant.12

F.2d 702,

708 (11th

of

judgment,

See,
___

e.g.,
____

Cir.), cert.
_____

United States v. Dennis, 843 F.2d

_____________
______

For the

purpose of determining

whether a denial

of a

continuance constitutes an abuse of discretion, each case is

generis.
_______

See
___

United States v.
_____________

Torres, 793 F.2d

______

436, 440

sui
___

(1st

____________________

12The Seventh Circuit has gone so far as to term trial court

decisions
States
______

denying continuances "virtually unreviewable."

v. Stevenson, 6 F.3d 1262, 1265 (7th Cir. 1993) (internal

_________

quotation marks omitted).

right direction

We think this description heads in the

but goes too far.

Soldevila-Lopez,
_______________

17 F.3d

district court's

refusal to

that

United
______

newly emergent

480,

See, e.g.,
___ ____

490 (1st

grant a

Cir. 1994)

(reversing

continuance on

the ground

evidence justified

United States, 199 F.2d 107,

______________

more time);

115 (1st Cir.

nationwide publicity had created

United States v.
_____________

Delaney v.
_______

1952) (finding that

a hostile atmosphere, and that,

therefore, the district court should have granted a continuance).

24

Cir.), cert. denied, 479 U.S. 889 (1986).

_____ ______

look first at the

of

the

request

reasons contemporaneously presented in support

for the

continuance.

Lussier, 929 F.2d 25, 28 (1st Cir. 1991).

_______

may

include such

things

as

the

effective preparation, the amount

preparation,

the

A reviewing court must

amount

of

amount

See
___

United States
_____________

v.

Other relevant factors

of

time

needed

for

of time actually available for

time

previously

available

for

preparation

extent

and how assiduously

to which

predicament,

assistance

the

movant has

the complexity

from

the movant used

other

of

contributed

the case,

sources,

the

the extent of inconvenience to

court,

witnesses,

the

continuance

prejudice

ensue, and

and

the

attributable to

United States
______________

the

v. Soldevila-Lopez,
_______________

1994); Lussier, 929

_______

F.2d at

17 F.3d

utility

of

party)

should

injustice or

continuance.

480, 488

28; United States

_____________

Analysis.
Analysis.
________

unfair

See
___

(1st Cir.

v. Zannino,
_______

F.2d 1, 13-14 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).
_____ ______

C.
C.

of

others (such as the

opposing

denial of

perceived

the availability

likelihood of

the

to his

probable

continuance,

that time, the

895

Here,

balancing the relevant

considerations leaves us

confident that the circumstances justified the refusal to grant a

continuance.

contention

rights

that the

by leaving

Appellant's

produced

And,

moreover,

court's

the

obduracy

him insufficient

most loudly

record

bruited

belies

appellant's

unfairly prejudiced

time to prepare

point is

that the

his

for trial.

government

1600 hours of wiretap audio tapes, and that he had only

25

67 days, which he

to them.

translates as equalling 1608 hours,

to listen

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

Thus,

appellant's counsel,

appellant in November of 1991.

collectively, had

days in which to work on the case.

not-inconsiderable

unlimited access to

benefit

the

entire

O'Donnell,

one

of

with

the

than 67

Moreover, the lawyers had the

dress

rehearsal,

including

the full record of the first trial (in which

virtually

familiar

of

far more

case

against

appellant's

new

situation

appellant

attorneys,

because

he

had

was

aired).

was especially

represented

codefendant

who

had

been

acquitted

Furthermore, Hill and O'Donnell could

with counsel for

the codefendants

in

separate

and no doubt did

and with Attorney

trial.

confer

Adae.

In

short, the means for efficacious preparation were tidily at hand.

Appellant's other assertions of supposed prejudice also

lack force.

have

For example, his suggestion that a continuance might

enabled

Shedd's

him to

conversation with

government provided him

Part

IV (E).

copy of a

receive

His

Duenas

overlooks the

with the entire

claim that more

DEA report

complete transcript

fact that

transcript.

time was needed

that he asserts

of

See
___

Agent

the

infra
_____

to obtain a

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

continuance would

obtain enhanced versions of two

trial, see
___

his

infra Part IV
_____

assertion

that

the

enhanced tapes,

appellant's exhortation

him to

of the surveillance tapes before

(F), is completely

"unclear" and "unintelligible."

finally,

have enabled

Appellant's

unpersuasive given

when

received,

Brief at 36.

that a continuance

were

And,

would have

allowed him to investigate whether the laundered cash represented

gambling

any

proceeds, as opposed to drug money, is unaccompanied by

colorable

basis

for

assuming

that

his

supposition

was

anything more than the most remote of possibilities.

In

showing

either

February

of

a nutshell,

appellant

undue prejudice

to

warrant

the district court's resolve

of 1993 or

modest delay than

has not

us in

Since the

pressing need for an extended continuance,

demonstrate

denial

significant harm flowing

of the

motion for a

substantially impaired

trial in mid-

appellant a far more

record reflects

no

and likewise fails to

from the lack

continuance cannot be

appellant's defense.

sufficient

second-guessing

to start the

its decision to grant

he requested.

made a

of one, the

said to have

See, e.g., Dennis,

___ ____ ______

843 F.2d at 653 n.1.

Thus, no cognizable error inheres.

D.
D.

Relatedly,

continuance

construct

saddled

does not

Conflict of Interest.
Conflict of Interest.
____________________

appellant

him

claims

that

the

with conflict-ridden

withstand

scrutiny.

To

denial

counsel.

show

an

of

This

actual

conflict of interest, a criminal defendant "must demonstrate that

some

plausible

alternative

defense

27

strategy

might

have been

pursued"

and "that

this

alternative strategy

because of the attorney's other

States v. Garcia-Rosa, 876

______
___________

was not

loyalties or interests."

F.2d 209, 231 (1st Cir.

granted and judgment vacated on other grounds,

_________________________________________________

(1990).

United
______

1989), cert.
_____

498

U.S. 954

Appellant cannot meet this standard.

Appellant sees the conflict

Hill's

pursued

need

Appellant

to

supports

Hill's indictment

appellant

protect

this

himself

the

at

accusation by

in Austria on

to launder

of interest as centered in

fruits

his

client's

repeated

charges that he

of

expense.

reference

to

conspired with

unlawful activity

but

appellant does not suggest any way in which this alleged conflict

of interest

trial.

adversely affected

Hill's representation of

him at

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

district

court's

conflict-free

choosing.

insisted,

time

painstaking

counsel,

Appellant

that

told

and

again,

explanation

Hill

the

was

court

of

the

despite

his

right

to

advocate

of

his

that

he

unequivocally

understood the potential conflict,

but desired Hill's

And

notwithstanding

he

entreaty

adhered

to

his position

to reconsider and its

advice that he

the

services.

the

court's

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

potential

conflicts with which Hill is or may be encumbered," he

"knowingly, voluntarily, intelligently, and

to

the actual or

waive any

and

all such

actual

irrevocably [wishes]

or potential

conflicts

interest for the purpose of retaining Hill as his counsel."

of

When

a defendant knowingly selects a course of action, fully cognizant

of

its perils, he cannot

later repudiate it

case curdles.

In the circumstances

nor unjust to

hold appellant to

court's

determination

knowingly waived

unimpugnable.

(1978)

his

right to

See Holloway v.
___ ________

(stating that

assistance

that

of

an

at bar, it is neither unfair

his words.

appellant

Thus,

had

the district

voluntarily

conflict-free representation

Arkansas, 435 U.S.

________

"a defendant

attorney

simply because his

may waive

unhindered

is

475, 483 n.5

his right

by

and

to the

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

trial."

these

for which his client was

Soldevila-Lopez, 17 F.3d at 487 n.4 (citing cases).

_______________

cases tend to

has reason to fear

unearth proof of the

involve circumstances in

that a vigorous defense

States v. Cancilla, 725

______
________

F.2d 867, 870 (2d Cir.

29

But

which an attorney

of the client

attorney's criminality.

on

See,
___

might

e.g., United
____ ______

1984).

Although

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

able

no substantiation of

to explain

how the

these assertions,

hypothetical conflict

time, affect his representation of the appellant.

nor was

would,

he

at that

Therefore, the

district court seems entirely justified in concluding that Hill's

representation of appellant would not be

foreboding that

hampered by a realistic

vigorous advocacy would uncover

own

crimes.

Cf. William
___

ll.

133-34

(1605) (noting

evidence of his

Shakespeare, Macbeth, Act

_______

that

"present fears

are

I, sc. iii,

less than

horrible imaginings").

The

sockdolager

status,

appellant

was

lawyer,

O'Donnell, who

is

also

that,

wholly

apart

from Hill's

represented at

trial

by

had no

conflict of

another

interest.13

In an

effort to scale this

rampart, appellant suggests that O'Donnell,

too,

conflict of

had an

actual

previous representation

of a

of

his

codefendant, Raymond Marotto.

By

December of 1992, however, Marotto,

failing to file

Appellant's

CTRs, had

interest

a bank employee charged with

been acquitted in

convoluted explanation of

representation

of

difficult to follow.

Marotto created

arising out

a separate

trial.

how O'Donnell's concluded

conflict

of interest

is

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
he would

co-counsel."

"independently advise

matters that

might

He assured the court

[appellant] with respect

be affected

by

any potential

that

to any

conflict

of

interest Mr. Hill might have."

30

to

the record, that

Marotto (who was

not called to

appellant's trial) could have been a material witness.

testify at

We reject

this unfounded speculation.

As O'Donnell himself pointed out, Marotto's case turned

on

whether he did

CTRs.

had

or did not

have a responsibility to file

There is nothing in the record that

any

knowledge that

defense.

