# Petition for Writ of Certiorari — David v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0254%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 504 U.S. 955 ## Text Cuprans Court, U.$ er _ ; ; fiLlLkyp | t 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0254%3A1. Public record. Not legal advice.