United States v. Saccoccio ( 1995 )


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    August 25, 1995
    UNITED STATES COURT OF APPEALS

    FOR THE FIRST CIRCUIT
    ____________________

    No. 93-1511
    No. 93-2206
    No. 94-1508

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    VINCENT HURLEY,

    Defendant, Appellant.
    ____________________

    No. 93-1560
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    CARLO DeMARCO,
    Defendant, Appellant.

    ____________________
    No. 93-1561

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    JAMES SACCOCCIO,

    Defendant, Appellant.
    ____________________

    No. 93-1562
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    STANLEY CIRELLA,
    Defendant, Appellant.

    ____________________



















    No. 93-1563
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    KENNETH SACCOCCIO,
    Defendant, Appellant.

    ____________________
    No. 93-1616

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    STEPHEN PIZZO,

    Defendant, Appellant
    ____________________

    No. 93-1617
    No. 93-2207
    No. 94-1507
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    DONNA SACCOCCIA,
    Defendant, Appellant.

    ____________________
    No. 94-1388

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    ANTHONY DeMARCO,

    Defendant, Appellant.
    ____________________
























    ERRATA SHEET


    The opinion of the Court, issued on July 24, 1995, is amended as
    follows.

    On cover sheet, change government's counsel listing to read:
    "Kathleen A. Felton, Criminal Division, Appellate Section, Department __________________
    of Justice and Michael P. Iannotti, Assistant United States Attorney, ___________________
    with whom Sheldon Whitehouse, United States Attorney, James H. Leavey __________________ ________________
    and Michael E. Davitt, Assistant United States Attorneys, and John P. _________________ _______
    Elwood, Criminal Division, Department of Justice, were on joint brief ______
    for the United States."




















































    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
    ____________________
    No. 93-1511
    No. 93-2206
    No. 94-1508

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    VINCENT HURLEY,

    Defendant, Appellant.
    ____________________

    No. 93-1560
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    CARLO DeMARCO,
    Defendant, Appellant.

    ____________________
    No. 93-1561

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    JAMES SACCOCCIO,

    Defendant, Appellant.
    ____________________

    No. 93-1562
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    STANLEY CIRELLA,
    Defendant, Appellant.

    ____________________
    No. 93-1563

    UNITED STATES OF AMERICA,
















    Appellee,
    v.

    KENNETH SACCOCCIO,
    Defendant, Appellant.

    ____________________
    No. 93-1616

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    STEPHEN PIZZO,

    Defendant, Appellant
    ____________________

    No. 93-1617
    No. 93-2207
    No. 94-1507
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    DONNA SACCOCCIA,
    Defendant, Appellant.

    ____________________
    No. 94-1388

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    ANTHONY DeMARCO,

    Defendant, Appellant.
    ____________________

    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND

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


    Before

    Selya, Cyr and Boudin,















    Circuit Judges. ______________
    ____________________

    Terrance Reed and Edward C. Roy with whom Reed & Hostage, Roy & _____________ ______________ ______________ _____
    Cook, James T. McCormick, McKenna & McCormick, Michael C. Andrews, ____ __________________ ____________________ ___________________
    Mary June Ciresi, Vincent Indeglia, Indeglia & Associates, Richard _________________ _________________ _______________________ _______
    Inglis, and Garguilo, Rudnick & Garguilo were on joint briefs for ______ ______________________________
    appellants Donna Saccoccia, Stanley Cirella, Kenneth Saccoccio,
    Vincent Hurley, James Saccoccio, Carlo DeMarco and Stephen Pizzo.
    Robert D. Watt, Jr. for appellant Anthony DeMarco. ___________________
    Kathleen A. Felton, Criminal Division, Appellate Section, _____________________
    Department of Justice and Michael P. Iannotti, Assistant United States ___________________
    Attorney, with whom Sheldon Whitehouse, United States Attorney, James __________________ _____
    H. Leavey and Michael E. Davitt, Assistant United States Attorneys, _________ _________________
    and John P. Elwood, Criminal Division, Department of Justice, were on ______________
    joint brief for the United States.






















































    ____________________

    July 24, 1995
    ____________________
























































    BOUDIN, Circuit Judge. The eight appellants challenge _____________

    their convictions, sentences and forfeitures for their

    participation in an extensive money laundering operation

    organized by Stephen Saccoccia. His conviction and sentence

    were affirmed in United States v. Saccoccia, No. 93-1618, _____________ _________

    slip. op. (1st Cir. June 28, 1995). In this case, we affirm

    the convictions of the eight appellants before us, their

    sentences, and the forfeiture orders entered against them.

    I. BACKGROUND I. BACKGROUND

    The eight appellants are Donna Saccoccia (wife of

    Stephen), her brother Vincent Hurley, James Saccoccio and his

    brother Kenneth Saccoccio, Carlo DeMarco and his brother

    Anthony DeMarco, Stanley Cirella and Stephen Pizzo. Along

    with Stephen Saccoccia and others, appellants were indicted

    on November 18, 1991, and were charged with conspiracy to

    violate the Racketeer Influenced and Corrupt Organizations

    Act ("RICO"), 18 U.S.C. 1962(d). Certain of them were also

    charged with substantive counts of money laundering, 18

    U.S.C. 1956-57, currency reporting offenses, 31 U.S.C.

    5324, and interstate travel in aid of racketeering, 18 U.S.C.

    1952.

    One conspirator originally charged, David Izzi, pled

    guilty before trial and testified for the government.

    Stephen Saccoccia was severed and tried separately due to the

    illness of his counsel. Alfred Gabriele, added as a



    -4- -4-













    conspirator in a superseding indictment, was also tried

    separately, and his appeal is still pending. United States _____________

    v. Gabriele, No. 94-1215 (1st Cir.). The end result was that ________

    the eight appellants in this case were tried together in the

    district court in Rhode Island. Trial began on November 6,

    1992, and ended in a jury verdict on December 18, 1992.

    At trial, the government's evidence consisted primarily

    of the testimony of other participants in the money

    laundering activities, of Colombian nationals involved in the

    international drug trade, and of bank employees. The

    government also offered bank records of financial

    transactions and numerous court-ordered wiretap recordings.

    Viewed in the light most favorable to the verdicts, United ______

    States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995), the ______ _______

    evidence permitted a reasonable jury to find the following.

    Stephen Saccoccia owned and controlled a number of

    precious metals businesses, including Saccoccia Coin Company

    in Cranston, Rhode Island ("Saccoccia Coin"); Trend Precious

    Metals in Cranston and in New York, New York ("Trend"); and

    International Metal Marketing ("International Metal") and

    Clinton Import/Export in Los Angeles, California ("Clinton

    Import/Export"). In the late 1980s, after some indirect

    dealings, Stephen Saccoccia began laundering drug money for

    Duvan Arboleda, a Colombian narcotics dealer. The laundering

    operation, ultimately expanded to serve a second drug ring as



    -5- -5-













    well, took several forms but each began with Stephen

    Saccoccia receiving large amounts of cash in New York,

    generated from the sale of cocaine. Often, Saccoccia would

    send one of his employees, usually unindicted co-conspirator

    Richard Gizzarelli, to a prearranged location, such as a

    street corner, to meet a customer's courier. Gizzarelli

    would bring the cash to the Trend office in New York or to

    Saccoccia's apartment in New York to count it.

    The money then followed two different routes. Some of

    the cash would be used to purchase money orders or gold; the

    gold and some of the remaining cash would then be shipped to

    International Metal in Los Angeles. Much of the rest of the

    cash--up to $200,000 per day--would be sent to Trend and

    Saccoccia Coin in Rhode Island, either through armored car

    service or in the car of a Saccoccia employee.

    Once the cash reached Rhode Island, it was counted by

    Saccoccia employees and divided into a number of packets in

    amounts either greater than or less than $10,000. Most of

    the cash went to the Trend office in Cranston. Saccoccia

    employees, directed by Izzi, then drove to local banks where

    they purchased cashier's checks in amounts less than $10,000

    payable to Trend, or cashier's checks in amounts greater than

    $10,000 payable to companies nominally owned by Hurley. The

    purpose of these maneuvers--called "smurfing" in law

    enforcement parlance--was to avoid or minimize the filing of



    -6- -6-













    accurate currency transaction reports, which are required by

    federal law for cash deposits in amounts of $10,000 or more.

    Ultimately the local Rhode Island checks would be

    deposited in, and money from the Hurley accounts wired to,

    the Trend account at Citizens Bank in Rhode Island. A

    smaller portion of the cash sent to Rhode Island went to

    Saccoccia Coin. That cash was used to buy gold without

    documentation; the gold was then resold to legitimate

    companies in exchange for checks recorded as payments for

    gold sales. Some of the cash was also used in the ordinary

    operations of the Saccoccia Coin Shop, a heavily cash-based

    enterprise.

    At the Los Angeles end, the gold sent to International

    Metal was sold, and the proceeds were wired back to the Trend

    account at Citizens Bank. Cash received by International

    Metal was used to purchase gold covertly, the gold was then

    sold, and the proceeds were also wired to the Trend account.

    Thus, the bulk of the cash that Saccoccia sent out of New

    York eventually ended up in the Trend account at Citizens.

    Citizens Bank closed the Trend account in April 1991.

    Thereafter, cash was still transported from New York and

    "smurf" employees in Rhode Island still obtained cashier's

    checks from various banks, but the checks were sent to

    International Metal and Clinton Import/Export in Los Angeles.





    -7- -7-













    Donna Saccoccia assisted her husband in most aspects of

    the operation, relayed his instructions to the others and

    wired funds abroad to Colombian banks. Hurley and Anthony

    DeMarco picked up cash from couriers in New York and

    transported it to Rhode Island. Hurley, Anthony and Carlo

    DeMarco, Kenneth and James Saccoccio, Cirella and Pizzo

    received the cash deliveries in Rhode Island, counted the

    money, and separated it into packets of smaller amounts for

    transport to local banks. Anthony DeMarco and James and

    Kenneth Saccoccio bought the bulk of the cashier's checks.

