USCA1 Opinion

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 a

follows.

On cover

sheet,

change

government's

counsel listing

"Kathleen A. Felton, Criminal Division, Appellate Section,

__________________
of Justice and Michael P. Iannotti, Assistant
___________________

to

re

Departm

United States Attorn

with whom Sheldon Whitehouse, United States Attorney, James H. Lea

__________________
_____________
and

Michael E. Davitt, Assistant United States Attorneys, and John

_________________
____

Elwood, Criminal Division, Department of

______
for the United States."

Justice, were on joint br

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

_____________
______________
Cook,
____

James T. McCormick,
__________________

Reed & Hostage,

______________

Ro
__

McKenna & McCormick, Michael C. Andre

____________________ _________________

Mary June Ciresi, Vincent Indeglia, Indeglia & Associates, Rich

_________________ _________________ _______________________ ____
Inglis,
______

and Garguilo, Rudnick & Garguilo were

______________________________

appellants

Donna

Saccoccia,

Stanley

Cirella,

on joint

briefs

Kenneth

Saccocc

Vincent Hurley, James Saccoccio, Carlo DeMarco and Stephen Pizzo.

Robert D. Watt, Jr. for appellant Anthony DeMarco.
___________________
Kathleen A.
Felton,
_____________________

Criminal

Division,

Appellate

Secti

Department of Justice and Michael P. Iannotti, Assistant United Sta

___________________
Attorney, with whom Sheldon Whitehouse, United States Attorney,
__________________
H. Leavey and
_________
and

Michael E. Davitt,
_________________

Assistant United States

Ja
__

Attorne

John P. Elwood, Criminal Division, Department of Justice, were

______________

joint brief for the United States.

____________________

July 24, 1995

____________________

BOUDIN, Circuit Judge.

_____________

their

convictions,

participation

in

The eight appellants

sentences

an

and

forfeitures

extensive money

challenge

for

laundering

their

operation

organized by Stephen Saccoccia.

His conviction and sentence

were

v. Saccoccia,
_________

affirmed in

United States
_____________

slip. op. (1st Cir. June 28,

the

convictions of

the

1995).

No. 93-1618,

In this case, we affirm

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,

with Stephen

on November

violate

Stanley Cirella

Saccoccia and others, appellants

18, 1991, and

the Racketeer

charged with

were charged

Influenced and

Act ("RICO"), 18 U.S.C.

U.S.C.

and Stephen Pizzo.

1962(d).

substantive

counts

Along

were indicted

with conspiracy

to

Corrupt Organizations

Certain of them were also

of

money

laundering,

1956-57, currency reporting offenses,

18

31 U.S.C.

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

1952.

One

guilty

conspirator

before

trial

originally charged,

and

testified

for

David

Izzi, pled

the

government.

Stephen Saccoccia was severed and tried separately due to the

illness

of

his

counsel.

Alfred

Gabriele,

added

as

-4-4-

conspirator

in

separately, and his

superseding

indictment, was

appeal is still pending.

v. Gabriele, No. 94-1215 (1st Cir.).

________

the

also

tried

United States
_____________

The end result was that

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

of

trial, the government's evidence consisted primarily

the

testimony

of

other

participants

in

the

money

laundering activities, of Colombian nationals involved in the

international

government

drug

also

trade,

offered

transactions and numerous

Viewed in the

States
______

and

of

bank

48

employees.

records

of

court-ordered wiretap

light most favorable

v. Valerio,
_______

bank

F.3d 58,

financial

recordings.

to the verdicts,

63

(1st Cir.

The

United
______

1995),

the

evidence permitted a reasonable jury to find the following.

Stephen

Saccoccia

owned

and

controlled

precious metals businesses, including Saccoccia

in

a number

of

Coin Company

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

Metals in Cranston and

International

Clinton

Metal

Marketing

Import/Export in

Import/Export").

dealings,

in New York, New York

In

the

("Trend"); and

("International Metal")

Los Angeles,

late 1980s,

Stephen Saccoccia began

and

California ("Clinton

after some

indirect

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

Saccoccia

several

forms

receiving

large

generated from the

send

but

each

amounts

sale of cocaine.

began

of cash

with

in

Stephen

New

York,

Often, Saccoccia would

one of his employees, usually unindicted co-conspirator

Richard

street

Gizzarelli, to

corner, to

would bring

meet

prearranged location,

a customer's

the cash to the

courier.