We have

interest

claims, see,
___

holding

assertion

when

might have

routinely

been useful

dismissed

his counsel

had

in appellant's

analogous conflict

e.g., Garcia-Rosa,
____ ___________

defendant "provide[d]

that

suggests that Marotto

876 F.2d

at 231

no substantiation"

conflict of

of

(so

for his

interest

that

manifested itself when he did not call as a witness a person whom

he previously had represented),

on the same basis.

It is simply too flimsy.

E.
E.

At

the

and we dismiss appellant's claim

close

The Mid-Trial Motion.

The Mid-Trial Motion.
____________________

of

the

government's

case,

appellant

submitted

a proffer

continuance.

in

The proffer

support

of

renewed

motion

for

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

United States who engage in money laundering."

in the

Appellant claimed

that his counsel needed time to investigate the matters described

in the proffer.

The district court

found the proffer to be

31

"too vague

and

unsubstantiated

continuance"

to

because

constitute

its

"conclusory

basis

allegations"

explanation as to its relevancy to the case.

found no evidence that

availability of

frame.

the

for

offered no

Moreover, the court

diligent efforts had been made

testimony and

granting

documents in

to assure

a proper

time

Hence, the court determined that the proffer afforded an

inadequate basis for the requested continuance.

We discern no

weaves a tale of

we are unable

abuse of discretion.

intrigue worthy of an Oliver

to distill sufficient

While

the proffer

Stone screenplay,

relevance or likelihood

of

success

from

its

sinister

allegations

to

suggest

that

continuance, if granted, would have proven useful.

IV.
IV.

MONEY AND DRUGS

MONEY AND DRUGS

In order to obtain a conviction on the money laundering

counts, as charged in

had the burden of

the superseding indictment, the government

proving that the laundered funds

from the narcotics trade.

challenges

evidence

both the

See 18 U.S.C.
___

admissibility

introduced

for

this

1956(a)(2).

and the

purpose.

unavailing.

A.
A.

were derived

Standard of Review.
Standard of Review.
__________________

Appellant

sufficiency of

The

challenge

the

is

district

court

has

considerable

determining whether evidence is admissible.

discretion

when

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

defendant

is

evidence is

403,

the

the potential

trial

court

must

17.

district court

should be

determination

only

is the

calibrated.

if

F.2d 121, 124 (1st

Estrada,
_______

difficult

compelling

877

F.2d

row to

circumstances

we will

evidence

how these

reverse its

constituted

United States v. De La Cruz,

_____________
___________

Cir. 1990); United States v. Rodriguez______________

__________

153, 155-56

hoe:

On appeal,

See
___

between

Zannino, 895 F.2d at 16_______

arbiter of

the

Fed. R.

balance

primary

admitting

palpable abuse of discretion.

902

but the

may cause,

"strike a

worth and likely prejudice."

scales

Evid. 401,

mischief it

probative

The

R.

nonetheless objects to it on the ground that its value

overborne by

Evid.

relevant, Fed.

(1st

"Only rarely

will we,

Cir. 1989).

and

from the

This

is a

in extraordinarily

vista of

a cold

appellate record, reverse a district court's on-the-spot judgment

concerning the

effect."

relative weighing

Freeman
_______

of probative value

v. Package Mach. Corp., 865

____________________

and unfair

F.2d 1331,

1340

(1st Cir. 1988).

When

the

complaining party's

appellate

Sepulveda,
_________

review

is

objection appears

burden increases.

for

"plain

error."

In

of record,

that situation,

United States
______________

v.

15 F.3d 1161, 1187 (1st Cir. 1993), cert. denied, 114

_____ ______

S. Ct. 2714

plain

no contemporaneous

(1994); see also Fed.

___ ____

error standard prevails, we

poisoned the well that the trial's

Sepulveda, 15
_________

F.3d

at 1188

R. Crim. P. 52(b).

reverse only if

When the

a miscue "so

outcome was likely affected."

(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.

whether, "after

amiable to

In

that

assaying

connection,

all the

the

evidence

the government, and taking

inquiry

in the

turns

light

on

most

all reasonable inferences

in

its

favor,

reasonable doubt,

rational

that the

essential elements of the

F.3d

703,

706 (1st

factfinder

could

find,

beyond

prosecution successfully

crime."

United States v.
_____________

Cir. 1994).

In performing

proved the

O'Brien, 14
_______

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.
B.

National Origin Evidence.

National Origin Evidence.
________________________

Appellant contends that the prosecution made unfair use

of

impermissibly

Colombians,

suggestive

thereby

inviting

innuendo

reversal.

and

stereotypes

Appellant's

about

argument

focuses on

evidence adduced, or remarks made,

points during his trial.

of

at four different

First, appellant accuses the government

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

family

if they were crossed.

Colombians, who would

go after his

Third, when Donald Semesky, an IRS

34

agent,

offered

Colombian drug

expert testimony

cartels, he

the United

States,

to the

modus
_____

mentioned, among other

two Colombian cartels control

into

as

operandi of
________

things, that

the illegal importation of cocaine

and that

their narcotics

trafficking

generates much cash, necessitating money laundering.

Fourth, the

government's summation hammered these same points.

Due to the singular

justice

system on

persons,

courts

gratuitously

to

criminal trials.

an even

must

inject

importance of keeping our criminal

keel, respecting

not

issues

tolerate

like race

the rights

prosecutors'

and

of all

efforts

ethnicity

into

See McClesky v. Kemp, 481 U.S. 279, 309 & n.30

___ ________
____

(1987); United States

_____________

Emphasizing

concerns

of

v. Doe, 903 F.2d 16,

___

person's

national

relevancy,

undue

origin

21 (D.C. Cir. 1990).

not

prejudice,

only

and

may

raise

prosecutorial

misconduct, but also may pose issues of constitutional dimension.

See, e.g.,
___ ____

1994);

United States v.
_____________

Vue, 13
___

F.3d 1206, 1213

(8th Cir.

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.

trial involves a search for the truth, and, as such, it cannot be

entirely antiseptic.

of

The trick is to separate impermissible uses

highly charged evidence from

permissible.

See

United States

those uses that

are proper and

v. Alzanki, ___

F.3d ___,

___

___

_____________

(1st Cir. 1995) [No. 94-1645,

at 25.

Thus, while it

_______

slip op. at 25-26]; Doe, 903

___

has proven acceptable on

F.2d

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

likely

25 (dictum),

or to

that an

Iranian defendant

assumed that his "American wife" would not be searched at

customs, United States v.

______________

Cir. 1993),14 or

give

remark

Tajeddini, 996 F.2d

_________

to describe

the jury a complete

drugs as coming

view of the

1278, 1285

from Colombia

(1st

to

conspiracy's endeavors to

import cocaine, see United States v. Ovalle-Marquez, 36 F.3d 212,

___ _____________
______________

220

(1st Cir.

aggressive

courts

when,

1994),

115

prosecutors sometimes go too

must act.

as

cert. denied,
_____ ______

in

We have,

S. Ct.

far.

for instance,

Rodriguez Cortes,
_________________

the

1322

(1995),

When that occurs,

reversed convictions

government's

strategem

blatantly invited the jury to find the defendant guilty by reason

of his

national origin.

(finding

abuse

of

See Rodriguez Cortes, 949

___ ________________

discretion

in

admission

of

F.2d at 541

defendant's

Colombian identification card); see also Vue, 13 F.3d at

___ ____ ___

(reversing

conviction because district

1212-13

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
996 F.2d

the drugs in a secret compartment in

luggage.

See
___

at 1285.

In that

resembles

United States v. Khan, 787 F.2d

_____________
____

his

respect, Tajeddini
_________

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

regardless of wealth, to dress alike).

all Pakistanis,

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

ethnicity or national origin,

propriety of

evidence implicating

context is critical.

In

the case

at bar, all the

properly

evidence about Colombia, viewed in

admitted and

used.

By

like token,

context, was

the prosecutor's

comments were not beyond the pale.

Appellant's

The

prosecutor asked

first

several witnesses

Garcia (e.g., Sharir and

____

in this light, the

contention is

factually incorrect.

other than

Escobar and

Slomovits) where they were born.

casual questioning about place of

objected to at trial,

cannot conceivably plunge to the

Seen

birth, not

plane of

plain error.

Similarly, Sharir's testimony

to

be

wary because

probative

on

the

he was

issue

laundered funds were derived

dealing

of

that Saccoccia told

with Colombians

appellant's

knowledge

from illegal activities.

him

is highly

that

the

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.

that

the

It is, therefore,

evidence had

a gross exaggeration to declare

no purpose

other

than to

suggest that

Colombians are prone to violence.

Similarly, Agent Semesky's

appropriate

in

several respects.

37

testimony was relevant

First,

it

went a

and

long way

toward explaining the

nature of money

laundering and the

for appellant's activities.

This is a

of evidence.

F.2d at 19

Even

See
___

Doe, 903
___

the testimony about the

drug trade

was relevant on

appellant

scrubbed

activities.

clean

The evidence

though circumstantial,

based

on

perfectly legitimate use

& n.21

(citing cases).

cartels' control over the American

the issue

was

in

could

money to

of whether the

fact

support

inference of

appellant's repeated

dollars in laundered

basis

wire

derived

cash that

from

a jury's

plausible,

an illicit source

transfers

a country that

illegal

of funds

of millions

functions as

of

the

nerve center of the world's traffic in cocaine.

The

are

only remotely

problematic references

those contained in the summation.

to Colombia

For example, a prosecutor

stated:

[Agent

Semesky]

something

you

cocaine comes
by cartels
money

you

probably

as

from Colombia.

here

and

an

expert,

already knew,

in Colombia.

up

streets.

told

That

it gets

That

that

it's run

they ship the

out

into

the

That's the reason for all these ten

and twenty dollar bills.