    A staggering amount of money moved through this

    laundering operation. Between March 1, 1990, and August 22,

    1991, Stephen or Donna Saccoccia wired over $136 million to

    foreign bank accounts primarily in Colombia; more than $97

    million of this amount was wired from the Trend account in

    Citizens Bank jointly controlled by Donna and Stephen. Apart

    from the $136 million, substantial sums were retained by the

    Saccoccias and their employees as compensation.

    All eight appellants were convicted of RICO conspiracy.

    All but Carlo DeMarco and Pizzo were convicted of substantive

    offenses. After post-trial motions, appellants were

    sentenced in May 1993, and forfeiture judgments against each

    appellant were entered pursuant to the RICO forfeiture

    statute, 18 U.S.C. 1963, and in some cases under the money

    laundering forfeiture statute. 18 U.S.C. 982. Appellants'



    -8- -8-













    substantive convictions (in addition to RICO conspiracy),

    their sentences,and their forfeiture amountsare listed below:


    Name Substantive Sentence Forfeiture
    conviction amount
    Donna 13 counts of money 14 yrs., 2 $136,344,231.86
    Saccoccia laundering (18 yrs.
    U.S.C. 1956), supervised
    and 47 counts of release
    unlawful
    transactions (
    1957).

    Vincent 1 count 18 yrs., 3 $136,344,231.86
    Hurley structuring (31 yrs.
    U.S.C. 5324(3)), supervised
    and 1 count of release
    interstate travel
    in aid of
    racketeering (18
    U.S.C. 1952).

    James 15 counts of 10 yrs., 3 $37,456,100.79
    Saccoccio structuring. yrs.
    supervised
    release
    Kenneth 14 counts of 12 yrs., 3 $37,456,100.79
    Saccoccio structuring. yrs.
    supervised
    release

    Stanley 1 count of 9 yrs., 2 $37,456,100.79
    Cirella structuring. yrs.
    supervised
    release

    Anthony 5 counts of filing 7 yrs., 3 $136,344,231.86
    DeMarco false currency yrs.
    transaction supervised
    reports (31 U.S.C. release
    5324(2)); 2
    counts of
    structuring.
    Carlo No substantive 6.5 yrs., $3,927,357.55
    DeMarco conviction. 2 yrs.
    supervised
    release



    -9- -9-














    Stephen No substantive 8.5 yrs., $37,456,100.79
    Pizzo conviction. 3 yrs.
    supervised
    release

    These appeals followed.

    II. THE RICO ISSUES II. THE RICO ISSUES

    The RICO conspiracy offense charged in this case

    required the government to prove an agreement by appellants

    "to conduct or participate . . . in the conduct of [an]

    enterprise's affairs through a pattern of racketeering

    activity"; and the pattern alleged in this case required

    proof of two or more criminal acts by an appellant (e.g., ____

    money laundering or structuring). See 18 U.S.C. 1961(1), ___

    1962(c), (d). Appellants here challenge the indictment, the

    instructions and the evidence relating to RICO.

    A. The RICO Indictment A. The RICO Indictment ___________________

    The RICO conspiracy count alleged the formal requisites

    of the offense including the assertion that each appellant

    agreed to commit at least two racketeering acts; but it did

    not specify which predicate acts each appellant committed or

    agreed to commit. Hurley, Cirella, Pizzo and Carlo DeMarco

    argue that this lack of specificity is fatal to the

    indictment because a sufficient indictment must "fairly

    inform[ ] a defendant of the charge against which he must

    defend . . . ." Hamling v. United States, 418 U.S. 87, 117 _______ _____________

    (1974).



    -10- -10-













    In count I, the indictment identified the enterprise,

    its precise method of operation, the role played by each

    appellant, and the nature of the predicate acts charged. In

    appended lists specifically referenced in count I, the

    indictment also set forth thousands of individual bank

    transactions and wire transfers. What was lacking was any

    identification of the particular transactions in which the

    four complaining appellants were involved, since they acted

    mainly as counters and subdividers of money deposited and

    transferred by others.

    But if a defendant were charged with conspiring to

    distribute drugs, it would surely be enough to show that he

    had acted as a packer in the drug-making "factory" during the

    period in which a series of identified shipments were made.

    The government might never know which particular shipments

    had been packed by the defendant; but his agreement to

    participate in distributing multiple shipments could fairly

    be inferred. The same principle applies in this case. There

    is, we note, no indication that appellants were misled or

    left in ignorance about what the government intended to

    prove.

    United States v. Winter, 663 F.2d 1120 (1st Cir. 1981), _____________ ______

    cert. denied, 460 U.S. 1011 (1983), relied on by appellants, _____ ______

    is not in point. In that case we held that the indictment of

    two defendants failed because "a RICO conspiracy count must



    -11- -11-













    charge as a minimum that each defendant agreed to commit two

    or more specified predicate crimes." Id. at 1136. In Winter ___ ______

    the indictment did not charge even in the most general terms

    that certain defendants had agreed to commit two predicate

    acts. Here, the indictment did so charge, and Winter is not ______

    in point.









































    -12- -12-













    B. The RICO Instructions: "Conduct or Participate" B. The RICO Instructions: "Conduct or Participate" ______________________________________________

    The gravamen of the underlying offense is "to conduct or

    participate, directly or indirectly, in the conduct of [an]

    enterprise's affairs" through a pattern of racketeering

    activity. 18 U.S.C. 1962(c). In Reves v. Ernst & Young, _____ ______________

    113 S. Ct. 1163, 1172 (1993), the Supreme Court interpreted

    the words "conduct or participate" and held that they require

    the defendant's "participat[ion] in the operation or

    management of the enterprise itself." Reves involved a civil _____

    RICO suit against an outside accounting firm hired to audit

    the books of an allegedly corrupt enterprise. Construing

    Reves, we held in United States v. Oreto, 37 F.3d 739, 750 _____ ______________ _____

    (1st Cir. 1994), cert. denied, 115 S. Ct. 1161 (1995), that _____ ______

    insider employees who are "plainly integral to carrying out"

    the racketeering activities fit within section 1962(c).

    Here, appellants claim that the district court's

    instruction on the meaning of "conduct or participate" was

    erroneous in light of Reves. No objection to the instruction _____

    was made at trial, so we review only for "plain error," Fed.

    R. Crim. P. 52(b), which requires appellants to show that an

    error was made, the error was clear or obvious, and the error

    resulted in prejudice--that is, it affected the defendant's

    substantial rights. United States v. Olano, 113 S. Ct. 1770, _____________ _____

    1777-78 (1993). Even then, an appeals court need not notice

    the error unless it caused "a miscarriage of justice" or



    -13- -13-













    undermined "the fairness, integrity or public reputation of

    judicial proceedings." Id. at 1778-79. ___

    The instruction in this case was similar to the one we

    upheld in Oreto. 37 F.3d at 750. The difference--which _____

    appellants deem crucial--is that the Oreto instruction _____

    encompassed defendants who perform acts "necessary to or

    helpful in the operation of the enterprise," whereas the

    instruction in this case encompassed defendants who perform

    acts "related to the operation of the enterprise."

    Appellants argue that the court's language embraced precisely

    the view that Reves rejected: "that almost any involvement in _____

    the affairs of an enterprise [satisfies] the 'conduct or

    participate' requirement." Reves, 113 S. Ct. at 1169. _____

    In the abstract, the relatedness reference might pose a

    problem if a defendant were arguably an outsider, such as the

    independent auditor in Reves. But in this case the _____

    government's version of the evidence placed appellants

    squarely in the role of employees of the enterprise. The

    jury's verdict shows that the jury accepted that version of

    events, making the alleged ambiguity in the instructions

    harmless. To the extent that appellants are challenging

    Oreto's reading of Reves, Oreto is the law of this circuit. _____ _____ _____

    See United States v. De Jongh, 937 F.2d 1, 6 (1st Cir. 1991) ___ ______________ ________

    (newly constituted panels bound by prior panel decisions in

    point).



    -14- -14-

































































    -15- -15-













    C. The RICO Instructions: Knowledge C. The RICO Instructions: Knowledge _________________________________

    Appellants complain about two aspects of the district

    court's instructions on knowledge. First, they challenge the

    use of a general "willful blindness" instruction and the

    court's refusal to instruct the jury that willful blindness

    did not apply to the RICO conspiracy count. They say that

    one cannot simultaneously be willfully blind to a conspiracy

    and also intend and agree to join the conspiracy.

    The district judge first instructed the jury on the

    substantive counts. He then gave a detailed explanation of

    the RICO conspiracy count, including the requirement that the

    government prove both "an intent to agree" and "an intent to

    commit the substantive offenses that are the objects of the

    conspiracy." The judge told the jury that they could not

    infer knowledge of the conspiracy from negligence, mistake,

    or ignorance; instead, the defendant must act "voluntarily

    and intentionally." After lengthy instructions on the RICO

    count, the judge moved on to more general propositions. Only

    then did he give the "willful blindness" instruction:

    In deciding whether a Defendant acted knowingly,
    you may infer that the Defendant had knowledge of a
    fact if you find that the Defendant deliberately
    closed his eyes to a fact that would have been
    obvious to him.

    The willful blindness instruction appears to have been

    aimed at the "knowing" requirements of substantive counts.

    E.g., 18 U.S.C. 1956 (money laundering). Appellants have ____



    -16- -16-













    given us no reason to think that it diluted the express

    "intent" requirement for the conspiracy count. Here the

    trial judge adequately guarded against that risk with

    cautionary instructions stressing that the defendants must

    have joined the conspiracy intentionally, see United States ___ ______________

    v. Brandon, 17 F.3d 409, 451-54 (1st Cir.), cert. denied, 115 _______ _____ ______

    S. Ct. 80 (1994), and we see no way that the jury could have

    convicted without finding deliberate agreement.

