Petition for Writ of Certiorari — David v. United States

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No. 91- | FES 24 1999

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

SHMUEL DAVID,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

me eae ea aS

= SS Se EE Eel SC ESE ESE LE SES SS SS EL LS LE LE LE SS ES SS Ee EE eS EE

PETER GOLDBERGER

Counsel of Record

PAMELA A. WILK

The Ben Franklin, Suite 400

Chestnut Street at Ninth

Philadelphia, PA 19107

(215) 923-1300

Attorneys for Petitioner

February 1992

QUESTIONS PRESENTED

1. In Garrett v. United States, 471 U.S.

773 (1985), on the facts there involved,

this Court held that Congress intended,

and the Double Jeopardy Clause therefore

permits, separate punishments for Contin-

uing Criminal Enterprise and its under-

lying series of predicate drug offenses.

(a) Is Garrett still good law, even

though under the Sentencing Reform Act

and the Anti-Drug Abuse Acts of 1986 and

1988, a total punishment is now allowed,

and called for, on the CCE conviction

which accounts for all of the defendant’s

relevant conduct?

(b) Is the Garrett holding applicable

where, in contrast to that case, the CCE

did not continue in time beyond the

underlying series of offenses, and all

counts are charged and tried together?

(2) May an appellate court uphold the

application of an enhancement under the

United States Sentencing Guidelines on a

fact-bound basis not considered or relied

upon by the district court?

(3) Is the specific provision of Title

III which permits after-the-fact mini-

mization of wiretapped foreign language

conversations only if "an expert" in the

language is "not reasonably available

during the interception," 18 U.S.C. §

2518(5), violated when federal agents

make no attempt to locate a Hebrew

language translator in the Boston area or

anywhere in the United States, instead

deciding for "security" reasons tc obtain

assistance from Israel, causing delay

which results in the Hebrew conversa~

tions’ being intercepted and recorded

without any minimization at all?

oi fe

TABLE OF CONTENTS*

QUESTIONS PRESENTED Paes fs 6 oS. oe SD

LIST OF ALL PARTIES ce eee oe «6

INDEX TO APPENDIX 0c oe ae a 2

TABLE OF AUTHORITIES ... + © © «© «© « V

PETITION

OPINIONS BELOW ...- «eee et ee eo

CPPPCP EC 5 «© «© 6 «© ¢ * #6 8 © 2 @ © @

STATUTES, RULES AND CONSTITUTIONAL

PROVISION INVOLVED .....-+-++s+ + 3

LIST OF ALL PARTIES

The caption of the case in this Court

contains the names of all parties to this

petition (Shmuel David and the United

States). Petitioner had five codefend-

ants at trial in the district court:

Eliahu Abramson, Efraim Natanel, Yehuda

Yarden, Jaime Toro Aristizibal, and

Amparo Toro Aristizibal. Abramson was

acquitted, and all of the others with the

exception of Natanel were parties to

petitioner’s appeal to the First Circuit.

Jaime Toro Aristizabal has petitioned

this Court separately for certiorari

under Docket No. 91-6098. Undersigned

counsel understand that Yarden has

submitted a petition which has not yet

been docketed.

-iii-

STATEMENT OF THE CASE oe er a ek ee ee

a. Procedural History ee ee er eee

Jurisdiction of court below . 21

b. Statement of Facts ey car a 22

REASONS FOR GRANTING THE WRIT

1. The court below misapplied Garrett

v. United States, 471 U.S. 773 (1985),

to permit cumulative conviction and

sentencing where a defendant’s Contin-

uing Criminal Enterprise does not

continue in time beyond the date of

indictment for the CCE’s predicate

offenses, and despite subsequent,

critical changes in the federal drug

and sentencing lawS. ..-.--.+--+eeees 24

2. In upholding a firearm enhancement

on a basis not relied upon by the

prosecutor or the district court, the

court of appeals so departed from the

accepted course of judicial proceed-

ings as to call for an exercise of

this Court’s supervisory power. .. 41

3. Whether the exception in the

wiretapping statute of Title III

permitting after-the-fact minimization

of foreign language conversations

where an expert is "not reasonably

available" during interception can be

satisfied where the government assumes

that it must import a police officer

from the foreign country, without

making any effort to obtain an expert

in the United States, presents an

important question of federal law

calling for resolution by this

og ee ee ee ee ee ee ee 56

ere eee i a 3 ke Oa ee ees ee

when

INDEX TO APPENDIX

A. Opinion of the Court of Appeals and

Order Denying Panel Rehearing... A1-A95

B. Order Denying Suggestion for

Rehearing in BanC ..-eeeeeceececes B1-B2

C. District Court’s Memorandum and

Order denying motion to suppress

(ExCeErpts) wee ceeeeerereeeerececes Ci-C2

TABLE OF AUTHORITIES

CASES

Batson v. Kentucky, 476 U.S. 79 (1986) .63

Blockburger v. United States,

2646.0.8. 208 CIS) 66 kaneis 33

Braxton v. United States, 500 U.S. --,

114 L.Ed.2d 385 (1991) .......2-20--, 33

Chiarella v. United States,

445 ©.5. 380 €200G) 6 cine nda Sek cuns 54

Diaz v. United States,

223 U.S.~ 442 (1912) we cceeeeececces 28

Dunn v. United States,

443 O.8. 206 C1978) 6005045 eeenene 54

Garrett v. United States,

471 U.S. 773 (19B5) asccnvesencs passim

Jeffers v. United States,

690 0.8. 137 CISTI) oaccsacvenes 52n

Korematsu v. United States,

323 U.S. 214 (1944) «eee eeeeees 63

McCormick v. United States, 500 U.S. -~-,

114 L.EG@.2da 307 (1991) ..-----ee- 54

McMillan v. Pennsylvania,

477 U.S. 79 (1986) 2 eee ee eeees 54

Miller v. Florida, 482 U.S. 423 (1987).44

Missouri v. Hunter, 459 U.S. 359 (1983) 33

Scott v. United States,

436 U.S. 128 (1978) .-----eeeeees 60

United States v. Cale, 508 F.Supp. 1038

(S.D.N.Y¥. 1981) ...eeeeecececcees 63

United States v. David, 940 F.2d 722

(Ist Cir. 1991) ...--+eeeeeees passim

United States v. Natanel, 938 F.2d 302

(Ist Cir. 1991) ...--ee eee eeeeces 16

United States v. Ojeda Rios, 495 U.S. --,

109 L.Ed.2d 224 (1990) ........-- 64n

United States v. Paulk, 917 F.2d 879

(Sth Cir. 1990) ...eeeeeeeeeeeees 53

United States v. Pungitore, 910 F.2d 1084

(3d Cir. 1990), cert. denied, 111

S.Ct. 2010, 114 L.Ed.2d 98 (1991) 34

United States v. Vazzano, 906 F.2d 879

(2d Cir. 1990) ..ceeeeeeereeecces 53

=yie@

Whalen v. United States,

446 0.8. G86 (USCS) 2nccecssss 33, 34

CONSTITUTION, STATUTES AND RULES

U.S. Const., amend. V,

Double Jeopardy Cl. .... 16, 25-27, 31

16 U.S.C. §& S2BAS ceenseseosssceserssere 64

18 U.S.C. § 2518(5) .-----2-eee i7, 37, 60

18 U.B.€. SB BAAR caves cevsessssrvseress 22

18 U.S.C. § 3571(G) acccccccccesscsece 39

18 U.S.C. § 3623(c) (former) .......- 39n

18 0.8.6. BG Sree sen une ees aa, Sig Dae Oo

sa 8.6.C. @ GELLER) sce esses :1, 24, 39

29: 8 6. Se BOS ix ck csc c wees cas eee 12

23 U.8.Ci 2 BEG cceaeeeccnssenidsedaee 11

21 U.S.C. § B48 acccvcccevscsceses passim

Se 0.8.6. B LEBEUL). coos canteannceweus 3

28 U.8.Gr. § L29L ccecrcsvececesesecsees 22

Anti-Drug Abuse Acts

of 1986 and 1988 ........-. sf. 36, 38

Comprehensive Drug Abuse Prevention and

Control Act Of 1970 ..----ceeees 27, °38

Omnibus Crime Control and Safe Streets

Act of 1968, Title III ........ i2, 57

Sentencing Act of 1987, Pub.L. 100-182,

101 StAt. LAGS woctecesasesnseneeers 44

Sentencing Reform Act of 1984 (SRA),

Pub. L. No. 98-473, 98 Stat. 1987 .. 37

Fed.R.App.P. 4(D) «eee eee eeeeeeeecces 22

Fed. R-Crim.P. 6(A) ccc ccrccecsecsevcees 62

Fed. R.Crim.P. 52(a) cccccccecccccsces 64n

-vil-

U.S. Sent. Comm’n Guidelines:

§ 1B1.3 (1988

§ 2D1.1(b) (1

MISCELLANEOUS

H.R.Rep. No.

1970 U.S.C. Cong.

S.Rep. No. 22

Admin. News 3182

ee 44, 45n, 53, 55

966) .«.. 15, 19, 44, 49n, 53

91-1444, pt. 1, reprinted in

& Ad. News 4570 35

5, 98th Cong., 2d Sess.,

reprinted in 1984 U.S.C. Cong. &

Terererere cee ee 37

33659 (Sept. 24, 1970) 35

116 Cong.Rec.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

SHMUEL DAVID respectfully petitions

this Court for a writ of certiorari to

review the judgment and opinion of the

United States Court of Appeals for the

First Circuit entered on July 29, 1991,

as to which petitioner’s petition for

rehearing with suggestion for rehearing

in banc was denied on September 27, 1991,

upholding petitioner’s convictions and

sentences for CCE and substantive drug

offenses under the Sentencing Reform Act

and prior law.

OPINIONS BELOW

The Opinion of the United States

Court of Appeals for the First Circuit,

filed on July 29, 1991, is published as

United States v. David, 940 F.2d 722 (1st

Cir. 1991). It is Appendix A to this

petition. The Order of the court of

appeals denying the petition for panel

rehearing, reprinted at the end of the

published opinion, 940 F.2d at 743-44, is

also part of Appendix A. The Order of

the court of appeals denying rehearing en

banc is Appendix B. The pertinent parts

of the Memorandum and Order of the

district court denying, inter alia, peti-

tioner’s motion to suppress the contents

of and evidence derived from intercepted

wire communications, is Appendix C.

JURISDICTION

The judgment of the United States

Court of Appeals for the First Circuit

affirming the petitioner’s convictions

and sentences for CCE and substantive

predicate drug offenses was entered on

July 29, 1991. The Court of Appeals’

Order denying petitioner’s petition for

rehearing with suggestion for rehearing

in banc was entered on September 27,

1991. By Order dated December 17, 1991,

under Docket No. A-432, Justice Souter

granted petitioner’s timely filed

application for an extension of time

within which to file this petition for

writ of certiorari, to and including

February 24, 1992. Petitioner invokes

this Court’s jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTES, RULES AND CONSTITUTIONAL

PROVISION INVOLVED

The Double Jeopardy Clause of the

Fifth Amendment to a eee States

Constitution provides: "[(N]jor shall any

person be subject for the same offence to

be twice put in jeopardy of life or

Title III of the Omnibus Crime

Control and Safe Streets Act of 1968,

Pub.L. 90-351, codified at 18 U.S.C. §§

2510-2521, provides, in pertinent part:

§ 2515. Prohibition on use as

evidence of intercepted ... oral

communications

Whenever any ... oral communica-

tion has been intercepted, no part

of the contents of such communica-

tion and no evidence derived there-

from may be received in evidence in

any trial ... in or before any court

...of the United States ... if the

disclosure of that information would

be in violation of this chapter.

§ 2518. Procedure for interception

of ... oral ... communications

*x* & &

(5) * * * Every order and exten-

sion thereof shall contain a provi-

sion that the authorization to

intercept shall be executed as soon

as practicable, shall be conducted

in such a way as to minimize inter-

ception of communications not. other-

wise subject to interception under

this chapter, and must terminate

upon attainment of the authorized

objective, or in any event in thirty

days. In the event the intercepted

communication is in a code or

foreign language, and an expert in

that foreign language is not avail-

21

able or a code is not reasonably

available during the interception

period, minimization may be

accomplished as soon as practical

after such interception. An inter-

ception under this chapter may be

conducted in whole or in part by

Government personnel, or by an indi-

vidual operating under a contract

with the Government, acting under

the supervision of an investigative

or law enforcement officer author-

ized to conduct the interception.

=e 8 8

(10) (a) Any aggrieved person in

any trial ... before any court

of the United States ... may move to

Suppress the contents of any

oral communication intercepted

pursuant to this chapter, or

evidence derived therefrom, on the

grounds that --

(iii) the interception was not

made in conformity with the order

of authorization or approval.

k* ke &

Between 1970 and October 12, 1984,

U.S.C. § 848 provided:

Continuing criminal enterprise

(a) Penalties; forfeitures. (i) Any

person who engages in any continuing

criminal enterprise shall be

sentenced to a term of imprisonment

which may not be less than 10 years

and which may be up to life impri-

sonment, to a fine of not more than

$100,000, and to the forfeiture

prescribed in paragraph (2);

x ke & &

(b) “Continuing criminal enterprise"

defined. For purpose of subsection

(a), a person is engaged in a

continuing criminal enterprise if--

(1) he violates any provision of

this title of title III the

punishment for which is a felony,

and

(2) such a violations is a

continuing series of violations of

this title or title III--

(A) which are undertaken by such

person in concert with five or

more other persons with respect

to whom such person occupies a

position of organizer, a super-

visory position, or any other

position of management, and

(B) from which a person obtains

substantial income or

resources.

(c) Suspension of sentence and

probation prohibited. In the case

of any sentence imposed under this

section, imposition or execution of

such sentence shall not be

suspended, probation shall not be

granted, and [parole provisions}

shall not apply.

z&ek2zeR,R

(Oct. 27, 1970, P.L. 91-513, Title II,

Part D, § 408, 84 Stat. 1265.)

After its amendment by the 1984 Compre-

hensive Crime Control Act, and the Anti-

Drug Abuse Acts of 1986 and 1988, 21

U.S.C. § 848 provided:

Continuing criminal enterprise

(a) Penalties; forfeitures. Any

person who engages in a continuing

criminal enterprise shall be

sentenced to a term of imprisonment

which may not be less than 20 years

and which may be up to life impri-

sonment, to a fine not to exceed

greater of that authorized in accor-

dance with the provisions of title

18, United States Code, or

$2,000,000 if the defendant is an

individual, or $5,000,000 if the

defendant is other than an indi-

vidual, and to the forfeiture

prescribed in section 413 of this

title [21 U.S.C. § 853]; ....

(b) Any person who engages ina

continuing criminal enterprise shall

be imprisoned for life and fined in

accordance with subsection (a), if--

(1) such person is the principal

administrator, organizer, or

leader of the enterprise or is one

of several administrators,

organizers, or leaders; and

(2) (A) the violation referred to

in subsection (d)(1) involved

at least 300 times the quantity

of substance described

401(b) (1) (B) of this Act [21

U.S.C. § 841(b)(1)(B)], or

(B) the enterprise, or any

other enterprise in which the

defendant was the principal or

one of several principal admin-

istrators, organizers, or

leaders, received $10 million

dollars in gross receipts

during any twelve-month period

of its existence for the manu-

facture, importation, or

distribution of a substance

described in section 401(b)-

(1)(B) of this Act [21 U.S.C. §

841(b) (1) (8) ]-

(c)"Continuing criminal enterprise"

defined. For purpose of subsection

(a), a person is engaged in

continuing criminal enterprise if--

(1) he violates any provision of

this title of title III the

punishment for which is a felony,

and

(2) such a violations is a

continuing series of violations of

this title or title III--

(A) which are undertaken by

such person in concert with

five or more other persons with

respect to whom such person

occupies a position of organ-

izer, a supervisory position,

or any other position of

management, and

(B) from which a person obtains

substantial income or

resources.

(dad). Suspension of sentence and

probation prohibited. In the case

of any sentence imposed under this

section, imposition or execution of

such sentence shall not be

suspended, probation shall not be

granted, and the Act of July 15,

1932 (D.C. Code, secs. 24-203-24-

207), shall not apply.

(e) Death Penalty

x k k

(As amended Oct. 12, 1984, PP. Le 98°

473, Title II, § 224(b)[(c)], oe ©

Part B, § 305, 98 Stat. 2030, 2050;

Oct. 27, 1986, P. L. 99-570, Title I,

Subtitle A, § 1005(b)(2), Subtitle F,

§§ 1252, 1253, 100 Stat. 3207-15; Nov.

11988, P. L. 100-690, Title VI,

Subtitle N, § 6481, Title VII, Subtitle

A, § 7001, 102 Stat. 4382, 4387.)