These are grams of

coke . . . .

Later

on, after

reminding

the jurors

roughly $100,000,000 "generated on

is

sent

back

to Colombia,"

that

the case

the streets of New

prosecutor

posed

If

we're not talking about cocaine, what are

we

talking

vendors?
out
Oh, I

Is this

Is

this

from

coffee

money coming from

people

in the streets selling Colombian coffee?

have

had

good day

today.

Five

hundred thousand dollars, unfortunately, it's

all

in twenty

dollar bills.

Think

York that

a series

rhetorical questions:

about?

involved

of the

of

38

change they
about

Roberto

Fernando
Juan

had to
Juri

Duenas

Valdez,

give.
and

This
Tulio

and Stephen

ladies

and

is a

case

Alzate

and

Saccoccia, not

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.

intended to

The

remark about

show the

coffee vendors was

unlikelihood that any

obviously

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.

suggesting
cocaine

is based

comes from

on

the

What we are
evidence,

Colombia.

Juan

the

Carlos

Garcia testified that he was born in Colombia

and Raoul

Escobar testified that he was born

in Colombia.

This

defendant went

occasions

went

to

he

money-laundering
Roberto Juri.

with

Colombia
Tulio

on two
to discuss

Alzate

and

Although
whether

we

cannot

tell

whether the

his remarks

were

mistranscribed, we

first sentence contains

passage is clear

an error.

in urging the

prosecutor

The overall

jury not

misspoke

or

believe that

the

meaning of

the

to make a

prejudicial

inference based solely on nationality.

16We take judicial notice that the fictional Juan Valdez

a

prominent persona in coffee advertisements.

is

See Fed. R. Evid.

___

201(b)(1); 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal

_______
Practice and Procedure
______________________
that are "generally known

5105, at 489 (1977) (noting

that facts

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.

903 F.2d at 25.

and

Viewed as a

whole, the prosecution's

comments about Colombia provide no

See
___

Doe,
___

evidence

basis for disturbing the

jury's verdict.

Before ending our elaboration

that

appellant

ancestry.

evidence

believe

himself

This

is not

mitigates one

Colombian,

of the

about a person's national

the

defendant

is

we note, as an adscript,

guilty

is

of Italian

most serious

dangers of

origin:

because

but

that

the jury will

of

stereotyping.

Appellant has not cited any case in which a court

conviction due

shared by the

to evidence touching

defendant.

has reversed a

upon a national

This is not to

origin not

say that injustice and

unfair

prejudice may

improper

use

of

evidence

defendant's friends

effect of

than

never result

about

or business

from a

the

conviction

national

associates.

such evidence is likely

based on

origin

But,

of

the ricochet

to do less harm,

on average,

the direct impact of evidence about the defendant's country

of origin.

C.
C.

Appellant

evidence that

German

The Dog Show.

The Dog Show.
____________

faults

Bosco von

shepherd trained

the

district

court

for

Schleudersitz (Bosco), a

to detect

admitting

nine-year-old

narcotics,17 alerted

to the

____________________

by his faithful donkey,

and

private

kitchens to

Colombian coffee.

Valdez regularly appears in supermarkets

remind

consumers

of the

virtues

of

17The

dog's original

trainer,

a former

Luftwaffe

pilot,

named him after the German word for "ejection seat."

40

presence of drugs in

appellant's

henchmen.

bundles of cash

At

brought to local banks

trial Bosco's

handler, Sgt.

by

Edward

Conley, testified that he took Bosco to a bank in Cranston, Rhode

Island

on March 23, 1990.

bank, such as

Bosco "searched" several areas of the

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

the

he instructed Bosco to search

dog "showed a strong, positive aggressive alert, shaking the

bag,

ripping

ripping

it apart,

the money."

place on

bank in Johnston, Rhode

which

Bosco

grabbing the

money

in his

mouth, and

According to Conley, a similar search, with

similar results, took

to

for drugs,

April 20, 1990,

Island.

reacted

had

at a

In each instance,

been

brought

to

different

the currency

the

bank

by

appellant's associates in order to purchase cashier's checks.

To meet

this testimony,

who attacked the reliability

witnesses,

Conley

Thomas

of Bosco's response.

Knott, testified

orchestrated the

appellant called

sniff

that

tests did

the

two experts

One

of these

manner in

not properly

which

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

testified

currency

between a

derived

as to

by chemical field tests.

the widespread

contamination of

with illegal drugs and

the tenuous nature

Woodford also

United States

of the link

canine alert and a conclusion that particular currency

from narcotics

trafficking ("[I]f

41

there were

drugs on

that money, it doesn't mean that it is drug money.").18

Appellant insists

sniff

evidence

effect,

the

is substantially

evidence under

of

Compare,
_______

F.3d

outweighed by

of the dog

its prejudicial

and that the district court erred in refusing to exclude

serious attention,

value

that the probative value

Fed.

R. Evid.

for recent

a trained

decisions

dog's alert

e.g., United States v.

____ ______________

1039,

contamination

1041-43

and

(9th

403.

Cir.

concluding that

to

This

claim

about the

currency are

deserves

evidentiary

not uniform.

U.S. Currency, $30,060.00, 39

__________________________

1994)

"the

(noting

probative

widespread

value of

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

currency now

that "a

substantial

portion

of United

States

in circulation is tainted with sufficient traces of

controlled substances to cause a trained canine to alert"), cert.

_____
____________________

18Appellant

criticizes the

district court

Dr. Woodford from testifying more

for prohibiting

fully about a Drug Enforcement

Administration (DEA) report that found one-third of

a random sample

the bills in

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

(authorizing

reliance on

relied

by experts

upon

findings.
facts or
in

the

opinions or inferences upon the

to

preclude

discretion.

attribution
Moreover,

of

See
___
data

Fed.
"of a

particular
subject").

the

because

report

R.

Evid.

703

type reasonably

field

in

forming

The court's decision

was well

the report

was

within

its

available

to

appellant despite the government's alleged failure to disclose it

in a timeous manner, the

(1963), does not
F.3d

at 1178

rule of Brady v. Maryland, 373

_____
________

profit appellant's

("The

death knell for

lack of

cause.

U.S. 83

See Sepulveda,
___ _________

demonstrable prejudice

a `delayed discovery' claim."); Devin,

_____

15

sounds the

918 F.2d

at 289 (similar).

42

denied, 115 S.
______

698, 721

of

Ct. 742 (1994);

and Jones v.
___ _____

(M.D. Tenn. 1993) (suggesting

DEA, 819 F.
___

Supp.

that "continued reliance

courts and law enforcement officers on dog sniffs to separate

`legitimate' currency from `drug-connected' currency is logically

indefensible") with,
____

Currency,
________

e.g., United States v. $67,220.00 in U.S.

____ ______________
___________________

957 F.2d 280, 285-86

positive dog reaction [to

of

connection to

(6th Cir. 1992)

(noting that "a

currency] is at least

strong evidence

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
materials

estimates

introduced nor

discussed by other courts

percentage of
residue,

neither

see,
___

United States
e.g.,
____

25

the

suggesting that a very high

currency is contaminated

Carr,
____

suggesting that

proffered

F.3d

at

1215

between one-third

n.6

and 97%

with drug

(reviewing

of United

States currency is drug-contaminated); United States v. $639,558

______________
________
in U.S. Currency,
_________________

955

F.2d

712,

(similar), those materials could

decision.
judicial

Cf. Carr,
___ ____
notice that

25

F.3d at

nearly

traces of illegal narcotics).

714

n.2

(D.C.

Cir.

1992)

not inform the district court's

1202 n.3

all currency

(declining to
contains

take

detectable

43

alert still

retains some

probative value.

suggests that currency used to

purchase narcotics is more likely

than other currency to have come into contact

moreover,

frenzied

the

evidence

reaction

contamination.

was

Ordinary experience

supports

caused by

an

more

with drugs.

inference

than

that

Here,

Bosco's

mere trace

of

The

evidence.

record contains corroboration of Bosco's olfactory

Several witnesses testified that ordinary human senses

could detect

associates

something unusual about the

brought to the banks.

occasionally

noticed that

floury from pizza dough,

reported

dog did

One teller

the money

testified that he

felt "dusty

that type of feeling."

that she noticed an odor or

an orchid.

money that appellant's

. .

. almost

Another teller

fragrance, akin to that of

This evidence, along with Conley's testimony that the

not react in

lower court's belief

other areas of

that the dog

the banks, buttressed

sniff evidence had

the

probative

force.

Conversely,

bolstered

though

the prosecution's

defendant, we are

the

case

dog

sniff

and served

not convinced that it

evidence

likely

to inculpate

the

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.").

______

the court

allowed appellant

to call

two

debunked Bosco's reaction to the currency.

jury believed the

expert witnesses

If,

who

on one hand, the

experts, it doubtless discounted the

44

After all,

value of

the canine alert.

If, on the

other hand, the jury

disbelieved

appellant's

experts, it was entitled to place a greater value on

the

sniff.

canine

See, e.g.,
___ ____

Airlines, Inc., 979 F.2d 1,

_______________

Quinones-Pacheco
________________

5 (1st Cir.

"expert opinion testimony, even

v.

American
________

1992) (explaining that

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

___

156,

we

cannot

say

discretion in admitting

that

the

Rodriguez-Estrada, 877 F.2d at

_________________

trial

court

the evidence of Bosco's

currency delivered by appellant's associates.

abused

its

wide

reaction to the

D.
D.

Juan

laundering

Testimony of Juan Carlos Garcia.