    Second, appellants object to the district court's

    refusal of their request for an instruction that each

    appellant had to know of the existence and general nature of

    the enterprise. When this request was made after the charge,

    it was entangled with other requests and the district court

    may not have focused on the request or may have thought it

    had in substance been given. Although nothing in the statute

    explicitly requires such knowledge, there is some precedent,

    including a comment from this court, suggesting it is

    appropriate. See, e.g., Brandon, 17 F.3d at 428; 2 L. Sand, ___ ____ _______

    J. Siffert, W. Loughlin & S. Reiss, Modern Federal Jury ____________________

    Instructions 52.04 at 52-39 & comment (1995). ____________

    We think that in substance the jury was told, although

    somewhat indirectly, that appellants had to be aware of the

    enterprise and its general character in order to be guilty

    under the RICO conspiracy charge. The court instructed that

    the first element that the jury had to find was that a



    -17- -17-













    conspiracy existed "to conduct or participate in the affairs

    of an enterprise through a pattern of racketeering activity."

    The court subsequently told the jury that the government must

    also prove "that the defendant knew the conspiracy existed

    and knew of its unlawful purpose."

    Perhaps in theory one might imagine a defendant who knew

    of and joined in a conspiracy to conduct an enterprise but

    did not know the nature of the enterprise. In this case,

    however, the government's evidence showed that appellants

    knowingly engaged in structuring transactions on an ongoing

    basis within the framework of Stephen Saccoccia's business

    venture. Given the evidence accepted by the jury, there is

    no doubt that appellants knew what they were doing and knew

    they were doing it within the framework of the Saccoccia

    organization. If the instruction deviated from perfection,

    the deviation was assuredly harmless.

    D. The RICO Instructions: Single or Multiple Conspiracies D. The RICO Instructions: Single or Multiple Conspiracies ______________________________________________________

    At trial, the government offered evidence of out-of-

    court statements by several persons whom it characterized as

    unindicted co-conspirators. The most important were two

    regional managers of rival drug cartels each of which

    supplied money to be laundered by Stephen Saccoccia's

    organization. The district court admitted the hearsay under

    the co-conspirator exception, Fed. R. Evid. 801(d)(2)(E),

    pursuant to United States v. Petrozziello, 548 F.2d 20 (1st _____________ ____________



    -18- -18-













    Cir. 1977). The court found that the regional managers were,

    more probably than not, members of the Saccoccia conspiracy

    and rendered a final Petrozziello ruling at the close of ____________

    evidence.

    Appellants say first that the two drug ring managers

    could not conceivably be members of the same conspiracy with

    each other because the rings were rivals. The government

    responds that the hearsay exception does not require that the

    conspiracy used to support the hearsay evidence be the same

    as that charged, see United States v. Dworken, 855 F.2d 12, ___ _____________ _______

    24 (1st Cir. 1988), and that at the very least that each drug

    dealer necessarily conspired with the members of the

    Saccoccia organization. Whether the government's premise of

    separate conspiracies is sound or squares with what the

    district court found is not evident from its brief.

    Nevertheless, appellants--who bear the burden on appeal

    of showing error in the Petrozziello finding--make no serious ____________

    effort to show that the two drug dealers could not have been

    part of the same conspiracy; their alleged rivalry is hardly

    conclusive because it is not necessary that all co-

    conspirators know of each other's existence, Brandon, 17 F.3d _______

    at 428. Whether a conspiracy's customers are also members of

    the conspiracy is a fact-based question, see United States v. ___ _____________

    Moran, 984 F.2d 1299, 1303 (1st Cir. 1993), and once again _____





    -19- -19-













    appellants make no effort to muster the evidence on this

    issue, or even to argue it.

    Alternatively, appellants argue that the court should at

    least have given a multiple conspiracy instruction, an

    argument reinforced--although perhaps only superficially--by

    the government's defense of the hearsay declarations. The

    government says that this issue was not raised in a timely

    fashion and that there was no factual basis for a multiple

    conspiracy instruction. In declining to give such a charge,

    the trial judge rested on both of these grounds and found, in

    addition, that the proposed multiple conspiracy instruction

    was itself deficient.

    The district court could be sustained on any one of

    these three grounds but we think that untimeliness is

    sufficient, United States v. Akers, 987 F.2d 507, 513 (8th ______________ _____

    Cir. 1993); Yoffe v. United States, 153 F.2d 570, 576 (1st _____ ______________

    Cir. 1946), and add two further points. First, the request

    for such an instruction was not made until after government

    counsel had completed his closing argument, making it

    impossible for him to address the jury on this point.

    Second, the core of the government's case tended to show an

    overarching conspiracy; and appellants make little effort in

    their brief to show that multiple conspiracies were a serious

    possibility.

    E. Sufficiency of the Evidence E. Sufficiency of the Evidence ___________________________



    -20- -20-













    In reviewing sufficiency claims, we normally consider

    the evidence "in the light most favorable to the prosecution"

    and then ask whether the evidence "would allow a rational

    jury to determine beyond a reasonable doubt that the

    defendants were guilty as charged." United States v. Mena _____________ ____

    Robles, 4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114 ______ _____ ______

    S. Ct. 1550 (1994). Although appellants deny that any of

    them "directed" the enterprise, we rejected this legal

    premise in Oreto, holding that an employee can "conduct" or _____

    "participate" in the conduct of an enterprise by playing an

    integral role in its operation. 37 F.3d at 750. By Oreto's _____

    test, a rational jury could convict each appellant.

    Donna Saccoccia relayed her husband's instructions to

    other appellants on numerous occasions, helped count money,

    and personally authorized the wire transfer of more than $38

    million from the Trend account to foreign bank accounts.

    Hurley and Anthony DeMarco received and counted the large

    cash deliveries in New York and helped transport the cash to

    Rhode Island. James and Kenneth Saccoccio and Anthony

    DeMarco did most of the legwork involved in money laundering,

    exchanging millions of dollars in cash for cashier's checks

    at various banks. Carlo DeMarco travelled to New York and

    Connecticut to transport the cash; Cirella and Stephen Pizzo

    received and counted money at the coin shop.





    -21- -21-













    Four appellants argue that apart from their low levels

    of responsibility, the evidence was insufficient to show

    knowledge on their part that the Saccoccia organization was

    engaged in money laundering or that the money being laundered

    was derived from narcotics. These claims are made by

    Cirella, Pizzo and James and Kenneth Saccoccio in order to

    defeat the showing of predicate acts available to the jury to

    underpin their RICO convictions. Each of the four says or

    implies that he was unaware of money laundering but working

    for what he understood to be a legitimate business.

    The jury was entitled to find that these four appellants

    knew that they were engaged in unlawful money laundering.

    Stephen Saccoccia discussed with Cirella and Pizzo, among

    others, how to avoid police detection; and Pizzo and Cirella

    discussed "washing . . . the money" and means of avoiding

    jail. James and Kenneth Saccoccio were involved in so many

    deposits and manipulative subdividings of funds that

    laundering was the only plausible explanation. Further, in

    one instance (July 10, 1990), discussing the division of

    $54,000 into packages of $9,000 for deposit, James and

    Kenneth Saccoccio conducted the following (recorded)

    conversation with Izzi:

    James: 54, I can't do that. He wants me to do
    $9,000 at every bank, that's stupid!
    (voices fade out)

    James: KENNY, you want me to do 9 at every bank?



    -22- -22-













    Kenneth: (unintelligible) $54,000 that's the way I
    been doing it. Use VOGUE, do VOGUE,
    (unintelligible).

    Izzi: Not all of it, do a couple of TRENDS if
    you could.



    As for the drug-based origins of the cash, the direct

    evidence of knowledge among the underlings is much thinner

    since none of the conspirators were directly involved with

    the narcotics sales. Kenneth Saccoccio is an exception since

    he was recorded, while counting cash at Trend, referring to

    it as "drug money"; and in one conversation with Pizzo,

    Cirella said something that the jury might have taken as

    referring to the drug origins of the proceeds. In the case

    of James Saccoccio, the imputation of knowledge of drugs

    rests on the vast sums involved in the laundering and James'

    close association with Kenneth.

    There are plenty of cash-generating businesses but among

    those that require the illicit laundering of funds, the drug

    business is notorious and preeminent. In this case, the

    evidence showed that narcotics were the source of the cash

    and that this fact was well known to Stephen Saccoccia and

    Kenneth Saccoccio, among others. We think that a rational

    jury could conclude that James too knew of the money's

    origins, either from the size and continuing nature of the

    deliveries, or from being told that the money came from

    drugs; and Cirella and Pizzo are a fortiori cases. _ ________


    -23- -23-













    III. CURRENCY TRANSACTION REPORT ISSUES III. CURRENCY TRANSACTION REPORT ISSUES

    The Bank Secrecy Act requires domestic banks to report

    any transactions involving more than $10,000 in cash, 31

    U.S.C. 5313; 31 C.F.R. 103. The statute also prohibits

    customers from providing false information for a bank's

    report. 31 U.S.C. 5324(2).1 Further, under the 1986

    amendments, "[n]o person shall for the purpose of evading the

    reporting requirements of [the Act or its regulations] . . .

    (3) structure or assist in structuring . . . any transaction

    with one or more domestic financial institutions." Id. ___

    5324. The most common method of "structuring" is to divide

    sums of cash into amounts that are either under the $10,000

    reporting threshold or into amounts that are larger but still

    less likely to attract attention.

    Structuring is a criminal act, 31 U.S.C. 5322(a), and

    a violator is subject to double the fine and sentence if he

    or she structures while violating another federal law or as

    part of a pattern of crime. Id. 5322(b). Appellants ___

    Hurley, James and Kenneth Saccoccio, and Cirella were

    convicted of structuring under 31 U.S.C. 5324(3) and




    ____________________

    1In late 1992, Congress recodified sections 5324(1)-(3)
    as sections 5324(a)(1)-(3) without substantive change, Pub.
    L. 102-550, 525(a), 106 Stat. 3672, 4064 (Oct. 28, 1992).
    For simplicity, we refer to the earlier codification, under
    which appellants were indicted and convicted, unless
    otherwise noted.