Trend office in New

such as

Gizzarelli

York or to

Saccoccia's apartment in New York to count it.

The money then followed

the

two different routes.

Some

of

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.

cash--up to

$200,000 per

Saccoccia Coin

in Rhode

Much of the

day--would

be sent

rest of the

to Trend

Island, either through

and

armored car

service or in the car of a Saccoccia employee.

Once the cash

reached Rhode Island,

Saccoccia employees and divided into

amounts

either greater than or

the cash went

employees,

to the

it was counted

by

a number of packets

in

less than $10,000.

Trend office in

Cranston.

Most of

Saccoccia

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

purpose

of

these

maneuvers--called

enforcement parlance--was to avoid

owned by Hurley.

"smurfing"

in

The

law

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

deposited in, and

the

Trend account

local

Rhode

money from the

at

Island

checks

would

Hurley accounts wired

Citizens Bank

in

Rhode Island.

be

to,

smaller

portion of

Saccoccia

Coin.

documentation;

companies

gold

the cash

That

the

sales.

operations of

cash was

gold

in exchange

sent to

was

then

for checks

Some of the cash

used

Rhode Island

to buy

resold

gold without

to

recorded as

went to

legitimate

payments for

was also used in the ordinary

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

Metal was used to

Bank.

Cash received

by International

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

Citizens

Bank

Thereafter,

closed

cash was

"smurf" employees in

checks

from

up in the

the

still

Trend

account

in

transported from

Rhode Island

various banks,

Trend account at

but

April

1991.

New York

still obtained

the

Citizens.

checks were

and

cashier's

sent

to

International Metal and Clinton Import/Export in Los Angeles.

-7-7-

Donna Saccoccia assisted her

the

operation, relayed

wired funds

DeMarco

his instructions

abroad to Colombian

picked

transported it

up

cash

from

to Rhode Island.

DeMarco,

Kenneth

received

the cash

and

banks.

deliveries in

local banks.

to the

Hurley

couriers

in

New

Cirella

Rhode Island,

others and

and Anthony

Hurley, Anthony

James Saccoccio,

money, and separated it into

transport to

husband in most aspects of

York

and

and Carlo

and

Pizzo

counted the

packets of smaller amounts

Anthony

DeMarco

for

and James

and

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

staggering

amount

of

money

moved

through

this

laundering operation.

1991, Stephen

1, 1990, and August 22,

or Donna Saccoccia wired over

foreign bank

million

Between March

accounts primarily

of this amount was

$136 million to

in Colombia; more

wired from the

than $97

Trend account in

Citizens Bank jointly controlled by Donna and Stephen.

from the $136 million, substantial sums were

Apart

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

sentenced in May 1993,

appellant

statute, 18

were

appellants

were

and forfeiture judgments against each

entered

U.S.C.

motions,

pursuant

to

the

RICO

forfeiture

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

conviction

Forfeiture
amount

Donna

13 counts of money

14 yrs., 2

Saccoccia

laundering (18

yrs.

$136,344,231.86

U.S.C.

1956),

and 47 counts of

supervised
release

unlawful
transactions (
1957).

Vincent

1 count

18 yrs., 3

Hurley

structuring (31

yrs.

U.S.C.

supervised

5324(3)),

and 1 count of

$136,344,231.86

release

interstate travel
in aid of
racketeering (18
U.S.C.

1952).

James

15 counts of

10 yrs., 3

Saccoccio

structuring.

yrs.

$37,456,100.79

supervised
release
Kenneth

14 counts of

12 yrs., 3

Saccoccio

structuring.

yrs.

$37,456,100.79

supervised
release

Stanley

1 count of

9 yrs., 2

Cirella

structuring.

yrs.
supervised

$37,456,100.79

release

Anthony

5 counts of filing

7 yrs., 3

DeMarco

false currency

yrs.

transaction

supervised

reports (31 U.S.C.

release

$136,344,231.86

5324(2)); 2
counts of
structuring.
Carlo

No substantive

6.5 yrs.,

DeMarco

conviction.