Testimony of Juan Carlos Garcia.
_______________________________

Carlos

Garcia,

activities,

appellant's trial.

testified

under the

Following

the money

Duenas'

in one

names of Duenas,

Duenas' brother.

for

the

in

the

money

government

at

working for his brother-in-law, Fernando

orders, Garcia

paged on his beeper, arrange to

deposit

participant

Garcia said that in 1987, while living in the

United States, he began

Duenas.

would respond

when

retrieve a quantity of cash, and

of several

bank accounts

Duenas' wife

maintained

(Garcia's sister),

or

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

With Duenas' blessing,

appellant for the

the two men

first time in

May 1989.

agreed that appellant

would

accept

bundles of

cash

from

Garcia

and

send

the

money

to

45

Colombia.

On countless

money from

Garcia and

occasions thereafter, appellant received

redirected it

to accounts

controlled by

Duenas.

At trial,

objection, to testify

the

district court

permitted Garcia,

that, in 1988, Duenas told him

over

that a man

named

"Caesar" would

money.

him

call

and give

Garcia knew Caesar

him

something other

because Caesar had

on a previous occasion.

Caesar called

than

brought money to

and informed Garcia

that he would be delivering a kilogram of cocaine.

Subsequently,

Caesar

a block

handed

Garcia a

granular substance, beige

shopping bag

containing

in color.

Garcia tried

merchandise, as directed

by Duenas, but he was

He

the

eventually delivered

package to

to sell

of a

the

unable to do so.

another individual

on

Duenas' instructions.

Appellant assigns error to

of the testimony anent the package.

twin

foci:

(2) Caesar's

the trial court's admission

The assignment of error has

(1) the conversations between Duenas and Garcia, and

assurance

that the

package

contained

cocaine.20

We believe that the court lawfully admitted the evidence.

The

coconspirator

the

Evidence

Rules provide

that

"a

statement by

of a party during the course and in furtherance of

conspiracy"

801(d)(2)(E).

is not

considered

Here, the first

hearsay.

prong of the

Fed.

R.

Evid.

rule is satisfied.

____________________

20The court
evidence,
the

gave

limiting instructions

telling the jury that

issue of whether the

it could only

referable to

be considered on

money appellant laundered

the proceeds of narcotics trafficking.

46

this

was in fact

The record

contains adequate

evidence that Duenas,

Garcia, and

Caesar were involved in a single conspiracy to launder money.

joining that

adopted

States v.
______

conspiracy at

a later date,

appellant effectively

coconspirator declarations previously

Murphy, 852 F.2d 1,

______

By

made.

8 (1st Cir. 1988),

489 U.S. 1022 (1989); see also United States v.

___ ____ _____________

See United
___ ______

cert. denied,
_____ ______

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

conduct

responsibility

for

regardless of whether he

composed.").

the

existing

freight

is aware of just

or

what it is

The second

statements were

conspiracy

that

made

prong of the

during

rule is

and in

that appellant joined.

"when a

number of

also satisfied;

furtherance

of

For one thing,

people combine efforts

distribute and retail narcotics, there is

the

the

very

we have held

to manufacture,

a single conspiracy, a

`chain conspiracy,' despite the fact that some of the individuals

linking the conspiracy

together have not been

with others in the chain."

F.2d

1073, 1080 (1st Cir.),

in direct contact

United States v. Rivera-Santiago, 872

_____________
_______________

cert. denied, 492

_____ ______

U.S. 910 (1989).

For another thing, money laundering and narcotics trafficking are

symbiotic

activities, each

order

continue.

to

of which

Duenas' efforts

may require

to

the

other in

have Garcia

sell the

cocaine for him and the group's ongoing campaign to launder money

can rationally be

that binds

up

seen as

the

adjacent links in

narcotics

trafficking

the lengthy

cycle.

Thus,

chain

the

47

district court

acted within its proper province

activities part of the

same conspiracy, and in holding

attempted narcotics sale was in furtherance of it.

the

challenged

in deeming both

statements

were

properly

that the

Consequently,

admitted under

Rule

801(d)(2)(E).

We note,

statement made

moreover, as did

by an

the district court,

unavailable declarant21 falls

that a

outside the

hearsay exclusion if the statement "at the time of its making . .

. so far

tended to subject

liability

. .

that a

the declarant to

reasonable

civil or

person in

criminal

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.

declarants' penal

Because

such statements

interest, they

were

came within the

against

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

rooted

well settled

hearsay

Confrontation

that a

exception

Clause.

(1980); Puleio v. Vose,

______
____

cert. denied, 485 U.S.

_____ ______

that

the

exceptions

See
___

statement

will

not

falling within

be

Ohio v.
____

held

Roberts,
_______

to

violate

448 U.S.

830 F.2d 1197, 1204-05 (1st

990 (1988).

for

the

56, 66

Cir. 1987),

It is equally well

coconspirator

a firmly

declarations

settled

and

for

____________________

21The district

court made an explicit,

that Duenas was unavailable

for trial.

warrantable finding

Caesar, whose

is unknown, apparently has disappeared into thin air.

48

last name

declarations against penal interest are both firmly rooted in our

jurisprudence.

(1987)

See Bourjaily v. United States, 483 U.S. 171, 183

___ _________
_____________

(discussing coconspirator

Innamorati, 996
__________

F.2d 456,

exception);

474 n.4

United States
_____________

(1st Cir. 1993)

v.

(discussing

declaration against interest exception), cert. denied, 114 S. Ct.

_____ ______

1073 (1994).

E.
E.

In the late

Testimony of Agent Shedd.

Testimony of Agent Shedd.
________________________

1980s, the DEA

set up a

network of

sham

corporations ostensibly to provide

underworld elements.

in

this reverse

DEA

sting

a money laundering service to

Special Agent James Shedd participated

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

On the basis

of this

motion in limine by
__ ______

testimony

representation, the lower

statements.

transactions in

which

drug money."

court denied

which the defense sought to

regarding Duenas'

about thirty-seven

that

undercover agent was, in fact,

exclude Shedd's

Shedd

told the

jury

Duenas supplied

cash

the DEA undercover operation laundered for him.

described

several

conversations

with Duenas

in

Shedd also

which

Duenas

reportedly

said

traffickers

and

that

he

laundered money

"that ninety-nine

percent

for

Colombian

drug

of

the money

that

money-launderers deal in Bogota comes from narcotics proceeds."

During

cross-examination,

appellant's

counsel

49

challenged

conversed in

Shedd

about

this

Spanish, and some

statement.

Shedd

and

of their conversations

Duenas

had been

recorded.

Defense counsel called Shedd's

conversation.

The

translation indicated

attention to one such

that Duenas

made the

contested comment during a discussion in which he explained that,

although

it

was against

circulated in Colombia.

[foreign] currency that

the dollar . . . which

dealing."

Shedd

the

law,

foreign currency

He apparently

added:

routinely

"Logically,

circulates the most over there .

the

. . is

ninety-nine percent of it comes from drug

responded that his

direct testimony

had been

premised not on a single discussion, but on an overall impression

gained

then

from a

lengthy

conversation with

moved to strike Shedd's testimony.

Duenas.22

Appellant

Judge Torres denied the

motion.

Appellant

maintains that

the district

court made

no

fewer than four errors in connection with this testimony.

appellant

posits

hearsay rule.

finding

that Duenas'

This

that these

admissible

statements

claim fails.

were

under Rule

were

The court

barred by

was warranted

coconspirator declarations

801(d)(2)(E).

First,

See, e.g.,
___ ____

the

in

and, thus,

Sepulveda, 15
_________

F.3d at 1180; Ortiz, 966 F.2d at 714-15.

_____

Appellant's

statement,

in

its

second

true

contention

form, was

is

irrelevant

that

Duenas'

because

it was

____________________

22Shedd also offered the following syllogism:

percent of
drug

money.

the money, of the U.S.

"Ninety-nine

dollars that's in Colombia is

He's a money launderer, then ninety-nine percent of

the money that he launders comes from drug money."

50

nothing

more than

economy.

We

gross generalization

disagree.

Though courts

about the

Colombian

are sometimes

about admitting abstract data as proof of what

cautious

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

fact

that is of consequence

more

probable

or less

the existence

to the determination

probable than

it

would be

of any

of the action

without the

evidence."

Fed.

discretion

in

R. Evid. 401.

determining

Trial courts are

whether

threshold, see United States

___ _____________

evidence

afforded wide

clears

this

v. Tierney, 760 F.2d 382,

_______

387 (1st

Cir.), cert. denied, 474 U.S. 843 (1985), and we will disturb
_____ ______

exercise

of that discretion only

Sepulveda,
_________

15 F.3d at 1194;

low

an

if manifest abuse appears, see

___

United States v.
_____________

Griffin, 818 F.2d

_______

97, 101 (1st Cir.), cert. denied, 484 U.S. 844 (1987).
_____ ______

Under

acted

within its

relevant to

this

deferential standard,

lawful

the issue of

powers in

the

deeming Duenas'

whether the money

statements

appellant laundered

was in fact derived from narcotics trafficking.

even in the diluted form

district court

Duenas'

remark,

that was heralded on cross-examination,

has at

least some probative

drug trade was

much as the

the source

value in

of the funds

fact that a lake is

value in ascertaining

ascertaining whether

that appellant

the

washed,

contaminated has some probative

whether a

stream that feeds

the lake

is

contaminated.

Appellant's

third

sally

51

alleges

error

in

Shedd's

explanation that

was

based

on

an

conversation.

testify

his initial

overall

testimony about

impression

Although a witness is

about his

from

Duenas' statement

several

hours

of

generally not permitted to

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.

United States
_____________

v. Cox, 633 F.2d

___

denied, 454 U.S. 844 (1981).

______

871, 875 (9th Cir.