    -24- -24-













    5322(b), and now challenge their convictions on several

    grounds.

    A. Due Process and Self-Incrimination A. Due Process and Self-Incrimination __________________________________

    Appellants first contend that the reporting requirement

    violates the Fifth Amendment by requiring them to provide

    incriminating information to the government about themselves.

    The Supreme Court has not directly decided this issue as to

    bank customers, see California Bankers Ass'n v. Shultz, 416 ___ ___________________________________

    U.S. 21, 73 (1974), but every circuit to consider the claim

    has rejected it on one of several alternative grounds. E.g., ____

    United States v. Camarena, 973 F.2d 427, 428 (5th Cir. 1992); _____________ ________

    United States v. Mickens, 926 F.2d 1323, 1331 (2d Cir. 1991), _____________ _______

    cert. denied, 502 U.S. 1060 (1992); United States v. Hoyland, _____ ______ _____________ _______

    914 F.2d 1125, 1130 (9th Cir. 1990).

    In our complex society, individuals are called upon to

    provide information to the government on countless occasions

    and under a great variety of circumstances. Where Congress

    has framed a disclosure requirement narrowly focused upon

    criminal conduct, the Supreme Court has on occasion struck

    down such statutes. Haynes v. United States, 390 U.S. 85 ______ _____________

    (1968); Marchetti v. United States, 390 U.S. 39 (1968); _________ ______________

    Albertson v. Subversive Activities Control Bd., 382 U.S. 70 _________ _________________________________

    (1965). But where the conduct is not inherently criminal,

    the Court has upheld the statutes even where the reporting

    could in due course lead the government to uncover criminal



    -25- -25-













    conduct. California v. Byers, 402 U.S. 424 (1971); United __________ _____ ______

    States v. Sullivan, 274 U.S. 259 (1927). ______ ________

    Byers, the most recent of the cases on point, upheld a _____

    California hit and run law that required motorists involved

    in an accident to halt and provide their names and addresses

    to authorities. Needless to say, a fair portion of those

    involved in such accidents may be identifying themselves in

    situations that could result in criminal jeopardy. But the

    Court found that the report required was not itself a

    confession of criminal conduct, and that the law was directed

    to all auto drivers in the state rather than a more limited

    group "inherently suspect of criminal activities." Byers, _____

    402 U.S. at 430 (quoting Albertson, 382 U.S. at 79). _________

    Of course, a witness may invoke the Fifth Amendment

    based on fairly remote risks, see In re Kave, 760 F.2d 343, ___ ___________

    354 (1st Cir. 1985), but reporting statutes play a central

    role in the administration of government (e.g., taxes), and ____

    the jurisprudence that governs them has followed a different

    course. And although the 1986 structuring amendments were

    aimed at money laundering, see Ratzlaf v. United States, 114 ___ _______ _____________

    S. Ct. 655, 660-61 n.11 (1994), they reinforce a reporting

    statute--the Bank Secrecy Act--that has larger aims including

    tax and regulatory concerns. Many of the reports are filed

    by legitimate cash-oriented businesses and the report itself





    -26- -26-













    is not inherently more incriminating than the accident report

    upheld in Byers. _____

    Anthony DeMarco makes a different constitutional attack

    on the statute. He was convicted of five counts of willfully

    "caus[ing] or attempt[ing] to cause" a bank to file a false

    report. 31 U.S.C. 5324(2). The bank report, based on

    information that the teller secures from the customer, asks

    "on whose behalf" the transaction is being conducted.

    Anthony DeMarco told bank tellers that the transactions were

    being conducted on his own behalf but the evidence showed

    that they were being conducted for Stephen Saccoccia.

    Anthony DeMarco claims that the "on whose behalf" language is

    unconstitutionally vague.

    Due process requires that criminal statutes define

    offenses with sufficient clarity that an ordinary person can

    understand what conduct is prohibited. Kolender v. Lawson, ________ ______

    461 U.S. 352, 357 (1983). The "on whose behalf" language is

    reasonably clear and, on the present facts, plainly pointed

    to Stephen Saccoccia. The cases DeMarco cites all involve

    prior versions of the reporting form, which used different

    language. E.g., United States v. Murphy, 809 F.2d 1427, 1430 ____ _____________ ______

    (9th Cir. 1987) ("for whose account"). The current version

    of the form was promulgated to remedy this ambiguity. United ______

    States v. Belcher, 927 F.2d 1182, 1186-88 (11th Cir.), cert. ______ _______ _____

    denied, 502 U.S. 856 (1991). ______



    -27- -27-













    B. Instructions: Willfulness B. Instructions: Willfulness _________________________

    Appellants next argue that the district court erred in

    instructing the jury on willfulness as an element in a

    structuring violation. Last year, the Supreme Court rejected

    the majority view of the circuits and held that for a

    structuring conviction a defendant must know that what he is

    doing is illegal. Ratzlaf, 114 S. Ct. at 658.2 The _______

    district court's instruction, given before Ratzlaf, told the _______

    jury that, in addition to knowledge, willfulness was required

    and continued:

    An act is done willfully if its done knowingly and
    with an intent to do something the law forbids. It
    requires something more than mere negligence or
    mistake. It requires proof that a Defendant acted
    with the purpose of either disobeying or
    disregarding the law.

    No objection was made to this instruction, so we review

    for plain error. This case does not present the conundrum of

    a failure to object followed by a wholly unexpected change of

    law; one month before the trial in our case, this court had

    an en banc argument to consider the scienter requirement in _______

    the structuring statute. See United States v. Aversa, 984 ___ ______ ______ ______

    F.2d 493 (1st Cir. 1993) (en banc) (anticipating Ratzlaf's _______ _______


    ____________________

    2Following the Supreme Court's decision in Ratzlaf v. _______
    United States, Congress deleted the statutory willfulness ______________
    requirement for structuring offenses. 31 U.S.C. 5322(a),
    (b), 5324(c); Pub. L. 103-325, 411, 108 Stat. 2160, 2253
    (Sept. 23, 1994); see H.R. Conf. Rep. No. 652, 103d Cong., ___
    1st Sess. 147 (1994). This recent change does not affect
    appellants' appeals.

    -28- -28-













    result), vacated, 114 S. Ct. 873 (1994). In United States v. _______ _____________

    Marder, we recently applied the plain error standard to a ______

    pre-Ratzlaf instruction, 48 F.3d 564, 572 & n.5 (1st Cir.), _______

    cert. denied, 115 S. Ct. 1441 (1995), as have a number of _____ ______

    circuits. E.g., United States v. Retos, 25 F.3d 1220, 1228- ____ _____________ _____

    32 (3d Cir. 1994).

    It is not certain that the district court erred at all.

    Aversa held that "reckless disregard" of the law satisfied ______

    the willfulness requirement of the structuring statute. 984

    F.2d at 502. The Supreme Court in Ratzlaf referred to Aversa _______ ______

    as a case requiring knowledge, 114 S. Ct. at 657 n.1; and it

    cited with approval, id. at 659, another First Circuit case ___

    in which we agreed that a jury could "infer knowledge if a

    defendant consciously avoided learning about the reporting

    requirements." United States v. Bank of New England, N.A., _____________ __________________________

    821 F.2d 844, 855 (1st Cir.), cert. denied, 484 U.S. 943 _____ ______

    (1987).

    Ratzlaf did not formulate any precise instruction. _______

    Should the Supreme Court address the issue again, it might

    insist on actual knowledge and nothing less. But "disobey or

    disregard" is part of a standard instruction on willfulness.

    See 1 L. Sand, supra, 3A.01 at 3A-18. See also United ___ _____ ___ ____ ______

    States v. Oreira, 29 F.3d 185, 188 (5th Cir. 1994) ("disobey ______ ______

    or disregard" accords with Ratzlaf). Further we are dealing _______

    at this point with nuances in language, and state of mind is



    -29- -29-













    usually based on inference rather than on direct evidence.

    The instruction in this case, if error at all, is neither

    plain nor the cause of a miscarriage of justice.

    C. Count 67 C. Count 67 ________

    Hurley and Cirella were convicted of structuring while

    violating another federal law or as part of a pattern of

    illegal activity involving more than $100,000 within a 12-

    month period. 31 U.S.C. 5322(b), 5324(3). The indictment

    charged that they, together with James and Kenneth Saccoccio,

    structured a set of six bank deposits of $8,000 to $9,000

    each in several different bank accounts on October 2, 1990.

    The indictment said:

    [T]he defendants structured, assisted in
    structuring and attempted to structure and assist
    in structuring the transaction by dividing a
    quantity of currency in excess of $10,000 into two
    or more portions and using those smaller portions
    to purchase cashiers checks or other instruments in
    amounts under $10,000 at two or more financial
    institutions on the same day . . . .

    The evidence at trial showed that on October 2, 1990,

    Izzi told Hurley and Cirella to give him $35,000 in $10 bills

    and later in the day to give Kenneth Saccoccio $30,000 in $20

    bills. Bank records showed that after the conversation and

    later that day Kenneth Saccoccio made two $9,000

    transactions. The jury convicted Hurley and Cirella on count

    67, and on appeal they raise a bevy of arguments.