During 1988, the U.S. Sentencing

Commission Guidelines provided, in

pertinent part:

§2D1.1. Unlawful Manufacturing,

Importing, Exporting, or Traf-

ficking (Including Possession with

Intent to Commit These Offenses)

(a) Base Offense Level:

x kk & &

(b) Specific Offense Character-

istic

(1) If a firearm or other

dangerous weapon was possessed

during commission of the

offense, increase by 2 levels.

x *& *& &®

Commentary

x kk

Application Notes:

s & & &

3. Definitions of "firearm" or

"dangerous weapon" are found in

the Commentary to §1Bl.1 (Applica-

tion Instructions.) * * * The

enhancement also applies to

offenses the reference §2D1.1,

i.e., §§2D1.2-2D1.4. The adjust-

ment is to be applied even if

several counts were involved and

the weapon was present in any of

them.

STATEMENT OF THE CASE

This petition arises from a case

involving the distribution of cocaine in

Massachusetts, the Southern District of

Florida, and elsewhere in and outside of

the United States, from August 1986 until

-10-

April 28, 1988. Shmuel David, the peti-

tioner, was convicted after a jury trial

of, inter alia, several substantive

distribution counts and a continuing

criminal enterprise ("CCE") charge which

used the distributions as predicates.

a. Procedural History

By superseding indictment returned

on September 15, 1988, in the United

States District Court for the District of

Massachusetts, petitioner Shmuel David

and 13 other individuals were charged

with various drug offenses. Petitioner

was charged in 22 of the 27 counts: two

counts of conspiracy in violation of 21

U.S.C. § 846, 14 substantive counts of

possession with intent to distribute

cocaine, in violation of 21 U.S.C. §8

841(a) (1), a continuing criminal enter-

prise, prohibited by 21 U.S.C. § 848, and

-ll-

unlawful use of a telephone, contrary to

21 U.S.C. § 843(b).

On November 17, 1988, petitioner’s

trial counsel filed a motion to suppress

the contents of and evidence derived from

intercepted wire communications occurring

over a particular telephone number.

Additionally, petitioner joined in the

motion to suppress of codefendant

Natanel. On February 21-23, 1989, a

hearing before U.S. District Judge John

J. McNaught was held on the pretrial

motions of several codefendants. At the

hearing, one of the bases for suppression

advanced by codefendant Natanel was that

the government violated Title III, 18

U.S.C. § 2518(5), by failing to make

reasonable efforts to minimize the

contents of Hebrew-language conversations

pursuant to the wiretap, at least 16 days

after it began the interception.

-12-

The government had sought and

received authorization to tap peti-

tioner’s telephone on February 17, 1988.

The government argued that it had

determined that it had to seek Hebrew-

language interpreters who were police

officers from Israel, rather than any

interpreter from the United States, for

the reasons that it needed someone who

spoke "common, everyday Hebrew" rather

than biblical Hebrew, and because it did

not know the scope cof the drug conspiracy

which created naaaaticn considerations.

The affidavit of DEA agent Doherty stated

that as of the date the intercept was

authorized, agents were in the process of

attempting to obtain the inkdeaveter

through law enforcement agencies in

Israel. On March 1, 1988, the officers

arrived in Boston and on March 5 they

-13-

began being used as monitors. Between

February 17 and March 5, 1988, the DEA

taped the Hebrew conversations in full,

regardless of character or content,

without minimization. The district court

denied petitioner’s motion without elabo-

ration by Memorandum and Order filed

March 14, 1989, which stated only "This

motion is denied." Appx. C; Mem.Ord.

3/14/89, at 5.

Petitioner’s jury trial (McNaught,

J., presiding), along with five codefen-

dants, began on April 5, 1989, and ended

with a jury verdict on May 31, 1989.

Petitioner was convicted on all counts in

which he was charged.

On August 1, 1989, the district

court imposed sentence upon petitioner,

consisting of 30 years’ imprisonment and

a fine of $500,000 on Count 17 (contin-

-14-

uing criminal enterprise); 20 years’

imprisonment on each of Counts 1 and 2

(conspiracy); and terms of four, 15, and

30 years on the various other counts,

plus three years’ special parole and a

five-year term of supervised release.

All the sentences run concurrently.

In sentencing petitioner David, the

court applied a two-level upward adjust-

ment under United States Sentencing

Comm’n Guidelines ("USSCG") § 2D1.1(h) (1)

for possession of a firearm "during

commission of the offense." The court

stated that the adjustment was based on

evidence that a gun was held to the head

of petitioner’s courier, Eli Filin, and

that "the use of the weapon furthered the

commission of the offense, and certainly

there is no question in my mind that

David was responsible for its use ...."

-15-

Petitioner David and four codefen-

dants appealed their convictions and

sentences. The appeal of codefendant

Natanel was decided separately, United

States v. Natanel, 938 F.2d 302 (lst Cir.

1991). By Opinion filed July 29, 1991,

the court of appeals (Selya, J., with

Campbell and Cyr, JJ.), affirmed all

defendants’ sentences, but vacated peti-

tioner’s two convictions for conspiracy

(Counts 1 and 2) on the ground that

conviction and sentencing on these

counts, which were used as predicate acts

to prove the continuing criminal enter-

prise, constituted a violation of peti-

tioner’s Double Jeopardy protection

against cumulative punishment. Appx. A;

940 F.2d at 738.

Relying on this Court’s decision in

Garrett v. United States, 471 U.S. 773

-16-

(1985), the court of appeals rejected

petitioner’s argument that his conviction

and sentencing on the substantive distri-

bution counts violated his Double

Jeopardy rights, where he had also been

convicted and sentenced of a coterminous

CCE in the same trial. Id. at 738-39.

As to petitioner’s appellate

argument that the government failed to

properly minimize its wiretap pursuant to

the requirement of 18 U.S.C. § 2518(5),

the court of appeals held that the

government had made "reasonable, good-

faith efforts" to satisfy the minimiza-

tion requirement, 940 F.2d at 730, so

that its after-the-fact minimization

complied with the statute, and that the

government did not need to show "that

contemporaneous minimization was an utter

-l7-

held that the minimization that was

eventually performed was reasonably done.

Id.

In upholding the two-level upward

adjustment for use of a firearm applied

by the district court in calculating

petitioner’s sentence, the court of

appeals reviewed the evidence and stated

that:

the evidence obviously supports

the finding that David was respon-

sible for the gun’s use, whether

or not he actually held the gun

himself. It was perfectly reason-

able for the sentencing judge to

conclude that, in brandishing a

firearm (or causing one to be

brandished) while trying to

retrieve a stolen consignment of

cocaine, David was furthering the

substantive offense related to

that shipment.

Id. at 742.

Although petitioner argued in his

brief in the court of appeals that the

~ Gistrict court had imposed the two-level

-18-

district court had imposed the two-level

adjustment for the gun on the basis of

its use in a pre-guidelines substantive

drug-distribution count, he also asserted

that the district court could not have

imposed the adjustment in connection with

the CCE count, for the reason that the

CCE guideline in effect at the time of

petitioner’s offenses did not reference

the firearm enhancement guideline, USSCG

§ 2D1.1(b)(1) (1988 ed.).+ The court of

appeals’ opinion ignored petitioner’s

argument concerning the CCE provisions.

In its Order denying panel rehearing,

however, the court stated, with respect

to this ignored ground, that:

1. Further, he argued that the enhance-

ment would not have been proper with

respect to either conspiracy count, as

there was no applicable conspiracy guide-

line for completed conspiracies at that

time, and thus there was none that

referenced the gun enhancement guideline.

-19-

the district court’s upward

adjustment of the guideline

sentencing range to reflect the

use of a firearm in connection

with the commission of the

offenses of conviction, particu-

larly the continuing criminal

enterprise (CCE) charge. ... The

appellant also argues ... that the

upward adjustment [for possession

of a firearm] was erroneous

because the Sentencing Guidelines

in effect at the time he was

sentenced contained a lacuna

making the gun possession enhance-

ment inapplicable to a CCE charge

under 21 U.S.C. § 848. Ona

proper record, this artfully spun

asseveration might have some merit

(or, at least, call for some

detailed analysis). The appel-

lant, however, failed to make the

argument at the time of sentencing

or to object to the presentence

report on this basis. As we have

stated on numerous occasions in

analogous circumstances, issues

not seasonably presented in the

district court will not be

addressed on appeal.

Appx. A; 940 F.2d at 743-44.

On October 3, 1991, petitioner filed

a motion asking the court of appeals to

reconsider its denial of his petition for

rehearing, on the basis that its finding

-20-

rehearing, on the basis that its finding

of waiver was without basis in the record

because the district court did not impose

the gun enhancement in connection with

the CCE count, nor had the probation

office or the United States Attorney’s

office ever argued that it should. The

motion to reconsider also argued that the

court of appeals had no power to affirm

the two-level enhancement on a basis not

relied on by the court below, and that,

even if the issue should have been raised

by counsel at sentencing, the appellate

court should reach the issue because

there was no legal authority for the

adjustment. The motion to reconsider was

jenied by the court of appeals, by order

entered October 17, 1991.

The jurisdiction of the court below

rested upon 28 U.S.C. § 1291 and 18

-—2 1-

by Notice of Appeal filed after the

announcement but before the entry of the

judgment of sentence. Fed.R.App.P. 4(b).

The district court’s jurisdiction was

properly invoked in this case under 18

U.S.C. § 3231, in that the indictment

alleged the commission of federal

criminal offenses.

b. Statement of Facts

Petitioner organized and ran a

cocaine distribution business based in

Boston, Massachusetts, from approximately

August 1986, until April 28, 1988.

Between those dates, ten to fifteen

transactions occurred between petitioner

and his Colombian source, Jaime Toro

Aristizibal, involving between seven to

ten kilograms each. One "Yossi" Zalmano-

vich would arrange, from an apartment in

Miami, Florida, for the purchase of

-22-

Miami, Florida, for the purchase of

cocaine from Jaime Toro Aristizibal, and

have it delivered to petitioner in Boston

by courier. Petitioner’s courier was Elli

Filin, to whom petitioner was introduced

by one Reuven Furer.

On June 25, 1987, Filin stole a ten-

kilogram shipment of cocaine. Eventually

petitioner became suspicious and arranged

for Filin to deliver another shipment of

cocaine to Boston. When he arrived,

petitioner and coconspirator "Nuni"

Mizrahi took him to an apartment where

two others were waiting. Filin was tied

to a chair, beaten, and threatened unless

he told where the stolen shipment was. A

gun, that Nuni produced, was held to

Filin’s head. On July 31, 1987, Filin

confessed and returned the cocaine.

From July, 1987, to February, 1988,

petitioner purchased cocaine from a

-23-

different source in New York and refused

to buy it from Jaime again. Between

February, 1988 and April 28, 1988, peti-

tioner attempted to find a source for

larger quantities of cocaine, which

culminated in his arrest.

REASONS FOR GRANTING THE WRIT

1. This case presents a question

expressly left open in Garrett v. United

States, 471 U.S. 773 (1985): whether the

Double Jeopardy Clause permits cumulative

convictions and sentencing where a

defendant’s CCE does not continue in time

beyond the date of indictment of the

predicate offenses; this case also calls

for reassessment of Garrett in light of

subsequent changes in the federal drug

and sentencing laws.

Petitioner was charged with 14

substantive cocaine possession and

distribution offenses under 21 u.8.¢. §

841(a)(1), and in the same indictment

with a continuing criminal enterprise

(CCE), 21 U.S.C. § 848, ending on the

-24-

same date as the latest distribution

offense alleged, April 28, 1988. Peti-

tioner was tried for all of the offenses

in a single trial and was sentenced sepa-

rately for his conviction on the CCE and

on each other count. The court of

appeals rejected petitioner’s argument

that his convictions and cumulative

sentences on the substantive offenses

that formed the predicates of the CCE

offense violated his rights under the

Double Jeopardy Clause of the Fifth

Amendment to the United States Consti-

tution. Appx. A; 940 F.2d at 738-39,

relying upon this Court’s decision in

Garrett v. United States, 471 U.S. tio

(1985). For the reasons that follow,

this Court should grant certiorari to

review this conclusion. The Court should

clarify that Garrett does not apply under

-—2 5-

the facts of petitioner’s case, or must

be modified in light of subsequent

Congressional enactments stiffening the

penalties for those convicted under the

CCE statute.

In Garrett, this Court was faced

with the question whether prosecution and

punishment for engaging in a CCE violated

the defendant’s rights under the Double

Jeopardy Clause not to be prosecuted or

punished twice for the "same offense,"

where the defendant had been convicted in

an earlier trial and punished for one of

the predicate offenses, an importation of

marijuana, used to establish the CCE.

This Court held that Congress intended,

in drafting the CCE statute as part of

the Comprehensive Drug Abuse Prevention

and Control Act of 1970, to create a

"separate criminal offense which was

-26-

punishable in addition to, and not as a

substitute for, the predicate offenses."

Id. at 780. After determining that

Congress intended to create a separate

offense of CCE, this Court proceeded to

the "critical inquiry [of] whether a CCE

offense is considered the ‘same offense’

as one or more of its predicate offenses

within the meaning of the Double Jeopardy

Clause." Id. at 787.

"rU]nder the facts of [that] case,"

id. at 794, this Court held that the

earlier marijuana smuggling offense was

not the "same offense" as the CCE for

Double Jeopardy purposes, despite the

Court’s “assum[{ption], for purposes of

decision" that the marijuana offense "was

a lesser included offense" of the CCE.

Id. at 791. The critical fact of

Garrett, to which the Court explicitly

-27=

and carefully limited its decision, was

that "the continuing criminal enterprise

charged against [the defendant] in

Florida had not been completed at the

time that he was indicted in Washington

(for marijuana importation]." Id. at

792. It was "this evidence" of contin-

uing criminal conduct subsequent to the

first indictment which this Court stated

"not only permits but requires the

conclusion that the CCE charged in

Florida ... was under Diaz [{v. United

States, 223 U.S. 442 (1912),] a different

offense from that charged in the Wash-

ington indictment[,]" 471 U.S. at 793,

and therefore could be separately prose-

cuted without running afoul of the

Constitution.

In a concurring opinion, Justice

O’Connor clarified the question left open

in Garrett:

-28-

Moreover, I note that we do not

decide in this case whether a

defendant would have a valid

double jeopardy claim if the

government failed in a later pros-

ecution to allege and to present

evidence of a continuing violation

of § 848 after an earlier convic-

tion for a predicate offense.

Certainly the defendant’s interest

in finality would be more

compelling where there is no indi-

cation of continuing wrongdoing

after the first prosecution.

Id. at 800.

As to whether multiple punishment

for the CCE and underlying marijuana

offense violated the double jeopardy

proscription, this Court noted that the

sole question was what "the legislature

intended." Id. at 794. The Court

acknowledged that Congress was "silen[(t]

on this specific issue." Id. Neverthe-

less, this Court reasoned that because

Congress intended to create and succeeded

in creating the separate offenses of the

ongoing CCE and the earlier-completed

-29-

aa

predicate offense, a presumption that

Congress intended separate punishment

arises, subject to rebuttal. The Court

stated:

The presumption when Congress

creates two distinct offenses is

that it intends to permit cumula-

tive sentences ... and we can

assume it was aware that [creating

separate offenses] would authorize

cumulative punishments absent some

indication of contrary intent.

Id. at 794. The Court found no such

contrary indication in the CCE’s language

or history. Additionally, this Court

found that "disallowing cumulative

sentences would have the anomalous effect

in many cases of converting the large

fines provided by § 848 into ceilings[,]"

sometimes smaller than the maximum for

the predicate drug offenses, so that the

government would be forced to choose

whether to "“elect[] a lower maximum fine

in such a situation in order to attempt

-30-

to obtain the life imprisonment penalty

available under the CCE provision." Id.

at 795.

Thus, contrary to the implication of

the court below, this Court in Garrett

was not presented with, nor did it

decide, the question at issue in peti-

tioner David’s case: whether multiple

punishment for a CCE and coterminous

predicate offenses indicted and tried

with that CCE violates the Double

Jeopardy Clause’s proscription against

multiple punishment for the same offense.

Yet this Court’s decision in Garrett that

the CCE and underlying drug offense were

not "the same" for double jeopardy

purposes hinged on the fact -- not

present in petitioner’s case -- that the

defendant’s unlawful conduct continued

beyond the date of indictment of the

-3 l-

ee

predicate offense. As this Court stated:

"One who insists that the music stop and

the piper be paid at a particular point

must at least have stopped dancing

himself before he may seek such an

“accounting. " Id. at 791. Under the

facts of petitioner’s case, the CCE is

therefore the "same offense" for multiple

punishment purposes as the predicate drug

offenses charged and tried with it.?

In a line of multiple-punishment

cases previous to, but not undermined by,

Garrett, this Court has established that,

contrary to the situation involving

distinct offenses, "where the offenses

are the same ..., cumulative sentences

are not permitted unless elsewhere

2. In none of the post-Garrett cases in

the other circuits cited by the govern-

ment or the court below is it apparent

that the predicate offenses ended at the

same time as the CCE.

