# Petition for Writ of Certiorari — Saccoccia v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1105

## Text

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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

I.

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

iv

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

vi

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.

2

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).

11

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

12

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

13

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

4

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

15

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

16

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

17

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).

18

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).

19

$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.

20

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.

21

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"

22

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

23

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").

24

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

25

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

26

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

27

ee

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.

28

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

op

BN fa ae

ee.

pense A
| el ge

APPENDIX A
UNITED STATES of America, Appellee,

v.

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.

3a

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.”

4a

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

Sa

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.

6a

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).

Ta
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

8a

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

9a

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

© Appellant does not assign error to the denial of the
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
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

'© We take judicial notice that the fictional Juan Valdez is a
prominent persona in coffee advertisements. See Fed.R-Evid.
201(b)(1); 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure § 5105, at 489 (1977) (noting that facts 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 detectabl

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1934%3A1. Public record. Not legal advice.