    The first argument is based on the fact that the trial

    judge, without objection, instructed the jury that


    -30- -30-













    structuring can occur either by dividing a sum over $10,000

    into deposits under that figure or by dividing the original

    sum into amounts that are over $10,000 but reduce the

    reportable amount. Appellants read the indictment language

    as limiting the offense to the "under $10,000" theory and

    argue that the "over $10,000" theory permitted the jury to

    convict on a different theory of the offense, impermissibly

    causing a constructive amendment of the indictment. See, ___

    e.g., United States v. Atisha, 804 F.2d 920, 927 (6th Cir. ____ _____________ ______

    1986), cert. denied, 479 U.S. 1067 (1987). _____ ______

    The apparent strength of the argument is that the taped

    evidence showed these two appellants being told to assemble

    amounts over $10,000 and the "over $10,000" instruction

    appears to dovetail with this evidence. But the "over

    $10,000" instruction was a general one, describing one method

    of structuring, and had nothing in particular to do with

    count 67. Further, the "over $10,000" theory fit those

    instances (involving DeMarco, Kenneth and James Saccoccio)

    where a deposit occurred that was over $10,000 but less than

    the original sum. On the other hand, the only deposits

    alleged in relationship to count 67 were under $10,000.

    Thus, reading the instructions in relation to evidence,

    we think that the jury had to understand that the

    government's case on count 67 amounted to this: Hurley and

    Cirella, to facilitate specified unreported deposits of under



    -31- -31-













    $10,000 on October 2, provided larger sums (as directed) in

    aid of and with the expectation that they would be subdivided

    into amounts under $10,000 to avoid reports and then

    deposited, as in fact they were. The practice of giving

    general instructions in multiple count cases, and letting the

    jury sort out their application according to the facts, is

    common and permissible. Given this interpretation of

    what happened, we have no reason to consider whether there

    would have been a constructive amendment rather than a

    variance if the jury had been instructed to apply the "over

    $10,000" theory to count 67. See generally 3 C. Wright, ______________

    Federal Practice and Procedure 516, at 26 (2d ed. 1982) _______________________________

    (describing distinction as "shadowy"). We do consider, but

    reject, appellants' claim that the evidence was inadequate to

    connect their delivery of $30,000 to Kenneth Saccoccio with

    his later deposits of amounts under $10,000 that day. The

    timing made the connection a permissible inference.

    In a different attack, appellants argue that count 67

    was facially defective because it alleged, but failed to

    specify, the other federal law concurrently violated or the

    pattern of illegal activity involving over $100,000 within 12

    months. This additional allegation was not needed to prove

    the violation but was needed to trigger the enhanced penalty

    provided by section 5322(b). Appellants rely on United ______

    States v. Hajecate, 683 F.2d 894, 901-02 (5th Cir. 1982), ______ ________



    -32- -32-













    cert. denied, 461 U.S. 927 (1983), where the Fifth Circuit _____ ______

    overturned a structuring conviction because the structuring

    count did not specify the other illegal act or pattern.

    Here, count 67 did incorporate by cross reference the 22

    introductory paragraphs of count 1 where the government

    described the smurfing operation in detail, identified the

    role of each appellant, and noted that large volumes of cash

    were involved. Hurley and Cirella had to know that the

    pattern of illegal activity alleged by the government was the

    vast smurfing enterprise of which count 67 was but a single

    example. Cross references are permissible in indictments.

    United States v. Yefsky, 994 F.2d 885, 894 (1st Cir. 1993). _____________ ______

    There is no showing that either appellant was prejudicially

    misled.

    D. Counts 54-68 D. Counts 54-68 ____________

    Kenneth and James Saccoccio make a more promising attack

    on their own convictions for structuring. They say that

    there is insufficient evidence that they knew structuring to

    be illegal, as Ratzlaf required, and that they were thus _______

    entitled to judgments of acquittal. In Ratzlaf itself, the _______

    dissent contended that the majority's knowledge requirement

    would frustrate the statute; the majority said that

    reasonable inferences could be drawn. 114 S. Ct. at 663

    n.19, 669-70. Our case presents just this issue.





    -33- -33-













    There is no direct evidence that either appellant knew

    that structuring was a crime. At the same time, the evidence

    permitted the jury to conclude that both knew that drug money

    was involved; that both knew that the break-downs of the cash

    were designed to disguise proceeds; and that both were paid

    in proportion to the deposits they made. In addition,

    Kenneth Saccoccio made a recorded statement indicating that

    he knew that his own activity was criminal; and given their

    common role and association a jury could reasonably infer

    that James had the same level of apprehension.3

    We think that the thrust of Ratzlaf's wilfulness _______

    requirement is met if persons engaged in depositing broken

    down amounts are generally conscious that their laundering

    operation is illegal, even if they do not know the precise

    requirements of the law. This circuit in Aversa was the only ______

    one to anticipate Ratzlaf and we are fully sympathetic with _______

    its aims. But those aims were to screen out persons who

    structured transactions to disguise amounts in situations

    where the actor might reasonably have no idea that the course

    of conduct was unlawful. See Ratzlaf, 114 S. Ct. at 660-61; ___ _______

    Aversa, 984 F.2d at 499-500. ______




    ____________________

    3After hearing that Hurley had encountered a police
    roadblock, Kenneth Saccoccio said, "Imagine if we went by
    yesterday," referring to a day (July 2, 1990) on which he had
    engaged in various structuring transactions.

    -34- -34-













    Here, there is ample evidence as to Kenneth, and enough

    as to James, to persuade us that a reasonable jury could find

    that both knew that their own activities were unlawful. This

    is not countered, as their brief suggests, by the fact that

    they generally gave their names and identifying information

    when requested by banks: couriers in their position could

    reasonably think that an individual deposit standing alone

    would not appear irregular, while remaining aware that anyone

    with a full knowledge of their activities would condemn them.

    Ratzlaf dealt with an abstract jury instruction in yes _______

    or no terms; and in its wake, courts and juries must try to

    answer more concrete questions of how much is enough. Where

    a defendant's structuring is genuinely innocent of criminal

    intent, we think that under Ratzlaf a judgment of acquittal _______

    is proper no matter how unattractive the context. Cf. ___

    Aversa, 984 F.2d at 499-500. But where the context is itself ______

    saturated with consciousness of illegality, we do not think

    that Ratzlaf requires the jury to ignore it in assessing the _______

    defendant's state of mind.

    IV. MISCELLANEOUS TRIAL ISSUES IV. MISCELLANEOUS TRIAL ISSUES

    A. Donna Saccoccia's Continuance Request A. Donna Saccoccia's Continuance Request _____________________________________

    After contesting extradition, Donna Saccoccia was

    returned by Switzerland to the United States, arriving on

    July 15, 1992, and was arraigned on that date. The

    government turned over the bulk of its discovery in late



    -35- -35-













    July. In September, her counsel requested a 60-day

    continuance, he was instead granted 30 days, and trial was

    set to begin on November 2.

    Ten days before trial Donna Saccoccia's attorney asked

    for another continuance, which was denied. As a result, her

    team of lawyers had just over 100 days after arraignment to

    prepare for her trial. Pointing to the length of the

    government investigation, the number of charges and the

    quantity of evidence (over 1600 hours of surveillance tape

    and 10,000 pages of financial documents), Donna Saccoccia

    claims that the denial of the second continuance was

    prejudicial error.

    Although the government asserts that Donna Saccoccia's

    counsel were able to prepare during the extradition

    proceedings, this is at least open to dispute. Still, many

    of the issues were common to all of the defendants, so that

    Donna Saccoccia benefited from the work of her co-defendants'

    counsel, who had eight months to prepare, examine the

    government's tapes and documents, search for exculpatory

    evidence and do research. Although a few issues were

    peculiar to Donna Saccoccia, the common issues bulked large.

    Given the broad discretion enjoyed by trial judges, see ___

    United States v. Lussier, 929 F.2d 25, 27 (1st Cir. 1991)-- _____________ _______

    especially in the complex task of organizing a multi-

    defendant trial--we have no hesitance in upholding the



    -36- -36-













    district court's denial of a second continuance. Her lead

    counsel appears to have performed ably and there is no

    indication of prejudice. The time allowed was generally

    adequate see United States v. Waldman, 579 F.2d 649 (1st Cir. ___ _____________ _______

    1978), and the cases overturning convictions for lack of

    preparation time involve more severe circumstances. E.g., ____

    United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985) (RICO _____________ _____

    count added eleven days before trial), cert. denied, 475 U.S. _____ ______

    1017 (1986).



































    -37- -37-













    B. Carlo DeMarco's Severance Request B. Carlo DeMarco's Severance Request _________________________________

    Carlo DeMarco, an employee of Stephen Saccoccia for only

    about three months, was convicted of RICO conspiracy but not

    charged with any substantive offense. Midway through the

    trial he moved for a severance on the ground that Anthony

    DeMarco, his brother and co-defendant, would testify on his

    behalf in a separate trial. Carlo offered the affidavit of

    his counsel that Anthony would testify (along with a few less

    important facts) that Carlo "was not to be told anything

    except that he was working for a gold dealer." The district

    court held that the motion was untimely and without merit.

    In United States v. Drougas, 748 F.2d 8, 19 (1st Cir. _____________ _______

    1984), we held that to show an abuse of discretion in these

    circumstances, a defendant must show that the proffered

    testimony is genuinely necessary, exculpatory, and will in

    fact be forthcoming in a severed trial. It is doubtful that

    the affidavit from counsel satisfied this requirement. See ___

    United States v. Perkins, 926 F.2d 1271, 1280-81 (1st Cir. _____________ _______

    1991). In all events, Fed. R. Crim. P. 12(b)(5) specifies

    that motions to sever must be made where feasible before

    trial. Defense counsel's claim that he had not previously

    had a chance to consult adequately with his co-defense

    counsel is manifestly lame.







    -38- -38-













    C. Minimization of Electronic Surveillance C. Minimization of Electronic Surveillance _______________________________________

    Cirella, Hurley and Anthony DeMarco moved at trial to

    suppress the government's recordings made by telephone taps

    and listening devices installed in Trend and Saccoccia Coin.

    They charged the government failed to comply with 18 U.S.C.