-32-

specially authorized by Congress."

Whalen v. United States, 445 U.S. 684,

693 (1980) (applying Blockburger v.

United States, 284 U.S. 299 (1932)). In

Missouri v. Hunter, 459 U.S. 359 (1983),

this Court explained Whalen:

The rule of statutory construction

[of Blockburger] noted in Whalen

is not a constitutional rule

requiring courts to negate clearly

expressed legislative intent.

Thus far, we have utilized that

rule only to limit a federal

court’s power to impose convic-

tions and punishments when the

will of Congress is not clear.

Here, the ... legislature has made

its intent crystal clear [by

specifically authorizing cumula-

tive punishment]. Legislatures,

not courts, prescribe the scope of

punishments.

459 U.S. at 368. Thus, the presumption

which applies with respect to offenses

that are "the same" -- that Congress did

not intend cumulative punishment -- is

the opposite of that which governs with

distinct offenses, as was applied in

-33-

Eo o———eGSESEE

Garrett. Where "the matter [of Congres-

sional intent] is not entirely free of

doubt, the doubt must be resolved in

favor of lenity." Whalen, supra, 459

U.S. at 694. See also United States v.

Pungitore, 910 F.2d 1084, 1116-17 (3d

Cir. 1990) (applying similar analysis and

permitting cumulative sentencing for RICO

conspiracy and substantive offenses on

ground that statutes define separate

offenses and Congress has not indicated

contrary intent), cert. denied, 111 S.Ct.

2010, 114 L.Ed.2d 98 (1991).

Whether Congress intended to permit

cumulative sentencing for continuing

criminal enterprises and underlying

coterminous drug offenses used as the

predicate acts required for the CCE is

hardly “crystal clear," or even clear at

all. First and most important, this

-34-

Court recognized the lack of express

legislative guidance on this question in

Garrett, supra, 471 U.S. at 794-95.

Second, the legislative history of

the 1970 Act is replete with references

to the fact that the CCE concept was

being advanced in order to create an

extremely severe penalty. see H.R.Rep.

No. 91-1444, pt. 1, reprinted in 1970

U.S.Code Cong. & Admin. News 4570, 4576,

4652. CCE was established to punish the

"professional criminal" as distinguished

from "the youthful offender who is

himself enmeshed in the drug abuse trap."

116 Cong.Rec. 33659 (Sept. 24, 1970)

(remarks of Rep. Minish). Congress’ goal

in establishing the CCE concept was

clearly to penalize continuing drug

offenders severely, but if Congress had

intended to allow sentencing for the

-35-

ee

underlying offenses in addition to the

CCE penalty, it would have so provided.

Congress did not "specially authorize"

cumulative punishment, nor does the

legislative history demonstrate that

Congress intended it. The presumption

that Congress did not intend cumulative

punishment has not been rebutted.

In addition to relying on a presump-

tion that Congress intended to permit

cumulative sentencing for the CCE and its

predicate offenses, this Court in Garrett

doubted that Congress would have intended

the "anomalous effect" that the maximum

allowable fine under the CCE statute

could, in the circumstances involving the

most serious predicate drug offenses, be

lower than the maximum provided under the

predicate offense statutes. Id. at 795.

Garrett, however, predated the effective

-36-

date of the Sentencing Reform Act of 1984

(SRA), Pub.L. No. 98-473, §§ 211-239, 98

Stat. 1987, as well as the Anti-Drug

Abuse Acts of 1986 and 1988 (ADAA’s). If

the fine structure provided in the 1970

version of the CCE statute seemed to

require the conclusion that Congress

intended to allow cumulative fines, to be

added to those from predicate offenses,

the enhanced penalties of these later

enactments no longer warrant that result.

First, in the legislative history to

the SRA, Congress made clear that it did

not favor multiple sentencing for lesser

and greater included offenses, S.Rep. No.

225, 98th Cong., 2d Sess. 125-28,

reprinted in 1984 U.S. Code Cong. &

Admin. News 3182, 3310, so long as the

sentence imposed "assure[({d] an appro-

priate sentence for all the criminal

ee a ee |

conduct of the defendant." Id. at 128.

But more significantly, the 1986 and 1988

ADAAs made the penalties for CCE progres-

sively, even drastically, more serious.

The first version of the CCE

statute, which was part of the Comprehen-

sive Drug Abuse Prevention and Control

Act of 1970, as analyzed in Garrett,

provided, for a first CCE conviction, a

mandatory minimum term of imprisonment of

10 years, with a maximum of life, all

without parole, and a maximum fine of

$100,000. For a second CCE conviction

the prison term was 20 years to life and

a maximum fine of $200,000. A year after

Garrett was decided, Congress eliminated

the possibility of the anomaly referred

to in that decision in the ADAA of 1986,

by raising the first-CCE maximum fine to

$2,000,000, and the repeat offender fine

-38-

to $4,000,000, with an even higher

maximum authorized by reference to any

fine specified in Title 18. see 18

U.S.C. § 3571(da).2 And in the 1988 ADAA,

Congress further stiffened the penalties,

increasing the mandatory minimum prison

term from 10 to 20 years, and from 20 to

30 years for repeat offenders. A death

penalty was provided as well, for certain

circumstances. Thus, the penalty struc-

ture now cannot possibly support "pyra-

miding of penalties" from the predicate

drug offenses under § 841 on any of the

bases suggested in Garrett.

Due to these changes in the federal

drug and sentencing laws, it is time for

this Court to reassess Garrett to the

3. This section permits a maximum fine

of "twice the gross [pecuniary] gain"

derived by the defendant. In 1986, this

provision was found at 18 U.S.C. §

3623(c) (1).

-39-

a

extent it allows cumulative punishment

for a CCE and substantive predicate

offenses, even those which were indicted

and tried before the defendant stopped

the unlawful conduct that led to the CCE

indictment. 4 If, however, this Court

chooses not to revisit Garrett under

those factual circumstances, it should at

least find that case inapplicable to

petitioner’s case, and grant certiorari

to review and reverse the court of

appeals’ affirmance of petitioner’s

cumulative sentences for CCE and

coterminous substantive predicate

offenses tried together.

4. Petitioner does not question the

holding of Garrett insofar as it deter-

mined that a CCE and its predicate

offenses may be charged in a single

indictment and jointly tried, as occurred

here.

-40-

2. In upholding a sentencing guideline

enhancement on a factual basis not relied

upon by the prosecutor or the district

court, the court of appeals so far

departed from the accepted course of

judicial proceedings as to call for an

exercise of this Court’s supervisory

power.

At sentencing, the district court

applied the two-level upward adjustment

for possession of a firearm "during

commission of the offense," as provided

under § 2D1.1(b)(1) of the U.S.

Sentencing Commission Guidelines.° The

upward adjustment resulted in raising

petitioner’s base offense level under the

Sentencing Guidelines from 36 to 38, and

his total offense level from 38 to 40.

5. Guideline § 2D1.1 of that version of

the Guidelines set base offense levels

for drug trafficking offenses. Subsec-~

tion (b)(1) of that Guideline provided:

(b) Specific Offense Characteristic

(1) If a firearm or other

dangerous weapon was possessed

during commission of the

offense, increase by 2 levels.

-41-

se ee ee

Combined with petitioner’s Criminal

History Category Score of I (no prior

convictions), his Guideline sentencing

range, as determined by the district

court, was 292 to 365 months, whereas if

he had not received the adjustment, his

range would have been 235 to 293 months,

a difference of approximately six to

almost ten years’ imprisonment.

Although the district court did not

specify which one or more of the 22

counts of the superseding indictment on

which petitioner was convicted consti-

tuted "the offense" with respect to which

it was applying the gun enhancement, the

court did make clear the particular

incident to which it was referring. The

court stated:

A gun was used on more than one

occasion. But there is one in

particular that I’m thinking

about, when it went to the head of

Mr. Filin. There is no question

-42-

in my mind that the use of the

weapon furthered the commission of

the offense, and certainly there

is no question in my mind that Mr.

David was responsible for its use.

Sent.Tr. at 34-35.© The incident during

which a gun allegedly "went to the head

of Mr. Filin," as the court put i

occurred on or about June 30, 1987,

before the November, 1987, effective date

of the Sentencing Reform Act and Guide-

lines.

The shipment of cocaine concerning

which the gun was used was the subject of

count 12 of the superseding indictment,

which charged petitioner David with one

substantive act of possession and distri-

bution, on June 24, 1987, and July 31,

6. The Court did not amplify on this

point in its Report of Statement of

Reasons for the sentence, stating, in

relevant part, only that: "(a) the gun

was used (b) it furthered the commission

of the offense and (c) David is respon-

sible for it." Stmnt. of Reas., at l.

-43-

eaten aaa aaa aaa i

1987. Because this count charged conduct

occurring prior to the November 1, 1987,

effective date of the Sentencing Guide-

lines, it could not result in a sentence

under the guidelines. Sentencing Act of

1987, Pub.L. 100-182, § 2(a), 101 Stat.

1266; see generally Miller v. Florida,

482 U.S. 423 (1987). Thus, in and of

itself, Count 12 could not carry an

"enhancement" for possession of a

firearm.

Nor did the district court give any

indication that it was treating the gun

incident as "Relevant Conduct," pursuant

to USSCG § 1B1.3, with respect to any

count to be sentenced under the guide-

lines. If it had been inclined to do so,

the court would first have had to make

antecedent factual findings under §

1B1.3(a)(1) through (5) to determine

-~44=-

whether the gun incident in fact quali-

fied under the Guidelines for treatment

as “relevant conduct" in sentencing for

any other count.’ The court’s statements

7. USSCG § 1B1.3(a) provides, in

pertinent part:

(a) Chapters Two (Offense Conduct)

and Three (Adjustments). Unless

otherwise specified, ... (ii)

specific offense characteristics

shall be determined on the basis of

the following:

(1) all acts and omissions

committed or aided and abetted by

the defendant, or for which the

defendant would be otherwise

accountable, that occurred during

the commission of the offense of

conviction, ... or that otherwise

were in furtherance of that

offense;

(2) solely with respect to

offenses of a character for which

§3D1.2(da) would require grouping

of multiple counts [which includes

all drug distribution offenses],

all such acts and omissions that

were part of the same course of

conduct or common scheme or plan

as the offense of conviction;

(3) all harm or risk of harm that

resulted form the acts or omis-

sions specified ..., if the harm

or risk was caused intentionally,

recklessly or by criminal

negligence, and all harm or risk

-45-

at sentencing and in its Statement of

Reasons show that the court did not

consider these factors or rely on the

"relevant conduct" Guideline in applying

the firearm adjustment.

Even if the district court’s

reasoning on this point is not entirely

clear, see Appx. A; 940 F.2d at 740

(noting that the district court’s manner

of arriving at the guideline sentencing

range was "less than pellucidly clear"),

the court of appeals, in its initial

panel decision, recognized that the

district court had applied the gun

that was the object of such acts

or omissions;

(4) the defendant’s state of mind,

intent, motive and purpose in

committing the offense; and

(5) any other information

specified in the applicable guide-

line.

-46-

enhancement specifically with respect to

the Count 12 distribution, and upheld the

lower court’s ruling. Noting that

"David’s challenge to [the judge’s

factual] findings is reviewable only for

clear error," id. at 742, and thus recog-

nizing that the application of a

"specific offense characteristic" to

enhance a sentence involves a factfinding

function, the court of appeals stated:

It was perfectly reasonable for

the sentencing judge to conclude

that, in brandishing a firearm (or

causing one to be brandished)

while trying to retrieve a stolen

consignment of cocaine, David was

furthering the substantive offense

related to that shipment.

Appx. A; 940 F.2d at 742. The only

"substantive offense related to that

shipment" was the summer 1987 distribu-

tion charged in count 12 of the super-

seding indictment. In its panel opinion,

the court of appeals neither stated nor

-47-

suggested that the district court had

imposed the gun enhancement with refer-

ence to the CCE or any other "substantive

offense" in the superseding indictment

than Count 12, which it in fact had not. ®

In denying panel rehearing, the

court of appeals apparently recognized

its error in upholding an enhancement in

connection with a pre-guidelines offense,

and changed its rationale, for the first

time stating that the district court’s

upward adjustment of the guideline range

"reflect[ed] the use of a firearm in

connection with the commission of the

offenses of conviction, particularly the

continuing criminal enterprise (CCE)

charge." Appx. A; 940 F.2d at 743 (Order

denying panel rehearing). The Court

8. As to the conspiracy counts, see note

12 below.

-48-

further held that petitioner had waived

any objection regarding the propriety of

the enhancement with respect to the CCE.

Id. at 744.

The court of appeals was wrong in

upholding the firearm enhancement on this

basis, because its asserted substitute

reason is invalid.? The court below was

also wrong in holding that petitioner’s

9. The district court could not properly

have applied the firearm enhancement on

the basis of the CCE conviction, because

the version of the Sentencing Guidelines

in effect at the time petitioner

committed his post-guidelines offenses

did not provide for the gun enhancement

with respect to CCE. Application Note 3

to Guideline § 2D1.1 stated, in pertinent

part, that "The enhancement also applies

to offenses that reference § 2D1.1, 7

§§ 2D1.2-2D1.4." The CCE Guideline,

however, was (and is) § 2D1.5, which

contained no reference to § 2D1.1. (The

Sentencing Commission amended the CCE

guideline on November l, 1989, after

petitioner’s sentencing, so that it now

references § 2D1l.1.) Therefore, the

enhancement could not have properly been

applied with reference to petitioner’s

CCE conviction.

-49-

ei

objection was waived.1° However, peti-

tioner understands that this Court does

not sit to review and correct routine

errors, no matter how clear (and prejudi-

cial), in the application of the guide-

lines, and therefore does not press this

error aS a reason supporting this Court’s

10. Neither the probation office in the

PSI, nor the government (not even in its

brief in the court of appeals), nor the

sentencing judge in explaining the

court’s reasoning for applying the

enhancement, ever referred to the CCE or,

indeed, to any of the other substantive

charges in the indictment as justifying

the firearm enhancement. In the

sentencing proceedings, the prosecutor

argued that the gun was possessed in

connection with the Count One conspiracy

(petitioner’s conviction for which the

court of appeals properly vacated, along

with the other conspiracy conviction,

charged in Count Two of the superseding

indictment) and -- identifying it by

relevant facts rather than by numbered

count of the indictment -- the Count 12

distribution. Sent.Tr. at 31-32.

Surely, a defendant has no obligation to

object in the district court to something

that has not happened; objection is only

required in order to preserve for appel-

late review issues that have arisen.

-50-

grant of a writ of certiorarl.~~

Instead, the related question petitioner

presents here concerns the propriety of

the action taken by the court of appeals

in connection with petitioner’s request

for rehearing on the sentencing enhance-

ment issue, which raises a fundamental

and potentially recurring question of

appellate authority in the exercise of

the courts of appeals’ new sentence

review power under 18 U.S.C. § 3742.

Fundamentally, the court of appeals

lacked authority, under 18 U.S.C. 8

3742(e), to uphold an enhancement on a

fact-bound basis not relied upon by the

lower court. As stated above, the

11. By the same token, petitioner

adheres to the positions set forth in the

preceding two footnotes, and suggests a

summary grant of certiorari and remand to

the court of appeals on these issues, if

no greater relief is to be granted.

-51-

lO EE EEOEOEereeee

district court gave no indication that it

applied the enhancement with reference to

the CCE count, or any substantive count

of the indictment other than count 12,

nor did the government at any time urge

it to do so except with regard to the

conspiracy convictions. 1}?

The court of appeals expressly

recognized in the panel opinion that it

was limited in reviewing any facts

underlying the enhancement to a search

for "clear error." Appx. A; 940 F.2d at

742. See also United States v. Paulk,

917 F.2d 879, 884 (5th Cir. 1990)

(reviewing district court’s factual

determinations concerning whether firearm

12. The district court did not apply the

enhancement with regard to the conspiracy

convictions in any event, and the court

of appeals properly ruled that those

convictions evaporated upon their merger

with the CCE count. See Jeffers v.

United States, 432 U.S. 137 Pi yegr

-52-

enhancement of § 2D1.1(b)(1) applied as

"relevant conduct" under § 1Bl.3, under

clearly erroneous standard); United

States v. Vazzano, 906 F.2d 879, 883 (2d

Cir. 1990) (adopting view of three other

circuits, holding that whether conduct is

relevant to offense of conviction is

subject to "clearly erroneous" standard

of review). See 18 U.S.C. § 3742(e).

Yet, in asserting on rehearing that

the district court’s application of the

enhancement "reflected" the gun’s use "in

connection with the commission of the

offenses of conviction, particularly the

continuing criminal enterprise (CCE)

charge," where the district court had

referred only to the singular “offense,"

Sent.Tr. at 35; Statement of Reasons at

1, no. 3(b) (4), identifying facts

pertinent only to the count 12 pre-

-53-

ea

guidelines distribution, and made no

"relevant conduct" findings, the court of

appeals not only greatly exceeded this

scope of review, but entirely preter-

mitted the fact-finding function.