See
___

1980), cert.
_____

In this case, we conclude that the

district court acted lawfully in leaving the testimony intact.

Shedd tendered his explanation of Duenas'

direct response

examination.

to a question

The answer

statement in

by appellant's counsel

was not followed by a

on cross-

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.

States v. Moore, 923 F.2d 910, 915 (1st Cir.

______
_____

See United
___ ______

1991) (holding that

Evidence

Rule 103 requires that

evidence

is offered); United States v. Parodi, 703 F.2d 768, 783

_____________
______

(4th Cir. 1983)

(same).

objection

to Shedd's

uttered.

Accordingly,

waived.

The

objections be made

proper time to have

explanation was

at the time

registered an

immediately after

it was

any objection to the explanation has been

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

testimony

intentionally

during

the

in
__

mischaracterized

limine
______

hearing,

Shedd's

and

no

proposed

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.

and, hence, no reversible error.

F.
F.

There

was no prejudice

See Devin, 918 F.2d at 290.

___ _____

The Wiretap Tapes.

The Wiretap Tapes.
_________________

The district court allowed the prosecution to introduce

tape

recordings

employees

audible,

of

two

conversations

made reference to drugs.

in

The tapes

which

Saccoccia's

are not entirely

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

"fuckin'

tape

was

Saccoccia

referred to cash that

drug money."

inaudible.

Coin Company.

he and Hurley

were counting as

Appellant claims that this portion of the

The

other

conversation

took place

at

In it, Stanley Cirella spoke to Stephen

Pizzo about an ongoing investigation of appellant's organization.

According

to the

government,

Cirella declared

that

pronoun that we take in context to refer to Saccoccia

"he"

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

abused its discretion in allowing

presented

to

transcript.

tapes are

helpful.

1986).

the

jury

is

whether

with

the

make the rest more

be

government's

view, the inaudible portions

so critical as to

court

the taped conversations to

in conjunction

In appellant's

the district

of the

misleading than

See United States v. Carbone, 798 F.2d 21, 24 (1st Cir.

___ _____________
_______

Having

listened

Carbone, 880 F.2d 1500,

_______

to the

tapes,

see United States

___ ______________

1503 (1st Cir. 1989), cert.

_____

v.

denied, 493
______

U.S. 1078 (1990), we believe that they are reasonably audible and

that

the judge

jury.

What

conversation

appropriately left

was

or

was

not

their interpretation

said

during

to the

tape-recorded

is ordinarily a question of fact, not a question of

law.

Appellant's

government accurately

erred in failing

fallback

position is

transcribed

that,

the tapes,

to tell the jury that any

the

even

if the

lower

court

statements about the

source of the laundered money were relevant only to the speakers'

subjective beliefs.

the

absence of

This position hinges on the premise that, in

concinnous foundation

showing the

speakers'

knowledge, the comments cannot constitute proof vis-a-vis Stephen

Saccoccia

(who

did

not participate

in

the

discourse)

whether the money in fact emanated from drug transactions.

as to

We disagree

with appellant's premise

for two reasons.

54

First, Evidence

of

Rule 104(b) provides that

"[w]hen the relevancy

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

the

condition."

support a finding

In addressing

of the fulfillment

foundational issues,

of

the trial

judge acts as a

"whether

by a

gatekeeper, examining the evidence and

deciding

the jury could reasonably find the conditional fact . .

preponderance of

States, 485 U.S.

______

the evidence."

681, 690 (1988).

Huddleston
__________

v. United
______

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

judges in

light

of the

wide

discretion

afforded to

trial

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

who

cash as "drug money" without some basis in fact.

made

the

statements

were

appellant's operation and could

substantially

The men

involved

in

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

admissibility

of

the

of the

funds

as

comments.

Both

55

prerequisite

to

statements were

general

made by

coconspirators

and

are

thus

admissible

under

Evidence

801(d)(2)(E) without a showing of personal knowledge.

States
______

v.

denied,
______

Goins, 11
_____

114

knowledge

Rule

Hosp.,
_____

(4th Cir.

1993), cert.
_____

(holding

that

the

personal

requirement of Evidence

Rule 602

"does not

apply to

of a

2107

443-44

See United
___ ______

(1994)

statements

S. Ct.

F.3d 441,

Rule

co-conspirator admissible as

801(d)(2)(E)"); cf.
___

893

requirement of

F.2d

411,

Brookover v.
_________

415-18

personal knowledge

(1st

non-hearsay under

Mary Hitchcock Memorial

________________________

Cir.

1990)

for admission of

(finding

no

a statement

under Rule 801(d)(2)(D)).

For

these two reasons

properly before

the jury, and

the challenged

the court acted

statements were

appropriately in

refusing appellant's proposed limiting instruction.

G.
G.

Viewing

The Sufficiency of the Evidence.

The Sufficiency of the Evidence.
_______________________________

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

___ _______

we conclude that

a rational factfinder could

reasonable doubt

that the money appellant laundered

at 706,

determine beyond a

was in fact

derived from the narcotics trade.

Rehashing the evidence would

We do take special

serve no useful

purpose.

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

non-narcotics-related business

that

could create

of any

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.

that

Duenas,

himself

(and,

sell).

Then,

who

too, the jury

furnished

performed monetary

on one

occasion,

heard competent evidence

money for

ablutions for

supplied cocaine

The canine alert to

appellant

to

launder,

narcotics traffickers

for

an associate

to

currency that appellant's associates

had gathered furnished some added support for the theory that the

money

emanated

from

employees suggested

drug

sales.

Finally,

on two occasions that the

appellant's

own

washed funds were

linked to narcotics.

Taken in the ensemble, these pieces of evidence provide

an

that

adequate foundation on which

the jury could

appellant laundered drug money.

expected to resist commonsense

build a finding

Jurors, after all, are not

inferences based on the realities

of human

experience.

("The

law is

ignore

that

Ingraham, 832
________

not

See Veranda Beach Club, 936 F.2d

___ ___________________

so struthious

which is

perfectly

F.2d 229,

240

as to

compel a

obvious.");

(1st Cir.

at 1372

factfinder to

United States
_____________

1987) (similar),

v.

cert.
_____

denied, 486 U.S. 1009 (1988).

______

V.
V.

FORFEITURE
FORFEITURE

The

substantive

court bifurcated appellant's trial, separating the

criminal

charges

from

the

forfeiture

claims.

Appellant waived his right to trial by jury on the latter counts.

All

counsel

evidence

assured

the

judge

that they

had

no

additional

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.

to proceeding in appellant's

422

U.S.

853,

863-65

absence.

(1975)

His counsel objected

See Herring v.
___ _______

(remarking

New York,
________

defendant's

constitutional

right to make a closing argument, even in a bench

trial); Fed. R. Crim.

at

P. 43(a) ("The defendant shall

be present

. . . 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.

offered to proceed on

the understanding that appellant's counsel

could make incremental arguments

appellant

present.23

When

The court then

at the sentencing hearing, with

counsel persisted

in his

original

position, the court terminated the session.

The

disposition

hearing was

Appellant was present throughout.

held

on

May 12,

1993.

The district court determined

that he should forfeit all the money laundered during the life of

____________________

23Noting that forfeiture is

and that

Saccoccia would

be present

suggested to defense counsel

includes

part of the sentencing process,

for sentencing,

that "to the extent

the court

the sentencing

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

___ _____________

994, 1006 (D.R.I. 1993).

subsequently

At the government's urging,

amended the forfeiture

assets for forfeiture.24

alia,
____

that

error.

applicable

F. Supp.

the court

order to specify substitute

See 18 U.S.C.
___

Appellant assigns

inter
_____

v. Saccoccia, 823
_________

1963(m) (1988).

He strives to

extradition

persuade us,

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.
A.

Extradition/Forfeiture.
Extradition/Forfeiture.
______________________

Appellant asserts

him

violates the rule of

that the forfeiture

specialty because it

entered against

is tantamount to

prosecution and

was

conviction for

neither sought

principle of

nor

granted.

dual criminality

Swiss law

does

forfeiture

by

not render

reason

an offense on

also suggests

prohibits the

of

He

which extradition

money

liable

transfers.

initiatives fail because they ignore the irresistible

that, at

least for

present purposes,

the

forfeiture because

defendant criminally

unlawful

that

for

These

conclusion

criminal forfeiture

is a

____________________

24In

discussing

substitutions,

incorporate by reference his

improperly

allowed the

forfeiture

while the

remonstrance.

government
cases

proceeds

beyond

appellant's

to add

were on

that

appellant

this

constitutional entitlement to
of the Double Jeopardy Clause.

We

reject

to

this

"amend" its judgment,

of substitute assets based on

the jurisdiction

intimation,

to

property subject

appeal.

The district court did not

finding

seeks

codefendants' plaint that the court

but, rather, ordered forfeiture

supportable

Saccoccia

of

had

transferred forfeited

the court.

procedure

did

not

due process, nor did it

Contrary to
insult

his

run afoul

59

punishment, not a separate criminal offense.

We

think

that

forfeiture is important.

two

historically

forfeiture,

property

an

used

the

rem
___

in,

or

of

modern

criminal

The device is born out of the mating of

distinct

in
__

genealogy

traditions.

proceeding rooted

intimately

One

in

associated

parent

the

is

civil

notion that

with,

criminal

activity acquires a

forfeitable

even

taint, and that

if not

owned by

States v. Sandini, 816 F.2d 869,

______
_______

parent

is

operated

against

old-hat

as

criminal

an incident

of

1485, 1486 (10th Cir.

combine both

the

forfeiture,

which

requiring

him

therefore

See United
___ ______

The second

traditionally

felony conviction

See United States

___ _____________

1988).

miscreant.