    2518(5), which requires that surveillance shall be conducted

    "in such a way as to minimize the interception of

    communications not otherwise subject to interception under

    this chapter . . . ." We uphold the trial judge's denial of

    the suppression motion without reaching the question of

    whether the remedy for a violation would be suppression. See ___

    Scott v. United States, 436 U.S. 128, 135-36 n.10 (1978) _____ ______________

    (raising but not deciding the issue).

    Scott made clear that the statute does not forbid _____

    interception of non-pertinent conversations but requires a

    reasonable effort to minimize such interceptions. 436 U.S.

    at 137-40. Here, the government described the agents'

    directives to turn off monitoring equipment for irrelevant

    conversations; it supplied statistics showing that about

    three-quarters of the time that the agents turned off the

    monitoring device, they did so because the conversation was

    deemed non-pertinent; and it pointed to regular reports made

    to the district court, and to ongoing contacts between the

    agents and the prosecutors sometimes involving guidance on





    -39- -39-













    monitoring. See United States v. Angiulo, 847 F.2d 956, 979 ___ _____________ _______

    (1st Cir.), cert. denied, 488 U.S. 928 (1988). ____________

    The Saccoccia enterprise was a widespread and

    complicated operation in which the illegal conduct was

    deliberately disguised by the company's legitimate

    activities. The conspirators employed code phrases that

    mimicked industry terminology and used code names for each

    other, banks and clients. Many of the participants were

    related by blood or marriage, and incriminating exchanges

    were often interspersed with personal conversation. It is

    hard to see how the agents could have done more than make a

    good-faith determination to turn off recording devices when a

    conversation was seemingly unrelated to the laundering

    operation.

    Here, as in United States v. Uribe, 890 F.2d 554, 558 _____________ _____

    (1st Cir. 1989), "[d]efendants [have] offered no evidence

    tending to show, or even to suggest, a pattern of listening

    to calls after it became clear that the calls were

    innocuous." A so-called survey conducted by the son of

    Hurley's lawyer purported to show that a substantial number

    of non-pertinent conversations were recorded; but the survey

    was flawed by his subjective criteria of pertinence (for

    example, the son classified conversation regarding gold as

    non-pertinent even though the Saccoccia employees regularly

    employed gold industry words as code phrases for money



    -40- -40-













    laundering transactions). The district court properly

    disregarded the study.

    D. Count 143 _________

    Count 143 charged Hurley with a Travel Act violation for

    transporting $248,000 on a specified date from New York to

    Rhode Island, to promote specified unlawful activity, namely,

    structuring and money laundering. Hurley admits that the

    indictment charged the first two requisites--interstate

    travel and intent to promote an unlawful activity. 18 U.S.C.

    1952. But, he says, there is no allegation that (in the

    statutory phrase) he "thereafter" performed or attempted an

    act to further the unlawful activity. Id. ___

    This is a legitimate argument. But we think that the

    quoted statutory phrase must be read in light of its apparent

    purpose: to screen out interstate travel by a racketeer who,

    however malign his purpose, ultimately does nothing to

    advance the illegal activity. Here, Hurley's transportation

    of the money from New York to Rhode Island was a central part

    of the ongoing laundering operation. The particular trip was

    not only interstate travel but also comprised--"thereafter"--

    the delivery of funds for laundering. Accord United States ________ ______ _____________

    v. Brown, 770 F.2d 768, 772 (9th Cir.) (importation of _____

    heroin), cert. denied, 474 U.S. 1036 (1985). _____ ______

    Given our reading of the "thereafter" language, there is

    thus no need to consider whether (as claimed by the



    -41- -41-













    government) the general descriptions of Hurley's activities

    (incorporated in count 143 by reference to count 1) could

    independently supply a subsequent act. We also think it

    unnecessary to discuss Hurley's argument that the evidence

    was insufficient to show that he participated in the

    particular trip which unquestionably occurred. While

    Hurley's involvement depended on inferences from different

    pieces of evidence, the jury was entitled to draw those

    inferences.

    E. Donna Saccoccia's Mental Competence E. Donna Saccoccia's Mental Competence ___________________________________

    At Donna Saccoccia's rearraignment on July 23, 1992, her

    trial counsel made and then abandoned a suggestion that she

    be examined professionally in relation to her current mental

    condition. The trial proceeded with no further request for

    such an examination or suggestion of incompetency, until--

    about six months after the trial--the presentence report

    alluded to a possible sentence reduction for diminished

    mental capacity. The defense then retained a clinical

    psychologist who examined Donna Saccoccia and concluded that

    she was mentally incompetent and had been throughout the

    trial.

    Two days before sentencing, trial counsel filed a motion

    seeking a competency hearing, which is required where there

    is "reasonable cause" to believe that a defendant is

    "mentally incompetent to the extent that he is unable to



    -42- -42-













    understand the nature and consequences of the proceedings

    against him or to assist properly in his defense." 18 U.S.C.

    4241(a). In a two-day preliminary proceeding, the

    psychologist testified that Donna Saccoccia was able to

    understand the proceedings but opined that she did not have

    the ability to assist counsel because of depression, anxiety

    and passivity. The district court found that a full-scale

    competency hearing was not required and Donna Saccoccia now

    appeals that decision.

    This is a close issue. The fact that a reputable expert

    gives his opinion does not resolve the matter, even if there

    is no countervailing expert evidence on the other side. See ___

    Figueroa-Vazquez v. United States, 718 F.2d 511, 512 (1st ________________ ______________

    Cir. 1983). But here the expert appears to have made a

    substantial examination and his concerns--although not his

    specific conclusions--have a degree of support in trial

    counsel's comment at the arraignment and the concerns

    expressed in the presentence report. For obvious reasons,

    competency claims are not subject to ordinary waiver

    doctrine. Pate v. Robinson, 383 U.S. 375, 384 (1966). ____ ________

    On the other hand, the focus of the incompetency claim

    in this case is upon Donna Saccoccia's ability or inability

    to assist in her defense. The trial judge had some basis for

    doubting whether the psychologist understood the issues in

    the case well enough to make a judgment, but far more



    -43- -43-













    important is the silence of defense counsel on this point

    during the trial. An experienced trial lawyer ought to be

    the first to notice a lack of cooperation or ability to

    assist so severe as to raise competency questions. There was

    no complaint from trial counsel until after trial when the

    presentence report reawakened counsel's interest in the

    matter.

    Neither at the preliminary competency hearing nor on

    appeal has counsel been able to point to any specific

    problems with Donna Saccoccia's assistance during trial.

    This is not a conclusive objection since (in theory) the

    impairment might prevent counsel from ever learning of

    information helpful to the defense; but the generalized

    character of the claim weakens its force. The district

    judge, who presided over the trial and the preliminary

    hearing, is entitled to some latitude in making judgment on

    the need for a full-scale competency hearing. United States _____________

    v. Garrett, 903 F.2d 1105, 1116 (7th Cir.), cert. denied, 498 _______ _____ ______

    U.S. 905 (1990). Having reviewed the transcript of that

    hearing, we sustain the district court's ruling.

    V. SENTENCING ISSUES V. SENTENCING ISSUES

    A. Ex Post Facto Claim A. Ex Post Facto Claim ___________________

    Under the RICO sentencing guidelines, the district judge

    properly employed the money laundering guideline in

    sentencing appellants on the RICO conspiracy count. U.S.S.G.



    -44- -44-













    2E1.1. The money laundering guideline in effect at the

    time of sentencing increased a defendant's base offense level

    for money laundering by three levels if the defendant "knew

    or believed" that the laundered money was the proceeds of

    narcotics sales. Id. 2S1.1(b)(1). That provision became ___

    effective on November 1, 1991; previously, the increase

    applied only if the defendant "knew" that the money came from

    narcotics.

    In a claim not raised at sentencing, appellants now

    argue that the district court erred by applying the new and

    broader guideline, because (they say) the last actual money

    laundering offense occurred in April 1991 before the new

    guideline took effect. See United States v. Cousens, 942 ___ ______________ _______

    F.2d 800, 801 n.1 (1st Cir. 1991). The government responds

    that the RICO conspiracy itself continued at least until

    November 1991, asserting that no ex post facto problem exists __ ____ _____

    where the crime continues after the effective date of a new

    guideline sentence. E.g., United States v. David, 940 F.2d ____ _____________ _____

    722, 739 (1st Cir.), cert. denied, 502 U.S. 989 (1991). _____ ______

    David can arguably be distinguished, but the issue need not _____

    be decided here.

    The new guideline language was intended to apply the

    enhancement to cases in which a defendant "knew" that drug

    trafficking was involved, but the knowledge turned out to be

    mistaken because (for example) the operation was a government



    -45- -45-













    sting and no real narcotics were involved. See U.S.S.G. app. ___

    C, amend. 378 (1994). Here, the money was in fact the

    proceeds of narcotics trafficking so belief and knowledge

    were the same thing. A defendant who merely believed the

    drug proceeds were involved would (because of the correctness

    of that belief) also know that drug proceeds were involved.

    Appellants contend that the district court

    misinterpreted the phrase "knew or believed" to allow an

    increase based on a showing that appellants merely suspected

    or should have known that drug money was involved. We have

    examined the transcript of the sentencing and reject this

    conjecture. In some cases, an appellant was shown to have

    direct knowledge, and in others, knowledge was inferred from

    circumstances; but in each case a fair reading of the trial

    court's remarks show that the judge determined that the

    appellant knew the source of the laundered funds.

    Pizzo and James Saccoccio assert that even if the court

    did not misunderstand the standard, the evidence was

    inadequate to show that they knew that the laundered money

    was the proceeds of narcotic sales. As explained earlier in

    the opinion, the evidence on this point was sufficient. Even

    apart from Pizzo's disputed reference to "the coke," the

    volume of funds, the duration, the geographic source, the use

    of small bills and other circumstances made it entirely





    -46- -46-













    reasonable to infer that direct participants in the

    enterprise knew that the funds were derived from drugs.

    B. Other Sentencing Errors B. Other Sentencing Errors _______________________

    The offense level for money laundering offenses is keyed

    to the value of the laundered funds. U.S.S.G. 2S1.1(b)(2).