It is the role of the district

court, not the court of appeals, to act

as the finder of fact at sentencing. See

McMillan v. Pennsylvania, 477 U.S. 79

(1986); cf. McCormick v. United States,

500 U.S. --, 114 L.Ed.2d 307, 324 & n.8

(1991); Chiarella v. United States, 445

U.S. 222, 235-36 (1980); Dunn v. United

States, 442 U.S. 100, 106 (1979) (all

holding that appellate court may not

affirm on fact-bound theory not presented

to factfinder below). See also Braxton

v. United States, 500 U.S. =--, 114

L.Ed.2d 385, 393 (1991) (contrasting

standards of review for findings of fact

-54-

and for legal conclusions underlying

guideline sentence).

If the court of appeals determined,

on consideration of petitioner’s motion

for rehearing, that the district court

may have applied the enhancement based on

its being "relevant" under USSCG § 1B1.3

to the CCE or any substantive offense,

the court was required to vacate peti-

tioner’s sentences and remand to allow

the district court to make the necessary

factual determinations which would then

permit meaningful and legally permissible

appellate review.

For this reason, this Court should

grant the writ of certiorari and issue an

authoritative ruling that sentences under

the Guidelines may not be affirmed on

factual bases not argued before and

decided by the sentencing court.

-55-

3. Whether the exception in the wiretap

statute permitting after-the-fact mini-

mization of foreign language conversa-

tions where an expert is "not reasonably

available" during interception can be

satisfied where the government assumes

that it must import a foreign police

officer, without making any effort to

obtain an expert in the United States,

presents an important question of federal

law calling for resolution by this Court.

Pursuant to court authorization, DEA

agents in this case monitored the peti-

tioner’s Hebrew-language conversations in

their entirety, regardless of content,

for 17 days, with no contemporaneous

minimization. After that time, Israeli

National Police officers flown in from

Israel began to act as interpreters and

monitor the wiretap. The government had

made no efforts to obtain an interpreter

in the United States, which would have

resulted in less delay, if any at all.

In denying the motion to suppress

the wiretapped conversations and any

-56-

evidence derived therefrom on the basis

of improper minimization, the district

court held (without elaboration) that the

government satisfied its burden under

Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, to show

that a suitable expert in Hebrew was not

"reasonably available," 18 U.S.C. §

2518(5), at the time of the wiretapping

itself.12 Appx. C. The court of appeals

affirmed. Appx. A; 940 F.2d at 730.

The lower courts implicitly accepted

the government’s representation that two

factors made it reasonable to import

police officers from Israel to act as

interpreters, rather than even to seek

anyone in the United States: (1) that an

expert was needed in "common, everyday

13. The pertinent minimization language

of 18 U.S.C § 2518(5) is quoted in full

in the Statutes Involved, above.

-57=

aaa ae

Hebrew" rather than "biblical Hebrew,"

and (2) that the government was unaware

of the scope of the criminal drug enter-

prise being investigated, so that

security reasons rendered it necessary to

use a police officer from another country

rather than any United States resident.

The Assistant United States Attorney

engaged in the following colloquies with

the court at the hearing on the motion to

suppress:

THE COURT: Was it necessary to try

to obtain people from Israel in

order to act as interpreters?

AUSA: ... there is a difference

between biblical Hebrew and

common-speech Hebrew. We were not

aware at the beginning of the

investigation the extent of the

conspiracy. And therefore, there

was a need to get interpreters

from outside of this area who

could speak common, everyday

Hebrew. A number of alternatives

were considered and explored. And

it turned out that that was simply

the most expedient way to get

interpeters [sic] who were secure

in that respect for an electronic

surveillance.

-58-

&e & 2 8

THE COURT: Does the Government

ever get in touch with people like

Senora Batto who’s in charge of

interpretation, our own official

interpreter?

AUSA: Absolutely, your Honor. But

I think in a case where we are

dealing with an an [sic] allega-

tion, serious allegations of

enormous amounts of cocaine being

brought up to the Boston area of

Brookline, with a possibility that

there are other cities involved,

there are numerous people within

Boston involved, the security

concerns are extremely high, and

the concern for not compromising

THE COURT: Do you worry about

security?

AUSA: I think you always worry

about security in a wire trap

[sic] investigation.

THE COURT: You would sooner trust

somebody that comes from a foreign

country than people who are auth-

orized by this Court to interpret?

AUSA: Certainly -- Well, I don’t

want to get into loyalties, but I

think that certainly an officer,

that is a police official of

another country, is somebody who,

like a police official of our own,

is somebody we give credence to.

-59-

Supp. Hrng. Tr. at 55, 100. These

rationales do not satisfy a test of

reasonableness, either legal or factual.

Whether the government has satisfied

the minimization requirements of §

2518(5) "“depend[{s] on the facts and

circumstances of each case." Scott v.

United States, 436 U.S. 128, 140 (1978).

Those requirements of course include the

prerequisite for after-the-fact minimiza-

tion that no expert be "reasonably avail-

able" for contemporaneous minimization.

The government failed to meet that burden

in this case.

The venosé. as well as common sense,

reveals that the government’s first

asserted reason for seeking an Israeli

police officer as an interpreter, that it

needed an individual who spoke "common,

everyday" rather than “"bibiical" Hebrew,

-60-

was disingenuous at best. Certainly the

government knew that many such persons

were present in such a large city as

Boston, which has an extensive population

of Israeli immigrants as well as numerous

Hebrew linguists at that city’s many

outstanding academic institutions (and

competent non-academic interpreters as

well), the great majority of whom are not

biblical scholars. It would not take an

overabundance of creativity to determine

how to find entirely trustworthy speakers

of common Hebrew in these cities, which

the government must have recognized.

It is clear from the prosecutor’s

statements at the suppression hearing

that the government’s second stated

reason was, in actuality, its whole

reason for failing to seek an interpreter

locally or from somewhere within the

-61-

a)

United States: a belief that anyone

(apparently other than a police officer)

in the entire United States who might be

able to speak ordinary Hebrew constituted

a security risk, due to a likelihood of

having loyalties divided between the

United States and his or her fellow

speakers of Hebrew (even if the latter

were drug dealers).

This conclusion was flatly unreason-

able and based on an unspoken and funda-

mentally unacceptable assumption about

the "loyalties" of foreign-language-

speaking (or perhaps only Hebrew-

speaking) Americans. It is inconsistent

with the use of trusted interpreters in

the grand jury setting under Fed.R.

Crim.P. 6(d). The Constitution will not

tolerate adverse governmental action

premised on mere fear that an ethnic

-62-

group’s internal solidarity could pose

risks of disloyalty to Nation and duty.

Compare Korematsu Vv. United States, 323

U.S. 214 (1944), with Batson v. Kentucky,

476 U.S. 79 (1986). Construction of

Title III demands no less.

Had the government attempted to

obtain an interpreter from the Boston

area or even from this country, it would

not have taken 17 days for the government

to succeed. It certainly would not have

been, nor did petitioner claim that it

had to be, “utter[{ly] impossible," the

standard the court of appeals rejected.

Appx. A; 940 F.2d at 730. What it would

have been was a reasonable effort, as

required by the statute. Compare United

States v. Cale, 508 F.Supp. 1038, 1041

(S.D.N.Y. 1981) (government satisfied §

2518(5) where government used agents and

-63-

translators fluent in Croatian "almost

from the start").

Because the government failed to

meet its burden to establish that foreign

language experts were not "reasonably

available," the district court and court

of appeals were wrong in upholding the

government’s after-the-fact minimization,

and the conversations tapped should have

been suppressea under 18 U.S.C. § 2515.14

14. The government argued below, as an

alternative basis for upholding the

district court’s denial of the motion to

suppress, that the government agents did

not listen to the tapes until the inter-

preters were present, who then minimized

the conversations as if intercepted

contemporaneously. Yet neither § 2515

(Title III’s exclusionary rule; see

Statutes Involved), § 2518(5), nor any

other pertinent provision contains a

prejudice requirement excusing violations

of the plain language of the statute.

See United States v. Ojeda Rios, 495 U.S.

--, 109 L.Ed.2da°224 (1990). Nor could

the violation of § 2518(5) constitute

harmless error under Fed.R.Crim.P. 52(a).

As the government implicitly conceded in

the court of appeals, Gov’t Br. at 98,

the wiretaps produced direct and

devastating evidence on much of the CCE,

substantive counts 15 and 16, and all of

i

;

For this reason as well, the writ

should be granted.

CONCLUSION

For each of the foregoing reasons,

petitioner Shmuel David prays that this

Court grant his petition for a writ of

certiorari to review the judgment and

opinion of the United States Court of

Appeals for the First Circuit affirming

his convictions and sentences on all but

the conspiracy counts of the superseding

indictment in this case.

Respectfully submitted,

PETER GOLDBERGER

PAMELA A. WILK

Attorneys for Petitioner

February 24, 1992.

the telephone counts (counts 20, 21, re

24 and 27). The wiretap evidence

certainly could have affected the

verdicts.

-65-

af. dene Ne She ee

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 89-1807

UNITED STATES OF AMERICA,

Appellee

V.

SHMUEL DAVID,

Defendant, Appellant

No. 89-1808

UNITED STATES OF AMERICA,

Appellee

V.

JAIME TORO ARISTIZIBAL,

Defendant, Appellant

No. 89-1809

UNITED STATES OF AMERICA,

Appellee

V.

AMPARO TORO ARISTIZIBAL,

Defendant, Appellant

-Al-

No. 89-2110

UNITED STATES 9OF AMERICA,

Appellee

Vv.

YEHUDA YARDEN,

Defendant, Appellant

{published at 940 F.2d 722]

APPEALS FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

(Hon. John J. McNaught, U.S. Dist. Judge]

Before

Campbell, Selya and Cyr, Circuit Judges.

Wendy Sibbison, with whom Barry P.

Wilson and Zalkind, Sheketoff, Wilson,

Homan, Rodriguez & Lunt were on brief for

appellant Shmuel David.

Dana A. Curhan for appellant Jaime

Toro Aristizibal. Raymond E. Gillespie

for appellant Amparo Toro Aristizibal.

Stephen R. Kaplan for appellant Yehuda

Yarden.

Frank J. Marine, Attorney, United

States Department of Justice, with whom

Wayne A. Budd, United States Attorney,

and Jonathan Chiel and Stephen P.

-A2-

Assistant United States Attorneys, were on

brief for the United States.

(Heard April 4, 1991. Decided] July

29, 1991. (Rehearing and Rehearing En Banc

Denied Aug. 28, 1991. Motion for

Rehearing Denied Sept. 27, 1991.]

SELYA, Circuit Judge. These appeals

arise out of the ashes of the long, hard-

fought criminal trial of six defendants,

Fliahu Abramson, Efraim Natanel, Shmuel

David, Yehuda Yarden, Jaime Toro Aristi-

zibal, and Amparo Toro Aristizibal.

Abramson was acquitted. Natanel, whose

appeal has already been decided, United

States v. Natanel, [938] F.2d [302] (1st

Cir. 1991), was convicted on only one

count. The remaining four defendants were

convicted on multiple counts. After

sifting through the copious record in light

of their myriad claims of error, we affirm

most of what transpired, but vacate two of

David’s convictions.

affirm most of what transpired, but

vacate two of David’s convictions.

I. BACKGROUND

This case involves a spider web of

drug dealing, with David at the web’s

center. The web was spun over a period

of close to two years, engulfing an array

of persons and places. A useful way to

introduce the various characters and to

gain some perspective on this arachnoid

adventure is to summarize the superseding

indictment.

The indictment named fourteen

defendants in twenty-seven counts. Count

i alleged that David, Yarden, the Toros,

Joseph Zalmanovich, and Mordechai Mizrahi

engaged in a conspiracy to distribute

cocaine, 21 U.S.C. § 846, from not later

than August 1986 until about March 1988.1

1. The Toros are husband and wife.

Zalmanovich, familiarly known as "Yossi,"

was apparently a fugitive at the time of

trial. Mizrahi, familiarly known as

-A4-

Count 2 alleged that twelve defendants,

save only the Toros, conspired to possess

and distribute cocaine in March and April

1988. The count 1 conspiracy allegedly

took place in Massachusetts, Florida, and

Belgium; the count 2 conspiracy allegedly

took place in the same three venues, plus

Ohio and Colombia. Most of the remaining

counts represented either substantive

charges of possession with intent to

distribute, 21 U.S.C. § 841(a)(1), or

charges of facilitating drug transactions

by using the telephone, in violation of 21

U.S.C. § 843(b). These counts are

summarized in the appendix. The linchpin

of the indictment was count 17, wherein

David was charged with engaging in a

continuing criminal enterprise (CCE), 21

U.S.C. § 848, from on or before August 1986

through April 28, 1988.

enterprise (CCE), 21 U.S.C. § 848, from

on or before August 1986 through April

28, 1988.

Trial began on March 27, 1989.

Verdicts were returned against the appel-

lants on May 31, 1989. David was

convicted on twenty-two counts. Jaime

Toro was convicted on the count 1

conspiracy and on twelve substantive

counts of possession with intent to

distribute. His wife, Amparo, was

convicted on the count 1 conspiracy.

Yarden was convicted of participating in

both conspiracies and on a telephone

count. After sentencing, these appeals

ensued. 2

2. David was sentenced to thirty-year

terms of imprisonment on the CCE and on

all but one of the possession counts;

twenty years on the two conspiracy

counts; and shorter jail terms on the

remaining charges. The sentences all ran

concurrently. Jaime Toro received

concurrent sentences of seventeen and a

half years on the conspiracy count and on

all but one possession count (for which

-A6-

We eschew an exegetic opening state-

ment, preferring instead to discuss the

facts, insofar as necessary to place the

issues into workable perspective, in the

course of the commentary that follows. We

mix and match the asseverations advanced by

the several appellants in an effort to

sustain a natural progression.

II. SUPPRESSION ISSUES

David argues that the district court

erred in denying his motions to suppress

evidence obtained from a court-authorized

digital display beeper (a so-called beeper

clone) and cortain court-approved telephone

3

intercepts. We deal with these issues

seriatim.

terms, and special assessments were also

imposed.

3. On appeal, Yarden adopts David’s

suppression arguments. We take no view

of Yarden’s standing to raise these

points since our resolution of the merits

makes the matter of standing academic.

-A7-

telephone intercepts.2 We deal with

these issues seriatim.

A. The Beeper Clone.

David was the proprietor of a beeper

corresponding to telephone number (617)

466-0366. On December 4, 1987, the

government received authorization from

the United States District Court for the

District of Massachusetts to intercept

communications targeted for this beeper.

The “attthorization was thereafter renewed

on several occasions. Judge Woodlock,

who allowed the intercept, found probable

cause to believe both that David was

using the beeper to further criminal

activity and that communications sent to

the beeper, if made known, would reveal

3. On appeal, Yarden adopts David’s

Suppression arguments. We take no view

of Yarden’s standing to raise these

points since our resolution of the merits

makes the matter of standing academic.

-A8-

cept and display telephone numbers trans-

mitted to the authentic beeper. Federal

agents utilized the beeper clone to obtain

information leading to evidence against

David and others. After indictment, David

moved to suppress the investigatory fruits

derived from the beeper clone. The trial

judge held a hearing, reserved decision,

and later denied the motion without stated

reasons.

The interception of electronic commu-

nications as an investigative technique is

governed by Title III of the Omnibus Crime

Control and Safe Streets Act, 18 U.S.C. §§

2510-2521 (Title III). The statutory

scheme provides a mechanism through which

the government may seek judicial authoriza-

tion to surveil electronic communications.

Section 2518 of Title III sets out what

must be included in an authorization

= A9-

The statutory scheme provides a mechanism

through which the government may seek

judicial authorization to surveil elec-

tronic communications. Section 2518 of

Title III sets out what must be included

in an authorization application. One

requirement is "a full and complete

statement as to whether or not other

investigative procedures have been tried

and failed or why they reasonably appear

to be unlikely to succeed if tried or to

be too dangerous." 18 U.S.C. §

2518(1)(c). We have explained that

"(t]he basis for the statutory monition

is the salutary notion that the sovereign

should make a reasonable, good faith

effort to run the gamut of normal inves-

tigative procedures before resorting to

means so intrusive as electronic inter-

ception of telephone calls." United

-“ALO~-

the beeper clone. We are not convinced.

