Petition for Writ of Certiorari — Saccoccia v. United States

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QEEICE O& IHE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

STEPHEN A. SACCOCCIA,

Petitioner,

UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Samuel Rosenthal

Curtis, Mallet-Prevost, Colt & Mosle

1801 K Street, N.W., Suite 1205L

Washington, D.C. 20006

(202) 452-7340

Attorney for Petitioner

Stephen A. Saccoccia

QUESTIONS PRESENTED

i. Whether the duty of inquiry into multiple

representation and requirement of a waiver on the record, as

required by Wheat v. United States, 486 U.S. 157 (1988) and

Fed.R.Civ.P. 44(c), applies only if petitioner could show that

his counsel represented someone who was not only a co-

defendant, but who also would have been a "material

witness" in petitioner’s case.

2. Whether a per se conflict incapable of being

waived was created where a second lead trial attorney for

petitioner had been indicted and imprisoned on charges

involving petitioner, had been listed by the government as a

potential witness in this case, was required at trial to cross-

examine the same government witness responsible for his

own prosecution, and was subpoenaed by the government as

a witness in post-trial forfeiture proceedings.

3. Whether a dog’s alert to currency was

admissible to prove that money laundered by petitioner was

derived from narcotics trafficking, after recognizing that other

courts are split over whether such evidence lacks probative

force as a result of the widespread contamination of currency

with narcotics’ residue.

4. Whether the "proceeds" deemed forfeitable

under the RICO statute includes the total amount of funds

belonging to and laundered on behalf of others where it is

undisputed that these funds did not represent proceeds of

racketeering activity received by the petitioner.

PAGE NO.

QUESTIONS PRESNIE Vive trees se eweea sede i

TABLE GP AUTEN Seach ieee een eee iv

OPINIONS BAI 2. wc oc ncach ed eRee eee) otek 2

FRESE SM 8 65k 4 Coe EEE Cee 2

CONSTITUTIONAL PROVISIONS .............. 2

STATEMENT GP ‘SEs Gales so cb ewe cin oe tess 3

REASONS FOR GRANTING THE PETITION ...... 7

THIS COURT SHOULD REVIEW THE LOWER COURT

DECISION TO IMPOSE ON PETITIONER THE BURDEN OF

SHOWING PREJUDICE FROM THE ACTUAL CONFLICTS

OF INTEREST EXISTING BELOW ................ 7

A. The Lower Court Opinion Creates a

Conflict Among The Lower Courts

Over Whether Warnings About the

Dangers of Multiple Representation

and a Waiver Are Required Without

Regard To Whether Petitioner Could

Show Prejudice From that Multiple

ees ee een 8

B. Review is Appropriate to Determine Whether

a Second Per Se Sixth Amendment Violation

Occurred As a Result of Representation by an

Attorney Charged With Crimes Invoiving the

PrP ee Lee eT Pe ee 14

Ii. THIS COURT SHOULD RESOLVE THE GROWING

CONFLICT AMONG THE CIRCUIT COURTS

REGARDING WHETHER A DOoG’S REACTION

To SNIFFING THE ALLEGEDLY

CONTAMINATED Money Is INADMISSIBLE. .... 18

II]. | THE CouRT OF APPEALS ERRED IN HOLDING

THAT PETITIONER COULD BE JOINTLY AND

SEVERALLY LIABLE FOR FORFEITURE OF

MONEYS FROM WHICH HE EARNED NO

a SAK Ac wth die wale en Ww 0 0s 24

Ee ig bole ek ENN Cpe ee eVect eowss 29

Appendix A... ccc cc ccc cree eescaces la

Appendix B ... 1... cece e cc cree ee eeceee lb

pS 4 OR ars ar ere ee fae ee Ic

ili

TABLE OF AUTHORITIES

PAGE NO.

CASES:

Ciark v. United States,

1995 U.S. LEXIS 13046 (2d Cir., May 25, 1995) 10

Gl Vv.

Fie eee ED bib BES os ee SRS 8, 10

OV Virgi V.

Fan Biase tae te Oe, IFES) ki kw eee 15

Grand Jury Proceedings,

Soe wae ween eee Ce. TPER) lg gc ce ivcue 13

Hamilton v.

969 F.2d 1006 (11th Cir. 1992) ........... 10

Hollo V.

819 F. mast ‘698 (MD. Tenn. <” igeesaaee ae 20

Pinke v. Uni

Re Ad I a 6s ee be ee 7, 26

Reckmeyer v. United States,

709 F.Supp. 680 (E.D.Va 1989) ........... 15

United v. $5 i . Cc

16 F.2e 203 Bi Ge Ge, TIS) on oh ee cs 19

United States v. $80,760.00 U.S. Currency,

781 F.Supp. 462 n.32 (N.D. Tex. 1991) . 19, 21, 24

United States v. $87,375 in U.S. Currency,

727 F. Supp. 155 (D.N.J. 1989) ........... 19

United States v. $191,910.00 in U.S. Currency,

16 F.3d 1051 n.21 (9th Cir. 1994) ......... 19

Uni Vv in U.S. Cc

955 F.2d 712 (D.C. Cir. 1992) ....... 19, 20, 21

Liatend Dieten 4. Anabel

eee nC)... 2 ek 17

ma eee Sebisss ss it A rok. 17

are WON on 25, 27

Beep) ,

Veiesd fate = Sane

45 F.2d 388 (10th Cir. 1995) ...........-. 10

eae pias Sin 10

rion etl, vias. 18

ae. Ph MR orc. e548 15

Lae a ce Tee ee peal 28

Se ce: ee ee 14, 16, 17, 18

mee (1st Cir. 1989) at 231 ..... 13, 16

oe Gad, 2 Us Cir. 1995) .. 0.2.2... ee 26

~ 695 F. “er Dy ss: 18

me or re .

United States v. Marren,

919 F.2d 61 (7th Cir. 1990) ...........-6. il

mee RTE 36, 1901) coe 25, 26, 27

United States v. Mazzaferro,

865 F.3d 450 (1st Cir. 1989) ............. 11

United States v. Moscony,

927 F.2d 742 (3d Cir. 1991) ............. 10

United States v. McClai

823 F.2d 1457 (11th Cir. 1987) ........... 15

United States v. §

823 F.Supp. 994 (D. R.I. 1993) ........ passim

United States v. Saccoccia,

58 F.3d 754 (ist Cir. 1995) ........... passim

United States v. Soudan,

812 7.20 900 (Gs Cie. 1008) 6... A. 15

United States v. Salinas,

618 F.2d 1092 (5th Cir. 1980) ............ 15

Wheat v. United States,

METIS TIA) 6 i, 9, 10, 11, 12

Wood v. Georgia,

0 US: SIZED CS. 12, 18

CODES, RULES AND STATUTES:

US Sek, AM FE 6.65 8 SEES FE CRS passim

28 USC: Gee. 198 cn eK EE 2

1S USC; Se See SS ea LA 3

18 USE: Ben, TURF isk ee ee 3

IS USC. Se OE: a ee ASR. 3

18 USSG Oe TSS oo ko eee eee ee 3

St USE eee 6. rs Si a 3

31-USC Boe eee ck TEA 3

1S USC Oi Ue os i ee ee 3

1S USSG, Gee Oi cos ic. ee ere ae 3

Poa Rie? 600 hi ae aa ee i, 8, 10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

Nos.

UNITED STATES,

Respondent

Vv.

STEPHEN A. SACCOCCIA,

Petitioner

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner, Stephen Saccoccia, respectfully prays that

a Writ of Certiorari issue to review the judgment of the Court

of Appeals for the First Circuit entered on June 28, 1995, and

the subsequent denial of the Motion for Reconsideration on

September 27, 1995, and joins in the petition of his co-

defendant, Donna Saccoccia, who has filed for a writ of

certiorari from the judgment of the Court of Appeals entered

on July 24, 1995.'

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra),

is reported at United States v. Saccoccia, 58 F.3d 754 (ist

Cir. 1995). The opinion of the district court (App. B, infra),

is reported at 823 F.Supp. 994 (D.R.I. 1993). The district

court’s oral pre-trial rulings with respect to any conflict of

interest and denying motions to exclude evidence of a dog

sniff (App. C, infra), are not reported.

JURISDICTION

The judgment of the court of appeals (App. A, infra)

was entered on June 28, 1995. The court of appeals denied

rehearing en banc on September 27, 1995. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right ... to have the Assistance of Counsel for his

defense.

1The only parties in this matter are the United States and Petitioner,

Stephen Saccoccia. The companion case involves the following

additional parties: Donna Saccoccia, Stanley Cirella, Kenneth

Saccoccio, Carlo DeMarco, James Saccoccio and Vincent Hurley.

18 U.S.C. Sec. 1963(a) provides in pertinent part that

anyone violating that chapter:

shall forfeit to the United States, irrespective of any

provision of State law --

(3) any property constituting, or derived from,

any proceeds which the person obtained,

directly or indirectly, from racketeering

activity or unlawful debt collection in

violation of section 1962.

STATEMENT OF THE CASE

On November 18, 1991, petitioner, Stephen Saccoccia

("Petitioner"), among others, was indicted in a 152-count

indictment. A 143-count superseding indictment was

returned on July 22, 1992. It charged a conspiracy to violate

the Racketeer Influenced and Corrupt Organizations Act

("RICO"), 18 U.S.C. §§ 1962(c) and (d); money laundering,

in violation of 18 U.S.C. §§ 1956 and 1957; failing to file

currency transaction reports (CTRs), causing financial

institutions to file CTRs with false information, and

structuring transactions to evade currency transaction

reporting (CTR) requirements, all in violation of 31 U.S.C.

§§ 5322 and 5324; interstate travel in aid of racketeering

activity, in violation of 18 U.S.C. § 1952, and criminal

forfeiture, in violation of 18 U.S.C. §§ 982 and 1963.

While the indictment was pending against petitioner,

his counsel, Jack Hill, was formally accused in Austria of

conspiring with petitioner to launder money overseas.

Because Hill remained incarcerated overseas, local counsel

was ordered to represent petitioner.

A six-week jury trial before the United States District

Court for the District of Rhode Island (Torres, J.), began on

November 4, 1992, on the original indictment with a total of

nine co-defendants. During the trial, petitioner’s substitute

counsel became incapacitated, requiring that petitioner’s case

be severed and a mistrial declared.

By this time, original counsel, Hill, had just been

released days earlier from jail, and was ordered by the district

court to return to Rhode Island to consult with petitioner.

Because Hill was still facing a retrial on the very same

charges involving his client, Hill himself recognized that this

created a conflict and urged the Court to refrain from asking

him to take any action in the case. App. 2c. The

Government did not oppose Hill’s withdrawal, and instead

advised the court in a separate letter that Hill could be a

witness at trial because of Hill’s own activities. The court

nevertheless refused to allow Hill to withdraw and advised

the defendant that there was "no conflict.". App. 3c. The

court later accepted a waiver from defendant. Hill was

therefore left at trial to cross-examine a government witness,

Berkhard Muel, who had been assigned to Hill’s own

prosecution in Austria.

Shortly after trial was concluded, the government

sought to depose Hill in connection with forfeiture

proceedings against petitioner. In a memorandum and order

issued on September 1, 1995, the District Court ruled that

Hill indeed must comply with the notice. In refusing to

quash the deposition notice, the District Court observed that

Hill (and evidently other counsel representing petitioner), had

asserted the privilege against self-incrimination.

Memorandum and Order, supra, at 16.

At his re-trial, petitioner was represented by a second

lead counsel, Ken O’Donnell, who also represented co-

defendant Ray Marotto, who had been severed and acquitted.

Although O’Donnell listed Marotto as a potential witness in

pleadings filed with the court in Saccoccia’s case, no waiver

or inquiry of any sort was conducted as to the conflict arising

out of this multiple representation.

The jury convicted petitioner on all counts. At

sentencing, the District Court imposed terms of imprisonment

on Mr. Saccoccia of 660 years. In May, 1993, the Court

imposed forfeitures on Mr. Saccoccia, setting out the basis

for the forfeitures in an opinion filed on June 4, 1993. See

United States v. Saccoccia, 823 F. Supp. 994 (D.R-I. 1993);

App. B. The court held that under a theory requiring joint

and several liability, petitioner could be ordered to forfeit not

only amounts of money which he obtained as "profit" from

his illegal activities, but also moneys and other assets that he

never owned or even possessed, but which were received by

third parties not charged in petitioner’s case. Id.

The panel (Selya, Cyr and Boudin, JJ.) affirmed the

conviction. In a 79 page opinion authored by Judge Selya,

the panel rejected all arguments of the defendant, including

those relating to whether his two attorneys labored under

conflicts of interest. It found that no per se conflict was

created when petitioner was allowed to waive any conflict

involving one lead trial lawyer, who was under indictment

and had previously been imprisoned in Austria for charges

involving petitioner. App. 27a et. seq. The court reasoned

that unless petitioner could show that his counsel was not

merely named as a co-conspirator with him in another related

case, but that he had an actual and reasonable fear of being

called to testify against his client, no Sixth Amendment

violation arose. App. 29a.

It similarly shifted to the petitioner the burden of

showing that there was some conflict and that the defense

was prejudiced by the second lead trial lawyer’s

representation of co-defendant Marotto. App. 29a. There was

no inquiry on the record to determine whether petitioner

would waive that conflict or was even aware of all of the

ramifications of the joint representation. The court found

that because there was only "unfounded speculation" to

suggest that Marotto could even be a witness, petitioner had

failed to sustain the burden of showing how the multiple

representation created any conflict of interest. Id., at 772;

App. 29a. It did so even though the same conflict-ridden

lawyer representing both Marottc and petitioner admitted that

Marotto may in fact have knowledge of exculpatory facts,

and listed him as a witness in pleadings filed with the district

court in support of his motion for a continuance.

Next, the court held that there was no error in

allowing a dog "sniff" to establish that currency allegedly

laundered by petitioner had been derived from narcotics.

App. 39a et seq. Referring to a split among the courts as to

whether evidence of currency contamination with narcotics is

probative in light of the widespread contamination today, the

court acknowledged the differences in approach being taken

by the courts, finding that:

[t]his claim deserves serious attention, for the recent

decisions about the evidentiary value of a trained

dog’s alert to currency are not uniform." [58 F.3d at

777; App. 41c].

The panel further rejected arguments that petitioner

could not be ordered to forfeit sums which he never

"obtained," as required by the RICO forfeiture provisions.

Rather, the court of appeals found itself “substantial[ly in]

agreement with the reasoning" in the district court’s opinion

holding that joint and several liability was proper under

Pinkerton v. United States, 328 U.S. 640, 647 (1946), and

that petitioner could be ordered to forfeit $136 million. 58

F.3d at 783, incorporating United States v. Saccoccia, 823

F.Supp. at 1001-03.

The court denied rehearing en banc without issuing

any written opinion.

REASONS FOR GRANTING THE PETITION.

IL. This Court Should Review The Lower

Court Decision To Impose on Petitioner the

Burden of Showing Prejudice From The

Actual Conflicts of Interest Existing Below.

The decision of the court of appeals in this case raises

important questions of Sixth Amendment law, arising out of

two distinct and independent conflicts of interest facing his

two attorneys. The court of appeals held that the petitioner -

- not the Government -- had the burden of demonstrating

both Sixth Amendment violations by showing some sort of

prejudice from the alleged conflicts, and that defendant was

not entitled to any sort of evidentiary hearing into either of

the two alleged conflicts at which he could attempt to sustain

that burden. It held, further, that no waiver and absolutely

no inquiry by the trial court was required as to one of the

two conflicts.”

A. The Lower Court Opinion Creates a

Conflict Among the Lower Courts Over

Whether Warnings About the Dangers of

Multiple Representation and A Waiver Are

Required Without Regard to Whether

Petitioner Could Show Prejudice From that

Multiple Representation.

The court of appeals found that no waiver or any

inquiry whatsoever was required even though petitioner was

represented by an attorney, Ken O’Donnell, who had

represented a co-defendant (and presumably did so during

petitioner’s trial). Multiple representation of co-defendants,

in the lower court’s view, did not create a conflict of interest

worthy of any waiver or inquiry on the record. That holding

is contrary to Supreme Court decisions dating back to

Holloway _v. Arkansas, 435 U.S. 475 (1978) and Glasser v.

United States, 315 U.S. 60, 71 (1945), Fed.R.Cr.P. 44(c), and

decisions of other courts of appeals.

2The court of appeals’ opinion does not dispute that a conflict on the

part of either attorney would be sufficient to warrant a new trial. See

Hoffman _ v. Leeke, 903 F.2d 280, 287 (4th Cir. 1990)(conflict not

harmless error where two counsel present); United States v. Stoia, 22 F.3d

766, 769 (7th Cir. 1994); United States v. Fulton, 5 F.3d 605, 606, 610-

11 (2d Cir. 1993).

Referring to claims that a conflict arose as a result of

O’Donnell’s multiple representation of two co-defendants, the

court of appeals reasoned that even without any inquiry on

the record as required by Rule 44c, this sort of multiple

representation created "no conflict", see 29a, and that it had

"routinely dismissed analogous conflict of interest claims."

58 F.3d at 772; 30a. In fact, the converse is true: convictions

are routinely reversed where no waiver or other inquiry is

conducted in cases involving multiple representation. Unless

the court of appeals’ opinion is reviewed by this Court, it

will conflict with other appellate decisions holding that the

defendant does not have the burden of showing why he

should be warned about the perils of multiple representation.