872 (3d Cir. 1987).

convicted defendant,

property to the crown.

such property is

in
__

personam
________

to forfeit

v. Nichols, 841
_______

The forfeiture provisions

his

F.2d

of RICO

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

have

struggled

to

a result

categorize

criminal forfeiture

as

of this mixed

the resultant

heritage, courts

hybrid

either a punishment for, or

modern

an element

____________________

25The district
money

laundering

statute,

F. Supp.

analysis of the
refer

statute,

see id.
___ ___

differences in
823

court imposed forfeiture pursuant

only to

1963.

see 18
___

U.S.C.

Although

there

982,
are

to both a
and a

some

RICO

slight

the operation of the two statutes, see Saccoccia,

___ _________
at 1001-05,

these differences

extradition issues.
the

RICO forfeiture

do not

affect our

For simplicity's sake,

statute.

we

Nonetheless, our

discussion is equally applicable to criminal forfeiture under the

money laundering laws.

60

of,

criminal offense.

The majority

forfeiture for narcotics offenses

of

the punishment

imposed on

States v. Elgersma, 971

______
________

view

regards criminal

under 21 U.S.C.

a defendant.

See,
___

F.2d 690, 694 (11th Cir.

that "criminal forfeiture is part

853

as part

e.g., United
____ ______

1992) (holding

of the sentencing process

and

not an element of the crime itself"); United States v. Hernandez_____________

__________

Escarsega,
_________

cert.
_____

886 F.2d

denied, 497
______

(similar).

1560,

U.S. 1003

1576-77 (9th

Cir. 1989)

(1990); Sandini,
_______

Other straws in the wind blow in the

(similar),

816 F.2d

at 875

same direction.

See,
___

e.g., Alexander
____ _________

(1993)

(characterizing

pornography

conduct");

Cir.

v. United States, 113

______________

merchant

as

RICO

"a

forfeiture

punishment

United States v. Kingsley,

_____________
________

1988)

(noting

in

dictum

S. Ct.

order

for

"in
__

against

past

851 F.2d 16,

that

2766, 2772

criminal

18 n.2 (1st

personam
________

criminal

forfeiture . . . is intended to directly punish persons convicted

of a criminal

obtained

some

e.g.,
____

628

as a result of

nagging

punishment

offense by

doubt

as opposed

forcing them to

that offense").

about

whether

to a separate

Caplin & Drysdale, Chtd.

________________________

n.5

(1989)

(stating

in

forfeit the

Withal, there remains

forfeiture

is

strictly

substantive charge.

v. United States,
_____________

dictum

proceeds

that

See,
___

491 U.S. 617,

"forfeiture

is

substantive charge in the

R. Crim.

indictment against a defendant"); Fed.

P. 31(e) advisory committee's

assumption that "the amount

note (noting committee's

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.

that, for

purposes of extradition

free-standing criminal

that

proscribed

subjected

to

We base this

Consequently, a

a forfeiture

order

in respect

even if

to the

ruling primarily on

authority

counsels in

criminal

forfeiture

neither a

of a racketeering

simply an incremental punishment

conduct.

specifically granted

law, forfeiture is

offense nor an element

offense under RICO, but is

Thus, we hold

extradition

may

be

was not

forfeiture allegations.

three pillars:

this direction;

predominate

defendant

for

the

the punitive

(among

other

weight of

aspects of

things,

RICO

forfeiture retains the functional traits of a punishment since it

is

definitively imposed

otherwise

been

forfeiture

as

only

determined);

punishment

after the

and,

in

defendant's guilt

finally,

the

treating

extradition

has

criminal

milieu

is

consistent

with

criminality

conduct,

that

the

places

emphasis

on

the

that

unlawfulness

and, correspondingly,

a crime

jurisdictions,

have identical

the

on the

of

the

lack of

elements or

see Collins, 259 U.S.

___ _______

doctrine

of

dual

defendant's

any requirement

penalties in

at 312; Levy,
____

the two

905 F.2d at

328.

It

subjected

to

follows, therefore,

a criminal

that

appellant

forfeiture order

extradited on forfeiture charges

even

was

properly

if he

was not

and even if Swiss law

does not

provide for criminal forfeiture under comparable circumstances.

B.
B.

Procedural Aspects.
Procedural Aspects.
__________________

62

Appellant

with

regard

to

the

intertwined rights:

right

to

be

also

declaims that

forfeiture

order

the

procedure employed

deprived

him

of

four

the right to present a closing argument, the

present

to

assist

counsel

during

the

closing

argument, the right to entry of

a verdict of forfeiture, and the

right to

of a verdict.

be present

for entry

complaints is unavailing.

This

quadrat of

The

record.

first

two grievances

are

not

supported by

Even though appellant was absent on March 26,

the court

offered his counsel the opportunity to make further arguments

the disposition

hearing (at which appellant

Affording appellant this opportunity

The

closing statement and his

fact

that

the

at

was in attendance).

satisfied his right to make

right personally to assist counsel.

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.

did not object

forfeiture

Because appellant

to the district court's decision to

order followed

by a

written decision,

review is limited to a hunt for plain error.

See
___

make an oral

however, our

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

be

returned

sure, Rule 31(e) requires that a special verdict

when

the

forfeiture allegation.

indictment

or

But, Rule 31(a)

63

information

contains

makes it transpicuously

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").

factfinder,

the procedure for

making factual

governed by Fed. R. Crim. P. 23(c).

In

a case

shall

tried

make

addition,

the

determinations is

That rule provides:

without a

a general

jury the

finding and

court

shall in

on request made before the general

finding,

find

findings

may

memorandum of
sufficient

When the judge is

the

facts specially.

be oral.

If

an opinion

decision is filed,

if the

findings

Such
or

it will be

of fact

appear

therein.

Fed. R. Crim. P. 23(c).

In the instant case,

the judge entered an

followed

very

written

findings

of

shortly

fact.

In

by

our

opinion,

memorandum

this

oral order,

limning

his

procedure did

not

constitute plain

error.

See, e.g., Gibbs

___ ____ _____

78 (1939); see also Aoude

___ ____ _____

(1st

Cir. 1988)

ritual"

v. Buck, 307 U.S. 66,

____

v. Mobil Oil Corp., 862 F.2d

_______________

(observing

that reversal

"would

890, 895

be an

empty

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.
C.

Extent of the Forfeiture.

Extent of the Forfeiture.
________________________

Appellant maintains that the "proceeds" subject to RICO

forfeiture

should not

organization, but only

dwell

on

this

codefendants'

thesis,

include all

the funds

laundered by

the organization's profit.

instead

electing

argument to this effect.

to

his

He does

not

incorporate

the

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.
VI.

SENTENCING
SENTENCING

Without

objection, the

district court

predicated its

sentencing calculations

federal

sentencing

Harotunian,
__________

on the November

guidelines.26

1, 1992 edition

See
___

of the

United
States
_______________

v.

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.").

compiled

appellant's criminal

category II.

Turning to the

history score

been convicted under

18 U.S.C.

offense level (BOL) of 23.

then added 13

exceeded $100,000,000, see id.

___ ___

premised

Since appellant had

2S1.1(a)(1).

the value of

him in

grid, the court

1956(a)(2)(A), he

See U.S.S.G.
___

levels because

and placed

other side of the

started with the money laundering guideline.

The court

had a

The court

the laundered

2S1.1(b)(2)(N),

base

funds

and three levels

on a finding that appellant knew (or believed) that the

funds were

derived from

Finding appellant to

narcotics sales, see

___

be the

organizer and leader

laundering enterprise, the court

to U.S.S.G.

3B1.1(a).

attempt to use

id.
___

2S1.1(b)(1).

of the

escalated four levels

money

pursuant

Finally, citing appellant's unsuccessful

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

acceptance of the probation department's ideas.

65

thinking and his

continuance,

see supra
___ _____

illness occurred

request for

Torres

3C1.1.

note 2, and

stressing that

shortly after the court

postponement of the

trial on

the feigned

had denied appellant's

other grounds,

went up two levels for obstructing justice.

These calculations yielded an adjusted

Judge

See U.S.S.G.
___

offense level of

45 for the money laundering counts.

The

court then

Inasmuch as the applicable

use

of an

offense

adjusted offense

turned to

guideline, id.
___

level equal

level for

the RICO

to

conspiracy count.

2E1.1, prescribes the

the greater

the underlying conduct

of

19 or

the

(here, money

laundering),

appellant's

unchanged.

The

court took

counts with a similar

adjusted

offense

similar look

line, then,

the counts of

total offense level (TOL) of 45.

sentence

criminal

Travel Act

equal to the greater

adjusted offense level for the

At the bottom

at the

remained

result (the applicable guideline, U.S.S.G.

2E1.2, directs the use of an offense level

of 6 or the

level

43 or

underlying conduct).

conviction produced

See id.
___ ___

3D1.2(d), 3D1.3(b).

TOL of

higher requires

the imposition

of

life

imprisonment

regardless

history

category.27

See
___

of

the

U.S.S.G.

of a

offender's

Ch.5,

Pt.A

____________________

27The

Sentencing Commission recently

proposed guideline

amendments that

sentence mandated for conduct of the

Fed.

Reg. 25,074, 25,085-86

(1995).

submitted to Congress

apparently would

reduce the

kind at issue here.

The

See 60
___

proposed changes will

become effective on November 1, 1995, absent congressional action

to the contrary.
has

not yet

should

See 28
___

U.S.C.

decided whether

994(p) (1988).

the changes,

apply retrospectively.

the amendments
application,

if they

See 60 Fed. Reg.

___

are eventually determined to

appellant

appropriate relief in the

may

then

be

in

district court.

The Commission

become law,

at 25,074.

If

warrant retroactive
a

position

to

seek

See United States v.