In these purlieus, appellate review is

limited to the question of whether "the

issuing court could reasonably have

concluded that normal investigatory proce-

dures reasonably appeared to be unlikely to

succeed." United States v. Ashley, 876

F.2d 1069, 1074 (1st Cir. 1989); see also

United States v. Scibelli, 549 F.2d 222,

226 (list Cir.) (appellate court need only

"decide if the facts set forth in the

application were minimally adequate to

support the determination that was made"),

cert. denied, 431 U.S. 960[, 97 S.Ct. 2687,

53 L.Ed.2d 278] (1977). This inquiry is

not rigid or rule-oriented; to the precise

contrary, "Title III demands a practical,

commonsense approach to exploration of

investigatory avenues and relative

intrusiveness." United States v. Uribe,

- All1-

determination that was made"), cert.

denied, 431 U.S. 960[, 97 S.Ct. 2687, 53

L.Ed.2d 278] (1977). This inquiry is not

rigid or rule-oriented; to the precise

contrary, "Title III demands a practical,

commonsense approach to exploration of

investigatory avenues and relative

intrusiveness." United States v. Uribe,

890 F.2d 554, 556 (1st Cir. 1989).

Because drug trafficking is inherently

difficult to detect and presents formid-

able problems in pinning down the partic-

ipants and defining their roles, investi-

gative personnel must be accorded some

latitude in choosing their approaches.

In short, Title III "was not meant to

force the government to run outlandish

risks or to exhaust every conceivable

alternative" before applying for inter-

cept authorizations. Hoffman, 832 F.2d

~ALa”

why he thought the investigation, absent

injection of a beeper clone, had dried up.

Doherty described the government’s pains-

taking use of public documents and tele-

phone toll records to obtain information

about David and other suspects. He then

recounted knowledge gleaned through three

confidential informants. The first (CI-1)

informed the agent that he often called

David’s beeper as a prelude to purchasing

cocaine. He also stated, based on personal

observations of Yossi inspecting and paying

for cocaine in Florida, that David was

purchasing seven to ten kilograms of

cocaine monthly for distribution in Boston.

The second informant told the agent that he

had bought cocaine from one Jacky Anouyal

in front of a restaurant which Amouyal said

David owned in part, and that Amouyal

referred to a man who was in the restaurant

~ Al3-

cocaine. He also stated, based on

personal observations of Yossi inspecting

and paying for cocaine in Florida, that

David was purchasing seven to ten kilo-

grams of cocaine monthly for distribution

in Boston. The second informant told the

agent that he had bought cocaine from one

Jacky Amouyal in front of a restaurant

which Amouyal said David owned in part,

and that Amouyal referred to a man who

was in the restaurant at the time as

"Shmuel" (David’s first name). The third

informant said that he bought cocaine

from David on several occasions,

contacting him through his beeper. In

addition, some two weeks before the

affidavit was signed, the aed reported

that CI-1 called David’s beeper in the

agent’s presence. David returned the

call a few minutes later. A conversation

-Al14-

unable to identify current customers of

David’s drug operation, furnish a complete

list of David’s suppliers, or pinpoint the

locations used to store, process, and

distribute the cocaine. An undercover

agent, he said, would not be able to root

out more than a single member of the ring

and would be of no help in identifying

customers. Reviewing David’s telephone

toll records (which had been subpoenaed)

would not do the trick, as those records

would only chronicle long-distance calls

and, in any event, would be stale. Doherty

considered, and rejected as inefficacious,

the use of a pen register, inasmuch as no

particular telephone could yet be singled

out, to the exclusion of other telephones,

as being used by David. Finally, the agent

stated his belief that not enough informa-

tion had been gathered to support the

~A15-

help in identifying customers. Reviewing

David’s telephone toll records (which had

been subpoenaed) would not do the trick,

as those records would only chronicle

long-distance calls and, in any event,

would be stale. Doherty considered, and

rejected as inefficacious, the use of a

pen register, inasmuch as no particular

telephone could yet be singled out, to

the exclusion of other telephones, as

being used by David. Finally, the agent

stated his belief that not enough infor-

mation had been gathered to Support the

issuance of a search warrant.

In these circumstances, it is plain

that the district court could appropri-

ately have found the beeper clone to be

warranted. The government showed that it

had invested considerable time and energy

in conventional investigative methods.

“AL6-

three weeks and that this interval was too

short a time for the government to have

adequately explored less intrusive avenues.

Yet, although the length of time an inves-

tigation has run is an important factor to

consider in weighing the reasonableness of

a Title III request, we refuse to place

talismanic significance on time alone.

High-stakes drug trafficking is by its

nature volatile, fast-paced, elusive, and

in constant motion. The reaction time of

those who seek to expose narcotics rings

must be gauged in that light. We cannot

subscribe, therefore, to a bright-line rule

that says an investigation must be ongoing

for more than three weeks before an inter-

cept can be authorized. Rather, the nisi

prius court, as it did here, must review

the totality of the application to deter-

mine if the government made a reasonable,

weighing the reasonableness of a Title

III request, we refuse to place talis-

manic significance on time alone. High-

stakes drug trafficking is by its nature

volatile, fast-paced, elusive, and in

constant motion. The reaction time of

those who seek to expose narcotics rings

must be gauged in that light. We cannot

subscribe, therefore, to a bright-line

rule that says an investigation must be

ongoing for more than three weeks before

an intercept can be authorized. Rather,

the nisi prius court, as it did here,

must review the totality of the applica-

tion to determine if the government made

a reasonable, good faith effort to inves-

tigate without the intercept, taking into

account all of the pertinent circum-

stances (including, but by no means

limited to, the investigation’s temporal

“ALS=

applied for, and received, permission to

tap David’s telephone. In obtaining the

order, the government relied, inter alia,

on information obtained through the beeper

clone. Once again, David challenges the

authorization on the ground that necessity

was not shown. We need not dally. During

the roughly two months that had elapsed

from the beeper authorization to the

wiretap application, the DEA endeavored to

discover the identities of David’s prin-

cipal cohorts in numerous ways. Four

informants were questioned, the beeper

clone was put in service, a pen register

was tried, an unsuccessful attempt to

introduce an undercover agent transpired,

and physical surveillance was essayed.

None of these techniques revealed the type

of information that the DEA needed to crack

the drug ring--information which was likely

= Al1g9-

relied, inter alia, on information

obtained through the beeper clone. Once

again, David challenges the authorization

on the ground that necessity was not

Shown. We need not dally. During the

roughly two months that had elapsed from

the beeper authorization to the wiretap

application, the DEA endeavored to

discover the identities of David’s prin-

cipal cohorts in numerous ways. Four

informants were questioned, the beeper

Clone was put in service, a pen register

was tried, an unsuccessful attempt to

introduce an undercover agent transpired,

and physical surveillance was essayed.

None of these techniques revealed the

type of information that the DEA needed

to crack the drug ring--information which

was likely to be obtained through the

wiretap. Hence, it was not error for the

-A20-

and, despite the exercise of reasonable

diligence, a translator is not available

for on-the- spot minimization, a different

rule obtains. In such circumstances,

"minimization may be accomplished as soon

as practicable after ... interception."

Id. David’s appeal requires that we probe

the interstices of these rules.

The facts are straightforward. The

DEA secured the original wiretap authoriza-

tion on February 17, 1988. According to

Doherty’s affidavit, the agents were then

in the process of locating interpreters

capable of understanding modern Hebrew as

it pertained to drug dealings. Through law

enforcement agencies in Israel, the govern-

ment was able to borrow Israeli police

officers for this purpose. The Israeli

officers arrived in Boston on March 1.

Following some briefing, they were deployed

foreign language or code and, despite the

exercise of reasonable diligence, a

translator is not available for on-the-

spot minimization, a different rule

obtains. In such circumstances, "mini-

mization may be accomplished as soon as

practicable after ... interception." Id.

David’s appeal requires that we probe the

interstices of these rules.

The facts are straightforward. The

DEA secured the original wiretap author-

ization on February 17, 1988. According

to Doherty’s affidavit, the agents were

then in the process of locating inter-

preters capable of understanding modern

Hebrew as it pertained to drug dealings.

Through law enforcement agencies in

Israel, the government was able to borrow

Israeli police officers for this purpose.

The Israeli officers arrived in Boston on

“AZe~

guidepost was not skirted. The key to

after-the-fact minimization is that the

process utilized must protect the suspect’s

privacy interests to approximately the same

extent as would contemporaneous minimiza~-

tion, properly conducted. Accord United

States v. Gambino, 734 F.Supp. 1084, 1106

(S.D.N.Y. 1990). This criterion was

fulfilled. The DEA’s protocol was designed

to replicate what would happen in a contemn-

poraneous minimization: the interpreters

were told to stop listening to a tape once

they determined that the conversation was

beyond the scope of the investigation. By

translating only the portions of the tapes

that seemed relevant, the government’s

actions comported with the expectations of

Congress, e e.g., S. Rep. No. 541, 99th

Cong., 2d Sess. 1, 30, reprinted in 1986

U.S. Code Cong. & Admin. News 3555, 3584,

fK

a pm D 3-

—

United States, 436 U.S. 128, 139-42[, 98

S.Ct. 1717, 1724-26, 56 L.Ed.2d 168}

(1978); Uribe, 890 F.2d at 557. But,

that guidepost was not skirted. The key

to after-the-fact minimization is that

the process utilized must protect the

suspect’s privacy interests to approxi-

mately the same extent as would contempo-

raneous minimization, properly conducted.

Accord United States v. Gambino, 734

F.Supp. 1084, 1106 (S.D.N.Y. 1990). This

criterion was fulfilled. The DEA’s

protocol was designed to replicate what

would happen in a contemporaneous mini-

mization: the interpreters were told to

stop listening to a tape once they

determined that the conversation was

beyond the scope of the investigation.

By translating only the portions of the

tapes that seemed relevant, the govern-

-A24-

—————

credibility determinations in line with the

jury’s verdict. See United States v.

Ingraham, 832 F.2d 229, 230 (1st Cir.1987),

cert. denied, 486 U.S. 1009[, 108 S.Ct.

1738, 100 L.Ed.2d 202] (1988); United

States v. Cintolo, 818 F.2d 980, 983 (1st

Cir.), cert. denied, 484 U.S. 913[, 108

S.Ct. 259, 98 L.Ed.2d 216] (1987). The

verdict must be affirmed so long as any

rational trier of the facts could have

found the essential elements of the crime

beyond a reasonable doubt. See, e.qd.,

United States v. Gomez-Pabon, 911 F.2d 847,

852 (lst Cir. 1990), cert. denied, 111

S.Ct. 801[, 112 L.Ed.2d 862] (1991).

Applying this standard in the current

context necessitates that we keep several

principles in mind. In determining whether

David organized, supervised or managed a

criminal enterprise and its associates, we

The applicable standard of review is

a familiar one. An appellate court,

faced with a sufficiency challenge, must

take the evidence in the light most

hospitable to the prosecution, drawing

all plausible inferences in its favor and

resolving all credibility determinations

in line with the jury’s verdict. See

United States v. Ingraham, 832 F.2d 229,

230 (lst Cir.1987), cert. denied, 486

U.S. 1009[, 108 S.Ct. 1738, 100 L.Ed.2d

202] (1988); United States v. Cintolo,

818 F.2d 980, 983 (lst Cir.), cert.

denied, 484 U.S. 913[{, 108 S.Ct. 259, 98

L.Ed.2d 216] (1987). The verdict must be

affirmed so long as any rational trier of

the facts could have found the essential

elements of the crime beyond a reasonable

doubt. See, e.g., United States v.

Gomez-Pabon, 911 F.2d 847, 852 (1st Cir.

-A26~

_e«————-

F.2d 719, 731 (8th Cir. 1986), or that the

degree of supervision exercised over each

person was comparable, see United States v.

Jones, 801 F.2d 304, 308 (8th Cir. 1986).

As long as a reasonable juror could have

concluded beyond a reasonable doubt, in

line with these tenets, that the defendant

organized, supervised, or managed five

different people in furtherance of his

narcotics-related activities, the verdict

must stand.

In this case, our review is tightly

cabined. While David advances various

arguments, factual and legal, as to why

particular people could not be considered

to be under his organizational spell, he

neither challenges the jury instructions

that were given with respect to this

element of the offense nor contends that

other (necessary) instructions were

= A27-

identities of the henchmen, but must only

agree that there were at least five. See

United States v. Tarvers, 833 F.2d 1068,

1075 (lst Cir. 1987). There is, moreover,

no requirement that the five individuals

be shown to have acted in concert or

contemporaneously, see United States v.

Aiello, 864 F.2d 257, 264 (2d Cir. 1988);

United States v. Lueth, 807 F.2d 719, 731

(8th Cir. 1986), or that the degree of

supervision exercised over each person

was comparable, see United States v.

Jones, 801 F.2d 304, 308 (8th Cir. 1986).

As long as a reasonable juror could have

concluded beyond a reasonable doubt, in

line with these tenets, that the

defendant organized, supervised, or |

managed five different people in further-

ance of his narcotics-related activities,

the verdict must stand.

-A28-

thereafter ran, a drug trafficking opera-

tion in the Boston area from 1986 through

1988. For most of that time, he was

distributing from seven to ten kilograms of

cocaine per month. His aides included

Yossi (who was based in Florida, had a hand

in acguiring the cocaine, and arranged to

ship it north) and Nuni (who was David’s

right hand man in Boston). David concedes

that his relationship with both Yossi and

Nuni constituted supervision for the

purposes of section 848. He likewise

concedes that he oversaw at least one other

person, as a courier, from time to time. ©

6. The record reveals that, over time,

David used at least three couriers--a

nameless "guy with the El Camino," Eli

Filin, and Richard Parrish. David

contends that his supervision of three

couriers in succession amounted to the

supervision of one person, since the

three filled a single role in the enter-

prise. While his position is not without

some theoretical support, see, e.g.,

United States v. Bond, 847 F.2d 1233,

1237 (7th Cir. 1988), the question is

complicated by David’s failure to request

a jury instruction on this point. We

- A29-

We recount the facts in greater

detail than we otherwise might only

because knowledge of them is useful to an

understanding of issues subsequently

discussed. The evidence showed that

David assembled, and thereafter ran, a

drug trafficking operation in the Boston

area from 1986 through 1988. For most of

that time, he was distributing from seven

to ten kilograms of cocaine per month.

His aides included Yossi (who was based

in Florida, had a hand in acquiring the

cocaine, and arranged to ship it north)

and Nuni (who was David’s right hand man

in Boston). David concedes that his

relationship with both Yossi and Nuni

constituted supervision for the purposes

could not be counted, and the court had

erroneously refused the instruction, then

the defendant might be successful in

challenging the verdict on appeal.

-A30-

guity was for the jury to resolve. The CCE

statute can be satisfied by evidence that

the defendant organized five or more people

in the criminal endeavor without any proof

that the defendant exercised knee-jerk

control over those whom he organized, or

that they were his puppets. See Apodaca,

843 F.2d at 426.

Adding Furer to the roster still

leaves one slot to be filled. Summarizing a

vignette from the record illustrates that

the jury could lawfully have chosen from a

surfeit of eligible candidates to fill this

vacancy. In June 1987, David’s courier,

Filin, tried to steal a shipment of

cocaine. He and an accomplice faked a

robbery at the point of delivery. David

became suspicious. He and Yossi (the

shipment’s intended recipient) flew to

Florida, met with Furer, and arranged for

-A31-

his Florida — (the Toros). Furer

arranged a dozen or more shipments, kept

the cocaine at his place of business in

Florida until it could be delivered, paid

the Toros with funds furnished by David,

and attended meetings on David’s behalf.

Although David argues vigorously that

Furer’s status was more akin to that of

an independent contractor, we think any

ambiguity was for the jury to resolve.

The CCE statute can be satisfied by

evidence that the defendant organized

five or more people in the criminal

endeavor without any proof that the

defendant exercised knee-jerk control

over those whom he organized, or that

they were his puppets. See Apodaca, 843

F.2d at 426.

Adding Furer to the roster still

leaves one slot to be filled. Summarizing

-A32-

did not confess, he was taken to a hotel

room where Dede was waiting. Dede

suggested that both Filin and Yossi be

required to take lie detector tests. Filin

was released. A short time later, Furer

asked him to make another delivery to

Boston. Upon his arrival, a lie detector

test was administered. Filin failed the

test, confessed to the robbery, and agreed

to return the cocaine.

It is clear from this tawdry tale

that, at the very least, the jury was

entitled to find that Dede, Moshe One, and

Moshe Two, in addition to Yossi, Nuni,

Furer, and a courier, were within David’s

sphere of influence and subject to his

supervision in the course of his drug traf-

ficking activities. Wholly apart from

evidence implicating other persons, this

proof was enough to scuttle the assignment

of error.

-A33-

responsible.

Soon thereafter, Filin was given

another batch of cocaine and told to

bring it to Boston. When Filin arrived

at the designated address, David and Nuni

escorted him to another apartment where

Moshe One and Moshe Two were waiting.

Filin was tied to a chair, beaten, and

threatened with his life unless he told

the truth about the purloined narcotics.