Contrary to that ruling by the court of appeals, this

Court and a majority of the courts of appeals have held on

innumerable occasions that such an inquiry is required in all

cases involving multiple representation. The most recent

Supreme Court decision imposing an independent duty on the

court to inquire into any multiple representation is Wheat v.

United States, 486 U.S. 157, 160 (1988). The Court held in

that case:

While ‘permitting a single attorney to

represent codefendants .. is not per sé

violative of constitutional guarantees of

effective assistance of counsel,’ Holloway v.

Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173,

1178, 55 L.Ed.2d 426 (1978), a court

confronted with and alerted to possible

conflicts of interest must take adequate steps

to ascertain whether the conflicts warrant

separate counsel. [emphasis added].

Nor were Holloway, supra, and Wheat, supra, the first

pronouncements on the subject. The Court ruled to the same

effect fifty years ago in Glasser v. United States, 315 U.S.

60, 71 (1945) (waiver should be clearly determined on the

record).

But even if the Supreme Court had not spoken to the

subject in an unbroken line of cases over the last fifty years,

Fed.R.Cr.P. 44(c) would have required an inquiry and waiver

from the defendant, and beyond that, decisions of this and

other circuit courts require a waiver on the record whenever

an attorney is allowed to represent either a person who was

jointly indicted or jointly tried with the defendant.

By departing from cases holding that multiple

representation created a conflict of interest, the lower court

necessarily departed as well from rulings by those courts

relating to the remedy required for failing to address the

problems of multiple representation. Other circuits hold that

the failure to elicit such a waiver requires an "automatic"

reversal. See, e.g., Ciark v. United States, 1995 U.S. LEXIS

13046 (2d Cir., May 25, 1995); United States v. Levy, 25

F.3d 146, 153 (2d Cir. 1994) ("When a possible conflict has

been entirely ignored, reversal is automatic ...."); United

States v. Moscony, 927 F.2d 742, 748-50 (3rd Cir. 1991);

United States v. Cirrincione, 780 F.2d 620, 625 (7th Cir.

1985); United States v. Cresp de Llano, 838 F.2d 1006, 1012

(9th Cir. 1987); United States v. Cook, 45 F.2d 388 (10th

Cir. 1995); Hamilton v. Ford, 969 F.2d 1006, 1011 (11th Cir.

1992) (reversal automatic when no inquiry because "the trial

court has failed to discharge its constitutional duty under

Holloway to determine whether the defendants are receiving

adequate assistance of counsel").

By contrast, even before the instant case, the First

Circuit had departed from the above cases and had declined

to adopt an "automatic" reversal rule. Instead, it had held in

United States v. Mazzaferro, 865 F.3d 450, 454 (lst Cir.

1989), that "[i]f a satisfactory inquiry does not appear on the

record, the government has the burden of persuasion of

demonstrating that prejudice to the defendant was

improbable." With the instant decision, the differences

between the First Circuit’s approach and that taken elsewhere

is now even greater by shifting to away from the government

and onto the petitioner’s shoulders the burden of

demonstrating that such a conflict impacted on the

representation.

Accordingly, the only ground offered by the panel for

departing from Wheat and other cases cited above was that

defendant failed to show that Marotto had "any knowledge

that might have been useful in appellant’s defense," 58 F.3d

at 772, 30a; and that defendant had failed in his efforts to

show how "O’Donnell’s concluded representation of Marotto

created a conflict of interest..." Id.

3 The panel did not articulate any exception to the duty of inquiry based

on some untested assumption that O’Donnell’s representation of Marotta

had ceased by the time of Saccoccia’s retrial. Nor would any theory be

viable here. Rule 44 requires prophylactic action whenever there is

representation of those jointly indicted; it nowhere limits that rule to

persons who proceed jointly to trial. See United States v. Simonetti, 998

F.2d 39, 41 (ist Cir. 1993)even where the prior representation of a co-

defendant or witness ends, the "conflict of interest with [that client]

remained, however"). 998 F.2d at 40. The court went on to explain that

because the lawyer is duty bound not to use confidences learned from that

client, he cannot "vigorously defend[] [the defendant] without a waiver

from [the prior client].” 998 F.2d at 41, citing United States v. Marren,

919 F.2d 61, 63 (7th Cir. 1990).

But this burden shifting is not only at odds with this

Court’s repeated rulings, it imposes on the defendant a

burden which is practically impossible to sustain. As the

Government itself recognized in urging this Court to adopt

strong curative measures to deal with the perils of multiple

representation:

The dilemmas created by multiple representation are

particularly insidious because it is often hard to

determine whether the resolution of those dilemmas

is the product of trial strategy rather than a conflict of

interest. ... And it is particularly difficult to assess

the damage caused by multiple representation, because

the evil is in what the advocate finds himself

compelled to refrain from doing, not only at trial but

also as to possible pretrial plea negotiations and the

sentencing process. .... [Brief of United States, Wheat

v. United States, No. 87-4, at 19; citations omitted].

Moreover, the impropriety in shifting the burden to

the petitioner to show prejudice was exacerbated here by the

court of appeals insistence that petitioner sustain that burden

based on the record created by the very attorney who was

laboring under the conflict. Where further fact finding is

necessary, it is appropriate to remand the matter, and allow

the defendant an opportunity to make an appropriate factual

record with the assistance of conflict-free counsel. See Wood

v. Georgia, 450 U.S. 272, 273-74 (1981)(vacating and

remanding the matter so that the court could "hold a hearing

to determine whether the conflict of interest that this record

strongly suggests actually existed...."), In fact, it was

particularly erroneous for the court of appeals to engage in

i eA RE Bs ee ee

such fact finding in the first instance where no adequate

findings had been made below. In Re Grand Jury

Proceedings, 859 F.2d 1021, 1026 (1st Cir. 1988)(remanding

for "specific findings of fact regarding any perceived conflict

of interest”).

Finally, the precedential support for the First Circuit’s

approach is simply misplaced. Evidently, the First Circuit

confused the situation here -- arising from multiple

representation of jointly indicted defendants -- where

warnings are always required as long as the court is aware of

the facts creating the potential conflict -- with the far more

difficult situation presented where a defendant claims that the

lawyer represents someone who is merely a witness, but there

is no showing that that person would actually have testified

and the matter is not brought to the trial court’s attention

until post trial proceedings. See 58 F.3d at 772, citing U.S.

v._Garcia-Rosa, 876 F.2d 209 (lst Cir. 1989) at 231

(involving representation of a person claimed to be a

potential witness, but without any basis in the record).

Here, Marotto was both a co-defendant and a potential

witness. Without question, Marotto’s status as both a co-

defendant and a potential witness were made known to the

trial court here. In fact, not only had the lower court

presided over Marotto’s severed trial, but counsel identified

Marotto as a potential witness in petitioner’s case. Also, both

the district court and the court of appeals alluded to counsel’s

representation of Marotto as one reason why defense counsel

should have been prepared to proceed to trial in Saccoccia’s

case without a continuance. 58 F.3d at 771; 25a.

Notwithstanding the lower court’s awareness of that

relationship, the court of appeals reasoned that no waiver by

the defendant or even any inquiry whatsoever was required

into the multiple representation.

B. Review is Appropriate to Determine

Whether a Second Per Se _ Sixth

Amendment Violation Occurred As a

Result of Representation by an Attorney

Charged With Crimes Involving the

Petitioner.

Not only did the panel affirm the conviction even

though no waiver or inquiry had been conducted as a result

of O’Donnell’s multiple representation of petitioner, it found

no error also even though a second lead attorney, Jack Hill,

had been formally accused and imprisoned for allegedly

conspiring with the petitioner -- his own client; even though

Hill had been told by the government that he may be a

witness against the client in the instant case; even though Hill

was forced to cross-examine his own accuser in the

proceedings against his client; and finally, even though the

government would later seek to depose counsel on his

dealings with petitioner. The court allowed petitioner to

waive the resulting conflict, and expressly advised him on the

record that no conflict of interest or grounds for withdrawal

existed. App. 3c.

But a long line of cases has now held that an "actual"

conflict of interest exists under circumstances far less

troublesome than those present here. Courts have even held

that a per se Sixth Amendment violation is created when

counsel does nothing more than represent a client while under

investigation for conduct involving that same client. See

United States v. Fulton, 5 F.3d 605, 613 (2d Cir. 1993)(cases

collected); Government of Virgin Islands v. Zepp, 748 F.2d

125, 136 (3d Cir. 1984)("When defense counsel has

independent personal information regarding the facts

underlying his client’s charges, and faces potential liability

for those charges, he has an actual conflict of interest");

United States v. Soudan, 812 F.2d 920, 928 (Sth Cir. 1986),

cert. denied, 481 U.S. 1052 (1987)("In those cases in which

the trial defense counsel faces potential liability for the same

charges which are faced by his client, the defense counsel has

an actual conflict of interest"); United States v. Salinas, 618

F.2d 1092, 1093 (Sth Cir. 1980)(disqualifying an attorney

who was a target of investigation over defendant’s objections

and notwithstanding waiver), cert. denied, 449 U.S. 961

(1980); United States v. McClain, 823 F.2d 1457, 1464 (11th

Cir. 1987)(finding an "actual conflict of interest" resulting

from the fact that counsel was under investigation while

defending his client on the same or similar charges); United

States _v. Ellison, 798 F.2d 1102, 1007 (7th Cir.

1986)(finding an actual conflict of interest). See also

Reckmeyer_v. United States, 709 F.Supp. 680, 689-91

(E.D.Va. 1989), aff'd without op., 900 F.2d 257, cert. denied,

498 U.S. 846 (1990).

This case therefore presents a clear and unmistakable

basis for applying the per se rule articulated in the above

cases, and refusing to accept a waiver, particularly after

telling the petitioner that there was no conflict of interest or

basis for allowing withdrawal by the attorney. App. 3c. In

fact, none of the above cases involved situations where the

attorney had not only been actually charged with crimes

involving the client, but after being released from prison on

such charges, was being asked to cross-examine his own

accuser in proceedings against the attorney, had been told by

the Government that he might well be a witness ai the trial

of his client and would later be deposed by the government

about his dealings with petitioner.

The lower court opinion stands entirely alone in

holding that no actual conflict of interest -- much less a per

se violation -- is shown in such circumstances unless the

petitioner shouldered the burden of showing that "’some

plausible alternative defense strategy might have been

pursued, ... and that this alternative strategy was not pursued

because of the attorney’s other loyalties or interests.’" 58

F.3d at 771, quoting from United States v. Garcia-Rosa, 876

F.2d 209, 231 (1st Cir. 1989), cert. granted and vacated on

other grounds, 498 U.S. 954 (1990). In short, not only did

the panel refuse completely to follow those cases holding that

some conflicts are so violative of the criminal justice system

that they cannot be waived, the court of appeals again shifted

the burden to the defendant to show that there was some

prejudice from an conflict of interest.

Furthermore, the lower court’s explanation of what a

defendant must do to sustain that burden shows even more

dramatically the divergence between the approach taken by

the First Circuit, and that taken by every other circuit to

address the problem. Fulton, supra, and the cases set forth

above, hold that it would be unrealistic to assume that

counsel under investigation should be asked to waive his

Fifth Amendment privilege and advise the court precisely

how his indictment or the allegations against him may

prejudice the defense. As-the-court in Fulton, recognized,

counsel should not be expected to speak to allegations raised

by a witness implicating him as "this subject could be used

against [him]." Fulton, 5 F.3d at 608. Other courts

recognize also that the more fearful the defense counsel is

about the possibility of his own prosecution being impacted

by the defense, the less likely it is that he will be candid with

the court about those fears.

By contrast, the court of appeals held that defendant

could only sustain his burden if he could prove that defense

counsel was actually operating under such a fear in the case

and that a waiver should therefore not have been accepted.‘

58 F.3d at 771-72; 28a-29a. The lower court concluded that

a disqualifying conflict might have been created only if Hill

had actually and reasonably been in fear of having been

"charged or called as a witness in appellant’s case...." Id., at

772; 29a. It did so even though when Hill was actually

ordered to testify in post-trial forfeiture proceedings, Hill did

exactly what the Fulton and other courts predicted: he

asserted his own Fifth Amendment privilege against self-

incrimination.°

4 While the court of appeals cited one case finding a per se Sixth

Amendment violation as supposedly supporting its position, 58 F.3d at

772, citing United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984),

the panel departed from the holding there. Cancilla nowhere suggested

that a defendant must show some proof that there was actually some

demonstrable impact on the representation he received in order to benefit

from the rule articulated in that case. Rather, the court in Cancilla

assumed that representation may have been affected and expressly held

that it was sufficient as long as "counsel might have feared that

acceptance of a plea [or a vigorous defense] would turn on [the client’s

cooperation], which might lead to discovery of the link to counsel’s own

activities." 725 F.2d at 870 emphasis added.

5 Of course, fear of being a witness, standing alone and without

regard to charges that Hill conspired with his client, would have presented

an independent basis for insisting that Hill withdraw from the case. See,

¢.g., United States v. Angiulo, 896 F.2d 1169, 94 (Ist Cir.), cert. denied,

498 U.S. 845 (1990); United States v. Zepp, supra, 748 F.2d at 138 ("We

have searched the cases carefully and have found no instance where

Even assuming arguendo that the Fulton and other

courts are correct in assuming prejudice under such

circumstances, this Court should nevertheless review whether

defendant was properly denied an evidentiary hearing at

which he could sustain that burden. Instead of remanding the

matter for an evidentiary hearing, the panel again relied upon

the record compiled by conflict-ridden counsel, and without

the benefit of any findings by the lower court. As explained

above, that holding conflicts with long-standing authority.

See Wood v. Georgia, supra (vacating and remanding the

case).

Il. THIS COURT SHOULD RESOLVE THE

GROWING CONFLICT AMONG THE CIRCUIT

COURTS REGARDING WHETHER A DOG’S

REACTION TO SNIFFING THE ALLEGEDLY

CONTAMINATED MONEY IS INADMISSIBLE.

In order to establish that money allegedly laundered

by petitioner had been derived from drug trafficking, as

required in order to sustain a conviction, the government

relied in this case on evidence that a trained dog "alerted" to

the money after it was placed in a bank. The court of appeal

expressly recognized that a conflict exists among other courts

defense counsel was actually permitted to testify against his own client

a purporting to continue in a representative capacity"); United States

v. Crockett, 506 F.2d 759, 761 (Sth Cir. 1975)(finding "conspicuous

impropriety” from counsel’s failure to acces when he realized he was

to be a prosecution witness); ed Stz mpaig

F. Supp. 1290, 1315 (D. Mass 1988) Sennaiidien that the advocate-

witness rule generally bars an attorney from appearing as both an

advocate and a witness in the same litigation).

as to the probative value of such evidence. It concluded --

properly we believe on this limited point -- that "[t]his claim

deserves serious attention. .. ." 58 F.3d at 777; 4la.

Because the decision below conflicts with recent decisions

from the Sixth and Ninth Circuits, as well as various lower

courts, review by this Court is necessary.

In the wake of repeated scientific studies showing that

an astounding percentage -- ranging from one third to 97

percent® -- of the currency supply in this country is tainted

with narcotics, a growing number of courts are questioning

the reliability of such evidence and finding evidence of a

narcotic-trained dog’s alert to currency of extremely little

probative weight. See United States v. $53,082 in U.S.

Currency, 985 F.2d 245, 250 n.5 (6th Cir. 1993) ("the

evidentiary value of a narcotics detection dog’s alert has

recently been called into question"); United States v.

$191,910.00 in U.S. Currency, 16 F.3d 1051, 1062 n.21 (9th

Cir. 1994) (expressing concern about reliability of dog alert

given contamination of money supply); United States v.

6 See United States v. $53,082 in U.S. Currency, 985 F.2d 245,

250 n.5 (6th Cir. 1993) (quoting Dirty Money, United States Banker,

October 1989, at 10, which discussed a study by Lee Hearn, Chief

Toxicologist for Florida Dade County Medical Examiner’s Office, in

which he found that 97% of the bills from around the country tested

positively for cocaine); United States v. $87,375 in U.S. Currency, 727

F. Supp. 155, 160 (D.NJ. 1989) (study conducted by Jay Poupko, _—

showing all the bills in circulation were contaminated); United States

$80,760.00 in U.S. Currency, 781 F. Supp. 462, 475-76 n.32 (N.D. Tex.

1991) (study of National Medical Services in Willow Grove, Pennsylvania

= ae nee ee ee ee ee

‘ited cem dmin., 819 F. Supp.

698, 720 (MD. Tenn. 1993) (DEA = found one third of the bills

from a random sample and all of the currency sorting belts at the Federal

Reserve Banks were contaminated).

$639,558 in U.S. Currency, 955 F.2d 712 (D.C. Cir.

1992)(court cautioning that "If the information related above

proves accurate, a court considering whether a dog sniff

provides probable cause, . . . may have to take into account

the possibility that the dog signalled only the presence of

money, not drugs"); United States v. Carr, 25 F.3d 1194,

1271 (3d Cir. 1994) (Becker, J. concurring in part and

dissenting in part) (strong presumption against admissibility

of evidence of canine’s alert to currency, rebuttable only if

the government clearly and convincingly establishes, outside

the presence of the jury, the relevance and non-prejudicial

character of the offered evidence).