    Appellants contend that in various respects the sentencing

    court erred in determining the value of the funds and in

    determining the varying amounts that it found each individual

    appellant reasonably had foreseen. U.S.S.G.

    1B1.3(a)(1)(B). These are largely factual issues, reviewable

    only for clear error. United States v. LaCroix, 28 F.3d 223, _____________ _______

    231 (1st Cir. 1994). We have examined each of these claims

    of error and think that the district court's findings are

    supportable, and that none involves any issue of law

    requiring discussion.

    Something closer to an issue of law is presented by the

    district court's determination that Carlo DeMarco was

    entitled to a two-level reduction as a minor participant

    rather than to the four-level decrease as a minimal

    participant. See U.S.S.G. 3B1.2. The issue arises because ___

    DeMarco participated for only a few months in the RICO

    conspiracy and was held responsible for only $3.9 million of

    the $136 million conspiracy. But as to that segment of the

    conspiracy, the court found that the range of DeMarco's





    -47- -47-













    activities made him a minor rather than a minimal

    participant.

    On appeal DeMarco argues that he was entitled to have

    his role determined in light of the entire conspiracy. The

    government argues that his role should be measured only

    against the foreseeable conduct for which he has been held

    responsible. No case law discussing this issue has been

    cited. But we think that common sense permitted the district

    judge to determine that DeMarco--who participated quite

    actively in several roles over a significant period and was

    involved with a substantial amount of laundered funds--was a

    minor and not a minimal participant.

    VI. FORFEITURE ISSUES VI. FORFEITURE ISSUES

    Between January 1990 and April 1991, Stephen and Donna

    Saccoccia wired $136,344,231.86 to foreign bank accounts

    apparently controlled by Colombian drug suppliers. In the

    indictment, the government took the position that each

    appellant was jointly and severally liable for this amount

    under one of RICO's several forfeiture provisions, 18 U.S.C.

    1963(a)(3). This subsection requires a defendant to

    forfeit "any property constituting, or derived from, any

    proceeds which the person obtained, directly or indirectly,

    from racketeering activity . . . ." Id. By special verdict, ___

    the jury imposed such a forfeiture in this amount on Hurley,





    -48- -48-













    the other appellants having waived a jury trial on forfeiture

    issues.4

    The district court imposed separate forfeitures on the

    other appellants. United States v. Saccoccia, 823 F. Supp _____________ _________

    994 (D.R.I. 1993). The court held that proceeds under

    section 1963(a)(3) included laundered funds obtained by an

    appellant even though later passed along to the Colombians,

    and that each appellant was responsible for funds foreseeably

    obtained by other co-conspirators. The court found that

    Hurley, Stephen and Donna Saccoccia, and Anthony DeMarco were

    aware of most or all aspects of the conspiracy and liable for

    the full amount; that the Saccoccio brothers, Cirella and

    Pizzo were aware mainly of the Rhode Island operation and

    therefore liable only for the $37,456,100.79 laundered

    through Trend and Saccoccia Coin; and that Carlo DeMarco,

    active only from August through November 1991, was

    responsible for $3,927,357.55 that he had deposited or

    otherwise known about.

    After appellants filed notices of appeal, the government

    filed a motion seeking forfeiture of substitute assets, 18

    U.S.C. 982(b), 1963(m); following various proceedings, the

    ____________________

    4The jury also imposed a separate forfeiture on Hurley
    of $52,800 under the money laundering provision, 18 U.S.C.
    982, in connection with a reporting violation. Neither this
    nor other section 982 forfeitures imposed on three other
    appellants by the district judge have been challenged on
    appeal except on grounds identical to those discussed below
    in connection with the RICO forfeitures.

    -49- -49-













    district court ultimately determined that because the $136

    million had been transferred out of the jurisdiction, each

    appellant was liable to pay the amounts in question out of

    any other assets of that appellant. Both the original

    forfeiture orders and their extension to substitute assets

    are the subject of a number of attacks in this case.

    A. "Proceeds . . . Obtained" A. "Proceeds . . . Obtained"

    The opening question is whether the $136 million wired

    to the Colombians constituted, at least as to the appellants

    who handled or controlled these funds before they were wired,

    "any property constituting, or derived from, any proceeds

    which the person obtained, directly or indirectly, from

    racketeering activity . . . in violation of section 1962."

    18 U.S.C. 1963(a)(3). Appellants argue that "proceeds"

    means net profits, see United States v. Masters, 924 F.2d ___ ______________ _______

    1362, 1369-70 (7th Cir.) (semble), cert. denied, 500 U.S. 919 _____ ______

    (1991), in which case $136 million vastly overstates the 5 to

    15 percent commission apparently retained by the Saccoccias

    and the (presumably smaller) amounts passed along to other

    appellants. Alternatively, appellants contend that none of

    the $137 million could fairly be regarded as "obtained" by

    them since it represents amounts transmitted by the

    Saccoccias to the drug owners themselves.

    Section 1963(a)(3) was added by Congress to other RICO

    forfeiture provisions in 1984, and its legislative history



    -50- -50-













    explains without qualification that "the term `proceeds' has

    been used in lieu of the term `profits' in order to alleviate

    the unreasonable burden on the government of proving net

    profits." S. Rep. No. 225, 98th Cong., 2d Sess. 199 (1984).

    In Russello v. United States, 464 U.S. 16 (1983), the Supreme ________ _____________

    Court made clear its desire for generous construction of the

    RICO forfeiture provisions, in line with Congress' unusual

    command that RICO (although a criminal statute) be broadly

    interpreted. See id. at 27. Given the legislative history ___ ___

    and Russello, the broader definition of "proceeds" seems to ________

    us a rather easy call.

    The point is borne out by imagining that Stephen

    Saccoccia had been caught with the $136 million in cash or

    gold just before delivering it to the Colombians. The cash

    or gold could surely be described as property representing

    "proceeds" which Stephen Saccoccia had "obtained" from

    racketeering activity in violation of section 1962, namely,

    through money laundering. As a matter of policy, there is

    every reason why the booty in that situation ought to be

    forfeit, and that Congress would desire such a result. See ___

    United States v. Lizza Indus., Inc., 775 F.2d 492, 497-99 (2d _____________ __________________

    Cir. 1985), cert. denied, 475 U.S. 1082 (1986). _____ ______

    The more difficult question is whether property should

    be regarded as "obtained" by the money launderer when it has

    merely been held in custody by that individual and has been



    -51- -51-













    passed along to its true owner. To read "obtained" to cover

    property once held by a defendant on behalf of another has

    the effect--when combined with the substitute assets

    provision--of converting the forfeiture into a fine. Thus,

    at first, the temptation is to read the word "obtained"

    narrowly, having in mind the low level courier who merely

    transports the money and could face death if any of the funds

    were diverted.

    Yet, on reflection, it is only in degree that the

    courier who gets a very small cut differs from intermediaries

    who get a larger one, and from the leader of the drug ring

    who is effectively paying much of the money back to suppliers

    and servitors of various kinds. Looking at criminal

    forfeiture under RICO as a kind of shadow fine, the size of

    the amount transported is some measure of the potential harm

    from the transaction. And since temporary custody is

    certainly enough for a possession charge in a drug case, see ___

    United States v. Zavala Maldanado, 23 F.3d 4, 6-8 (1st Cir.), _____________ ________________

    cert. denied, 115 S. Ct. 451 (1994), it is hard to see why _____ ______

    "obtained" should be read more narrowly.

    Finally, it is very hard to escape the implications of

    18 U.S.C. 982(b)(2). There, Congress has expressly carved

    out a narrow safe harbor, which protects against forfeiture a

    defendant who "acted merely as an intermediary who handled

    but did not retain the property" unless the defendant



    -52- -52-













    conducted three or more separate transactions involving a

    total of $100,000 or more in a twelve-month period. This

    provision indicates that Congress itself thought that a

    separate statute was necessary for a "passing on" defense.

    There is no counterpart safe harbor provision in RICO nor, in

    view of the amounts involved, could such a provision help any

    appellants in this case.

    B. Vicarious Liability B. Vicarious Liability ___________________

    The question remains whether a defendant's forfeiture is

    limited to the laundered funds that the defendant himself

    obtained or whether it extends to funds obtained by other

    members of the conspiracy. The district court took the

    latter position with one important qualification: laundered

    funds obtained by other members of the conspiracy would be

    attributed only to the extent that they were reasonably

    foreseeable to the particular defendant. Saccoccia, 823 F. _________

    Supp. at 1004. This is a sensible resolution of a very close

    issue, and we follow the district court's lead.

    The arguments for limiting forfeiture solely to funds

    personally obtained by an individual defendant are several.

    The statutory language speaks of a violator forfeiting

    "proceeds which the person obtained" by violating section ___ ______

    1962. 18 U.S.C. 1963(a)(3) (emphasis added). In addition,

    the plight of a defendant who was merely a temporary

    custodian of cash and passed it on is even starker than that



    -53- -53-













    of a person who never possessed the cash at all. Thus, there

    is a respectable basis for holding that vicarious liability

    for co-conspirator behavior does not exist under section

    1963.

    The arguments pointing the other way seem to us

    stronger. Under established case law, members of a

    conspiracy are substantively liable for the foreseeable

    criminal conduct of the other members of the conspiracy.

    Pinkerton v. United States, 328 U.S. 640 (1946). Using the _________ _____________

    same concept, the Sentencing Guidelines attribute to a

    defendant at sentencing the foreseeable conduct of co-

    conspirators. U.S.S.G. 1B1.3(a)(1)(B). It would be odd,

    although not impossible, to depart from this principle of

    attributed conduct when it comes to apply the forfeiture

    rules, which have aspects both of substantive liability and

    of penalty.