A gun (furnished by Nuni) was held to

Filin’s head. When Filin did not

confess, he was taken to a hotel room

where Dede was waiting. Dede suggested

that both Filin and Yossi be required to

take lie detector tests. Filin was 7

released. A short time later, Furer

asked him to make another delivery to

Boston. Upon his arrival, a lie detector

test was administered. Filin failed the

="A34<

In this instance, the court’s jury

instructions were adequate, providing a

satisfactory framework within which the

jury could find that Yarden was a part of

(1) no conspiracy, (2) either or both of

the charged conspiracies, or (3) a single

conspiracy encompassing both charged

conspiracies. The jury having determined

that there were two distinct conspiracies

as charged and that Yarden was a member of

each of them, his assignment of error boils

down to whether there was sufficient

evidence to sustain these findings.

A. Number of Conspiracies.

We first summarize the evidence from

which we believe the jury could reasonably

have concluded that there were two

different conspiracies as set out in counts

l and 2. Our review is to be conducted in

the light most favorable to the government,

i

body of evidence is indicative of a

Single conspiracy, multiple conspiracies,

or no conspiracy at all is ordinarily a

matter of fact. See United States v.

Boylan, 898 F.2d 230, 243 (lst Cir.),

cert. denied, 111 S.Ct. 139[, 112 L.Ed.2d

106] (1990). Ina jury trial, given

proper instructions (or in lieu thereof,

unchallenged instructions), the jury’s

determination as to whether one or more

conspiracies existed is subject to review

only for evidentiary sufficiency. Id.;

accord United States v. Khoury, 901 F.2d

948, 956 (llth Cir. 1990).

In this instance, the court’s jury

instructions were adequate, providing a

satisfactory framework within which the

jury could find that Yarden was a part of

(1) no conspiracy, (2) either or both of

the charged conspiracies, or (3) a single

“A36-

an unrelated crime, agreed to become a

government informant. He made various

telephone calls trying to persuade David to

resume purchasing cocaine from the Toros.

In February 1988, Furer was

successful; David wanted to start buying

larger quantities of cocaine and felt that

the New York prices were exorbitant. A

meeting was held at Furer’s office. David,

Nuni, Furer, and the Toros attended. David

announced a desire to acquire a minimum of

one hundred kilograms of cocaine per month.

The Toros agreed to inform their sources.

Later that day, Furer told David that Jaime

Toro was working on setting up a meeting,

and asked David if he wanted ten or fifteen

kilograms to tide him over until a larger-

scale transaction could be arranged. A few

days passed. Then, on February 23, 1988,

Amparo Toro told David that the Toros’

-A37-

March 1988, whereas the second conspiracy

began in March 1988 and ended the

following month. The evidence showed

that, during late 1986 and early 1987,

David’s ring was buying cocaine in

Florida from the Toros (usually receiving

about ten kilograms at a crack) and

selling it in the Boston area. This was

the norm until the summer of 1987 (when

Filin stole a shipment). Thereafter,

David, having soured on his Florida

connections, began exploring the New York

market for cocaine. It was approximately

at this time that Furer, who had been

convicted of an unrelated crime, agreed P

to become a government informant. He

made various telephone calls trying to

persuade David to resume purchasing

cocaine from the Toros.

In February 1988, Furer was

successful; David wanted to start buying

-A38=-

out. He indicated frustration with the

high price of doing business through Furer

and the Toros. Yarden then proposed that a

new arrangement be fashioned: either he

would start supplying David with cocaine or

David would begin to supply him with

cocaine in Europe. The discussion ended

without a definitive agreement. Several

days later, David told Parrish that he was

fed up with his Florida associates and was

looking elsewhere for cocaine. On March 8,

Yossi told David that he had lined up a

meeting in Colombia to discuss direct

purchases of cocaine. His spirits buoyed,

David flew to Colombia shortly thereafter.

On March 24, David informed Yarden

that he had negotiated a supply of cocaine

at not much more than half the Toros’

price. David started gathering cash. By

March 28, he thought he had accumulated

CC —————

getting involved in some drug deals.

Yarden recruited Parrish to act as a

courier to transport the cocaine from

Florida to Boston. Parrish and David

spoke and agreed on Parrish’s fee.

Parrish was told to stand by until the

ten/fifteen kilogram consignment was

ready. On February 26, Jaime Toro

brought a single kilogram to Furer’s

office. David was inaccessible, however,

and no transaction occurred. (As matters

turned out, David and Yossi had retrieved

their money from Furer’s office and gone

back to Boston that same day.)

On February 29, David told Yarden

that the Florida supply source had not

panned out. He indicated frustration

with the high price of doing business

through Furer and the Toros. Yarden then

proposed that a new arrangement be fash-

participants, including the defendant,

collogue to accomplish an unlawful objec-

tive, taking at least one overt step in

furtherance of that objective. See, e.g.,

United States v. Latham, 874 F.2d 852, 863

(lst Cir. 1989). In analyzing the evidence

in a multiple conspiracy case, then, we can

start by asking a basic question: Is the

proof sufficient to permit a jury to find,

beyond a reasonable doubt, the separate

agreements charged in the indictment? See

United States v. Glenn, 828 F.2d 855, 858

(lst Cir. 1987). The answer to this

question may rest wholly on circumstantial

evidence. Indeed, "the government can

prove the existence of both express and

tacit agreements by pointing to the actions

as well as the words of the defendants."

iG.

There is no mechanical test through

which a reviewing court can plumb the scope

~A41-

would furnish one of his Boston customers

with three kilograms of cocaine. David

agreed and a price was set.

On April 24, David called Nuni from

Florida and told him that forty kilograms

was en route. He asked Nuni to bring

more money to him in Florida. The

shipment arrived, but was thirty kilo-

grams lighter than expected. Parrish

drove the contraband to Boston where

David met him. On April 28, a courier

from Ohio - a new market for David -

arrived in Boston to pick up five kilo-

grams for $30,000. Later that day, Nuni

and David were arrested.

When all is said and done, a

conspiracy is merely an agreement,

express or implied, under the terms of

which the participants, including the

defendant, collogue to accomplish an

-A42-

the similarities (or differences) in the

evidence used to prove the two conspir-

acies. Cf., e.g., Gomez-Pabon, 911 F.2d at

860 (outlining test to be used in assessing

whether two charged conspiracies constitute

a Single offense for double jeopardy

purposes).

On the present facts, it is readily

apparent that reasonable jurors could have

reached divergent conclusions in terms of

the number of conspiracies which were

afoot. It can plausibly be argued, as

Yarden exhorts, that the events of March

and April 1988 represented no more than a

change in direction of the ongoing

conspiracy. By the same token, however, it

can be argued with at least equal cogency

that the original conspiracy had ended and

a new one had emerged. David’s dissatis-

faction was evident during and after his

~Aa3-

cai

scope and contours of a given conspiracy

or determine how many conspiracies may be

said to exist. Rather, we must make a

case-specific assay, concentrating on the

totality of the evidence and the permis-

Sible inferences therefrom. See United

States v. Drougas, 748 F.2d 8, 17 (lst

Cir.1984). Nevertheless, where, as here,

it is clear that at least one conspiracy

could be found, a possible method of

organizing the evidence to determine

whether more than one conspiracy was

proven is to examine the relationship of

the charged (multiple) conspiracies to

one another in terms of factors such as

the times when the relevant activities

transpired; the locations at which the

activities occurred; the identities of

the persons involved; the coconspirators’

ends; the means used to achieve those

-A44-

of the two conspiracies was the same--

although the second was designed to be on a

grander scale. Yet, such factors are

suggestive rather than dispositive; there

is no rule of law that requires the

architecture, the goals, or the staffing of

successive conspiracies to be wholly

different, one from the other. Moreover,

there were important differences in the two

operations - to name a few, the setting of

a more ambitious sales quota; the shift to

Colombia as the primary source of supply;

the elimination of the Toros and Furer from

the team; and the targeting and pene-

tration of new market areas.

We need not paint the lily. In the

final analysis, we think that the facts,

viewed favorably to the government,

supported a rational conclusion that the

arrangement to import cocaine directly from

~P4 5-

after his February trip to-Florida. His

relationship with the Tores had

deteriorated markedly. He was frustrated

by the ongoing conspiracy’s inability to

structure and support the larger opera-

tion that he envisioned. The cast of

characters changed in that time frame;

only four of the six count 1

coconspirators (including David and

Yarden) were named in count 2, and there

was evidence that up to eight persons who

had not been accuse:'d of membership in the

earlier conspiracy had participated in

the later one. Given these circum-

stances, the jury could logically have

believed that, after discussions with

Yarden and Parrish, David decided to

dismantle the preexisting apparatus,

strike off in a different direction, and

start a new operation.

-A46-

1029[, 106 S.Ct. 1233, 89 L.Ed.2d 342]

(1986).

B. Yarden’s Involvement.

We turn now to the related question of

whether there was sufficient evidence to

tie Yarden to both conspiracies. To prove

such a charge, the government must show

that a conspiracy existed, that the

defendant knew of it, and that he volunta-

rily participated in it. See Gomez-Pabon,

911 F.2d at 852; United States v. Aponte-

Suarez, 905 F.2d 483, 489 (lst Cir.), cert.

denied, 111 S.Ct. 531[, 112 L.Ed.2d 541]

(1990), 1112 6.Ct. 975f, 112 L.Ba.2¢ 1061]

(1991). The defendant must have intended

to agree with his coconspirators and to

commit the substantive offense. See United

States v. Rivera-Santiago, 872 F.2d 1073,

1079 (lst Cir.), cert. denied, 492 U.S.

910[, 109 S.Ct. 3227, 106 L.Ed.2d 576], 110

=PA7-

viewed favorably to the government,

supported a rational conclusion that the

arrangement to import cocaine directly

from Colombia marked the inception of a

conspiracy distinct from the original

conspiracy, not a mere adjustment in the

framework of the latter. Compare, e.gq.,

United States v. Hart, [933] F.2d [80],

[86] (lst Cir. 1991) (affirming finding

of separate drug trafficking conspiracies

despite proximity in time, partial

overlap in locale, similarity in nature

of unlawful conduct, and identity of

objectives) with, e.g., Gomez-Pabon, 911

F.2d at 861 (where second venture is

merely an adaptation of conspiratorial

plan of thwarted first venture, two

conspiracies cannot be made out). A

criminal jury, after all, "is free to

choose among varying interpretations of

-A48-

Cir. 1988); Uni States v. Marolla, 766

F.2d 457, 461 (11th Cir. 1985); Unit

1982); United States v. Waldron, 590 F.2d

934[, 99 S.Ct. 2056, 60 L.Ed.2d 662]

(1979); see also United States v. Nuccio,

373 F.2d 168, 174 n. 4 (2d Cir.) ("no proof

of actual dealings in narcotics is required

to establish conspiracy to violate the

narcotics laws"), cert. denied, 387 U.S.

906[, 87 S.Ct. 1688, 18 L.Ed.2d 623]

(1967).

Moreover, the evidence that Yarden

enlisted in the count 1 conspiracy by no

later than February 1988 was solid. On

this record, nothing further was required.

When, as here, a miscreant opts to join an

ongoing conspiracy, the law holds him

accountable for the earlier acts of his

~ hag-

coconspirators and to commit the substan-

tive offense. See United States v.

Rivera-Santiago, 872 F.2d 1073, 1079 (1st

Cir.), cert. denied, 492 U.S. 910[, 109

$.ct. 3227, 106 L.Ed.2d 576], 110 &.Ct.

105[{, 107 L.Ed.2d 68] (1989). The proof

of a defendant’s conspiratorial involve-

ment may consist of indirect evidence,

including inferences drawn from acts

performed in furtherance of the

conspiracy. Gomez-Pabon, 911 F.2d at

853; Glenn, 828 F.2d at 858.

On the count 1 conspiracy, we think

the jury could have found that Yarden

agreed to help David transport the

cocaine that the Toros were supposed to

produce in late February. To implement

this agreement, Yarden recruited Parrish

and introduced him to David. That most

of the cocaine never materialized, and

-A50-

some of the Colombian cocaine for one of

his own customers. It borders on the friv-

Olous to raise questions of evidentiary

sufficiency anent his participation in the

count 2 conspiracy.

V. THE COUNT 21 CONVICTION

We will not tarry over Yarden’s chal-

lenge to his conviction on count 21. At

trial, some of the evidence against Yarden

consisted of his role in Hebrew-language

telephone conversations intercepted by the

government. Yarden’s conviction for the

unlawful use of a telephone was based on

these conversations. On appeal, he argues

that the conviction cannot stand because he

never physically possessed any cocaine.

The argument is a non-sequitur.

Yarden was indicted and convicted on

count 21 for unlawful use of a telephone in

facilitation of a conspiracy to possess

-~A51-

later than February 1988 was solid. On

this record, nothing further was

required. When, as here, a miscreant

opts to join an ongoing conspiracy, the

law holds him accountable for the earlier

acts of his coconspirators in furtherance

of the conspiracy. See, e.g., Cintolo,

818 F.2d at 997 ("one who joins an

ongoing conspiracy is deemed to have

adopted the prior acts and declarations

of coconspirators, made after the forma-

tion and in furtherance of the

conspiracy"); United States v. Baines,

812 F.2d 41, 42 (1st Cir. 1987) ( "[A]

conspiracy is like a train. When a party

knowingly steps aboard, he is part of the

crew, and assumes conspirator’s responsi-

bility for the existing freight - or

conduct - regardless of whether he is

aware of just what it is composed."); see

-alta-

A. Evidence of Violence.

All the appellants challenge the

admission of evidence concerning threats

and violence perpetrated by David, Dede,

Moshe One, and Moshe Two in the aftermath

of Filin’s theft of the cocaine shipment.

They also protest the admission into

evidence of a recorded conversation in

which David informed Furer, arguably in an

attempt to intimidate him, that Musa, a New

York drug dealer, had been murdered.

Because the evidence actually involved

David, and not the other appellants, our

analysis must proceed in two stages. We

turn first to the arguments advanced by the

Toros and Yarden, all of whom tell us that

the district court erred in overruling

their objections and in allowing the

evidence.

_ A53-

tions. On appeal, he argues that the

conviction cannot stand because he never

physically possessed any cocaine. The

argument is a non-sequitur.

Yarden was indicted and convicted on

count 21 for unlawful use of a telephone

in facilitation of a conspiracy to

possess cocaine, in violation of 21

U.S.C. § 843(b). Thus, actual possession

was not required. In a section 843(b)

"telephone" case involving a narcotics

conspiracy, the prosecution only has to

show that the conspiracy existed and that

the accused made interstate calls to

advance its ends. See United States v.

Thomas, 586 F.2d 123, 130-31 (9th Cir.

1978); see also United States v. Cordero,

668 F.2d 32, 43 (1st Cir. 1981) (tele-

phone calls facilitating development of a

drug conspiracy violate § 843(b)). Such

-A354-

404(b) is mislaid. The evidence concerned

the acts of a codefendant - not conduct

attributable to any of them. Objections

based on Rule 404(b) may be raised only by

the person whose "other crimes, wrongs, or

acts" are attempted to be revealed. See,

e.g., United States v. Gonzalez-Sanchez,

825 F.2d 572, 583 (lst Cir.) ("Rule 404(b)

does not exclude evidence of prior crimes

of persons other than the defendant."),

cert. denied, 484 U.S. 989[, 108 S.Ct. 510,

98 L.Ed.2d 508] (1987). Because the

evidence in question was evidence of

David’s behavior, the Toros and Yarden lack

standing to invoke the rule.8

8. In passing, we acknowledge that,

theoretically, acts could, under certain

circumstances, be considered the acts of

a non-actor through attribution, inasmuch

as certain acts of a conspirator may be

attributed to his coconspirators. See,

e.g., United States v. Crocker, 788 F.2d

802, 806 (lst Cir.1986); United States v.

Cranston, 686 F.2d 56, 62 (1st Cir.1982).

In this case, however, neither Yarden nor

the Toros argue that any such direct

attribution was in prospect. At any

-A55-

murdered. Because the evidence actually

involved David, and not the other appel-

lants, our analysis must proceed in two

stages. We turn first to the arguments

advanced by the Toros and Yarden, all of

whom tell us that the district court

erred in overruling their objections and

in allowing the evidence.

1. Admissibility as to Non-

Participants. In essence, the Toros and

Yarden claim that, as to them, the

evidence in question was unduly prejudi-

cial and admitted in contravention of

Fed. R. Evid. 404(b) and 403.’ Their

7. #The rules provide:

Evidence of other crimes,

wrongs, or acts is not admissible

to prove the character of a person

in order to show action in confor-

mity therewith. It may, however,

be admissible for other purposes,

such as proof of motive,

opportunity, intent, preparation,

plan, knowledge, identity, or

absence of mistake or accident.

Fed.R.Evid. 404(b).

-AIG-

unacceptably great. We need not speculate,

however, for this is not such an extreme

case. The Filin incident, albeit fearsome,

was not overblown. As to the other

episode, David never said that he killed

Musa or arranged for his execution. In

fine, neither body of evidence was so

shocking, relative to the other evidence

adduced at trial, as to make it probable

that the limiting instructions would fall

on deaf ears or that the jury’s perception

of the other defendants would be unfairly

tainted by their association with David.