For example, when a claimant in Jones v. United

States Drug Enforcement Admin., 819 F. Supp. 698 (M.D.

Tenn. 1993), sought return of funds following summary

forfeiture of $9,000 seized from him at an airport, the court

concluded that the probative value of a narcotic-sniffing

dog’s alert to currency was microscopic. Id. at 721

(emphasis added). "The presence of trace narcotics on

currency does not yield any relevant information whatsoever

about the currency’s history." Id. at 720 (emphasis added).

The court explained that bills become contaminated by

proximity to a large quantity of cocaine, by passage through

contaminated cash registers, cash drawers, and counting

machines at banks and commercials establishments, and

sorting machines at the Federal Reserve Banks, and by bank

tellers counting and recounting money, rubbing one bill

against another. Id. at 720. Under these circumstances, "the

continued reliance of courts and law enforcement officers on

dog sniffs to separate ‘legitimate’ currency from ‘drug-

connected’ currency is logically indefensible." Id. at 721.

Similarly, in Uni Vv

Currency, 781 F. Supp. 462, 476 (N.D. Tex. 1991), the court

held that "the mere fact that a dog alerts to the currency,

without other probative evidence linking the currency to

violation of the drug laws, will not support forfeiture." Id.

at 477. If a dog’s alert is not sufficient to prove probable

cause for a belief that a substantial connection exists between

the currency and illegal drug dealing, id. at 472, it should be

even less compelling to prove beyond a reasonable doubt that

the money was in fact the proceeds of illegal narcotic

business.

The court of appeals in the instant case, however,

offered no principled reason for departing from those cases

finding such evidence to be inherently prejudicial and devoid

of probative value. In fact, the only ground offered for

departing from such cases is factually wrong: that "appellant

neither introduced nor proffered the materials discussed by

other courts suggesting that a very high percentage of United

States currency is contaminated with drug residue..." 58 F.3d

at 777, n. 19. In fact, petitioner relied on the identical two

“materials” discussed in those cases.

First, the expert testifying in this case, Dr. Woodford,

was the identical individual relied upon by those courts

questioning the use of dog "sniffs." In United States v.

i 955 F.2d 712 (D.C. Cir. 1992),

the defendant called Dr. Woodford, the same expert who

testified in this case, who testified "that 90 percent of all cash

in the United States contains sufficient quantities of cocaine

to alert a trained dog." Id. at 714 n.2. In the case at bar, Dr.

James Woodford, again testified as an expert, and again

without contradiction, that dog sniffing drug tests of currency

are deemed unreliable by the scientific community at large.

rants a ee grax ee ee ee oe eres ne Ne Eh em a nT ACR ECR Hes : -

Specifically, Dr. Woodford explained that, based on tests

conducted on currency at the Federal Reserve Banks,

anywhere from 70 to 90 percent of currency has illegal drug

residues on it, so that a positive dog sniffing drug test means

nothing more than that the money in question is consistent

with 70 to 90 percent of all money in circulation. According

to Dr. Woodford’s testimony, this is so in part because bills

with drug residues are placed with other bills without

residues, contaminating them -- which is exactly what

happened in this case when the bank employee placed the

tested money into circulation again without cleaning it. Tr.

Feb. 23, 1993, at 116.

Despite this testimony, in denying the defendant’s

motion for new trial, the District Court concluded:

[T]he fact that there was evidence that trained

dogs detected the presence of cocaine on some

of the currency that was brought into banks by

certain of Mr. Saccoccia’s confederates, does

not conclusively prove that Mr. Saccoccia or

the confederates were engaged in drug

trafficking. It is pretty powerful evidence that

these bills were connected with drug

trafficking at some point. But certainly it

does not conclusively prove that it was these

Defendants who engaged in the activity that

caused the bills to become tainted... . [I]t

constitutes [a] link in the chain of evidence

necessary to convict.

Tr. Apr. 19, 1993, at 107; 6c. Contrary to the District

Court’s holding, such evidence is only "powerful evidence"

of the widespread contamination of U.S. currency. While the

probative value of such evidence is "microscopic" the

prejudicial effect is astounding, particularly where there is

such scant evidence of a link to narcotics, and a dearth of any

evidence of a link with any narcotic transactions.

A second item relied upon both below and in other

cases criticizing the use of dog "sniffs" was a DEA report

confirming the widespread contamination of U.S. currency

with narcotic residue. As explained in Jones, 819 F. Supp.

at 720 (citations omitted), the report showed that the DEA’s

own chemists found "one-third of the bills in a randomly

selected sample were contaminated with between 2.4 and

12.3 nanograms of cocaine per bill. The belts used at

Federal Reserve Banks to sort currency were contaminated

with approximately 200 nanograms of cocaine per belt.””

But this same report was similarly relied upon by the

defense at trial in this case. In fact, when the defense argued

to the court of appeals that it should have been allowed to

make greater use of the report at trial, the government argued

that Dr. Woodford had made ample use of the report when

a lot of guys out there that have shown that there is a trace [of] dope on

a lot of money out there. And for that reason alone, I’d want more than

j 985 F.2d at 250 n.5 (quoting

etint DOr: Inged: A & P

he "described the DEA report’s conclusions and testified that

he had relied on those findings." Gov’t Br. at 26, n.7.°

Ill, THE CouRT OF APPEALS ERRED IN

HOLDING THAT PETITIONER COULD BE

JOINTLY AND SEVERALLY LIABLE FOR

FORFEITURE OF MONEYS FROM WHICH HE

EARNED NO PROFIT.

The court of appeals affirmed also the judgment that

petitioner could be ordered to forfeit $136 million on the

theory that he was jointly and severally responsible for the

acts of his co-conspirators, and therefore could be ordered to

forfeit not only assets which he received in the form of

proceeds of his criminal conduct, but proceeds obtained by

others as well. The lower court opinion, adopted by the

court of appeals, confessed that the conclusion to be reached

on this question was “not so clear." United States v.

Saccoccia, 823 F.Supp. 994, 1001 (D.R.I. 1993). Because

the court of appeals opinion below is a marked departure

8 Additionally, the manner in which the test was conducted in the case

sub judice, made it even less reliable. of significantly less probative value,

but of immense prejudicial effect. The dog’s “handler” testified that at

each bank, he initially walked the dog through the banks’ common areas

on a leash but he did not order the dog to alert to any odors. Tr. Feb. 23,

1993, at 129-133. He then led the dog to a separate room containing no

other currency other than the suspect money, which was simply placed on

the floor. He released the dog and then commanded him to sniff for

narcotic odors. Id. No control pile was tested, nor was their a field test

of the money after the dog “alerted.” Tr. Feb. 23, 1993, at 141-142.

Instead, he allowed the bank employee to place the money back into

circulation. Tr. Feb. 23, 1993, at 116. See $80,760.00 in U.S. Currency,

781 F. Supp. at 478 ("[v]erification, supported by testimony of the dog’s

handler, is an essential prerequisite to consideration of the evidence").

from the approach taken by other courts, and involves an

important and recurring question of forfeiture law, review by

this Court is appropriate.

To be sure, other court of appeals below have held

that defendants may be held jointly and severally liable for

forfeiture of proceeds received by one or more of them. See,

e.g., United States v. Caporale, 806 F.2d 1487, 1506 (11th

Cir. 1986), United States v. Masters, 924 F.2d 1362 (7th

Cir.), cert. denied, 500 U.S. 919 (1991). The court of

appeals is alone, however, in stretching this concept to allow

forfeiture from the defendant of moneys or other property

which the defendant never retained, which in no sense could

be considered profit to him from his criminal activities, and

which were never even made available to any defendant for

his own use. To allow forfeiture of funds in such instance

would constitute a perversion of the statutory language which

is controlling on this question.

The sole authority for ordering forfeiture of $136

million is found in the statutory provision, allowing forfeiture

of "any property ... which the person obtained ..." from

racketeering activity. 18 U.S.C. Sec. 1963(a)(emphasis

added). The district court and court of appeals utterly

misread that provision by construing it to hold that an interest

may be forfeitable even though the person from whom

forfeiture is sought never obtained such property, but instead,

the property subject to forfeiture was obtained by others

thought to be uncharged co-conspirators of the defendant.

While deciding the issue in favor of imposing joint

and several liability, the court of appeals acknowledged that

the issue was a difficult one. In ruling on the identical claim

raised by petitioner’s co-defendants, the court of appeals held

that such an outcome seemingly violated the statutory

language which "speaks of a violator forfeiting *proceeds

which the person obtained’ by violating section 1962." See

~~ United States v. Hurley, 63 F.3d 1, 22 (1st Cir. 1995). It

further acknowledged the unfairness that might result from

such a reading of the statute:

the plight of a defendant who was merely a temporary

custodian of cash and passed it on is even starker than

that of a person who never possessed the cash at all.

Thus, there is a respectable basis for holding that

vicarious liability for co-conspirator behavior does not

exist under section 1963. [Id., at 22].

The court of appeals found that such arguments were

overcome, however, by simply applying the reasoning of

Pinkerton v. United States, 328 U.S. 640, (1946), to the

forfeiture provisions. But that conclusion was premised on

the entirely erroneous notion that Pinkerton, is applicable to

punishment. In fact, it is only applicable to the issue of

whether liability can be imposed, not the wholly

distinguishable issue of what punishment to impose once

liability is established. Indeed, any notion that Pinkerton is

applicable to the issue of punishment would result in

ludicrous results. A court presumably could aggregate not

only forfeiture amounts, but terms of incarceration as well.

Moreover, the court of appeals failed to acknowledge

that every other case to impose "joint and several" liability

did so where, unlike here, assets were acquired or maintained

solely by the defendants on trial, and there was some factual

basis for concluding that these particular defendants were the

ultimate recipients or beneficiaries of the forfeitable assets

For instance, in Masters, the court held that "it is the

proceeds received by the defendants, not by their enterprise,

that are forfeitable." Id., at 1370. It therefore went on to

hold that the amount forfeited "was a reasonable estimate of

the total amount that the tt lants

bribes that Masters received." id., at 1370 ieidslaibradéed),

Similarly, in Caporale, the court acknowledged some

difficulty discerning which defendant profited from specific

amounts of money, but nevertheless made clear its view that

-if joint and several liability were to be imposed, it is limited

to joint and several liability of those amounts forfeitable

solely by those convicted -- not unnamed and uncharged

individuals having only the most remote connection to the

alleged conspiracy. The court held:

The statute states that individuals convicted of

violating Section 1962 shall forfeit any interest

acquired as a result of the violation. 18 U.S.C. Sec.

1963(a)(1). The four individuals subject to the

forfeiture order at issue here .... were each convicted

of violating Section 1962 ont ordered to forfeit the

proceeds of the violation. As individuals convicted

under Section 1962, they fall squarely within the

forfeiture provision. [806 F.2d at 1507; emphasis in

part in original and in part added].

And finally, the Fifth Circuit again construed the

statute in accordance with its plain language. In answering

claims that defendants there could not be forced to forfeit

sums of money which they did not receive, but which went

to family members and businesses, the Fifth Circuit held that

defendant was shown to have "acquired or maintained" the

forfeitable sums by controlling the disbursement of the

proceeds and directing disbursement to accounts of their

choosing. United States v. Faulkerner, 17 F.3d at 774 (Sth

Cir. 1994),

Below, by contrast, the court of appeals utilized joint

and several liability to require forfeiture not only of assets

"acquired" by defendants on trial, but also ordered forfeiture

of those assets acquired by persons thousands of miles away

who were not even charged with any crimes, in many cases

not even named in the indictment, and in other cases, not

even identified at trial. To impose liability in such

circumstances would turn the statute on its head. Only by

aggregating all funds involved in transactions involving

defendant was the court able to come up with the staggering

$136 million forfeiture order at issue here.

The approach taken by the Fifth, Seventh and

Eleventh Circuits is a far cry from the theory adopted below,

in which it was possible for the petitioner to exercise

absolutely no control over the alleged proceeds of the money

laundering activities, but to be held accountable for them in

a forfeiture order because some unnamed co-conspirator

exercised such control.

CONCLUSION

The Petition for Certiorari should be granted.

Respectfully submitted,

Curtis, Mallet-Prevost, Colt & Mosle

By: SAMUEL ROSENTHAL

1801 K Street, N.W., Suite 1205L

Washington, D.C. 20006

(202) 452-7340

Attorney for Defendant-Appellant

Stephen A. Saccoccia

Dated: February 26, 1996

29 |

APPENDICES

BN fa ae

ee.

pense A

| el ge

APPENDIX A

UNITED STATES of America, Appellee,

Stephen A. SACCOCCIA, Defendant,

Appellant.

Nos. 93-1618, 93-2208, and 94-1506.

United States Court of Appeals,

First Circuit.

Heard Feb. 7, 1995.

Decided June 28, 1995.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

A Jury convicted defendant-appellant Stephen A.

Saccoccia on racketeering, money laundering, and related

charges arising from the leadership of an organization that

laundered well over $100,000,000 in drug money during

the years 1986 through 1991. On appeal, Saccoccia

challenges his extradition , the timing of his trial, his

conviction, the forfeiture of certain assets, and the 660-

year sentence that the district court imposed. Finding that

his arguments do not wash, we affirm.

I. BACKGROUND

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,, - U.S. -

-, 113 S.Ct. 1005, 122 L.Ed.2d. 154 (1933), leaving much

of the flesh and sinew for fuller articulation in connection

with or discussion of particular issues.

Appellant formerly controlled a network of precious

metal businesses located in Rhode Island, New York, and

California. He became enmeshed in money laundering

through his involvement with a fellow metalman, Barry

Slomovits. At a point in the mid-1980s, Slomovits was

accepting millions of dollars in cash each week from

Duvan Arboleda, who represented a group of Colombian

drug lords (the Cali cartel). Slomovits used some of this

cash to purchase gold from appellant. By special

arrangement, the transactions were accomplished without

documentation.

In 1987, Arboleda and appellant agreed that they

would deal directly with each other. From that juncture

forward, appellant used his various businesses to cleanse

money funnelled to him by the Cali cartel and its

emissaries (including Arboleda, Fernando Duenas, and

Raoul Escobar). Typically, Arboleda would make large

quantities of cash available to appellant; appellant would

send some of it to Slomovits in New York; Slomovits

would buy gold with the funds, resell the gold, and wire

the proceeds to accounts that appellant controlled.

Slomovits received apocryphal invoices from appellant’s

companies purporting to show sales of gold for summons

corresponding to the amounts of the wire transfers.

Ahron Sharir, a manufacturer of gold chain, also

washed money for appellant. Appellant used Sharir’s New

York factory as a drop-off point for incoming shipments

of currency, and Sharir laundered the cash by methods

similar to those employed by Slomovits. The shipments

to Sharir’s factory continued until 1988. From then on,

the two men forsook the New York factory, but continued

to deal with each other. Appellant delivered cash

totalling over $35,000,000 to Sharir at other locations

between 1988 and 1990.

By 1990 appellant’s operations had expanded and had

become largely independent of Slomovits. Appellant

would bid for opportunities to launder money on behalf

of the Cali cartel. When the cartel accepted a bid, he or

his couriers would receive sacks of currency at

prearranged delivery points. These shipments ordinarily

ranged between $500,000 (although one delivery totalled

$3,000,000). The bills were usually in small

denominations. They would be counted, transported to

one of appellant’s offices in California or Rhode Island,

then counted again, smurfed,’ and used to buy cashier’s

checks payable to one of appellant’s companies. These

purchases were made at various banks by underlings (e.g.,

David Izzi, Anthony DeMarco, James Saccoccio, Kenneth

‘ The conspirators sought to avoid the currency transaction

reporting requirements applicable to large cash transactions, sec,

eg, 31 US.C. § 5313 (1988); 31 CFR. § 103.22(a)(1) (1994), by

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

breaking down a large amount of cash into smaller, unreportable

amounts--a criminal act when done to avoid the reporting

requirements, see 31 U.S.C.A. § 5324 (West Supp. 1995)--is called

“smurfing.”

Saccoccio) in accordance with instructions received from

appellant or his wife, Donna Saccoccia. After the checks

had been deposited in a company account, the money

would then be wired to a foreign bank designated by

Arboleda or Duenas. Along the way, appellant would

deduct a commission that usually approximated ten

percent of the laundered cash. This completed “la

vuelta,” the term used by the Cali cartel to describe a

complete cycle of drug smuggling activities.

The spring of 1991 marked the beginning of the end

of appellant’ career in high finance. During the early

stages of his operation, the money received in New York

was transported to Rhode Island by armored car and then

deposited in account standing in account standing in the

name of a controlled corporation, Trend Precious Metals

(Trend), at Citizens Bank. Between January 1, 1990 and

April 2, 1991, appellant and his wife wired over

$136,000,000 out of the Trend account to an assortment

of foreign banks. Citizens became suspicious and closed

the account. In approximately the same time frame, an

employee of an armored car service warned Richard

Gizarelli, an unindicted coconspirator, that appellant was

under investigation. | Gizarelli promptly informed

appellant.

Notwithstanding these omens, appellant persisted. He

did, however, alter his modus operandi. Instead of using

private couriers to transport cash from New York to

Rhode Island, he sent any of four men -- Izzi, Carlo

DeMarco, Anthony DeMarco, or Vincent Hurley, often

(but not always) operating in pairs -- to haul the money to

Rhode Island. And, although appellant’s cohorts

continued to purchase bank checks from various Rhode

Island financial institutions, appellant began to send the

checks to his office in California by air courier, often in

canisters labeled as containing gold (to which appellant’s

hench-men added slag or scrap metal to increase weight).