2 yrs.
supervised
release

-9-9-

$3,927,357.55

Stephen

No substantive

8.5 yrs.,

Pizzo

conviction.

3 yrs.

$37,456,100.79

supervised
release

These appeals followed.

II.
II.

The

RICO

required the

"to conduct

enterprise's

activity";

proof of

THE RICO ISSUES

THE RICO ISSUES

conspiracy

offense

government to prove an

or participate

affairs

and the

two or

through

pattern

. .

charged

this

case

agreement by appellants

in the

pattern

alleged in

more criminal acts

in

conduct of

of

racketeering

this case

by an

[an]

required

appellant (e.g.,
____

money laundering or structuring).

1962(c), (d).

Appellants

See 18
___

U.S.C.

1961(1),

here challenge the indictment, the

instructions and the evidence relating to RICO.

A. The RICO Indictment

A. The RICO Indictment
___________________

The RICO conspiracy count

of the

offense including

agreed to commit

alleged the formal requisites

the assertion that

each appellant

at least two racketeering acts;

but it did

not specify which predicate

acts each appellant committed or

agreed

Cirella, Pizzo and Carlo DeMarco

argue

to commit.

that

indictment

inform[ ]

Hurley,

this

lack

because

a defendant

defend . . . ."

of

specificity

sufficient

is

indictment

of the charge

fatal

to

the

must

"fairly

against which

he must

Hamling v. United States, 418 U.S. 87,

117

_______

_____________

(1974).

-10-10-

In count I,

its

the indictment

precise method

appellant,

of operation,

identified the

the

enterprise,

role played

by each

and the nature of the predicate acts charged.

In

appended

lists

indictment

also

specifically

set

forth

referenced

thousands

transactions and

wire transfers.

identification of

the particular

four complaining appellants

mainly

as counters

in

of

count

I,

individual

What was lacking

transactions in

of money

bank

was any

which the

were involved, since they

and subdividers

the

acted

deposited and

transferred by others.

But

if

a defendant

distribute drugs, it would

were

charged

with conspiring

surely be enough to show

to

that he

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

period in which

a series of identified

The government might

never know

had been

the defendant;

packed

participate

by

shipments were made.

which particular

in distributing multiple

but

his

shipments

agreement

to

shipments could fairly

be inferred.

The same principle applies in this case.

is, we note,

no indication

left

in

ignorance about

that appellants

what

the

There

were misled

or

government intended

to

prove.

United States v. Winter, 663 F.2d 1120 (1st Cir.

_____________
______

cert. denied, 460 U.S. 1011

_____ ______

is not in point.

two defendants

1981),

(1983), relied on by appellants,

In that case we held that the indictment of

failed because "a RICO

-11-11-

conspiracy count must

charge

as a minimum that each defendant agreed to commit two

or more specified predicate crimes."

the

Id. at 1136.
___

In Winter
______

indictment did not charge even in the most general terms

that certain

defendants had

acts.

the indictment did so charge, and Winter is not

______

Here,

in point.

agreed to commit

two predicate

-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

enterprise's

activity.

113

affairs"

18 U.S.C.

or indirectly, in the

through

1962(c).

S. Ct. 1163, 1172 (1993),

pattern

conduct of [an]

of

racketeering

In Reves v. Ernst & Young,

_____
______________

the Supreme Court interpreted

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

the

defendant's

"participat[ion]

management of the enterprise itself."

RICO suit against an

the

books of

Reves, we
_____

in

the

corrupt enterprise.

held in United States v. Oreto, 37

______________
_____

denied, 115 S. Ct. 1161

______

insider employees who are

or

Reves involved a civil

_____

outside accounting firm hired

an allegedly

(1st Cir. 1994), cert.

_____

operation

to audit

Construing

F.3d 739, 750

(1995), that

"plainly integral to carrying out"

the racketeering activities fit within section 1962(c).

Here,

appellants

instruction on

claim

the meaning

erroneous in light of Reves.

_____

was made at trial,

R.

that

the

district

of "conduct or

court's

participate" was

No objection to the instruction

so we review only for "plain error," Fed.

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

substantial rights.