And we take the jury’s acquittal of two

defendants, Natanel and Abramson, on the

conspiracy cnarges, as an ex post vali-

dation of the trial judge’s faith in the

effectiveness of his limiting instructions.

Accord, e.g., Natanel, 938 F.2d at 308

(listing other cases).

-~A57-

evidence in question was evidence of

David’s behavior, the Toros and Yarden

lack standing to invoke the rule.®

Refined to bare essence, then, the

trio’s argument comes down to a claim

that the evidence likely spilled over and

prejudiced their defenses. We do not

think this claim has any merit. The

trial judge carefully instructed the jury

to consider the evidence only as against

David. This was the proper course to

8. In passing, we acknowledge that,

theoretically, acts could, under certain

circumstances, be considered the acts of

a non-actor through attribution, inasmuch

as certain acts of a conspirator may be

attributed to his coconspirators. See,

e.g., United States v. Crocker, 788 F.2d

802, 806 (lst Cir.1986); United States v.

Cranston, 686 F.2d 56, 62 (lst Cir.1982).

In this case, however, neither Yarden nor

the Toros argue that any such direct

attribution was in prospect. At any

rate, the jury was specifically

instructed that the challenged evidence

bore only on the question of David’s

guilt or innocence.

-“ASo~

reference of the others’ arguments does not

adequately develop or preserve the issue

with respect to his own appeal. See, e.g.,

Zannino, 895 F.2d at 17 (it is a "settled

appellate rule that issues adverted to ina

perfunctory manner, unaccompanied by some

effort at developed argumentation, are

deemed waived").

In any event, we do not doubt that the

evidence was properly admitted against

David. For one thing, Rule 404(b) does not

apply at all. The challenged evidence was

independently admissible as proof that

David ran a CCE. Rule 404(b) only applies

to "[e]vidence of other crimes, wrongs, or

acts." Fed.R.Evid. 404(b) (emphasis

Supplied). Evidence which is part and

parcel of the crime being tried is simply

not “other crimes" evidence within the

ambit of Rule 404(b). See, e.g., United

-A59-

would fall on deaf ears or that the

jury’s perception of the other defendants

would be unfairly tainted by their asso-

ciation with David. And we take the

jury’s acquittal of two defendants,

Natanel and Abramson, on the conspiracy

charges, as an ex post validation of the

trial judge’s faith in the effectiveness

of his limiting instructions. Accord,

e.g., Natanel, 938 F.2d at 308 (listing

other cases).

2. Admissibility as to David.

Although David is postured somewhat

differently with respect to this

evidence, he has not argued the idiosyn-

cracies [sic] of his own position.

Rather, he has adopted verbatim the other

appellants’ arguments. See Fed. R. App.

P. 28(i). Adoption by reference,

however, cannot occur in a vacuum; to be

-A60-

unfair effect." Freeman v. Package

Machinery Co., 865 F.2d 1331, 1340 (lst

Cir. 1988). This is not the rare or extra-

Ordinary case. The lower court acted well

within the realm of its discretion in

admitting the challenged evidence.

B. Evidence Anent "The Mexican."

In November 1987, while the count 1

conspiracy was still in progress, Furer

(who had by then agreed to cooperate with

the government) attempted to arrange a

transaction between David and an undercover

DEA agent known by the sobriquet "the

Mexican." David, exercising great caution,

refused to swallow the baited hook. He

Suggested that Furer have Jaime Toro do a

deal with the Mexican to "see if everything

gofes]) well." Furer then introduced Toro

to the agent, who said that he wanted to

buy ten kilograms of cocaine. Toro showed

—~A61-

waived").

In any event, we do not doubt that

the evidence was properly admitted

against David. For one thing, Rule

404(b) does not apply at all. The chal-

lenged evidence was independently admis-

Sible as proof that David ran a CCE.

Rule 404(b) only applies to "({e]vidence

of other crimes, wrongs, or acts."

Fed.R.Evid. 404(b) (emphasis supplied).

Evidence which is part and parcel of the

crime being tried is simply not "other

crimes" evidence within the ambit of Rule

404(b). See, e.g., United States v.

Tejada, 886 F.2d 483, 486-87 (lst Cir.

1989); United States v. DeLuna, 763 F.2d

897, 913 (8th Cir.), cert. denied, 474

U.S. 980[, 106 S.Ct. 382, 88 L.Ed.2d 336}

(1985); United States v. Dunn, 758 F.2d

30, 38 (lst Cir. 1985).

-A62-

of several controverted issues, including

Toro’s intent to continue dealing with

David’s organization, the opportunity on

his part for continuing involvement with

the count 1 conspiracy, and the working

relationship among David, Furer, and Toro.

See, e.g., Hadfield, 918 F.2d at 994;

United States v. Crocker, 788 F.2d 802, 804

(lst Cir. 1986); cf. United States v.

Fields, 871 F.2d 188, 197-98 (1st Cir.)

(discussing use of evidence of subsequent

acts), cert. denied, 110 S.Ct. 369[, 107

L.Ed.2da 355] (1989). As for Rule 403, the

district court’s finding that the

evidence’s probative value overbalanced its

potential for unfair prejudice was plainly

Supportable. See, e.g., Rodriguez-Estrada,

877 F.2d at 156 ("By design, all evidence

is meant to be prejudicial; it is only

unfair prejudice which must be avoided.").

~ A63-

discretion in admitting the challenged

evidence.

B. Evidence Anent "The Mexican."

In November 1987, while the count 1

conspiracy was still in progress, Furer

(who had by then agreed to cooperate with

the government) attempted to arrange a

transaction between David and an

undercover DEA agent known by the sobri-

quet "the Mexican." David, exercising

great caution, refused to swallow the

baited hook. He suggested that Furer

have Jaime Toro do a deal with the

Mexican to "see if everything go[es]

well." Furer then introduced Toro to the

agent, who said that he wanted to buy ten

kilograms of cocaine. Toro showed him

one kilogram of the drug and gave him a

small sample. For various reasons, no

purchase eventuated.

-A64-

question could not "be considered ... in

determining whether the accused did the act

charged in the indictment.... [or] for any

other purpose whatever, unless the jury

first find [sic] that other evidence in the

case, standing alone, establishes beyond a

reasonable doubt that the accused did the

act charged in the indictment," was of this

genre.

We do not think the instruction

Clearly states, or even Closely approxi-

mates, the method of Rule 404(b). To be

Sure, the uses of Rule 404(b) evidence are

circumscribed, but the evidence is not

stripped of all vitality. The rule specif-

ically permits extrinsic act evidence to be

introduced to prove matters central to the

offense charged, e.g., motive, opportunity,

intent, and so forth. In this case, as we

have already mentioned, the evidence

~A65-

continue dealing with David’s organiza-

tion, the opportunity on his part for

continuing involvement with the count 1

conspiracy, and the working relationship

among David, Furer, and Toro. See, e.g.,

Hadfield, 918 F.2d at 994; United States

v. Crocker, 788 F.2d 802, 804 (ist Cir.

1986); cf. United States v. Fields, 871

F.2d 188, 197-98 (1st Cir.) (discussing

use of evidence of subsequent acts),

cert. denied, 110 S.Ct. 369[, 107 L.Ed.2d

355] (1989). As for Rule 403, the

district court’s finding that the

evidence’s probative value overbalanced

its potential for unfair prejudice was

plainly supportable. See, e.q.,

Rodrigquez-Estrada, 877 F.2d at 156 ("By

design, all evidence is meant to be

prejudicial; it is only unfair prejudice

which must be avoided.").

-A66-

counts, citing the Double Jeopardy Clause. ?

He theorizes that a person who is convicted

and sentenced on a CCE charge under 21

U.S.C. § 848 cannot constitutionally be

convicted and sentenced for predicate

offenses, such as conspiracy, 21 U.S.C. §

846, or possession with intent to distri-

bute, 21 U.S.C. § 841, perpetrated in the

course of, and included within, the CCE.

We recently addressed these same

double jeopardy concerns in United States

v. Rivera-Martinez, 931 F.2d 148 (1st Cir.

1991). We ruled that, when a section 846

conspiracy count is used to establish the

"continuing series of violations" and "in

concert" aspects of a CCE, cumulative

punishment on both the conspiracy and the

9. The Double Jeopardy Clause mandates

that no person shall "be subject for the

same offence to be twice put in jeopardy

of life or limb." U.S. Const. amend. Vv.

- A67-

which declared that the evidence in

question could not "be considered ... in

determining whether the accused did the

act charged in the indictment.... [or]

for any other purpose whatever, unless

the jury first find [sic] that other

evidence in the case, standing alone,

establishes beyond a reasonable doubt

that the accused did the act charged in

the indictment," was of this genre.

We do not think the instruction

clearly states, or even closely approxi-

mates, the method of Rule 404(b). To be

sure, the uses of Rule 404(b) evidence

are circumscribed, but the evidence is

not stripped of all vitality. The rule

specifically permits extrinsic act

evidence to be introduced to prove

matters central to the offense charged,

e.g., motive, opportunity, intent, and so

-A68-

on both a CCE and a count charging an

underlying substantive act. See id.3

accord United States v. Jones, 918 F.2d

909, 911 (11th Cir. 1990) (per curiam) ;

United States v. Jefferson, 782 F.2d 697,

701 (7th Cir.1986).

We see no need to revisit this issue

or to indulge in a rote repetition of the

rationale supporting our conclusions.1° tft

suffices to say that, for the reasons

explained at some length in our earlier

precedent, Rivera-Martinez, 931 F.2d at

151-54, the Double Jeopardy Clause requires

10. In an effort to avoid the unwelcome

force of precedent, David argues that,

even though Congress initially intended

that separate punishments be imposed, the

federal sentencing guidelines, as they

have evolved, presuppose a different

result. This argument is plucked out of

thin air, without any logical foundation

or citation to persuasive authority.

Nothing in the Sentencing Reform Act, or

in the guidelines themselves, undercuts

the rationale of Garrett and its progeny.

— A69-

VII. DOUBLE JEOPARDY

David challenges his convictions on

the conspiracy and substantive possession

counts, citing the Double Jeopardy

Clause.? He theorizes that a person who

is convicted and sentenced on a CCE

charge under 21 U.S.C. § 848 cannot

constitutionally be convicted and

sentenced for predicate offenses, such as

conspiracy, 21 U.S.C. § 846, or posses-

sion with intent to distribute, 21 U.S.C.

§ 841, perpetrated in the course of, and

included within, the CCE.

We recently addressed these same

double jeopardy concerns in United States

v. Rivera-Martinez, 931 F.2d 148 (1st

Cir. 1991). We ruled that, when a

9. The Double Jeopardy Clause mandates

that no person shall "be subject for the

same offence to be twice put in jeopardy

of life or limb." U.S. Const. amend. V.

-ATQ-

cally rejecting a salmagundi of consti-

tutional attacks on the sentencing guide-

lines. These issues have been convincingly

dealt with before, see, ée.g., Mistretta v.

United States, 488 U.S. 361[{, 109 S.Ct.

647, 102 L.Ed.2d 714] (1989); United states

Vv. Bradley, 917 F.2d 601, 605 n. 3 (1st

Cir. 1990); United States v. La Guardia,

902 F.2d 1010, 1014-17 (lst Cir. 1990);

United States v. seluk, 873 F.2d 15, 16-17

(lst Cir. 1989) (per curiam), and no useful

purpose would be served by pushing them

around yet another plate.

A. Applicability of the Guidelines.

The Toros challenge the lower court’s

decision to use the sentencing guidelines

with regard to the convictions stemming

from the count 1 conspiracy. It is well

established that the guidelines apply toa

defendant whose offense begins before the

-_ A71-

any substantive predicate offenses. Id.

at 153-54 (citing Garrett v. United

States, 471 U.S. 773, 795[, 105 S.Ct.

2407, 2419, 85 L.Ed.2d 764] (1985)).

Thus, the Double Jeopardy Clause does not

prohibit conviction and sentence on both

a CCE and a count charging an underlying

substantive act. See id.; accord United

States v. Jones, 918 F.2d 909, 911 (11th

Cir. 1990) (per curiam); United States v.

Jefferson, 782 F.2d 697, 701 (7th

Cir.1986).

We see no need to revisit this issue

or to indulge in a rote repetition of the

rationale supporting our conclusions. 19

10. In an effort to avoid the unwelcome

force of precedent, David argues that,

even though Congress initially intended

that separate punishments be imposed, the

federal sentencing guidelines, as they

have evolved, presuppose a different

result. This argument is plucked out of

thin air, without any logical foundation

or citation to persuasive authority.

Nothing in the Sentencing Reform Act, or

in the guidelines themselves, undercuts

the rationale of Garrett and its progeny.

-Al2-

133] (1989). Under this criterion, we have

no hesitancy in concluding that the finding

was amply bulwarked. Indeed, the record

was replete with evidence that the count 1

conspiracy did not end until February 1988,

at the earliest.

The Toros try to pull a rabbit out of

this somewhat bedraggled hat. They say

that, even if the conspiracy lasted into

1988, their involvement in it ended no

later than the summer of 1987. But, there

is no evidence that the Toros withdrew from

the conspiracy at an earlier date. It is

black letter law that cessation of

activity, in and of itself, is not enough

to constitute withdrawal from a conspiracy:

In order to withdraw, a

conspirator must act affirnatively

either to defeat or disavow the

purposes of the conspiracy....

Typically, there must be evidence

either of a full confession to

authorities or a communication by

the accused to his co-conspirators

~A73-

guidelines’ applicability to the initial

conspiracy. The trimmings consist of

incremental arguments concocted by David

and Yarden, respectively. Before begin-

ning to work our way through the menu,

however, we set the appetizer to one

Side, categori-caliy rejecting a

-A74-

of participation ina conspiracy which

extends past the effective date of the

guidelines, the guidelines take into

account the entirety of the defendant’s

behavior in furtherance of the

conspiracy. See, e.g., United States v.

Arboleda, 929 F.2d 858, 870-71 et, ales Fm

1991); United States v. McKenzie, 922

F.2d 1323, 1328 & n. 2 (7th Cir. 1991)

(collecting cases).

B. David’s Remaining Points Anent

Sentencing.

David challenges the district

court’s construction of his guideline

sentencing range (GSR) .12 In approaching

this aspect of the case, we confess to

finding the record less than pellucidly

12. David does not assign error to the

sentences imposed on the "telephone"

counts, 21 U.S.C. § 843, so we ignore

those counts for purposes of this discus-

sion.

before the guidelines’ effective date and

continues after the effective date. See,

e.g., United States v. Fazio, 914 F.2d

950, 959 & n. 14 (7th Cir. 1990)

(collecting cases). The appellants’

asseveration depends, therefore, upon

whether the conspiracy could be found to

extend past November 1, 1987.

The district court concluded that

the conspiracy was of sufficient

duration. We remain mindful that the

determination of factbound matters

pertinent to sentencing need only be

supported by a preponderance of the

evidence and can be set aside only for

clear error. See United States v. Ruiz,

905 F.2d 499, 507-08 (lst Cir. 1990);

United States v. Mocciola, 891 F.2d 13,

16-17 (lst Cir.1989); United States v.

Diaz-Villafane, 874 F.2d 43, 48 (lst

-A76-

critical datum in arriving at the

GSR - is predicated in large part

on the amount of drugs involved.

The drug quantity is derived from

all acts "that were part of the

Same course of conduct or common

scheme or plan as the offense of

conviction," whether or not

charged in the indictment.

U.S.S.G. § 1B1.3(a)(2). This

means that "in a drug distribution

case, quantities and types of

drugs not specified in the count

of conviction are to be included

in determining the offense level

if they were part of the same

course of conduct or ... common

scheme or plan as the count of

conviction." Id., commentary

(backg’d)....

Id. at 110; see also United States v.

Blanco, 888 F.2d 907, 909-11 (ist Cir.

1989) (describing mechanical operation of

"relevant conduct" model).

Here, the district court found that

the relevant drug quantity was two

hundred fifty kilograms. David does not

dispute this assessment as a matter of

fact. He does argue, however, that the

drugs which he handled before November ca

~A77-

purposes of the conspiracy....

Typically, there must be evidence

either of a full confession to

authorities or a communication by

the accused to his co-conspirators

that he has abandoned the enter-

prise and its goals.

United States v. Juodakis, 834 F.2d 1099,

1102 (lst Cir. 1987) (per curiam) (cita-

tions omitted). Given this rigorous

standard, the record before us simply

does not permit a finding that the Toros

withdrew from the venture. And the sock-

dolager, of course, is the evidence that

the Toros attempted to resume more active

participation in the count 1 conspiracy

by reestablishing their supply rela-

tionship with David in February 1988,

well subsequent to the guidelines’ incep-

tion date.