Accomplices used the money to purchase gold, which was

then sold on the open market. The proceeds were

eventually wired back to one of appellant’s remaining

Rhode Island accounts.

In August of 1991, appellant convened a meeting at

his mother’s home. He showed the conferees (who

included Donna Saccoccia, Izzi, and the two DeMarcos)

a videotape that had been discovered accidentally in a

nearby building. The tape reflected an ongoing

surveillance of the back entrance to appellant’s Cranston

coin shop. He advised his colleagues to start using the

Store’s front entrance. Soon thereafter, appellant

departed for Switzerland. In short order, the authorities

After unsuccessfully seeking to postpone prosecution

on health-related grounds? appellant went to trial on

November 4, 1992, in the United States District Court for

x The district court held a hearing regarding appellant’s

professed ailments. Appellant undergone a iaminectomy at age

1@ and had been hospitalized repeatedly during the next 20 years.

that would account for [appellant’s current] complaints of pain.”

Accordingly, the court refused to grant a continuance.

the District of Rhode Island, along with several other

indicted coconspirators (including his wife). Appellant’s

attorney became ill during trial, and the court declared a

mistrial as to appellant? The new trial began on

February 7, 1993, and resulted in this conviction. These

appeals followed.

Saccoccia’s appeals were consolidated for oral

argument with the appeals arising out of the first trial.

See supra note 3. Notwithstanding the obvious differences

in the trial records and in the posture of the prosecutions

-- for example, appellant was the leader of the money

laundering organization; unlike most of the others, he was

not tried for currency transaction § reporting

(CTR)offenses; and he was convicted in a trial different

from that of his codefendants -- appellant seeks to

incorporate by reference eight arguments advanced by

other defendants. Because appellant’s position is not

substantially similar to that of the codefendants, and

because he has failed to develop the idiosyncracies of his

> The first trial proceeded as to the other defendants. The jury

returned its verdict on December 18, 1992, convicting Donna

Saccoccia, Vincent Hurley, James Saccoccio, Kenneth Saccoccio,

Stanley Cirella and Anthony DeMarco on the RICO conspiracy

count, 18 U.S.C. § 1962(d), and finding cach of them guilty on

certain other counts. Donna Saccoccia was convicted of 47 counts of

money laundering under 18 U.S.C. § 1957 and 13 counts of money

laundering under 18 U.S.C. § 1956(a)(2); Hurley was convicted of

one count of structuring transactions to avoid currency reporting

requirements, see 31 U.S.C. § 5324({a)(3), and one count of

interstate travel in aid of racketeering , see 18 U.S.C. § 1952; the

two Saccoccios and Cirella were likewise convicted of

violations under 31 U.S.C. § 5324(a)(30); and Anthony DeMarco

was convicted of filing false currency transaction reports in violation

of 31 US>C> § 5324(a)(2).

own situation, we deem five of those arguments to have

been abandoned* See United States v, David, 940 F.2d.

722, 737 (Ast Cir.1991)(“Adoption by reference, however,

cannot occur in a vacuum; to be meaningful the

arguments adopted must be readily transferrable from the

proponent’s case to the adopter’s case.”) cert. denied, 504

U.S. 955, 112 S.Ct. 2301, 119 L.Ed.2d. 224 (1992).

Nevertheless, we are left with no shortage of food for

thought. Appellant was served up a bouillabaisse of other

offerings. We address his meatier propositions below,

including three “incorporated” contentions that arguably

have been preserved. And although we do not deem

detailed discussion desirable, the record should reflect

that we have masticated appellant’s remaining points and

found them indigestible.

II. EXTRADITION

As a threshold matter, appellant maintains that his

trial and ensuing conviction violated the extradition treaty

between the United States and Switzerland, and, in the

* The five waived asseverations comprise: (1) whether the CTR

charges, and the evidence engendered thereby, violated the Fifth

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

district court’s jury instructions overlooked the teachings of Reves v,

~-US.--, 113 S.Ct. 1163, 122 LEd.2d. 525 (1993);

(3) whether the court erred in instructing the jury that

coconspirators’ knowledge could be established by evidence of willful

blindness; (4) whether the court erred in determining the scope of

the charged conspiracy; and (5) whether the value of the washed

bargain, transgressed the principles of dual criminality and

specialty. We rejected these importunings.

A. Gaining Perspective.

Further facts are needed to place appellant’s

extradition-related claims into a workable perspective.

On November 18, 1991, a federal grand jury returned the

indictment that inaugurated this prosecution. Count 1

charged appellant, his wife, and eleven associates with

RICO conspiracy. See 18 U.S.C. §1962(d) (1988). A

RICO conspiracy, of course, requires the government to

prove, inter alia, an illicit agreement to conduct a pattern

of racketeering activity. See United States v. Ruiz, 905

F.2d. 499, 503 (1st Cir.1990); see also 18 U.S.C. § 1962(c)

(1988). Proof of a pattern demands that the prosecution

show “at least two acts of racketeering activity.” 18

U.S.C. § 1961(5) (1988). These acts, which must

themselves comprise violations of specified criminal

statutes, see id. § 1961(1)(B), are commonly referred to as

“predicates” or “predicate acts.” See, e.g., Ruiz, 905 F.2d.

at 503.

In the instant indictment, the alleged racketeering

activity comprised, among other specified predicate acts,

incidents of money laundering, see 18 U.S.C. § 1956, 1957

CTR violations, see 31 U.S.C. §5324(a)(1)-(3), and using

travel and facilities in interstate commerce to promote

these money laundering ventures, see 18 U.S.C.

§ 1952(a)(3). The grand jury also averred that the RICO

conspiracy had been accomplished by means that included

failing to file the necessary CTRs for cash transactions

over $10,000. Counts 2-53 of the indictment charged

appellant and others with failing to file CTRs in specific

instances, see 31 U.S.C. §5324(a)(1); counts 54-68 charged

appellant with illegally structuring monetary transactions

in order to avoid the CTR reporting requirements, see id.

§5324(a)(3); counts 69-129 charged appellant and his wife

with the use of property derived from unlawful activities

while engaging in monetary transactions affecting

interstate commerce, see 18 U.S.C. § 1956; counts 130-142

charged appellant and his wife with money laundering in

violation of 18 U.S.C. § 1956(a)(2); and counts 143-150

charged appellant and others with Travel Act violations

under 18 U.S.C. § 1952(a)(3). The indictment also

contained forfeiture allegations under the applicable

RICO and money laundering statutes. See 18 U.S.C. §§

982, 1963.

Six days after the grand jury returned the indictment,

Swiss authorities arrested the Saccoccias in Geneva. They

contested extradition on counts 1 through 68, and counts

143 through 150. On June 11, 1992, the Swiss Federal

Tribunal (SFT) granted extradition on all charges except

those contained in counts 2 through 68. The SFT

reasoned that these 67 counts constituted nonextraditable

offenses because Swiss law did not prohibit the underlying

conduct. The SFT’s discussion did not specifically

mention the forfeiture allegations.

The Swiss surrendered appellant to the United States.

He was transported to Rhode Island and arraigned on

July 15. One week later, the jury returned a superseding

10a

indictment’ On July 30, the Justice Department, in the

person of Michael O’Hare, wrote to Tania Cavassini, a

Swiss official, enclosing a copy of the superseding

indictment and inquiring whether it required a waiver of

the rule of specialty.

On December 1, 1992, apparently in response to an

inquiry from Cavassini, O’Hare transmitted a written

assurance that, although the court papers still formally

listed appellant as a defendant in respect to the CTR

counts (for which extradition had been denied), the

prosecution did not intend to press those counts. O’Hare

explained that the prosecutor would offer no evidence of

appellant’s guilt on those charges with the result that

“American law [will require] the judge to direct the jury

to find the defendant not guilty.” The following day,

Cavassini advised that, under a final decision dated

November 20, 1992, the SFT had “granted extradition of

[appellant] for the facts enclosed in the Count Nr. 1 of the

Superseding Indictment.” Cavassini also indicated that

appellant’s local counsel in Geneva agreed with the SFT’s

* The charges laid against appellant in the superseding

indictment closely paralleled those contained in the original bill.

Specifically, the grand jury accused appellant of RICO conspiracy

(count 1), failure to file CTRs (counts 2-9), filing false CTRs (counts

10-22), unlawfully structuring monetary transactions to evade filing

requirements (counts 23-37), engaging in monetary transactions

using property derived from illegal activities (counts 38-98), money .

laundering (counts 121-33), and interstate travel in aid of

racketeering (counts 134-41). Like the original indictment, the

superseding indictment alleged violations of CTR requirements as

predicate offenses for the RICO conspiracy and Travel Act counts,

and reiterated the forfeiture allegations. However, the superseding

indictment did include several counts not directed at appellant

(counts 99-120).

lla

decision and had scotched any possibility of a further

appeal.

On February 2, 1993, before the start of the trial with

which we are concerned, the government moved to

dismiss those counts of the superseding indictment (counts

2-37) that charged appellant with CTR offenses. The

district court complied. The matter resurfaced in a

slightly different shape ten days later when appellant’s

Swiss lawyer, Paul Gullu-Hart, wrote to Cavassini

expressing concern that appellant’s impending prosecution

on charges with CTR violations were embedded as

predicates for other offenses would insult the rule of

specialty. On March 2, Gully-Hart wrote again, this time

enclosing a copy of the prosecution’s opening statement to

the petit jury. Cavassini forwarded both of these letters

to O’Hare. On March 8, Cavassini spoke with O’Hare

and voiced her concern that appellant might be convicted

under count 1 solely on the basis of CTR offenses.

The next day, Assistant United States Attorney James

Leavey, a member of the prosecution team, advised Judge

Torres that he had spoken with O’Hare. Without

conceding the legal validity of Gully-Hart’s point, Leavey

asked the court to instruct the jury that CTR violations

could not serve as predicates for purposes of either the

RICO of Travel Act accounts. When the court

acquiesced, the government submitted a redacted

indictment that deleted all references to CTR offenses

from the RICO and Travel Act counts. Appellant

nonetheless moved for a mistrial, invoking the rules of

dual criminality and specialty.

The District court denied the motion, explaining that

it had agreed to the government’s proposal purely as an

12a

accommodation. In the judge’s view, the precautions were

not legally required because the SFT had been pellucid in

authorizing prosecution on the RICO count even though

the claimed CTR violations were prominently displayed

therein as potential predicates. The judge noted,

moreover, that the evidence of appellant’s CTR violation

was in all events inadmissible in connection with the

substantive money laundering counts (as to which

extradition had been approved). Appellant resurrected

the issue in his motion for a new trial following the

adverse jury verdict. The court stood firm.

B. Dual Criminality and Specialty.

Although the principles of dual criminality and

specialty are closely allied, they are not coterminous. We

elaborate below.

1, Dual Criminality. The principle of dual

criminality dictates that, as a general rule, an extraditable

offense must be a serious crime (rather than a mere

peccadillo) punishable under the criminal laws of both the

surrendering and the requesting state. See Brauch v.

Raiche, 618 F.2d. 843, 847 (1st Cir.1980). The current

extradition treaty between the United States and

Switzerland embodies this concept. See Treaty of

Extradition, May 14, 1900, U.S.-Switz., Art. II, 31 Stat.

1928, 1929-30 (Treaty).

The principle of dual criminality does not demand

that the laws of the surrendering and requesting states be

carbon copies of one another. Thus, dual criminality will

not be defeated by differences in the instrumentalities or

13a

in the stated purposes of the two nations’ laws. See

Peters v. Egnor, 888 F.2d. 713, 719 (10th Cir.1989). By

the same token, the counterpart crimes need not have

identical elements. See Matter of Extradition of Russell,

789 F.2d. 801, 803 (9th Cir.1986). Instead, dual

criminality is deemed to be satisfied when the two

countries’ laws are substantially analogous. See Peters,

888 F.2d. at 719; Brauch, 618 F.2d. at 851. Moreover, in

mulling dual criminality concerns, courts are duty bound

to defer to a surrendering sovereign’s reasonable

determination that the offense in question is extraditable.

See Casey v, Department of State, 980 F.2d. 1472, 1477

(D.C.Cir.1992) (observing that an American court must

give great deference to a foreign court’s determination in

extradition proceedings); United States v. Van

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

cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 89 L.Ed.2d. 859

(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. If the same conduct is object of criminal

sanctions in both jurisdictions, no more is exigible. See

United States v. Levy, 905 F.2d.326, 328 (10th Cir.1990)

cert. denied, 498 U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d

778 (1991), see also Collins v. Loisel, 259 U.S. 309, 312,42

S.Ct. 469, 471, 66 LEd. 956 (1922) (“It is enough [to

satisfy the requirement of dual criminality] if the

particular act charged is criminal in both jurisdictions.”)

14a

2. Specialty. The principle of specialty -

a corollary to the principle of dual criminality, see United

States v. Herbage, 850 F.2d 1463, 1465 (11th Cir.1988),

cert. denied, 489 U.S. 1027, 109 S.Ct. 1158, 103 L.Ed.2d

217 (1989) - generally requires that an extradited

defendant be tried for the crimes on which extradition has

been granted, and none other. See Van Cauwenberghe,

827 F.2d at 428; Quinn v. Robinson, 783 F.2d 776, 783

(9th Cir.) cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93

L.Ed.2d 247 (1986). The extradition treaty in force

between the United States and Switzerland embodies this

concept, providing that an individual may not be

“prosecuted or punished for any offense committed before

the demand for extradition, other than that for which the

extradition is granted...” Treaty, Art. IX.

Enforcement of the principle of specialty is founded

primarily on international comity. See United States v.

Thirion, 813 F.2d 146, 151 (8th Cir.1987). The requesting

state must “live up to whatever promises it made in order

to obtain extradition” because preservation of the

institution of extradition requires the continuing

cooperation of the surrendering state. United States v.

Najohn, 785 F.2d 1420, 1422 (9th Cir.) (per curiam),

cert.denied, 479 U.S. 1009, 107 S.Ct. 652, 93 L.Ed.2d 707

(1986). Since the doctrine is grounded in international

comity rather than in some right of the defendant, the

principle of specialty may be waived by the asylum state.

See id.

Specialty, like dual criminality, is not a hidebound

dogma, but must be applied in a practical, common sense

fashion. Thus, obeisance to the principle of specialty does

not require that a defendant be prosecuted only under the

1Sa

precise indictment that prompted his extradition, see

United States v. Andonian, 29 F.3d 1432, 1435-36 (9th

Cir.1994), cert. denied,- U.S. -, 115 S.Ct. 938, 130

L.Ed.2d 883 (1995), or that the prosecution always be

limited to specific offenses enumerated in the

surrendering state’s extradition order, see Levy, 905 F.2d

at 329 (concluding that a Hong Kong court intend to

extradite defendant to face a continuing criminal

enterprise charge despite the court’s failure specifically to

mention that charge in the deportation order). In the

same vein, the principle of specialty does not impose any

limitation on the particulars of the charges lodged by the

requesting nation, nor does it demand departure from the

forum’s existing rules of practice (such as rules of

pleading, evidence or procedure). See United States v,

Alvarez-Moreno, 874 F.2d 1402, 1414 (11th Cir.1989),

cert. denied, 494 U.S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d

620 (1990); Thirion, 813 F.2d at 153; Demjanjuk v.

Petrovsky, 776 F.2d 571, 583 (6th Cir.1985), cert. denied,

475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986).

In the last analysis, then, the inquiry into specialty

boils down to whether, under the circumstances, the court

in the requesting state reasonably believes that

prosecuting the defendant on particular charges

contradicts the surrendering state’s manifested intentions,

or, phrased another way, whether the surrendering state

would deem the conduct for which the requesting state

actually prosecutes the defendant as interconnected with

(as opposed to independent from) the acts for which he

was extradited. See Andonian, 29 F.3d at 1435; United

States v Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988),

cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d

16a

185 (1989); United States v. Paroutian, 299 F.2d 486, 490-

91 (2d Cir.1962).

Cc. 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. See Andonian, 29 F.3d at 1434; United States v.

Khan, 993 F.2d 1368, 1372 (9th Cir. 1993), United States

y. Abello-Silva, 948 F.2d 1168, 1173 (10th Cir. 1991), cert.

denied, --U.S.--, 113 S.Ct. 107, 121 LEEd.2d 65 (1992).

Marching beneath this banner, appellant urges that his

17a

conviction must be set aside for three related reasons°

None has merit.

1, Predicate Acts. Appellant’s flagship

contention rests on the postulate that an offense which is

itself nonextraditable cannot Serve as a predicate act in

connection with other, extraditable offenses; and that,

therefore, the government's use of nonextraditable CTR

offenses as predicate acts for Purposes of the RICO and

we A ag

j 827 F.Supp. 832. 835 (D.D.C.1993) (asserting

that “[tJbe rule of specialty is not a right of the accused but is «

- “ene , dk iain i Geta

via carsdion rosedngs) Thins Serna 3 com

effect); see also Uni in, 504 U.S. 655,

659-60, 112 S.Ct. 2188, 2191-92, 119 LEd 2d 441 (1992) (suggesting

the continuing vitality of the Rauscher ). Second, the

(1976) (explaining that jurisdictional questions may be bypassed

when a ruling on the merits will achieve the same result),

18a

others, extraditable offenses might run afoul of dual

criminality or specialty principles, the circumstances of

this case present no such problem.