___ ______________

66

(Sentencing Table).

case all carry

However, the offenses of conviction in

maximum sentences

less than life.

When, as

this

in

this

instance,

conviction

the

maximum

is lower than the

sentence

for

each

offense

of

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."

principle,

several

the district

counts of

extent necessary

like appellant,

5G1.2(d).

court concluded

conviction

to effectuate

sentencing guidelines

Id.
___

should run

that sentences

TOL of 43

on the

consecutively to

life sentence.

prescribe life in prison

sport a

Applying this

or higher,

Because

the

the

for persons who,

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

His principal

assails this

sentence on

lines of attack are that

manifold grounds.

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).
______
on the

subject,

but merely

note

We express no opinion

the possibility

and

proceed

without further reference to what the future may bring.

28The district
than attempting to

court imposed

this type of

estimate the length

sentence rather

of appellant's life

then fashioning a sentence of corresponding duration.

fault

with this approach.

660-year
functional
sentence

sentence,

it

equivalent of
in this light

is

and

We find no

Despite the superficial severity of a

neither
life

more

nor

without parole.

in evaluating its

less

than

the

We treat

the

correctness under the

guidelines and its harshness for Eighth Amendment purposes.

67

under

the

guidelines

misconceived its

violated

are

illegal;

that

the

authority in imposing sentence;

the Ex Post

Facto Clause; and that

district

court

that the court

the court erred in

making an upward adjustment for obstruction of justice.

A.
A.

The Mandatory Life Sentence.

The Mandatory Life Sentence.
___________________________

Appellant contends that

life

sentence

is

illegal

both

the imposition of

because

Congress

a mandatory

disavowed

consecutive sentences and because, in all events, a life sentence

in the circumstances of this

proscription against

case insults the Eighth Amendment's

cruel and

unusual punishment.

Neither of

these contentions is convincing.

1.
1.

sentencing

Congressional Intent.
Congressional Intent.
____________________

guidelines cannot

It is

apodictic that

sweep more broadly

the

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

effectuate life imprisonment, see

___

be

imposed consecutively

U.S.S.G.

to

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.

68

994(l)(2)

&

994(v) (1988).

We

think he reads

too sanguine an eye.

Rather, section 994(l)(2) merely declares

"general inappropriateness" of

conspiracy

directs

and its

the

much

Neither statute prohibits the imposition of

consecutive sentences.

the

the cited statutes with

object

Commission

offense, and

to

imprisonment"

for convictions

offenses.29

While

these

consecutive sentences

"limit[]

section 994(v)

for a

merely

consecutive

terms

general

and specific

on related

general
_______

congressional preference

for concurrent sentences, they

do not,

as

outlaw consecutive

appellant intimates,

statutes arguably

contrary,

the statutory

scheme

following

the

the Sentencing

lead

of

leaves ample

imply

of

sentences.

On the

room for

courts,

Commission,

to

deploy

consecutive sentences in appropriate circumstances.

Two observations show the virtual inevitability of this

conclusion.

only

In the first place, U.S.S.G.

with the

powerful

consent

evidence

between the

that

of Congress.

Congress

We

5G1.2 became effective

consider

itself saw

guideline provision and

no

this to

inconsistency

the statutory scheme.

United States v. Luedecke, 908 F.2d 230, 233 (7th Cir. 1990).
_____________
________

the

second

place,

Congress

Commission discretion to

minced

no

words

be

in

ceding

See
___

In

the

determine what particular circumstances

____________________

29To the extent appellant's argument

congressional preference for
with conspiracy and its
general

and

specific

is based on a

concurrent sentences in

claimed

connection

object offenses, and in connection

offenses,

the

36

consecutive

sentences imposed for separate violations of 18 U.S.C.

with

ten-year

1957 are

unaffected.
of

These sentences total 360 years.

biblical proportions,

appellant's time

Barring a lifespan
on this

mortal coil

will not exceed so lengthy an interval.

69

would

trigger the need for consecutive sentences.

3584(a) (1988) (providing in

imprisonment are

the

terms

part that "if

imposed on a defendant

may run

concurrently

or

See 18 U.S.C.
___

multiple terms of

at the same time

consecutively"); see
___

. . .

also
____

United States v. Flowers, 995

______________
_______

(holding

that

Commission

extent,

"to

section

write

F.2d 315, 316-17

3584(a)

authorizes

guidelines that

[incarcerative]

(1st Cir. 1993)

terms

say

should

the

Sentencing

when,

be

and to

concurrent

what

or

consecutive").

We will not flog

the

Sentencing

guidelines

authority

to

specifying when

sentences

should be

consecutive or

courts to refer to the

order to determine whether

"multiple sentences to

imprisonment should be

28

the power

of

promulgate

and then directed sentencing

consecutively,"

series

Congress gave

expansive

guidelines in

possessed

Because

Commission

concurrent,

terms of

a dead horse.

U.S.C.

994(a)(1)(D),

indeed,

consecutive

ordered to run

concurrently or

the

the responsibility

sentences

effectuating

court

below

to impose a

the

clearly

expressed command of U.S.S.G.

2.
2.

5G1.2.

The Eighth Amendment.

The Eighth Amendment.
______________________

sentence as mocking the

Appellant

bemoans

Eighth Amendment's proscription

cruel and unusual punishments.

This ululation is more

his

against

cry than

wool.

In Solem
_____

Court held

v. Helm,
____

that "as

sentence must

be

463 U.S.

matter of

proportionate

(1983), the

principle .

to

70

277

the

crime

. a

for

Supreme

criminal

which

the

defendant has been convicted."

usher in a regime of

all

Id. at 290.
___

strict proportionality review applicable to

criminal sentences, for the Court

penalties

restricted its holding to

that are "grossly" or "significantly" disproportionate

to the underlying criminal activity.

did

This opinion did not

not in any way, shape,

Id. at 288, 303.

___

The Court

or form, then or thereafter, suggest

that the Eighth Amendment requires a precise calibration of crime

and punishment in noncapital cases.

Solem
_____

proportionality

looms

approach.

as

the

In

high

water

the pre-Solem

mark

era,

of

the

the

Court

_____

consistently recognized the legislature's primacy

the

appropriate

punishment

Rummel v. Estelle, 445

______
_______

for

criminal

in determining

behavior,

see e.g.,
___ ____

U.S. 263, 274 (1980); Hutto v. Davis, 454

_____
_____

U.S. 370, 374 (1982) (per curiam), and the Court has sounded much

the

same

Michigan,
________

note in

501

(expressing the

U.S.

the post-Solem
_____

957, 962

view that

era,

(1991)

see, e.g.,
___ ____

(opinion

the length of

Harmelin v.
________

of Scalia,

the sentence

J.)

actually

imposed in respect to a felony conviction is entirely a matter of

legislative prerogative); id. at

___

(similar; listing cases).

998-99 (opinion of Kennedy, J.)

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,
_____________

Constitution does not require

punishments

according

perfect equipoise.

to any

357

U.S. 386,

393 (1958).

The

legislatures to balance crimes and

single

Indeed, the Solem

_____

standard,

or to

achieve

Court itself acknowledged

71

the

need for judges to "grant substantial deference to the broad

authority

that legislatures

necessarily possess

the types and limits of punishment for crimes."

in determining

Solem, 463 U.S.

_____

at 290.

The

Court

also

has

First, "[t]he inherent nature

produces

n.17;

two

cautionary

see also
___ ____

subjective

Rummel,
______

445

U.S.

judgments should not be,

views

informed by

individual

objective factors

Coker v. Georgia,
_____
_______

at 290.

of

433 U.S.

notes.

of our federal system" necessarily

"a wide range of constitutional sentences."

Amendment

U.S.

sounded

at

282.

"Eighth

be, merely the

[judges]; judgment

584, 592 (1977);

For these reasons,

Second,

or appear to

to the maximum

Id. at 291
___

should

be

possible extent."

accord Solem,
______ _____

463

"a reviewing court rarely will

be

required to engage in

sentence is

extended analysis to

determine that a

not constitutionally disproportionate."

Id. at 290
___

n.16.

The Justices' most recent pronouncements

the conclusion that

of sentences

serious crimes may result

as severe as life imprisonment

constitutional insult.

fully support

in the imposition

without working any

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

applied

constitutionally

for life imprisonment might be

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

sentence

of

life

cruel and unusual punishment

imprisonment

narcotics case against

grams

of cocaine.

without

a defendant who

See Harmelin,
___ ________

parole

to a mandatory

imposed

in

possessed more than

501 U.S.

at

961.

650

Justice

Scalia, in an opinion joined on this point by

the Chief Justice,

rejected the extended proportionality analysis developed in Solem

_____

and

declared that

proportionate

"Solem
_____

was

provided

Eighth Amendment

See id.
___ ___

simply wrong,"

id.,
___

because

respect

to

with

at 965.

He

opinion

guarantees

concluded that

the Eighth

modes

not the length of incarceration,

Justice Kennedy, joined

concurring

in the

sentences.

protection

punishment,

nothing

and

Amendment

methods

of

see id. at 966-67.

___ ___

by Justices O'Connor and Souter, wrote a

that,

when combined

with

Justice Scalia's

opinion, aggregated the five votes necessary to uphold Harmelin's

sentence.

adherence to

Justice Kennedy thought that

a "narrow

stare decisis counseled

_____ _______

proportionality principle," id.

___

at 996,

one that recognizes

that the "Eighth Amendment

strict proportionality

forbids

only

extreme

disproportionate'

After

to the

and sentence.

sentences

crime," id.
___

that

at 1001

Rather, it

are

`grossly

(quoting Solem).
_____

noting the grave harm to society wreaked by illegal drugs,

Justice

either

between crime

does not require

Kennedy

the

sentence.

found

length

nor

nothing

the

"grossly

mandatory

disproportionate"

nature

of

in

Harmelin's

See id. at 1001-08.