Equally unpersuasive is the appel-

lants’ contention that, for the purpose

of factoring guideline calculations, only

-A78-

some the punishment for a crime, after

its commission." United States v. Giry,

818 F.2d 120, 135 (lst Cir.) (citations

omitted), cert. denied, 484 U.S. 855[,

108 S.Ct. 162, 98 L.Ed.2ad 116) (1987);

see also Allen, 886 F.2d at 146. In

David’s case, the guidelines came into

effect not after the criminal activity,

but during it. Thus, the total amount

narcotics plied in the CCE’s course

constitutionally be aggregated for

sentencing purposes. See Cusack, 9

F.2d at 32 (RICO case); cf. Giry,

F.2d at 135 (amendment increasing penalty

taking effect during commission of

conspiracy does not violate Ex Post Facto

Clause).

The next step toward setting the GSR

required superimposing the guidelines’

grouping provisions upon the relevant

a A79-

this aspect of the case, we confess to

finding the record less than pellucidly

clear as to the exact manner in which the

district court arrived at the GSR.

Nevertheless, the gaps in the record do

not relate to factual findings, such as

would suggest a need to remand. Cf.,

e.g., United States v. McDowell, 918 F.2d

1004, 1011-12 (list Cir. 1990). We can

reconstruct the computation satisfac-

torily (excluding, of course, the

conspiracy convictions, see supra Part

VII).

Understanding the calculation of the

GSR in this case requires an under-

standing of the term "relevant conduct"

as it relates to modern-day sentencing in

the federal courts. We explicated the

latter concept, vis-a-vis drug offenses,

-A80-

David’s case that count 17 (the CCE

charge, covered by § 2D1.5) was duly

grouped with counts 3 through 16 (the

substantive offenses, each of which was

covered by § 2D1.1).

After counts have been appropriately

grouped pursuant to section 3D1.2(d),

“the offense level applicable to [the]

Group is the offense level corresponding

to the aggregated quantity [of drugs]."

U.S.S.G. § 3D1.3(b). Moreover, "[{w]hen

the [grouped] counts involve varying

offenses" of the same general type, to

which different guidelines apply, the

sentencing judge must "apply the offense

guideline that produces the highest

ffense level." Id. Thus, to determine

the base offense level for the Group

comprising counts 3 through 17, the

district court was obliged to survey the

~A81-

hundred fifty kilograms. David does not

dispute this assessment as a matter of

fact. He does argue, however, that the

drugs which he handled before November 1,

1987 should have been excluded because of

ex post facto problems. The argument is

puerile. The CCE ran well past the

guidelines’ trigger date, and the

substantive counts underlying the CCE are

thus brought squarely into the computa-

tion. See, e.g., United States v. Allen,

886 F.2d 143, 145-46 (8th Cir. 1989)

(amounts of cocaine purveyed prior to

guidelines’ effective date were appropri-

ately aggregated in setting base offense

level when distribution was pursuant to a

continuing course of conduct that

extended past the effective date); see

also Arboleda, 929 F.2d at 870-71; United

States v. Cusack, 901 F.2d 29, 32 (4th

~aa2~

addition, the court added four levels

pursuant to U.S.S.G. § 3B1l.1 (authorizing

upward adjustment for a defendant who

plays an “aggravating role" as an

organizer or leader of a criminal

activity involving five or more partici-

pants) .13

A two-level clownward adjust-

ment was made for acceptance of responsi-

bility. U.S.S.G. § 3El.1(a). The

adjusted offense level, then, was forty.

The district court used this level to fix

the GSR. It sentenced David within the

confines of the range. See U.S.S.G. Ch.

5, Pt. A (Sentencing Table).

David complains that, by operation

of the grouping principles, the CCE

13. David’s contention that the record

did not sustain an upward role-in-the-

offense adjustment is effectively

demolished by our earlier discussion of

the evidence against him. See supra Part

III. To say more would be an exercise in

superfluity.

- A83-

Clause).

The next step toward setting the GSR

required superimposing the guidelines’

grouping provisions upon the relevant

conduct provisions. The guidelines

provide in pertinent part that:

When a defendant has been

convicted of more than one count,

the court shall:

(a) Group the counts resulting in

conviction into distinct Groups of

Closely- Related Counts ("Groups")

by applying the rules specified in

(U.S.S.G.] § 3D1.2.

(b) Determire the offense level

applicable to each Group by

applying the rules specified in

(U.S.S.G.] § 3D1.3.

U.S.S.G. § 3Dl.1(a). Where, as in this

instance, differing counts involve

"substantially the same harm," and the

offense levels are determined "primarily

on the basis of ... the quantity of a

substance involved," grouping is appro-

priate. U.S.S.G. § 3D1.2(d). Inasmuch

-A84-

grouping. For another thing, there is

nothing particularly Surprising, or

unfair, about the result. The CCE base

offense level, thirty-two, is Clearly

intended to be a minimum. It ensures

that when a defendant is convicted only

on a CCE charge, or on a combination ofa

CCE and substantive charges involving

relatively small amounts of drugs, a

Substantial sentence will nonetheless

ensue. When, as here, a defendant is

convicted not only of Operating a CCE,

but also on substantive counts involving

vast amounts of drugs, the constraint set

by U.S.S.G. § 2D1.5 is Slack, and the

base offense level takes on the colora-

tion of the provisions applicable to the

substantive counts. Thus, the level of

forty, being properly calculated on at

least one substantive count, was appro-

a A85-

offense level." Id. Thus, to determine

the base offense level for the Group

comprising counts 3 through 17, the

district court was obliged to survey the

offense levels applicable to each count

and then assign the highest of those

levels to the Group.

On the facts of this case, the

substantive possession offenses all had

the same base offense level, thirty-six,

a level determined primarily by the

aggregate quantity of drugs involved in

David’s course of conduct. See U.S.S.G.

§ 2D1.1 (Drug Quantity Table) (estab-

lishing base offense level at 36 where

relevant conduct implicates "50 KG

cocaine" or more). This was higher than

the base offense level assigned to count

17, see U.S.S.G. § 2D1.5, and thus became

the trial court’s starting point. To the

-A86-

(or causing one to be brandished) while

trying to retrieve a stolen consignment

of cocaine, David was furthering the

substantive offense related to that

shipment. See, e.g., McDowell, 918 F.2d

at 1011 (§ 2D1.1(b) adjustment should be

made if gun is present "unless it is

clearly improbable that the weapon and

the offense were connected"); Ruiz, 905

F.2d at 507 (summarizing cases from other

circuits). The upward adjustment was

appropriate.

C. Yarden’s Remaining Points Anent

Sentencing.

Yarden asserts that the district

court improperly fixed his base offense

level by attributing to him the ten

kilogram shipment of cocaine which

Parrish brought to Boston in April 1988.

See supra p. 733. Yarden claims that he

was unaware of the shipment and that its

- As7-

confines of the range. See U.S.S.G. Ch.

5, Pt. A (Sentencing Table).

David complains that, by operation

of the grouping principles, the CCE

offense takes on the higher offense level

attendant to surrounding substantive

offenses. Were the CCE offense level

calculated separately in his case, the

base level would be only thirty-two, and

no upward adjustment for role in the

offense would be feasible, see U.S.S.G. §

2D1.5, comment., n. 1. It follows that

the offense level for the CCE, standing

alone, would have been lower than for the

grouped counts. On this basis, David

somehow concludes that the court was

powerless to apply a more onerous base

offense level co the CCE through

grouping.

The eneevectkcion, although couched

in the most perfervid rhetoric, strikes

-A88- i

conduct of co-conspirators in furtherance

of the conspiracy that was known to the

iefendant or was reasonably foresee-

wle.~™). Whether or not Yarden actually

Knew that the ten Kilograms were in

transit, there is no doubt that, given

the scope and contours of the planned

a

Onspiracy, the shipment was reasonab]

ne

.

foreseeable.

Moreover, Yarden introduced Parrist

ct

Oo David as a possible courier and was

learly aware that David was awaiting

Q

cocaine from Colombia. The evidence in

this case was adequate to Support the

court’s explicit finding that, ata

minimum, Yarden played some role in

effectuating the shipment. This, we

think, was enough, by itself, to bring

the ten kilogram transaction into the

sentencing calculation. CfL., 2.c.,

~As9-

substantive counts. Thus, the level of

forty, being properly calculated on at

least one substantive count, was appro-

priately assigned to the CCE as well.

David also contests the upward

adjustment for possession of a firearm.

The district court ordered the increase

based on evidence that a gun was held to

Filin’s head in an attempt to get Filin

to talk about the stolen drug shipment.

See supra p. 732. The judge found

specifically that the firearm was of

assistance in commission of the drug

offenses and that David was responsible

for its use. David’s challenge to these

findings is reviewable only for clear

error.

The evidence obviously supports the

finding that David was responsible for

the gun’s use, whether or not he actually

-A90-

convictions and sentences are affirmed.

The convictions and sentences of appel-

lants Jaime Toro Aristizibal, Amparo Toro

Aristizibal and Yehuda Yarden are all

affirmed.

APPENDIX

Summary of Specific-Transaction

Counts in Superseding Indictment

Count No. Approx. Offense Date[*}]

Defendants Involved

3. August 1986 David, Yossi, J. Toro

4 Nov. 13, 1986 David, Yossi, J. Toro

5 Dec. 19, 1986 David, Yossi, J. Toro

6 Jan. 23, 1987 David, Yossi, J. Toro

7 March 2, 1987 David, Yossi, J. Toro

8 March/Apr. 1987 David, Yossi, J. Toro

9 April 24, 1987 David, Yossi, J. Toro

10 May 1, 1987 David, Yossi, J. Toro

11 June 12, 1987 David, Yossi, J. Toro

12 June/July 1987 David, Yossi,

J. Toro, Nuni

- Ao1-

Parrish brought to Boston in April 1988.

See supra p. 733. Yarden claims that he

was unaware of the shipment and that its

attribution to him for purposes of

sentencing on the count 2 conspiracy was

error. But, the district court’s answer

to this fact-dominated question is

reviewable only for clear error, see

Bradley, 917 F.2d at 605; Diaz-

Villafane, 874 F.2d at 48, and we discern

none here.

For attribution to occur, there is

no requirement that a defendant involved

in a drug conspiracy must actually have

known that a particular shipment was

effectuated. As long as the shipment was

a foreseeable fruit of the conspiracy and

within its scope, the amount of drugs may

be attributed to a coconspirator. See

U.S.S.G. § 2D1.4, comment., n. 1 ("If the

-Ada-

NOTE: Counts 3-16 and count 18 charged

possession with intent to distribute, see

21 U.S.C. § 841(a) (1); count 19 was

dropped prior to verdict; counts 20-27

charged communications offenses, see 21

U.S.C. § 843(b).

On Motion for Rehearing.

Sept. 27, 1991.

Appellant has filed a petition for

rehearing focused exclusively upon the

district court’s upward adjustment of the

guideline sentencing range to reflect the

use of a firearm in connection with the

commission of the offenses of conviction,

particularly the continuing criminal

enterprise (CCE) charge. Appellant’s

petition challenges our affirmance of

this aspect of his sentence on several

grounds. To some extent, these arguments

rehash points made to, and rejected by,

the panel, see, e.g., Op. at 741, 742-43,

~ \o3-

think, was enough, by itself, to bring

the ten kilogram transaction into the

sentencing calculation. Cf., e.g.,

United States v. Franco, 909 F.2d 1042,

1046 (7th Cir. 1990) (where defendant

knew or could reasonably have foreseen

sale by coconspirator, quantity sold

properly used in computing defendant’s

sentence).

IX. CONCLUSION

We need go no further. To the

extent that the appellants have preserved

other issues for appeal, none warrant

discussion. After close and careful

perscrutation of the record in light of

the applicable law, we are fully

persuaded that the several appellants,

caught in a web of their own manufacture,

were fairly tried and, with one excep-

tion, justly convicted and sentenced.

-A94-

F.2d 14, 21 (1st Cir. 1991) (refusing to

consider defendant’s conceptual challenge

to abuse-of-trust enhancement under

sentencing guidelines because point was

not raised below); United States v. F -,

889 F.2d 357, 359 (tet Cir. 1989)

(Similar).

The petition for panel rehearing is

denied.

-A95-

10 May 1, 1987 David, Yossi, J. Toro

11 June 12, 1987 David, Yossi, J. Toro

12 June/July 1987 David, Yossi,

J. Toro, Nuni

[Count No. Approx. Offense Date[ ]

Defendants Involved}

13. July 1, 1987 David, Yossi,

J. Toro, Nuni

14 July 15, 1987 David, Yossi,

J. Toro, Nuni

15 April 26, 1988 David, Yossi, Nuni

16 Apr. 28, 1988 David, Nuni, Abramson,

Anthony Ramirez,

Wilfredo Martinez

18 May 1987 Natanel

19 March 10, 1988 David, Danny Yarden

20 March 25, 1988 David, Yossi,

Shlomo Levy

21 March 24, 1988 David, Yehuda Yarden

22 March 26, 1988 Yossi, Natanel

23 March 27, 1988 David, Natanel

24 April 27, 1988 David, Ramirez

25 April 24, 1988 Nuni, Abramson

-AS6=-

26 April 28, 1988 Nuni, Abramson

27 April 26, 1988 David, Yossi

* some names of months abbreviated

where spelled out in Original. }

NOTE: Counts 3-16 and count 18 charged

possession with intent to distribute, see

21 U.S.C. § 841(a) (1); count 19 was

dropped prior to verdict; counts 20-27

charged communications offenses, see 21

U.S.C. § 843(b).

On Motion for Rehearing.

Sept. 27, 1991.

Appellant has filed a petition for

rehearing focused exclusively upon the

district court’s upward adjustment of the

guideline sentencing range to reflect the

use of a firearm in connection with the

commission of the offenses of conviction,

particularly the continuing criminal

enterprise (CCE) charge. Appellant’s

petition challenges our affirmance of

-A97-

this aspect of his sentence on several

grounds. To some extent, these arguments

rehash points made to, and rejected by,

the panel, see, e.g., Op. at 741, 742-43,

and do not call for any further comment.

The appellant also argues, however, that

the upward adjustment was erroneous

because the Sentencing Guidelines in

effect at the time he was sentenced

contained a lacuna making the gun posses-

sion enhancement inapplicable to a CCE

charge under 21 U.S.C. § 848. Ona

proper record, this artfully spun assev-

eration might have some merit (or, at

least, call for some detailed analysis).

The appellant, however, failed to make

the argument at the time of sentencing or

to object to the presentence report on

this basis. As we have stated on

numerous occasions in analogous circum-

-A98-

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 89-1807

UNITED STATES,

Appellee,

Vv.

SHMUEL DAVID,

Defendent, Appellent.

Before

Breyer, Chief Judge,

Campbell, Torruella, Selya, and Cyr,

Circuit Judges.

ORDER OF COURT

Entered: September 27, 1991

The panel of judges that rendered the

decision in this case having voted to

deny the petition for rehearing and the

suggestion for the holding of a rehearing

and the suggestion for the holding of a

rehearing en banc having been carefully

considered by the judges of the Court in

-Bl-

of the Court in regular active service

and a majority of said judges rot having

voted to order that the appeal be heard

or reheard by the Court en banc,

It is ordered that the sugges-

tion for rehearing en banc be denied.

By the Court:

FRANCIS P. SCIGLIANO

Clerk.

[cc: Ms. Sibbison and Mr. Marine]

-B2-

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA

Vs

SHMUEL DAVID a/k/a SHMULIK

a/k/a SAM;

JOSEPH ZALMONOVICH a/k/a YOSST;

MORDECHAI MIZRAHI a/k/a NUNI;

JAIME TORO-ARISTIZIBAL;

AMPARRO TORO-ARISTIZABIL;

ANTHONY RAMIREZ; CRIMINAL NO.

ELIAHU ABRAMSON; 88-154-Mc

YEHUDA YARDEN;

EFRIAM NATANEL;}

DANNY YARDEN;

JOSEPH AMSILI-COHEN;

HANAN AMSILI a/k/a GILO;

SHLOMO LEVY;

WILFREDO MARTINEZ,

Defendents.

MEMORANDUM AND ORDERS

MARCH 14, 1989

Mc NAUGHT, D. J.

Motions of several of the above

defendents were heard by this Court on

February 21, 22, and 23, 1989. After

hearing and mature consideration of al]

-Cli-

memoranda filed, the Court enters the

following orders:

kkk k

DEFENDENT SHMUEL DAVED [sic]

#430 Motion to Suppress Contents of

and Evidence Derived from Inter-

cepted Electronic Communications

Occuring over Digital Display

Beeper Responding to Telephone

No. (617) 466-0366.

This motion is denied.

#433 Motion to Suppress Contents of

and Evidence Derived from Inter-

cepted Wire Communications

Occuring over the Telephone

numbered (617) 739-6233.

This Motion is denied.

#431 Motion for a Franks Hearing or

an_In Camera Hearing

This Motion is denied.

kx kk

{/s/ John J. Mc Naught

JOHN J. Mc NAUGHT

UNITED STATES DISTRICT JUDGE

-C2-