In general, we do not believe that there can be a

violation of the principle of specialty where the requesting

nation prosecutes the returned fugitive for the exact

crimes on which the surrendering nation granted

extradition. So it is here: the SFT twice approved

appellant’s extradition on counts that prominently

featured CTR offenses as predicates. This approval -- to

which we must pay the substantial deference that is due

to a surrendering court’s resolution of questions pertaining

to extraditability, see, e.g., Casey, 980 F.2d at 1477 -

strongly suggests that the RICO and Travel Act counts,

despite their mention of predicates which, standing alone,

would not support extradition, are compatible with the

criminal laws of both jurisdictions. Though a Swiss

official may informally have fretted about the prospect of

a RICO or Travel Act conviction based on

nonextraditable predicates, we are reluctant to conclude

on this gossamer showing that the SFT did not know and

appreciate the clearly expressed contents of the

indictment when it sanctioned extradition.

To clinch matters, the prosecution avoided any

potential intrusion on the principles of either dual

criminality or specialty by taking a series of prophylactic

actions at trial. The fourth redacted indictment removed

all references to CTR offenses from the compendium of

charges pressed against the appellant. The judge then

reinforced this fumigation of the indictment by advising

the jurors that they should not concern themselves with

19a

whether appellant had committed any CTR offenses’

These precautions purged any taint, and knocked the legs

out from under the line of reasoning that appellant seeks

to pursue.

2. Keeping Faith. Next, appellant asserts

that the government infringed on the principle of

specialty by breaking its promise to the Swiss government

and introducing evidence of CTR violations at appellant’s

trial. Abstractly, we agree with the core element of

appellant’s premise: the principle of specialty requires the

requesting state to abide by the promises it makes to the

surrendering state in the process of procuring extradition.

See Najohn, 785 F.2d at 1422. But, concretely, we are

unable to discern any breach of faith in this instance.

Thus we resist the conclusion that appellant would foist

upon us.

To buttress the claim that the United States did not

keep its word, appellant avers that O’Hare’s facsimile

transmission, sent on December 1, 1992, was the

functional equivalent of an assurance that the prosecutor

’ The judge instructed the jury:

You have heard references during this trial to currency transaction

reporting requirements and I should make it clear that you are not

being called upon to determine whether the defendant violated or

conspired to violate any of those requirements. Therefore, you may

consider evidence regarding the nature of currency transactions with

banks to the extent that such evidence, in your view, may bear on

the source of the money involved and/or the purposes for which the

money may have been transferred or transported. But in reaching

were or were not consistent with transaction reporting requirements

because... as I have just said, that is not an issue in this case...

20a

would not present any evidence to the jury regarding

Saccoccia’s noncompliance with CTR requirements.

Fairly read, the document -- despite its iteration that the

prosecutor “would present no evidence regarding

[Saccoccia’s] guilt ... on the charges for which extradition

was not granted - does not support appellant’s

construction. O’Hare sent the transmittal in response to

Cavassini’s expression of concern that appellant might be

convicted of charges for which extradition had been

denied. His reply, taken in context, see supra p.675,

amounted to no more than an assurance against that

possibility. To read a promise not to introduce any

evidence relevant to CTR violations into O’Hare’s

statement would necessitate wresting it from its contextual

moorings and unreasonably stretching its literal meaning.

We decline appellant’s invitation to indulge in such

phantasmagoric wordplay*

3. The Claimed “Prosecution.”

Appellant’s third contention is that the government

violated the principle of specialty because it prosecuted

him for CTR offenses. Since the nonextraditable CTR

counts, as they pertained to appellant, were dismissed

® Of course, appellant had already been extradited and the

Swiss authorities had already approved the superseding indictment

before this supposed promise was made. This places a further

obstacle in appellant’s path: it strikes us as problematic whether the

breach of a promise made after the defendant has been extradited,

without more, furnishes a basis for reversing an ensuing conviction.

In such circumstances, the surrendering state, by definition, has not

relied on the requesting state’s promise in deciding to return the

defendant.

2la

before the second trial began, his claim is founded on no

more than the fact that his name appeared on the

indictment during the first trial. While this may literally

be “prosecution,” it is prosecution in name only -- and we

will not carry hollow formalism to a point at which it

engulfs common sense. Consequently, we hold that the

mere existence of an unredacted indictment, under the

circumstances of this case, is no reason to invalidate

Saccoccia’s conviction. Cf. Tacket v. Delco Remy Div. of

Gen. Motors Corp., 937 F.2d 1201, 1202 (7th Cir.1991)

(Bauer, C.J.) (quoting doggerel to the effect that “[s]ticks

and stones may break your bones, but names can never

hurt you”).

This leaves appellant’s argument that he was illegally

“prosecuted” because CTR offenses were included as

predicate acts for purposes of the RICO and Travel Act

counts until the fourth redacted indictment surfaced. As

we have already observed, however, it would have been

perfectly proper for the government to seek convictions on

those counts based on CTR predicates. Hence,

appellant’s argument is without merit?

For these reasons, we find appellant’s conviction free

from taint under the applicable extradition laws.

* If more is needed ~ and we do not believe that it is ~ the

evidence of CTR violations, by and large, was independently

admissible to support various aspects of the money laundering

explicitly approved.

22a

Ill. THE COVETED CONTINUANCE

Appellant contends that the district court arbitrarily

refused him a lengthy continuance prior to the start of the

second trial'° leaving him with insufficient preparation

time. Our analysis of the record indicates that the court

acted within its discretion in scotching appellant’s request.

A. Setting the Stage.

At arraignment, two attorneys, Jack Hill and Brian

Ada, entered appearances as appellant’s counsel. Soon

thereafter, Austrian authorities arrested Hill for money

laundering. Hill languished in prison from August

through November of 1992. During that interval, he could

not communicate with, or effectively assist, Saccoccia.

Ada, who had originally been enlisted as local counsel,

stepped into the breach and acted as lead counsel.

Shortly after the first trial began, Ada became ill. The

court granted appellant’s motion for a mistrial and

ordered a severance. The case proceeded to verdict vis-a-

vis the other defendants. See supra note 3.

Naturally, the severance required a separate trial for

appellant. The district court proposed to start in early

February of 1993. Within a matter of days after the court

announced the schedule, Hill, recently released from an

Austrian prison, and Kenneth O’Donnell, a prominent

Rhode Island defense lawyer, entered appearances as

continuances that he sought before the first (aborted) trial. See

supra note 2.

23a

appellant’s counsel. On December 10, 1992, appellant

signed an extensive waiver of the potential conflict of

interest posed by Hill’s representation of him at a time

when Hill himself faced charges of money laundering

arising out of activities undertaken in conjunction with

appellant.

On the same day, the court held a hearing anent the

waiver. Among other things, appellant requested that his

trial be rescheduled to April of 1993 so that his defense

team could have more time to prepare. He claimed this

extra time was necessary to review financial documents,

study surveillance tapes, glean exculpatory evidence, and

analyze inconsistencies in the statements of government

witnesses. The court granted only a two-week extension,

from February 3 to February 17, noting that the original

indictment had been returned in 1991 and that counsel

already had enjoyed a considerable period for

preparation. Subsequent requests for continuances were

also denied.

24a

B. Applicable Legal Principles.

Trial management is peculiarly within the ken of the

district court." That court has great latitude in

managing its docket, including broad discretion to grant or

withhold continuances. Only an "unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay” constitutes an abuse of that

discretion. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct.

1610, 1616-17, 75 L.Ed.2d 610 (1983) (internal quotation

marks omitted); see also United States v. Devin, 918 F.2d

280, 291 (1st Cir.1990) (explaining that an appellate court

must “show great deference” to district court decisions of

this nature, and should overturn such decisions “only for

a manifest abuse of discretion”). For present purposes,

this means that the decision below must endure unless the

party who moved for the continuance can demonstrate

that, in withholding relief, the trial court indulged a

serious error of law or suffered a meaningful lapse of

judgment, resulting in substantial prejudice to the

movant.” See, e.g., United States v. Saget, 991 F.2d 702,

"As we wrote on an earlier occasion:

There is an important public interest in the efficient operation of the

judicial system and in the orderly management of crowded dockets...

The district judge is at the helm, sensitive to the tides that ebb and

flow during a prolonged trial and knowledgeable about systemic

demands. He is, therefore, the person best equipped to balance the

competing considerations.

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

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

ne: : lie ‘ewable.” United

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

25a

708 (11th Cir.) cert. denied, --U.S. --, 114 S.Ct. 396, 126

L.Ed.2d 344 (1993); United States v, Dennis, 843 F.2d

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

For the purpose of determining whether a denial of

a continuance constitutes an abuse of discretion, each case

is sui generis. See United States v. Torres, 793 F.2d 436,

440 (1st Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 287, 93

L.Ed.2d 262 (1986). A reviewing court must look first at

the reasons contemporaneously presented in support of

the request for the continuance. See United States v,

Lussier, 929 F.2d 25, 18 (1st Cir.1991). Other relevant

factors may include such things as the amount of time

needed for effective preparation, the amount of time

actually available for preparation, the amount of time

previously available for preparation and how assiduously

the movant used that time, the extent to which the movant

has contributed to his perceived predicament, the

complexity of the case, the availability of assistance from

other sources, the probable utility of a continuance, the

extent of inconvenience to others (such as the court, the

witnesses, and the opposing party) should a continuance

ensue, and the likelihood of injustice of unfair prejudice

attributable to the denial of a continuance. See United

quotation marks omitted). We think this description heads in the

right direction but goes too far. See, e.g, United States v. Soldevila-

Lopez, 17 F.3d 480, 490 (1st Cir.1994) (reversing district court’s

refusal to grant a continuance on the ground that newly emergent

evidence justified more time); Delaney v, United States, 199 F.2d

107, 115 (1st Cir.1952) (finding that nationwide publicity had created

a hostile atmosphere, and that, therefore, the district court should

have granted a continuance).

26a

States v. Soldevila-Lopez, 17 F.3d 480, 488 (1st Cir.1994);

Lussier, 929 F.2d at 28; United States v. Zannino, 895

F.2d 1, 13-14 (1st Cir.), cert denied, 494 U.S. 1082, 110

S.Ct.1814, 108 L.Ed.2d 944 (1990).

Cc, Analysis.

Here, balancing the relevant considerations leaves us

confident that the circumstances justified the refusal to

grant a continuance. And, moreover, the record believes

apellant’s contention that the court’s obduracy unfairly

prejudiced his rights by leaving him insufficient time to

prepare for trial. Appellant’s most loudly bruited point is

that the government produced 1600 hours of wiretap

audio tapes, and that he had only 65 days, which he

translates as equalling 1608 hours, to listen to them.

Although his lament has some superficial plausibility, we

agree with the district court that, notwithstanding the

number of tapes, it was reasonable to expect defense

counsel to be ready for trial in February. We explain

briefly.

The grand jury indicted appellant in November of

1991. Thus, appellant’s counsel, collectively, had far more

than 67 days to work on the case. Moreover, the lawyers

had the not inconsiderable benefit of a dress rehearsal,

including unlimited access to the full record of the first

trial (in which virtually the entire case against appellant

was aired). O’Donnell, one of appellant’s new attorneys,

was especially familiar with the situation because he had

presented a codefendant who had been acquitted in a

separate trial. Furthermore, Hill and O’Donnell could --

and no doubt did - confer with counsel for the

codefendants and with Attorney Ada. In short, the means

for efficacious preparation were tidily at hand.

27a

Appellant’s other assertions of supposed prejudice

also lacked force. For example, his suggestion that a

continuance might have enabled him to receive a

complete transcript of Agent Shedd’s conversation with

Duenas overlooks the fact that the government provided

him with the entire transcript. See infra Part IV(E). His

claim that more time was needed to obtain a copy of a

DEA report that he asserts would have bolstered the

testimony of an expert witness overlooks the fact that the

expert knew of the report and described its conclusions.

See infra note 18. His claim that a continuance would

have enabled him to obtain enhanced versions of two of

the surveillance tapes before trial, see infra Part IV(F), is

completely unpersuasive given his assertion that the

enhanced tapes, when received, were “unclear” and

“unintelligible.” Appellant’s brief at 36. And, finally,

appellant’s exhortation that a continuance would have

allowed him to investigate whether the laundered cash

represented gambling proceeds, as opposed to drug

money, is unaccompanied by any colorable basis for

assuming that his supposition was anything more than the

most remote of possibilities.

In a nutshell, appellant has not made a sufficient

showing of undue prejudice to warrant us in second-

guessing either the district court’s resolve to start the trial

in mid-February of 1993 or its decision to grant appellant

a far more modest delay than he requested. Since the

record reflects no pressing need for an extended

continuance, and likewise fails to demonstrate significant

harm flowing from the lack of one, the denial of the

motion for a continuance cannot be said to have

substantially impaired appellant’s defense. See, e.g.,

28a

Dennis, 843 F.2d at 653 n. 1. Thus, no cognizable error

inheres.

D. Conflict of interest.

Repeatedly, appellant claims that the denial of a

continuance saddled him with conflict-ridden counsel.

This construct does not withstand scrutiny. To show an

actual conflict of interest, a criminal defendant “must

demonstrate that some plausible alternative defense

Strategy might have been pursued” and “that this

alternative strategy was not pursued because of the

attorney’s other loyalties or interests.” United States v.

Garcia-Rosa, 876 F.2d 209, 231 (ist Cir.1989), cert.

granted and judgment vacated on other grounds, 498 U.S.

954, 111 S.Ct. 377, 112 LEd.2d 391 (1990). Appellant

cannot meet this standard.

Appellant sees the conflict of interest as centered in

Hill’s need to protect himself at his client’s expense.

Appeliant supports this accusation by repeated reference

to Hill’s indictment in Austria on charges that he

conspired with appellant to launder the fruits on unlawful

activity -- but appellant does not suggest any way in which

this alleged conflict of interest adversely affected Hill’s

representation of him at trial. What is more, appellant’s

claim that he was faced with an intolerable dilemma -- he

could accept Hill as his counsel or proceed to trial with

an attorney who was untutored in the case -- is flatly

contradicted in the record.

Appellant insisted, time and again, despite the district

court’s painstaking explanation of his right to conflict-free

counsel, that Hill was the advocate of his choosing.

29a

Appellant told the court unequivocally that he understood

the potential conflict, but desired Hill’s services. And he

adhered to his position notwithstanding the court’s

entreaty to reconsider and its advice that he would be

“better off’ with an attorney free of any ties to the

situation.

Last -- but surely not least - appellant executed a

written waiver stating that, after “{hjaving been fully

advised of the possible adverse consequences arising from

the actual or potential conflicts, with which Hill is or may

be encumbered, he “knowingly, voluntarily, intelligently

and irrevocably [wishes] to waive any and all such actual

or potential conflicts of interest for the purpose of

retaining Hill as a counsel.” When a defendant knowingly

selects a course of action, fully cognizant of its perils, he

cannot later repudiate it simply because his case curdles.

In the circumstances at bar, it is neither unfair nor unjust

to hold appellant to his words. Thus, the district court’s

determination that appellant had voluntarily and

knowingly waived his right to conflict-free representation

is unimpugnable. See Holloway v. Arkansas, 435 U.S.

475, 483 n. 5, 98 S.Ct. 1173, 1178 n. 5, 55 LEd2d 426

(1978) (stating that “ a defendant may waive his right to

the assistance of an attorney unhindered by a conflict of

interests”).

Appellant has another arrow in this quiver. He

reasons that the court should have overlooked his waiver

of conflict-free counsel because Hill’s continued

representation constituted an unwaivable constitutional

transgression. To be sure, a few courts have found a per

se Sixth Amendment violation “where trial counsel was

implicated in the crime for which his client was on trial.”

30a

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

these cases tend to involve circumstances in which an

attorney has reason to fear that a vigorous defense of the

client might unearth proof of the attorney's criminality.

See, e.g., United States v, Cancilla, 725 F.2d 867, 870 (2d

Cir.1984). Although Hill formed the court, in the vaguest

of generalities, that he feared being charged or called as

a witness in appellant's case, he provided no

substantiation of these assertions, nor was he able to

explain how the hypothetical conflict would, at that time,

affect his representation of the appellant. Therefore, the

district court seems entirely justified in concluding that

Hill’s representation of appellant would not be hampered

by a realistic foreboding that vigorous advocacy would

uncover evidence of his own crimes. Cf William

Shakespeare, Macbeth, Act I, sc. iii, 11. 133-34 (1605)

(noting that “present fears are less than horrible

imaginings”).

The sockdolager is that, wholly apart from Hill’s

Status, appellant was also represented at trial by another

lawyer, O’Donnell, who had no conflict of interest.” In

an effort to scale his rampart, appellant suggests that

O’Donnell, too, had an actual conflict of interest arising

out of his previous representation of a codefendant,

Raymond Marotto. By December of 1992, however,

Marotto, a bank employee charged with failing to file

" At the December 10, 1992 waiver hearing, O’Donnell told the

court that he had been “independently retained by [appellant] to be

local counsel and co-counsel.” He assured the court that he would

“independently advise [appellant] with respect to any matters that

might be affected by any potential conflict of interest. Mr. Hill

might have.”