___ ___

A dispassionate

application of Harmelin
________

73

to this

case

defeats

appellant's

sentence.

Although the

status of

majority

attack

on

Justices in

proportionality review

found

the

constitutionality

Harmelin disagreed
________

under the Eighth

insufficient disproportionality

mandatory sentence of life without parole for

650

grams

appellant's

of

cocaine.

sentence

disproportionate" to

With

can

this

hardly

as

be

the underlying conduct

all accounts, significantly

a Brobdingnagian scale.30

of

his

on the

Amendment, a

to

forestall a

possession of over

reference

deemed

point,

"grossly

conduct which, by

facilitated narcotics trafficking on

To

say more

Harmelin is
________

teaches

not

much

an

would be

supererogatory.

aberration;

the same

in Hutto,
_____

lesson,

proportionality attack,

the

sentence of

Court

We know

that

another

case

upheld,

against

40 years

that

in prison

for

possessing nine ounces of marijuana with the intent to distribute

it.

454 U.S.

at 374.

We also

judiciary

is vested

to

the societal

solve,

know that

Congress

with the authority to define,

problems

across national and state borders.

created

by drug

not the

and attempt

trafficking

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.
court,

after

expressing concern

as directed by the

proscription against

to impose a life sentence

guidelines, and instead departed

extrapolating from the sentencing table.

deal

In Heath, the district

_____

over the

cruel and unusual punishment, declined

_____

with appellant's

claim that

the

downward by

See id. at 130-32.

___ ___
court below

We

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

_____

S.

Ct. 1164

(1995).

Under

Cir. 1994), cert. denied, 115

_____ ______

this

light,

the

flimsiness

of

appellant's Eighth Amendment challenge becomes apparent.

B.
B.

As

depart,

1991).

general rule,

regardless

appealable."

The Refusal to Depart.

The Refusal to Depart.
_____________________

of

the

There

depart

is, of course,

did

discretion,

miscalculation

depart."

district

suggested

United States v. Romolo,

_____________
______

record supports an inference

to

"a

not

but

was

about

direction,

is

to

not

937 F.2d 20, 22 (1st Cir.

an exception that applies

"if the

that the sentencing court's failure

represent an

instead

whether

court's refusal

exercise

the

it

of

product

possessed

United States v. Amparo, 961 F.2d

_____________
______

factfinding

of

the

or

court's

authority

to

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).

dimensions of

Appellant attempts to wedge his

this exception on

court believed, erroneously, that

concurrent sentences.

case within the

the ground that

the sentencing

it lacked discretion to impose

This claim misconstrues the record.

In United States v. Quinones,

______________
________

26 F.3d

213 (1st

1994), we held that a court may deviate from U.S.S.G.

and

to

the

extent

that, circumstances

exist

departure."

Id. at
___

216.

decided when

Judge Torres sentenced Saccoccia,

Although Quinones
________

that

Cir.

5G1.2 "if,

warrant a

had not yet

been

we are satisfied

that he understood this principle and anticipated our holding.

75

At the

district

downward

disposition hearing, appellant argued

court had authority under 18 U.S.C.

and

notwithstanding

acknowledged that

(appropriately,

impose

the

concurrent

terms

of

3584(a) to depart

sentences

U.S.S.G.

that because the

on

5G1.2.

it possessed such authority,

we think)

that the

all

The

counts

court

but it concluded

guidelines required

consecutive sentences

in appellant's case, it

concurrent sentences if

could only impose

the case satisfied the conditions

for a

downward departure, that is, if it found mitigating circumstances

not

considered

5K2.0.

by

Discerning

downward departure.

could

impose

the

Sentencing Commission.

no such

In

U.S.S.G.

court eschewed

other words, the court realized

concurrent

departure,

cf.
___

Quinones,
________

imposition

of

consecutive

departure), but it

mitigation, the

See
___

sentences

26

F.3d

sentences

as

at

as

specie

216

of

that it

downward

(authorizing

specie

chose not to do so because,

of

the

upward

in its judgment,

the facts did not warrant a downward departure.

This ends

correctly understood

our jaunt.

Inasmuch as the

district court

that it possessed the power

to depart from

the

GSR

but

exercising

made

that

appellant's claim.

discretionary

power, but who

a discretionary

power,

we

lack

decision

to

jurisdiction

refrain

to

from

address

See Pierro, 32 F.3d at 619 (explaining that a

___ ______

refusal to depart

by a

judge who

says, in effect, that the case

recognizes his

before him is not

"sufficiently unusual to warrant departing," is not reviewable on

appeal).

76

C.
C.

Ex Post Facto Concerns.

Ex Post Facto Concerns.
______________________

Appellant seeks to incorporate

appeal by

his

codefendants

court's sentencing

to

the effect

determinations

Clause, U.S. Const. art. I,

an argument advanced on

that

abridged the

9, cl. 3.

money

laundering guideline,

did

not become

lifespan of

instance

effective until

the conspiracy,

of money laundering.

Ex

district

Post

Facto

In appellant's view, the

court's error lay in increasing his TOL based on

the

the

U.S.S.G.

November 1,

but subsequent

an amendment to

2S1.1(b)(1),31 that

1991

during the

to the

last proven

This criticism fails for at least

three reasons.

First,

appellant

did

not

broach

the

topic

at

sentencing.

He has,

Dietz,
_____

F.2d 50,

950

connection

therefore, waived it.

55 (1st

Cir.

See United States v.

___ _____________

1991) (explaining

that "in

with sentencing as in other contexts, . . . arguments

not seasonably addressed to the trial court may not be raised for

the

first time

States v.
______

in an

Piper, 35
_____

appellate

F.3d 611,

venue"); accord,
______

620 n.6 (1st

e.g., United
____ ______

Cir. 1994),

cert.
_____

denied, 115 S. Ct. 1118 (1995); Sepulveda, 15 F.3d at 1202.

______
_________

Second, appellant

money

laundering ring,

but

was not

also its

only the mastermind

chief executive

of the

officer,

____________________

31The

amendment

inserted

the

words

"or

believed"

section 2S1.1(b)(1), see U.S.S.G. App. C, Amend. No. 378

___
with the result that

into

(1992),

the guideline, subsequent thereto, read

in

pertinent

part:

funds were the

"If the
proceeds of

manufacture, importation,
controlled

defendant knew

substances,

an unlawful

or believed
___________

activity involving

or distribution of narcotics
increased

that the

[his

BOL]

by

the

or other

levels."

(Emphasis supplied to show added language).

77

comptroller,

weight

of

sales manager,

the evidence

and

heavily

director of

preponderates

finding that appellant knew and believed of the

___

operations.

in favor

The

of

money's origins.

Indeed,

district

appellant wholly fails to

court erred in

belief," or

in his case.
___________

incorporate

demonstrate how and where the

determining his level

of "knowledge or

why the guideline revision makes any real difference

This failure

by reference

typical of litigants

arguments which,

deserve individualized attention

See, e.g., Zannino,

___ ____ _______

895 F.2d at 17

perfunctory manner,

unaccompanied

who attempt to

if made

in earnest,

is fatal to appellant's cause.

("[I]ssues adverted to

by some

effort at

in a

developed

argumentation, are deemed waived.").

Third, even

if appellant were somehow

two hurdles we have just described, he could

showing of plain

error.

See United States v.

___ _____________

to surmount the

prevail only upon a

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

amelioration under the plain

discretion

invested

in

error doctrine, and the substantial

appellate

doctrine's use, see generally

___ _________

at 6-7],

detect

plain error

courts with

is plainly absent

proceeding

"the fundamental

fairness

here.

or basic

the

[slip op.

bluntly, we

integrity of

the

Id. at ___ [slip op.

___

at 7].

Obstruction of Justice.
Obstruction of Justice.
______________________

78

Put

to

assault that causes us to

below in [any] major respect."

D.
D.

regard

Taylor, ___ F.3d at ___

______

nothing in appellant's belated

question

that attend

Appellant's

sentencing

court

fourth line

erred

obstruction of justice.

effect

Since

of the

offense

level

5G1.2;

level of

of

elevating

43."),

suggests that

his

offense

This sortie is moot.

adjustment is

life imprisonment

U.S.S.G.

in

of attack

to raise

is mandatory

see also
___ ____

U.S.S.G.

more than 43

canceling

the

is to

for

The only practical

the TOL

at or
__ __

5A,

level

the

from 43

above TOL
_____

to 45.

43, see
___

comment. (n.2)

be treated

enhancement

("An

as an offense

would

accomplish

nothing.

It is

this court's settled practice not

allegedly erroneous sentencing computation

that, correcting it will

nor relieve him

F.2d 601, 604 (1st

is

Cir. 1990).

We believe

See,
___

Bradley, 917
_______

that this philosophy

fully applicable in a situation where, as here, correction of

would not eliminate the certainty

a mandatory sentence of life imprisonment.

tilt at windmills.

VII.
VII.

collateral consequence.

at 1199; United States v.

_____________

an allegedly erroneous finding

of

if, and to the extent

neither change the defendant's sentence

from some unfair

e.g., Sepulveda, 15 F.3d

____ _________

to address an

CONCLUSION
CONCLUSION

Courts should not

We need go no

further.

considered

appellant's

carefully

(including some arguments not

detect no reversible error.

extradited,

fairly

Having scoured the

entire

record and

asseverational

array

specifically discussed herein), we

As we see it, appellant was lawfully

tried, justly

punished.

79

convicted,

and appropriately

Affirmed.
Affirmed.
________

80