    It is largely fortuitous whether an individual co-

    conspirator happened to possess the laundered funds at a

    particular point. If conclusive weight were given to who

    physically handled the money, a low-level courier or money

    counter could be liable for vast sums, while other higher

    level conspirators could easily escape responsibility. So

    long as the amount handled by others is foreseeable as to a

    defendant, the foreseeable amount represents the sounder

    measure of liability.



    -54- -54-













    Finally, we have to give some weight to the fact that

    each court of appeals that has addressed the topic has

    concluded that the forfeiture provisions involve joint and

    several liability. E.g., Masters, 924 F.2d at 1369-70; ____ _______

    Fleischhauer v. Feltner, 879 F.2d 1290, 1301 (6th Cir. 1989), ____________ _______

    cert. denied, 493 U.S. 1074 (1990); United States v. _____ ______ ______________

    Benevento, 836 F.2d 129, 130 (2d Cir. 1988); United States v. _________ _____________

    Caporale, 806 F.2d 1487, 1506-09 (11th Cir. 1986), cert. ________ _____

    denied, 482 U.S. 917 (1987). This is a somewhat backward way ______

    of putting the matter, since "joint and several" roughly

    describes the result without explaining the underlying theory

    of liability. Here, we think the theory is the familiar rule

    that a member of a conspiracy is responsible for the

    foreseeable acts of other members of the conspiracy taken in

    furtherance of the conspiracy. Pinkerton, 328 U.S. at 646- _________

    47; U.S.S.G. 1B1.3(a)(1)(B).

    Appellants appear to think that their vicarious

    liability for amounts they did not physically touch rests on

    the assumption that the Colombian drug lords who ultimately

    "obtained" $136 million were members of the same conspiracy.

    On this premise, appellants advance a number of arguments as

    to why such a conspiracy cannot be made out under the

    indictment or evidence in this case. The short answer is

    that the premise is mistaken; individual appellants are

    liable because their convicted American co-conspirators



    -55- -55-













    obtained the funds, regardless of the status assigned to the

    Colombians.

    Nor do we see any basis for the claim that the

    forfeiture violates the "excessive fines" clause of the

    Eighth Amendment. Although the provision is applicable to

    forfeitures, see Alexander v. United States, 113 S. Ct. 2766 ___ _________ _____________

    (1993), holding a defendant liable for an amount of money

    foreseeably laundered by himself and his own co-conspirators

    is quite rational based on a proportionality analysis.

    Harmelin v. Michigan, 501 U.S. 957 (1991). In this case none ________ ________

    of the appellants was separately fined, so we can leave for

    another day forfeitures imposed on top of separate fines.

    We appreciate the fact that a formidable penalty can be

    inflicted when one disallows a passing-on defense then

    imposes vicarious liability for the foreseeable acts of co-

    conspirators. The government can collect its $136 million

    only once but, subject to that cap, it can collect from any

    appellant so much of that amount as was foreseeable to that

    appellant. But there is no reason to think that this result

    is unattractive to Congress, which requested a broad

    construction of RICO, or to the Supreme Court, which followed

    this policy in Russello. ________

    C. Substituted Assets C. Substituted Assets __________________

    The indictment in this case sought forfeitures against

    each of the appellants of approximately $140 million and



    -56- -56-













    expressly invoked 18 U.S.C. 1963(m). Section 1963(m)

    provides that if property subject to forfeit cannot be found

    or has been transferred then "the court shall order the

    forfeiture of any other property of the defendant up to the

    value of" the property subject to forfeit. See also 18 _________

    U.S.C. 982(b) (similar provision in money laundering

    statute incorporated from 21 U.S.C. 853(p)). In this case,

    the original jury verdicts contain a determination of

    forfeiture only as to Hurley; forfeiture findings against the

    other appellants were made thereafter by the district court,

    as earlier described.

    Appellants filed notices of appeal from their

    convictions in May and June 1993. On July 16, 1993, the

    government moved in the district court to amend the

    forfeiture provisions of its judgments to substitute other

    property of the appellants for the $137 million in laundered

    funds. After a hearing, the court granted these motions. On

    appeal, appellants argue that the district court lacked

    jurisdiction to enter those orders because appeals had

    already been taken.

    This claim rests on the "general rule" that "entry of a

    notice of appeal divests the district court of jurisdiction

    to adjudicate any matters related to the appeal." United ______

    States v. Distasio, 820 F.2d 20, 23 (1st Cir. 1987). But the ______ ________

    rule is not absolute, for even after the appeal is filed the



    -57- -57-













    district court retains authority to decide matters not

    inconsistent with the pendency of the appeal. See Spound v. ___ ______

    Mohasco Indus., Inc. 534 F.2d 404, 411 (1st Cir.) cert. _____________________ _____

    denied, 429 U.S. 886 (1976). A district court may, for ______

    example, determine attorneys' fees after an appeal has been

    taken or act in aid of execution of a judgment that has been

    appealed but not stayed. See In re Nineteen Appeals, 982 ___ _______________________

    F.2d 603, 609 n.10 (1st Cir. 1992); International Paper Co. ________________________

    v. Whitson, 595 F.2d 559, 561-62 (10th Cir. 1979). We think _______

    that the substitution of assets orders fit within this

    general category.

    Criminal forfeiture orders are something of a mongrel.

    The initial forfeiture is sought in the indictment and,

    absent a waiver of jury trial, is specified in the jury

    verdict. See Fed. R. Crim. P. 7(c)(2); 31(e). But the ___

    statute says that an order substituting assets is to be made

    by "the court." 18 U.S.C. 1963(m). The implication is

    that such an order may commonly be entered after the initial

    forfeiture has been determined. Indeed, the government might

    not even know that substitution is necessary until it seeks

    to take possession of the property specified in the initial

    forfeiture order.

    Under these circumstances, we see no reason why the

    taking of the appeal should divest the district court of

    authority to enter an order forfeiting substitute property.



    -58- -58-













    Appellants do not provide any reason to think that this would

    interfere with, or contradict, the court of appeals'

    consideration of the original judgment of a conviction and

    sentence, including the initial forfeiture order. Avoiding

    such interference and inconsistency is the purpose of the

    general rule barring district court proceedings during the

    pendency of an appeal. Venen v. Sweet, 758 F.2d 117, 121 (3d _____ _____

    Cir. 1985). There is no reason to extend this ban further

    than its own rationale.

    Of course, the substitute assets order, if one is

    eventually made, may give rise to new issues for appeal, but ___

    a new appeal can be taken directly from this order.

    Similarly, a decision of the appeals court on the original

    conviction could undermine the substitute assets order (e.g., ____

    by overturning the conviction itself or the initial

    forfeiture), but a substitute assets order can then be undone

    or overturned. After all, determination of counsel fees in a

    section 1983 case presents the same problem and is resolved

    in precisely this manner. See, e.g., Casa Marie Hogar ___ ____ _________________

    Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615 (1st Cir. _________________ _____________

    1994) (separate appeal of counsel fees subsequent to original

    judgment on the merits).

    Appellants' other attack on the substitute assets orders

    is that those orders countervail the double jeopardy clause,

    U.S. Const. amend. V, and principles of fundamental fairness.



    -59- -59-













    Appellants' basic argument is that the original RICO

    forfeiture orders were limited to forfeitures of the

    laundered monies and that the orders extending forfeiture to

    substitute assets constituted either a second prosecution for

    the same offense or multiple punishments for that offense.

    See North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see ___ ______________ ______ ___

    also Witte v. United States, 63 U.S.L.W. 4576 (U.S. June 14, ____ _____ _____________

    1995).

    We found no case law directly in point but see no reason

    in principle why the substitute assets provision should be

    regarded either as a second prosecution or as a forbidden

    multiple punishment. The fact that the substitute assets

    order may be entered at some time after the original

    conviction does not make it a second prosecution, any more

    than sentencing after conviction is a second prosecution.

    The substitution order is entered in the original proceeding

    as one of a number of steps, primarily relating to post-

    conviction sanctions, that are known to the defendant from

    the outset.

    As for the claim of multiple punishment, the

    Constitution does not prevent multiple sanctions for one

    offense where the sanctions are specified in advance by

    Congress and imposed in reasonable proximity to the

    conviction: a fine and imprisonment is a common federal ___

    sentence. The situations in which later increased penalties



    -60- -60-













    have been condemned as multiple punishments are quite remote

    from this case and involve aggravating elements that are not

    even arguably present here. Arizona v. Rumsey, 467 U.S. 203, _______ ______

    209-12 (1984) (death sentence); Pearce, 395 U.S. at 723-26 ______

    (penalty for appeal).

    VII. CONCLUSION VII. CONCLUSION

    A number of the remaining arguments made by appellants

    have been addressed by the court in the decision affirming

    Stephen Saccoccia's conviction and need not be discussed

    again. These include attacks on certain references to the

    Colombians, on the admission of dog sniff evidence, on

    testimony by Agent Shedd, and on tape excerpts claimed to

    refer to cocaine and drug money. Similarly, Donna

    Saccoccia's claims relating to extradition, to the extent not

    waived, are in substance covered by the earlier opinion's

    discussion of Stephen Saccoccia's counterpart claims.

    Several additional arguments (e.g., Kenneth Saccoccio's ____

    "theory of the defense" instruction) have been considered but

    deemed not to require separate treatment.

    The charges in this case involved a web of multi-

    paragraph statutes with intricate provisions that the jury

    had to apply to numerous transactions involving multiple

    defendants and occurring over a considerable period of time.

    In these circumstances, we have reviewed appellants' claims

    not only as individually presented, but also with an eye to



    -61- -61-













    making certain that no innocent person has been wrongly

    enmeshed in criminal proceedings. We are satisfied that

    while several debatable issues have been raised on appeal,

    there was no prejudicial error and that the verdict returned

    by the jury was a just one.

    Affirmed. ________









































    -62- -62-






Document Info

Docket Number: 93-1511

Filed Date: 7/24/1995

Precedential Status: Precedential

Modified Date: 9/21/2015

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