3la

CTRs, had ben acquitted in a separate trial. Appellant’s

convoluted explanation of how O’Donnell’s concluded

representation of Marotto created a conflict of interest is

difficult to follow. He seems to be saying, without any

citation to the record, that Marotto (who was not called

to testify at appellant’s trial) could have been a material

witness. We reject this unfounded speculation.

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

turned on whether he did -~ or did not - have a

responsibility to file the CTRs. There is nothing in the

record that suggests that Marotto had any knowledge that

might have been useful in appellant’s defense. We have

routinely dismissed analogous conflict of interest claims,

see ¢.g., Garcia-Rosa, 876 F.2d at 231 (so holding when

defendant “provide[d] no substantiation” for his assertion

that his counsel had a conflict of interest that manifested

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

previously had represented), and we dismiss appellant’s

claim on the same basis. It is simply too flimsy.

E. The Mid-Trial Motion.

At he close of the government’s case, appellant

submitted a proffer in support of a renewed motion for a

continuance. The proffer suggested a global conspiracy

“between the Israeli intelligence services and the CIA,”

and asserted that he had witnesses who “would testify

about such matters as the Israeli defense industry” and

“{t}he method by which the building of Israeli religious is

financed by the Hasidic Jews in the United States who

engage in money laundering.” Appellant claimed that his

32a

counsel needed time to investigate the matters described

in the proffer.

The district court found the proffer to be “too vague

and unsubstantiated to constitute a basis for granting a

continuance” because its “conclusory allegations” offered

no explanation as to its relevancy to the case. Moreover,

the court found no evidence that diligent efforts had been

made to assure availability of the testimony and

documents in a proper time frame. Hence, the court

determined that the proffer afforded an inadequate basis

for the requested continuance.

We discern no abuse of discretion. While the proffer

weaves a tale of intrigue worthy of an Oliver Stone

screenplay, we are unable to distill sufficient relevance or

likelihood or success from its sinister allegations to

suggest that a continuance, if granted, would have proven

successful.

IV. MONEY AND DRUGS.

In order to obtain a conviction on the money

laundering counts, as charged in the superseding

indictment, the government had the burden of proving

that the laundered funds were derived from the narcotics

trade. See 18 U.S.C. §1956(a)(2). Appellant challenges

both the admissibility and the sufficiency of the evidence

introduced for this purpose. The challenge is unavailing.

A. Standard of Review.

A district court has considerable discretion when

determining whether evidence is admissible. See United

33a

States v, Paulino, 13 F.3d 20, 25 (ist Cir.1994); Zannino,

895 F.2d at 16-17; United States v, Nivica, 887 F.2d 1110,

1126 (1st Cir.1989), cert.denied, 494 U.S. 1005, 110 S.Ct.

1300, 108 L.Ed.2d 477 (1990). Where, as here, the court

finds that evidence is relevant, Fed.R.Evid. 401, but the

defendant nonetheless objects to it on the ground that its

value is overborne by the potential mischief it may cause,

Fed.R.Evid. 403, the trial court must “strike a balance

between probative worth and likely prejudice.” Zannino,

895 F.2d at 16-17. The district court is the primary

arbiter of how these scales should be calibrated. On

appeal, we will reverse its determination only if admitting

the evidence constituted a palpable abuse of discretion.

See United States v. De La Cruz, 902 F.2d 121, 124 (ist

Cir.1989). This is a difficult row to hoe: “Only rarely ~

and in extraordinarily compelling circumstances -- will we,

from the vista of a cold appellate record, reverse a district

court’s on-the-spot judgment concerning the relative

weighing of probative value and unfair effect.” Freeman

865 F.2d 1331, 1340 (ist

Cir.1988).

When no contemporaneous objection appears of

record, the complaining party’s burden increases. In that

situation, appellant’s review is for “plain error.” United

States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir.1993),

cert. denied, -U.S.-, 114 S.Ct. 2714, 129 LEd2d 840

(1994); see also Fed.R.Crim.P. 52(b). When the plain

error standard prevails, we reverse only if a miscue ”so

poisoned the well that the trial’s outcome was likely

affected.” Sepulveda, 15 F.3d at 1188 (quoting United

States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987).

34a

A different standard of review takes center stage

when a defendant challenges the sufficiency of the

evidence supporting his conviction. In that connection,

the inquiry turns on whether, “after assaying all the

evidence in the light most amiabie to the government, and

taking all reasonable inferences in its favor, a rational fact

finder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of

the crime.” United States v. O’Brien, 14 F.3d 703, 706

(ist Cir.1994). In performing the requisite analysis, we do

not assess the credibility of witnessers, 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 (ist Cir. 1993).

B. National Origin Evidence.

Appellant contends that the prosecution made unfair

use of impermissibly suggestive innuendo and stereotypes

about Colombians, thereby inviting reversal. Appellant’s

argument focuses on evidence adduced, or remarks made,

at four different points during his trial. First, appellant

accuses the government of eliciting testimony concerning

the birthplaces of Escobar and Garcia (both of whom

were born in Colombia), while not inquiring about any

other individual’s place of birth. Second, the court

permitted Sharir to testify that appellant told him to be

careful because he was dealing with Colombians, who

would go after his family if they were crossed. Third,

when Donald Semesky, an IRS agent, offered expert

testimony as to the modus operandi of Colombian drug

cartels, he mentioned, among other things, that two

35a

Colombian cartels control the illegal importation of

cocaine in to the United States, and that their narcotics

trafficking generates much cash, necessitating money

laundering. Fourth, the government’s summation

hammered these same points.

Due to the singular importance of keeping our

criminal justice system on an even keel, respecting the

rights of all persons, courts must not tolerate prosecutors’

efforts gratuitously to inject issues like race and ethnicity

into criminal trials. See McCleskey v. Kemp, 481 U.S.

279, 309 & n. 30, 107 S.Ct. 1756, 1777 & n. 30, 95 L.Ed.2d

262 (1987); United States v. Doe, 903 F.2d 16, 21

(D.C.Cir.1990). Emphasizing a person’s national origin

not only may raise concerns of relevancy, undue prejudice,

and prosecutorial misconduct, but also may pose issues of

constitutional dimension. See, e.g., United States v. Vue,

13 F.3d 1206, 1213 (8th Cir.1994); United States vy,

Rodriguez Cortes, 949 F.2d 532, 541 (1st Cir.1991).

This does not mean, however, that all evidence

touching upon race or national origin automatically must

be excluded. A trial involves a search for the truth, and,

as such, it cannot be entirely antiseptic. The trick is to

separate impermissible uses of highly charged evidence

from those uses that are proper and permissible. See

United States v. Alzanki, 54 F.3d 994, 1007-08 (ist

Cir.1995); Doe, 903 F.2d at 25. Thus, while it has proven

acceptable on occasion for a prosecutor to introduce

evidence of oppressive Kuwaiti customs to buttress the

reasonableness of the victim’s professed belief, See

Alzanki, 54 F.3d at 1008, or to make an “unembellished

reference to race simply as a factor bolstering an

eyewitness identification of the culprit,” Doe, 903 F.2d

36a

1278, 1285 (ist Cir.1993)* or to describe drugs as

coming from Colombia to give the jury a complete view

of the conspiracy’s endeavors to import cocaine, see

United States v. Ovale-Marquez, 36 F.3d 212, 220 (1st

Cir.1994), cert. denied, -U.S.--115 S.Ct. 1322, 131 L.Ed.2d

202 (1995) aggressive prosecutors sometimes go too far.

When that occurs, courts must act. We have, for instance,

reversed convictions when, as in Rodriguez Cortes, the

government’s strategem blatantly invited the jury to find

the defendant guilty by reason of his national origin. See

Rodriguez Cortes, 949 F.2d at 541 (finding abuse of

discretion in admission of defendant’s Colombian

identification card); see also Vue, 13 F.3d at 1212-13

(reversing conviction because district court admitted

testimony 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 property of evidence implicating

ethnicity or national origin, context is critical. In the case

at bar, all the evidence about Colombia, viewed in

'* It is noteworthy that in Tajeddini the prosecutor made the

challenged comment in an effort to rebut the defendant’s protest

that he could not have known that he was smuggling heroin because

he did not try to hide the drugs in a secret compartment in his

luggage. See 966 F.2d at 1285. In that respect, Tajeddini resembles

United States v, Khan, 787 F.2d 28, 34 (2d Cir.1986) (finding

defendant’s claim that he lacked the wherewithal to be a major drug

dealer properly rebutted by evidence about the modest price: of

heroin in Pakistan, the practice among Pakistani dealers of selling

drugs on credit, and the tendency of all Pakistanis, regardless of

wealth, to dress alike).

37a

context, was properly admitted and used. By like token,

the prosecutor’s comments wee not beyond the pale.

Appellant’s first contention is factually incorrect. The

prosecutor asked several witnesses other than Escobar and

Garcia (e.g., Sharir and Slomovits) where they were born.

Seen in this light, the casual questioning about the place

of birth, not objected to at trial, cannot conceivably

plunge to the plane of plain error.

Similarly, Sharir’s testimony that Saccoccia told him

to be wary because he was dealing with Colombians is

highly probative on the issue that appellant’s knowledge

that the laundered funds were derived from illegal

activities. Moreover, common sense suggests that drug

traffickers are more likely than, say, Avon ladies, to harm

the families of business associates if the deal sours. It is,

therefore, a gross exaggeration to declare that the

evidence had no purpose other than to Suggest that

Colombians are prone to violence.

Similarly, Agent Semeky’s testimony was relevant and

appropriate in several respects. First, it went a long way

toward explaining the nature of money laundering and the

basis for appellant’s activities. This is a perfectly

legitimate use of evidence. See Doe, 903 F.2d at 19 and

n. 21 (citing cases). Even the testimony about the cartel’s

control over the American drug trade was relevant on the

issue of whether the cash that appellant scrubbed clean

was in fact derived from illegal activities. The evidence

could support a jury’s plausible, though circumstantial,

inference of an illicit source of funds based on appellant’s

repeated wire transfers of millions of dollars in laundered

money to a country that functions as the nerve center of

the world’s traffic in cocaine.

38a

The only remotely problematic references to

Colombia are those contained in the summation. For

example, a prosecutor sated:

[Agent Semesky] told you as an expert, something you

probably already knew, that cocaine comes from

Colombia. That it’s run by cartels in Colombia. That

they ship the money up here and it gets out into the

streets. That’s the reason for all these ten and twenty

dollar bills. These are grams of coke...

Later on, after reminding the jurors that the case

involved roughly $100,000,000 “generated on the streets of

New York that is sent back to Colombia,” a prosecutor

posed a series of rhetorical questions:

If we’re not talking about cocaine, what are we

talking about? Is it from coffee vendors? Is this

money coming from people out in the streets selling

Colombian coffee? Oh, I have had a good day today.

Five hundred thousand dollars, unfortunately, it’s all

in twenty dollar bills. Think of the change they had

to give. This is a case about Roberto Juri and Tulio

Alzate and Fernando Duenas and Stephen Saccoccia,

not Juan Valdez, ladies and gentlemen. The evidence

in this case and the and the only reasonable inference

you can draw is drug money.

Appellant did not interject a contemporaneous

objection to any of these comments.”

'S The closing argument also contained the following passage:

[W]e are asking you to draw some outrageous innuendo that

because people are Colombians, they are involved in cocaine.

The Government simply is not suggesting that. What we are

suggesting is based on the evidence, the cocaine comes from

Colombia. Juan Carlos Garcia testified that he was born in

39a

It strains credulity to suggest, as Saccoccia does, that

the prosecution was arguing that only drugs and coffee

come from Colombia. The remark about coffee vendors

was obviously intended to show the unlikelihood that any

legitimate business would generate the volume of cash

that flowed though appellant’s operation. The quip about

Juan Valdez,* while an unnecessary aside, cannot be

said to emphasize emotion over facts. See Doe, 903 F.2d

at 25. Viewed as a whole, the prosecution’s evidence and

comments about Colombia provide no basis for disturbing

the jury’s verdict.

Before ending our elaboration we not, as an adscript,

that appellant himself is not Colombian, but is of Italian

ancestry. This mitigates one of the most serious dangers

of evidence about a person’s national origin: that the jury

will believe the defendant is guilty because of

Colombia and Raoul Escobar testified that he was born in

Colombia. This defendant went -- on two occasions he went to

Colombia to discuss money-laundering with Tulio Alzate and

Roberto Juri. Although we cannot tell whether the prosecutor

misspoke or whether his remarks were mistranscribed, we

believe that the first sentence contains an error. The overall

meaning of the passage is clear in urging the jury not to make a

prominent persona in coffee advertisements. See Fed.R-Evid.

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

Practice and Procedure § 5105, at 489 (1977) (noting that facts are

“generally known within the territorial jurisdiction of the trial court”

include those which "exist in the unaided memory of the populace”).

Ciad in a serape and sombrero and accompanied by his faithful

donkey, Valdez regularly appears in supermarkets and private

kitchens to remind consumers of the virtues of Colombian coffee.

40a

stereotyping. Appellant has not cited any case in which a

court has reversed a conviction due to evidence touching

upon a national origin not shared by the defendant. This

is not to say that injustice and unfair prejudice may never

result from a conviction based on improper use of

evidence about the national origin of a defendant’s friends

or business associates. But, the ricochet effect of such

evidence is likely to do less harm, on average, than the

direct impact of evidence about the defendant’s country of

origin.

CG The Dog Show.

Appellant faults the district court for admitting

evidence that Bosco von Schleudersitz (Bosco), a nine-

year-old German shepherd trained to detect narcotics,”

alerted to the presence of drugs in bundles of cash

brought to local banks by appellant’s henchmen. At trial,

Bosco’s handler, Sgt. Edward Conley, testified that he

took Bosco to a bank in Cranston, Rhode Island on

March 23, 1990. Bosco “searched ” several areas of the

bank, such as the vault and teller stations, and did not

react. Conley then took Bosco to a room in which a bag

containing $9,000 was located, and when he instructed

Bosco to search for drugs, the dog “showed a strong,

positive aggressive alert, shaking the bag, ripping it apart,

grabbing the money in his mouth, and ripping the money.”

According to Conley, a similar search, with similar results,

took place on April 20, 1990, at a different bank in

17 The dog’s original trainer, a former Luftwaffe pilot, named

him after the German word for “ejection seat.”

4la

Johnston, Rhode Island. In each instance, the currency to

which Bosco reacted had been brought to the bank by

appellant’s associates in order to purchase cashier’s

checks.

To meet this testimony, appellant called two experts

who attacked the reliability of Bosco’s response. One of

these witnesses, Thomas Knott, testified that the manner

in which Conley orchestrated the sniff tests did not

properly control against the possibility of a false alert.

The second expert, Dr. James Woodford, criticized the

testing protocol because the sniff tests were not verified

by chemical field tests. Woodford also testified as to the

widespread contamination of the United States currency

with illegal drugs and the tenuous nature of the link

between a canine alert and a conclusion that particular

currency derived from narcotics trafficking )“(I]f there

were drugs on that money, it doesn’t mean that it is drug

money.”).!*

'* Appellant criticizes the district court for prohibiting Dr.

Woodford from testifying more fully about a Drug Enforcement

Administration (DEA) report that found one-third of the bills in a

random sample of currency to be contaminated by cocaine. See

Jones v. DEA, 819 F.Supp. 698, 720 (M.D.Tenn.1993) (citing DEA

report). This criticism is overblown. The Court permitted the

witness to describe the report’s conclusions and to indicate that he

had relied on those findings. See Fed.R.Evid. 703 (authorizing

reliance on facts or data “of a type reasonably relied upon by

experts in the particular field in forming opinions of inferences upon

the subject”). The court’s decision to preclude attribution of the

report was well within its discretion. Moreover, because the report

was available to appellant despite the government's alleged failure to

disclose it in a timeous manner, the rule of Brady v. Maryland, 373

US. 83, 83 S.Ct. 1194, 10 L_Ed.2d 215 (1963), does not profit

appellant’s cause. See Sepulveda, 15 F.3d at 1178 (“The lack of

42a

Appellant insists that the probative value of dog sniff

evidence is substantially outweighed by its prejudicial

effect, and that the district court erred in refusing to

exclude the evidence under Fed.R.Evid. 403. This claim

deserves serious attention, for recent decisions about the

evidentiary value of a trained dog’s alert to currency are

not uniform. Compare, e.g. United States v. U.S.

Currency, $30,060.00, 39 F.3d 1039, 1041-43 (9th Cir.1994)

(noting widespread contamination and concluding that

“the probative value of a positive dog alert in currency

forfeiture cases in Los Angeles is_ significantly

diminished”); United States v. Carr, 25 F.3d 1194, 1215

(3d Cir.) (Becker, J., concurring in part that a “substantial

portion of United States currency now in circulation is

tainted with sufficient traces of controlled substances to

cause a trained canine to alert”), cert. denied, -U.S.--, 115

S.Ct. 742, 130 L.Ed.2d 643 (1994); and Jones v. DEA, 819

F.Supp. 698, 721 (M.D.Tenn.1993) (suggesting that

“continued reliance of courts and law enforcement officers

on dog sniffs to separate ‘legitimate’ currency from ‘drug-

connected’ currency is logically indefensible) with, ¢.g.,

United States v. $67,220.00 in U.S. Currency, 957 F.2d

280, 285-86 (6th Cir.1992) (noting that “a positive dog

reaction [to currency] is at least strong evidence of a

connection to drugs”); United States v. $215,300 US.

Currency, 882 F.2d 417, 419 (9th Cir.1989) (upholding

forfeiture based n part on a canine alert to currency), cert.

denied, 497 U.S. 1005, 110 S.Ct. 3242, 111 LEd2d 752

(1990); and United States v. Hernando Ospina, 798 F.2d

demonstrable prejudice sounds the death kneil for a ‘delayed

discovery claim.”); Devin, 918 F.2d at 289 (similar).

43a

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.’

Even though widespread contamination of currency

plainly lessens the impact of dog sniffing evidence, a

trained dog’s alert still retains some probative value.

Ordinary experience suggests that currency used to

purchase narcotics is more likely than other currency to

have come into contact with drugs. Here, moreover, the

evidence supports an inference that Bosco’s frenzied

reaction was caused by more than a mere trace of

contamination.

The record contains corroboration of Bosco’s

ordinary human senses could detect something unusual

about the money that appellant’s associates brought to the

banks. One teller testified that he occasionally notices

that the money felt “dusty. almost floury from pizza

dough, that type of feeling.” Another teller reported that

(reviewing

Suggesting that between one-third and 97% of United States

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

Currency, 955 F.2d 712. 714 2. 2 (D.C.Cir.1992) (similar), those

materials could not inform the district court's decision. Cf. Carr, 25

F.3d at 1202 a. 3 (declining to take judicial notice that nearly all

currency contains detectable traces of illegal narcotics).

allowed appellant to call two expert witnesses who

debunked Bosco’s reaction to the currency. If, on one

hand, the jury disbelieved appellant’s experts, it doubtless

discounted the 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 canine sniff. See,

e.g, Ouinones-Pacheco v. American Airlines. Inc, 979

F.2d 1,5 (ist Cir.1992) (explaining that “expert opinion

testimony, even if not directly contradicted, is not

ordinarily binding on a jury”).

I any event, considering the high degree of deference

we owe to a district court’s balancing of probative value

against unfairly prejudicial effects, see Rodriguez-Estrada.

877 F.2d at 156, we cannot say that the trial court abused

its wide discretion in admitting the evidence of Bosco’s

reaction to the currency delivered by appellant's

associates.

4Sa

D. Testimony of Juan Carlos Garcia.

Juan Carlos Garcia, a participant in the money

laundering activities, testified for the government at

appellate’s trial. Garcia said that in 1987, while living in

the United States, he began working for his brother-in-

law, Fernando Duenas. Following Duenas’ orders, Garcia

would respond when paged on his beeper, arrange to

retrieve a quantity of cash, and deposit the money in one

of several bank accounts maintained under the names of

Duenas, Duenas’ wife (Garcia’s sister), or Duenas’

brother. By the end of 1987 the cash had mushroomed

from $10,000-$20,)00 per shipment to $150,000-$200,000

per shipment.

Garcia met appellant for the first time in May of

1989. With Duems’ blessing, the two men arranged that

appellant would accept bundles of cash from Garcia and

send the money » Colombia. On countless occasions

thereafter, appellint received money from Garcia and

redirected it to accounts controlled by Duenas.

At trial, the district court permitted Garcia, over

objection, to testify that, in 1988, Duenas told him that a

other than money. Garcia knew Caesar because Caesar

had brought morey to him on a previous occasion.

Caesar called an informed Garcia that he would be

delivering a kilogam of cocaine. Subsequently, Caesar

handed Garcia a hopping bag containing a block of a

granular substance beige in color. Garcia tried to sell the

merchandise, as diected by Duenas, but was unable to do

so. He eventualy delivered the package to another

individual on Dueaas’ instructions.

46a

Appellant assigns error to the trial court’s admission

of the testimony anent the package. The assignment error

has twin foci: (1) the conversations between Duenas and

Garcia, and (2) Caesar’s assurance that the package

contained cocaine” We believe that the court lawfully

admitted the evidence.

The Evidence Rules provide that “a statement by a

coconspirator of a party during the course and in

furtherance of the conspiracy” is not considered hearsay.

Fed.R.Evid. 801(d)(2)(E). Here, the first prong of the

rule is satisfied. The record contains adequate evidence

that Duenas, Garcia, and Caesar were involved in a single

conspiracy to launder money. By joining that conspiracy

at a later date, appellant effectively adopted coconspirator

declarations previously made. See United States v.

Murphy, 852 F.2d 1,8 (ist Cir.1988), cert. denied , 489

U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989); see

also United States v, Baines, 812 F.2d 41, 42 (ist

Cir.1987) (“[A] conspiracy is like a train. When a party

knowingly steps abroad, he is part of the crew, and

assumes conspirator’s responsibility for the existing freight

~ or conduct - regardless of whether he is aware of just

what it is composed.”).

The second prong of the rule is also satisfied; the

statements were made during and in furtherance of the

very conspiracy that appellant joined. For one thing, we

have held that “when a number of people combine efforts

% The court gave limiting instructions referable to this

evidence, telling the jury that could only be considered on the issue

of whether the moncy appellant laundered was im fact the proceeds

of narcotics trafficking.

47a

to manufacture, distribute and retail narcotics, there is a

single conspiracy, a ’chain conspiracy’, despite the fact that

some of the individuals linking the conspiracy together

have not been in direct contact with others in the chain."

United States v, Rivera-Santiago, 872 F.2d 1073, 1080 (ist

Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106

L.Ed.2d 576 (1989). For another thing, money laundering

and narcotics trafficking are symbiotic activities, each of

which may require the other in order to continue.

Duenas’ efforts to have Garcia sell the cocaine for him

and the group’s ongoing campaign to launder money can

rationally be seen as adjacent links in the lengthy chain

that binds up the narcotics trafficking cycle. Thus, the

district court acted within its proper province in deeming

both activities part of the same conspiracy, and in holding

that the attempted narcotics sale was in furtherance of it.

Consequently, the challenged statements were properly

admitted under Rule 801(d)(2)(E).

We note, moreover, as did the district court, that a

Statement made by an unavailable declarant’ falls

outside the hearsay exclusion if the statement “st the time

of its making ... so far tended to subject the declarant to

civil or criminal liability .. that a reasonable person in the

declarant’s position would not have made the statement

unless believing it to be true.” Fed.R.Evid. 804(b)(3).

Duenas’ and Caesar’s statements to Garcia were

tantamount to admissions that they were dealing cocaine.

Because such statements were against the declarants’

The district court made an explicit, warrantable finding that

Duenas was unavailable for trial. Caesar, whose last name is

unknown, apparently bas disappeared into thin air.

48a

penal interest, they came within the encincture of Rule

804(b)(3) and were admissible on that basis.

Finally, appellant’s suggestion that the admission of

Garcia’s testimony abridged the Confrontation Clause is

off base. It is well settled that a statement falling within

a firmly rooted hearsay exception will not be held to

448 U.S. 56, 66, 100 S.Ct. 2531, 2539 65 LEd2d. 597

(1980); Puleio v. Vose, 830 F.2d. 1197, 1204-05 (ist

Cir.1987), cert denied, 485 U.S. 990, 108 S.Ct. 1297, 99

L.Ed.2d. 506 (1988). It is equally well settled that the

exceptions for coconspirator declarations and for

declarations against penal interest are both firmly rooted

in our jurisprudence. See Bourjaily v. United States, 483

US. 171, 183, 107 S.Ct. 2775, 2782-83, 97 LEd.2d. 144

(1987) (discussing coconspirator exception); United States

y. Innamorati, 996 F.2d. 456, 474 n. 4 (ist Cir. 1993)

(discussing declaration against interest exception), cert.

denied, - U.S.-, 114 S.Ct. 1073, 127 L.Ed.2d. 391 (1994).

In the late 1980s, the DEA set up a network of sham

corporations ostensibly to provide a money laundering

service to underworld elements. DEA Special Agent

James Shedd participated in this reverse string operation

(dubbed “Operation Pisces"). Duenas dealt with the

Pisces network in 1987 and 1988. At trial, a prosecutor

suggested that Shedd would testify as follows: “Mr.

Duenas told him that ninety-nine percent of the money

that he was turning over to the undercover agent was, in

fact, drug money.” On the basis of this representation, the

lower court denied a motion in limine by which the

defense sought to exclude Shedd’s testimony regarding

Duenas’ statements. Shedd told the jury about thirty-

49a

seven transactions in which Duenas supplied cash that the

DEA undercover operation laundered for him. Shedd

also described several conversations with Duenas in which

Duenas reportedly said that he laundered money for

Colombian drug traffickers and “that ninety-nine percent

of the money that money-launderers deal in Bogota comes

from narcotics proceeds.”

During cross-examination, appellant’s counsel

challenged Shedd about this statement. Shedd and

Duenas conversed in Spanish, and some of their

conversations had been recorded. Defense counsel called

Shedd’s attention to one such conversation. The

comment during a discussion in which he explained that,

although it was against the law, foreign currency routinely

circulated in Colombia. He apparently added: "Logically,

the [foreign] currency that circulates the most over there

.- is the dollar ... which ninety-nine percent of it comes

from drug dealing.” Shedd responded that his direct

testimony had been premised not on a single discussion,

but on an overall impression gained from a lengthy

conversation with Duenas” Appellant then moved to

strike Shedd’s testimony. Judge Torres denied the

motion.

Appellant maintains that the district court made no

fewer than four errors in connection with this testimony.

First, appellant posits that Duenas’ statements were

Shedd also offered the following syllogism: “Ninety-nine

percent of the money, of the U.S. dollars that’s is drug money. He’s

50a

barred by the hearsay rule. This claim fails. The court

was warranted in finding that these were coconspirator

declaration and, thus, admissible under Rule 801(d)(2)(E).

See E.G., Sepulveda, 15 F.3d at 1180; Ortiz F.2d at 715-

15.

Appellant’s second contention is that Duenas’

statement, in its true form, was irrelevant because it was

nothing more than a gross generalization about the

Colombian economy. We disagree. Though courts are

sometimes cautious about admitting abstract data as cods

of what actually happened in an individual case, a

percentage like “ninety-nine percent" is quite powerful,

and far surpasses the usual test that evidence is relevant

if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action

more probable or less probable than it would be without

the evidence.” Fed.R.Evid. 401. Trial courts are afforded

wide discretion in determining whether evidence clears

this low threshold, see United States v. Tierney, 760 F.2d.

382, 387 (ist Cir.), cert denied, 474 U.S. 843, 106 S.Ct.

131 88 LEd.@d 108 (1985), and we will disturb an

exercise of that discretion only if manifest abuse appears,

see Sepulveda, 15 F.3d at 1194; United States v. Griffin,

818 F.2d 97, 101 (1st Cir.), cert denied, 484 U.S. 844, 108

S. Ct. 137, 98 L.Ed.2d 94 (1987).

Under this deferential standard, the district court

acted within its lawful powers in deeming Duenas’

statements relevant to the issue of whether the money

appellant laundered was in fact derived from narcotics

trafficking. Duenas’ remark, even in the diluted form that

was heralded on cross-examination, has at least some

probative value in ascertaining whether the drug trade was

Sla

the source of the funds that appellant washed, much as

the fact that a lake is contaminated has some probative

value in ascertaining whether a stream that feeds the lake

is contaminated.

Appeliant’s third sally alleges error in Shedd’s

explanation that his initial testimony about Duenas’

Statement was based on an overall impression from

several hours of conversation. Although a witness is

generally not permitted to testify about his subjective

interpretations of what has been said by another person,

he may do so if his opinion is rationally based on his

perception and is helpful either to an understanding of his

testimony or to the determination of fact in issue. See

United States v. Cox, 633 F.2d 871, 875 (9th Cir.1980),

cert denied, 454 U.S. 844, 102 S.Ct. 159, 70 LEd.2d 130

(1981). In this case, we conclude that the district court

acted lawfully in leaving the testimony intact.

Shedd tendered his explanation of Duenas’ statement

in direct response to a question by appellant’s counsel on

cross-examination. The answer was not followed by a

timely objection or motion to strike. While appellant

challenged Shedd’s qualifications to offer an opinion

about Duenas’ state of mind in a subsequent motion to

strike, this wa too late. See United States v. Moore, 923

F.2d 910, 915 (1st Cir.1991) (holding that Evidence Rule

103 requires that objections be made at the time evidence

is offered); United States v, Parodi, 703 F.2d 768, 783 (4th

Cir.1983) (same). The proper time to have registered an

objection to Shedd’s explanation was immediately after it

was uttered. Accordingly any objection to the

explanation has been waived. And. moreover, even if the

court erred in permitting the answer to stand, it looms as

S2a

harmless beyond all doubt in the context of a very

efficacious cross-examination.

Appellant’s final contention is that the prosecution

knowingly offered Shedd’s testimony despite having a

transcript that refuted it, and, to make a bad situation .

worse, deliberately withheld the transcript from the

defense. Having carefully examined the record, we find

no valid reason to conclude that the prosecution

intentionally mischaracterized Shedd’s proposed testimony

during the in limine hearing, and no hint of prosecutorial

misconduct in the handling of the transcript. At any rate,

it is perfectly clear that defense counsel obtained the

unexpurgated transcript in ample time to conduct a very

effective cross-examination on the following day. There

was no prejudice and, hence, no reversible error. See

Devin, 918 F.2d at 290.

F. The Wiretap Tapes.

The district court allowed the prosecution to

introduce tape recordings of two conversations in which

Saccoccia’s employees made reference to drugs. The

tapes are not entirely audible, and the parties disagree

about what was said during two potentially significant

conversations. The government asserts that, in a

discussion that took place at Trend’s offices, Kenneth

Saccoccio referred to cash that he and Hurley were

counting as “funkin’ drug money." Appellant claims that

this portion of the tape wzs inaudible. The other

conversation took place at Seccoccia Coin Company. In

it, Stanley Cirella spoke to Stephen Pizzo about an

ongoing investigation of appellant’s organization.

53a

According to the government, Cirella declared that "he" -

A pronoun that we take in contest to refer to Saccoccia -

had told him that "they [the authorities] ain’t doin’ this

[conducting the investigation] because of the coke, they're

doin’ this because of the washing of money." Appellant

contends that Cirella said "gold" rather than "coke."

The issue on appeal is whether the district court

abused its discretion in allowing the taped conversations

to be presented to the jury in conjunction with the

government's transcript. In appellant’s view, the inaudible

portions of the tapes are so critical as to make the rest

more misleading than helpful. See United States v,

Carbone, 798 F.@d 21, 24 (1st Cir.1986). Having listened

to the tapes, see United States v. Carbone, 880 F.2d 1500,

1503 (1st Cir.1989), cert. denied, 493 U.S. 1078, 110 S.Ct.

1131, 107 LEd.2d 1037 (1990), we believe that they are

reasonably audible and that the judge appropriately left

their interpretation to the jury. What was or was not said

during a tape-recorded conversation is ordinarily a

question of fact, not a question of law.

Appellant’s fallback position is that, even if the

government accurately transcribed the tapes, the lower

court erred in failing to tell the jury that any statements

about the source of the laundered, money were relevant

only to the speakers’ subjective beliefs. This position

hinges on the premise that, in the absence of a concinnous

foundation showing the speakers’ knowledge, the

comments cannot constitute proof vis-a-vis Stephen

Saccoccia (who did not participate in the discourse) as to

whether the money in fact emanated from drug

transactions.

S4a

We disagree with appellant’s premise for two reasons.

First, Evidence Rule 104(b) provides that "[wJhen the

relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or subject

to, the introduction of evidence sufficient to support a

finding of the fulfillment of the condition." In addressing

foundational issues, the trial judge acts as a gatekeeper,

examining the evidence and deciding “whether the jury

could reasonably find the conditional fact .. by a

preponderance of the evidence." Huddleston v. United

States, 485 U.S. 681, 690, 108 S.Ct. 1496, 15010, 99

L.Ed.2d 771 (1988). The conditional fact may be based

on "reasonable inference from the circumstantial

evidence." QOnujiogu v. United States, 817 F.2d 3, 5 (ist

Cir.1987); See, e.g. Veranda Beach Club Ltd. Partnership

yv. Western Sur. Co., 936 F.2d 1364, 1372 (1st Cir.1991).

In light of the wide discretion afforded to trial judges

in deciding whether an adequate foundation has been laid,

see Real v. Hogan, 828 F.@d. 58, 64 (1st Cir.1987), we

think that Judge Torres acted umnexceptionably in

determining that the jury could rationally infer that

appellant’s employees would not refer to the cash as "drug

money" without some basis in fact. The men who made

the statements were substantially involved in appellant’s

operation and could easily have had opportunities to learn

of the money’s origin.

As we have indicated, there is a second reason why

appellant is mistaken insofar as he sees personal

knowledge about the source of the funds as a prerequisite

to general admissibility of the comments. Both statements

were made by coconspirators an are thus admissible under

Evidence Rule 801(d)(2)(E) without a showing of

55a sities

personal knowledge. See United States v. Goins, 11 F.3d

441, 443-44 (4th Cir.1993), cert. denied, - U.S. -, 114 S.Ct.

2107, 128 L.Ed.2d 668 (1994) (holding that the personal

knowledge requirement of Evidence Rule 602 "does not

apply to statements of a co-conspirator admissible as non-

hearsay under Rule 801(d)(2)(E)"); cf.

Brookover v. Mary Hitchcock Memorial Hosp., 893 F.2d.

411, 415-18 (1st Cir.1990) (Finding no requirement of

personal knowledge for 24imission of a statement under

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

For these two reasons the challenged statements were

properly before the jury, and the court acted appropriately

in refusing appellant’s proposed limiting instruction.

G. The Sufficiency of the Evidence.

Viewing the evidence as a whole and keeping in mind

that the prosecution;s burden of proof can be satisfied by

either direct or circumstantial evidence, see O’Brien, 14

F.3d at 706, we conclude that a rational factfinder could

determine beyond a reasonable doubt that the money

appellant laundered was in fact derived from the narcotics

trade.

Rehashing the evidence would serve no useful

purpose. We do take special note, however, that

appellant’s money-washing operation matched Agent

Semesky’s description of how Colombian drug rings

traditionally laundered ill-gotten gains, and that, as the

district court observed, it is difficult to conceive of any

non-narcotics-related business that could create a

comparable cascade of creased currency. That the waves

of cold case typically appeared in well-worn bills of small

56a

denomination makes the tie tighter. Then, too, the jury

heard competent evidence that Duenas, who furnished

money for appellant to launder, himself performed

monetary ablutions for narcotics traffickers (and, on one

occasion, supplied cocaine for an associate to sell). The

canine alert to currency that appellant’s associates had

gathered furnished some added support for the theory that

the money emanated from drug sales. Finally, appellant’s

own employees suggested on two occasions that the

washed funds were linked to narcotics.

Taken in the ensemble, these pieces of evidence

provide an adequate foundation on which the jury could

build a finding that appellant laundered drug money.

Jurors, after all, are not expected to resist common-sense

inferences based on the realities of human experience.

See Veranda Beach Club, 936 F.2d at 1372 ("The law is

not so struthious as to compel a factfinder to ignore that

which is perfectly obvious."); United States v. Ingraham,

832 F.2d 229, 240 (1st Cir.1987) (similar), cert. denied,

486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d (1988).

V. FORFEITURE

The court bifurcated appellant’s trial, separating the

substantive criminal charges from the forfeiture claims.

Appellant waived his right to trial by jury on the latter

counts. All counsel assured the judge that they had no

additional evidence to present at the second anticipated

phase of the trial and, therefore, that the hearing on

forfeiture would “be purely a matter of legal argument."

Accordingly, the judge scheduled arguments for March 26,

1993.

57a

On the assigned date, appellant was before a

California court in connection with a separate action. His

counsel objected to proceeding in appellant’s absence.

See Herring v. New York, 433 U.S. 853, 863-65, 95 S.Ct.

2550, 2556-57, 45 L.Ed.2d 593 (1975) (remarking a

defendant’s constitutional right to make a closing

argument, even in a bench trial); Fed.R.Crim.P. 43(a)

("The defendant shall be present at ... every stage of the

trial including .. the imposition of sentence....:).

Specifically, counsel stated that (1) he required appellant’s

assistance "in responding to whatever it is the government

may say about the evidence as it relates to the law that’s

going to be argued,” and (2) appellant might wish to

exercise his right to make a closing statement. The court

then offered to proceed on the understanding that

appellant’s counsel could make incremental arguments at

the sentencing hearing, with appellant present” When

counsel persisted in his original position, the court

terminated the session.

The disposition hearing was held on May 12, 1993.

Appellant was present throughout. The district court

determined that he should forfeit all the money laundered

during the life on the conspiracy, and using bank records,

fixed the amount at $136,344,231.86. See United States v.

Saccoccia, 823 F.Supp. 994, 1006 (D.R.1.1993). At the

government's urging, the court subsequently amended the

7 Noting that forfeiture is part of the sentencing process, and

that Saccoccia would be present for sentencing, the court suggested

to defense counsel that "to the extent the sentencing includes the

potential for forfeiture order, you can be heard on that issue just as

you would on any other sentencing issue at that time.”

;

58a

forfeiture order to specify substitute assets for

forfeiture” See 18 U.S.C. § 1963(m) (1988).

Appellant assigns error. He strives to persuade us,

inter alia, that applicable extradition doctrines barred

forfeiture; that the court ignored the strictures of due

process; and that the forfeiture order swept too broadly.

We are not convinced.

A. Extradition/Forfeiture.

Appellant asserts that the forfeiture entered against

him violates the rule of specialty because it is tantamount

to prosecution and conviction for an offense on which

extradition was neither sought nor granted. He also

suggests that the principle of dual criminality prohibits the

forfeiture because Swiss law does uot render a defendant

criminally liable for forfeiture by reason of unlawful

money transfers. These initiatives fail because they ignore

the irresistible conclusion that, at least for present

purposes, criminal forfeiture is a punishment, not a

separate criminal offense.

*In discussing substitutions, Saccoccia seeks to incorporate by

reference his codefendants’ plaint that the court improperly allowed

the government to add property subject to forfeiture while the cases

were on appeal. We reject this remonstrance. This district court

did not “amend” its judgement, but, rather, ordered forfeiture of

substitute assets based on a supportable finding that appellant had

transferred forfeited proceeds beyond the jurisdiction of the court.

Contrary to appellant’s intimation, this procedure did not insult his

constitutional entitlement to due process, nor did it run afoul of the

Double Jeopardy Clause.

59a

We think that the genealogy of modern criminal

forfeiture is important. The device is born out of the

mating of two historically distinct traditions. One parent

is civil for forfeiture, and in rem proceeding rooted in the

notion that property used in, or intimately associated with,

criminal activity acquires a taint, and that such property

is therefore forfeitable even if not owned by the

miscreant. See United States v. Sandini, 816 F.2d 869,

872 (3d Cir.1987). The second parent is old-hat criminal

forfeiture, which traditionally operated as an incident of

a felony conviction is personain against a convicted

defendant, requiring him to forfeit his property to the

crown. See United States v. Nicholas, 841 F.2d. 1485,

1486 (10th Cir.1988). The forfeiture provisions of RICO

combine both traditions because they act in personam

against the defendant, yet require a nexus between ‘he

forfeited property and the crime” See id. at 1486-88

(reviewing historical aspects of forfeiture); Saccoccia, 823

F.Supp. at 1001.

Partially as a result of this mixed heritage, courts have

struggled to categorize the resultant hybrid - modern

criminal forfeiture - as either a punishment for, or an

element of, a criminal offense. The majority view regards

criminal forfeiture for narcotics offenses under 21 U.S.C.

>The district court imposed forfeiture pursuant to both a

money laundering statute, see 18 U.S.C. § 982, and a RICO statute,

see id. § 1963. Although there are some slight differences in the

operation of the two statutes, see Saccoccia, 823 F.Supp. at 1001-05,

these differences do not affect our analysis of the extradition issues.

For simplicity’s sake, we refer only to the RICO forfeiture statute.

Nonetheless, our discussion is equally applicable to criminal

forfeiture under the money laundering !aws.

60a

§ 853 as part of the punishment imposed on a defendant.

See, e.g., United States v, Elgersma, 971 F.2d 690, 694

(11th Cir.1992) (holding that "criminal ferfeiture is part of

the sentencing process and not an element of the crime

itself"); United States v. Hernandez-Escarsega, 886 F.2d

1560, 1576-77 (9th Cir.1989) (similar), cert. denied, 497

U.S. 1003, 110 S.Ct. 3237, 111 LEd.2d 748 (1990):

Sandini, 816 F.2d at 875 (similar). Other straws in the

wind blow in the same direction. See e.g., Alexander v.

United States, -- US. --, -, 113 S.Ct. 2766, 2772, 125

L.Ed.2d. 441 (1993) (characterizing a RICO forfeiture

order against a pornography merchant as "a punishment

for past criminal conduct"); United States v. Kingsley, 851

F.2d 16, 18 n. 2 (1st Cir.1988) (noting in dictum that "in

personam criminal forfeit:re ... is intended to directly

punish persons convicted of a criminal offense by forcing

them to forfeit the proceeds obtained as a result of that

offense"). Withal, there remains some nagging doubt

about whether forfeiture is strictly a punishment as

opposed to a separate substantive charge. See e.g., Caplin

& Drysdale, Chtd. v. United States, 491 U.S. 617, 628 n.

5 S.Ct. 2646, 2654 n. 5, 105 L.Ed.2d 528 (1989) (stating in

dictum that “forfeiture is a substantive charge in the

indictment against a defendauat"); Fed.R.Crim.P. 31(e)

advisory committee’s note (noting committee’s assumption

that "the amount of the interest or property subject to

criminal forfeiture is an element of the offense to be

alleged and proved").

We resolve that doubt favorably to the government to

the extent necessary to rebut Saccoccia’s claims. Thus, we

hold that, for purposes of extradition law, forfeiture is

neither a free-standing criminal offense nor an element of

6la

a racketeering offense under RICO, but is simply an

incremental punishment for that proscribed conduct.

Consequently, a defendant may be subjected to a

forfeiture order even if extradition was not specifically

granted in respect to the forfeiture allegations. We base

this ruling primarily on three pillars: the weight of

authority counsels in this direction; the punitive aspects of

criminal forfeiture predominate (among other thins, RICO

forfeiture retains the functional traits of a punishment

since it is definitively imposed only after the defendant’s

guilt has otherwise been determined); and, finally, treating

criminal forfeiture as a punishment in the extradition

milieu is consistent with the emphasis that the doctrine of

dual criminality places on the unlawfulness of the

defendant’s conduct, and, correspondingly, on the lack of

any requirement that a crime have identical elements or

penalties in the two jurisdictions, see Collins, 259 U.S. at

312, 42 S.Ct. at 470-71; Levy, 905 F.2d at 328.

It follows, therefore, that appellant was properly

subjected to a criminal forfeiture order even if he was not

extradited on forfeiture charges and even if Swiss law

does not provide for criminal forfeiture under comparable

circumstances.

B. Procedural Aspects.

Appellant also declaims that the procedure employed

with regard to the forfeiture order deprived him of four

intertwined rights: the right to present a closing

argument, the right to be present to assist counsel during

the closing argument, the right to entry of a verdict of

62a

forfeiture, and the right to be present for entry of a

verdict. This quadrant of complaints is unavailing.

The first two grievances are not supported by the

record. Even though appellant was absent on March 26,

the court offered his counsel the opportunity to make

further arguments at the disposition hearing (at which

appellant was in attendance). Affording appellant this

opportunity satisfied his right to make a closing statement

and his right personally to assist counsel. The fact that

appellant chose not to avail himself of the afforded

opportunity is beside the point.

Appellant’s next contention arises out of the idea that

the court violate Fed.R.Crim.P. 32(b) and 31(e) by

ordering forfeiture without entering a special verdict.

Because appellant did not object to the district court’s

decision to make an oral forfeiture order followed by a

written decision, however, our review is limited to a hunt

for plain error. See United States v. Taylor, 54 F.3d 967,

972-73 (1st Cir.1995); Griffin, 818 F.2d at 99.

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

be returned when the indictment or information contains

a forfeiture allegation. But, Rule 31(a) makes it

transpicuously clear that this requirement is geared to jury

trials. See Fed.R.Crim.P. 31(a) (stating that the verdict

"shall be returned by the jury to the judge in open court").

When the judge is the factfinder, the procedure for

making factual determinations is governed by

Fed.R.Crim.P.23(c). That rule provides:

In a case tried without a jury the court shall make a

general finking and shall in addition, on request make

before the general finding, find the facts specially.

Such findings may be oral. If an opinion or

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memorandum of decision is filed, it will be sufficient

if the findings of fact appear therein.

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

In the instant case, the judge entered an oral order,

followed very shortly by a written memorandum limning

his findings of fact. In our opinion, this procedure did not

constitute plain error. See e.g., Gibbs v, Buck, 307 U.S.

66, 78, 58 S.Ct. 725, 732, 83 L.Ed. 1111 (1939); see also

Aoude_y, Mobil Oil Corp, 862 F.2d 890, 895 (ist

Cir.1988) (observing that reversal "would be an empty

ritual" once the lower court had remedied its original

error and belatedly made written findings). Thus, we

deny appellant’s request that the forfeiture order be

vacated on this score.

C. Extent of the Forfeiture.

Appellant maintains that the "proceeds" subject to

RICO forfeiture should not include all the funds

laundered by this organization, but only the organization’s

profit. He does not dwell on this thesis, instead electing

to incorporate tne codefendants’ argument to this effect.

We, too, prefer not to linger. The district court treated

this contention at length, and we find ourselves in

substantial agreement with the reasoning explicated in

that court’s opinion. See Saccoccia, 823 F.Supp. at 1001-

01.

VI. SENTENCING

Without objection, the district court predicated its

sentencing calculations on the November 1, 1992 edition

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of the federal sentencing guidelines” See United States

y. Harotunian, 920 F.2d 1040, 1041-42 (ist Cir. 1990)

("Barring any ex post facto problem, a defendant is to be

punished according to the guidelines in effect at the time

of sentencing.") The court compiled appellant’s criminal

history score and placed him in category II. Turning to

the other side of the grid, the court started with the

money laundering guideline. Since appellant had been

convicted under 18 U.S.C. § 1956 (a)(2)(A), he had a base

offense level (BOL) of 23. See U.S.S.G. § 2S1.1(a)(1).

The court then added 13 levels because the value of the

laundered funds exceeded $100,000,000, See id. §

2S1.1(b)(2)(N), and three levels premised on a finding

that appellant knew (or believed) that the funds were

derived from narcotics sales, see id. § 2S1.1(b)(1).

Finding appellant to be the organizer and leader of the

money laundering enterprise, the court escalated four

levels pursuant to U.S.S.G. § 3B.1(a). Finally, citing

appellant’s unsuccessful attempt to use his medical history

as a device for extracting a continuance, see supra note 2,

and stressing that the feigned illness occurred shortly after

the court had denied appellant’s request for postponement

of the trial on other grounds, Judge Torres went up two

levels for obstructing jusiice. See U.S.S.G. § 3C1.1.

These calculations yielded an adjusted offense level of 45

for the money laundering counts.

In large part, the district judge adopted the calculations

recommended by the probation department. We concentrate on

how the court arrived at the guideline sentencing range (GSR), and

do not differentiate between the judge’s original thinking and his

acceptance of the probation department's ideas.

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The court then turned to the RICO conspiracy count.

Inasmuch as the applicable guideline, id § 2E1.1,

prescribes the use of an offense level equal to the greater

of 19 or the adjusted offense level for the underlying

conduct (here, money laundering), appellant’s adjusted

offense level remained unchanged. The court took a

similar look at the Travei Act counts with a similar result

(the applicable guideline, U.S.S.G. § 2E1.2, directs the use

of an offense level equal to the greater of 6 or the

adjusted offense level for the underlying conduct). At the

bottom line, then, the counts of conviction produced a

total offense level (TOL) of 45. See id. §§ 3D1.2(d),

3D1.3(b).

A TOL of 43 or higher requires the imposition of a

sentence of life imprisonment regardless of the offender’s

criminal history category”” See U.S.S.G. Ch. 5, Pt. A

(Sentencing Table). However, the offenses of conviction

in this case all carry maximum sentences less that life.

When, as in this instance, the maximum sentence for each

The Sentencing Commission recently submitted to Congress

proposed a guideline amendments that apparently would reduce the

sentence mandated for conduct of the kind at issue here. See 60

Fed.Reg. 25,074, 25,085-86 (1995). The proposed changes will

become effective November 1, 1995, absent congressional action to

the contrary. See 28 U.S.C. § 994(p) (1988). The Commission has

not yet decided whether the changes, if they become law, should

apply retrospectively. See 60 Fed.Reg. at 25,074. If the amendments

are eventually determined to warrant retroactive application,

appellant may then be in a position to seek appropriate relief int he

district court. See United States v. Connell, 960 F.2d 191, 197 n. 10

(1st Cir.1992); United States v, Miller, 903 F.2d 341, 349 (Sth

Cir.1990). We express no opinion on the subject, but merely note

the possibility and proceed without further reference to what the

future may bring.

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offense is lower than the minimum punishment mandated

by the applicable GSR, the guidelines require imposition

of consecutive sentences “to the extent necessary to

produce a combined sentence equal to the total

punishment.” Id. § 5G1.2(d). Applying this principle, the

district court concluded that sentences on the several

counts of conviction should run consecutively to the extent

necessary to effectuate a life sentence. Because the

sentencing guidelines prescribe life in prison for persons

who, like appellant, sport a TOL of 43 of higher, whereas

all the counts of convictions have statutory maxima that

are expressed in terms of a finite number of years, the

court imposed the longest possible sentence on each count

and ran the sentences consecutive to one another. The

result: an incarcerative sentence of 660 years”

Appellant assails this sentence on manifold grounds.

His principal lines of attack are that mandatory life

sentences under the guidelines are illegal; that the district

court misconceived its authority in imposing sentence; that

the court violated the Ex Post Fact Clause; and that the

court erred in making upward adjustment for obstruction

of justice.

A. The Mandatory Life Sentence.

** The district court imposed this type of sentence rather than

attempting to estimate the length of appellant’s life and then

fashioning a sentence of corresponding duration. We find no fault

with this approach. Despite the superficial severity of a 660-year

sentence, it is neither more nor less than the func

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