1777-78

the

(1993).

error unless

is, it affected the

defendant's

United States v. Olano, 113 S. Ct. 1770,

_____________
_____

Even then, an appeals court need not notice

it caused

"a miscarriage

-13-13-

of

justice" or

undermined "the fairness,

judicial proceedings."

integrity or public reputation

Id. at 1778-79.
___

The instruction in this

upheld

in Oreto.
_____

appellants

encompassed

deem

37

of

case was similar to the

F.3d at

crucial--is

defendants who

750.

that

perform

one we

The difference--which

the

acts

Oreto
_____

instruction

"necessary to

or

helpful

in the

operation

instruction in this

acts

"related

to

of the

enterprise," whereas

case encompassed defendants who

the

operation

of

the

the

perform

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]

participate' requirement."

In the abstract, the

the 'conduct

or

Reves, 113 S. Ct. at 1169.

_____

relatedness reference might pose a

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

independent

government's

auditor

version

squarely in the

in

of

role of

jury's verdict shows that

Reves.
_____

the

But

evidence

employees of the

in

this

placed

case

appellants

enterprise.

the jury accepted that

the

The

version of

events,

harmless.

making the

To

the

alleged

ambiguity

extent that

Oreto's reading of Reves,

_____
_____

in the

appellants are

Oreto is the law of

_____

instructions

challenging

this circuit.

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

___ ______________
________

(newly constituted

panels bound by prior

point).

-14-14-

panel decisions in

-15-15-

C.
C.

Appellants

The RICO Instructions: Knowledge

The RICO Instructions: Knowledge
_________________________________

complain about two

court's instructions on knowledge.

use

of a

general

aspects of

the district

First, they challenge the

"willful blindness"

instruction and

the

court's refusal

did not apply

to instruct the jury

to the RICO conspiracy

one cannot simultaneously be

that willful blindness

count.

They say

that

willfully blind to a conspiracy

and also intend and agree to join the conspiracy.

The

district judge

substantive counts.

He

first

instructed the

then gave a detailed

jury on

the

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

conspiracy."

The

infer knowledge of

or

judge told

they could

the conspiracy from negligence,

ignorance; instead, the

and intentionally."

the jury that

objects of the

defendant must

not

mistake,

act "voluntarily

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

closed his

eyes

that the
to a

Defendant deliberately

fact that

would have

been

obvious to him.

The

aimed at

E.g.,
____

willful blindness instruction

the "knowing" requirements

18 U.S.C.

1956

appears to have been

of substantive

(money laundering).

-16-16-

counts.

Appellants have

given

us

no reason

"intent"

trial

to think

requirement for

judge

cautionary

adequately

the

that

the express

conspiracy count.

guarded

against

instructions stressing

have joined the conspiracy

it diluted

that the

that

Here

risk

the

with

defendants must

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,

refusal

of

appellants

their

object

request

for

to

an

the

district

instruction

court's

that

each

appellant

had to know of the existence and general nature of

the enterprise.

it was

When this request was made after the charge,

entangled with other requests and

may not

have focused on the

had in substance been given.

the district court

request or may have

Although nothing in the statute

explicitly requires such knowledge, there is

including

comment

from

thought it

this

court,

some precedent,

suggesting

appropriate.

See, e.g., Brandon, 17 F.3d at 428; 2 L.

___ ____ _______

J.

W. Loughlin

Siffert,

Instructions
____________

S. Reiss,

is

Sand,

Modern Federal Jury

____________________

52.04 at 52-39 & comment (1995).

We think that

somewhat indirectly,

enterprise and

&

it

in substance the jury

was told, although

that appellants had to be

its general character

aware of the

in order to

be guilty

under the RICO conspiracy charge.

the

first element

that

the jury

The court

had to

instructed that

find

was that

-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

did not know

however,

conspiracy to conduct

the nature

an enterprise but

of the enterprise.

the government's

evidence

In this

showed that

knowingly engaged

in structuring transactions

basis

framework of Stephen

within the

venture.

Given the

they

were doing

organization.

If

appellants

on an ongoing

Saccoccia's business

evidence accepted by the jury,

no doubt that appellants

knew what they were doing

it within

the framework

of the

the instruction deviated from

the deviation was assuredly harmless.

case,

there is

and knew

Saccoccia

perfection,

D.
D.

The RICO Instructions: Single or Multiple Conspiracies

The RICO Instructions: Single or Multiple Conspiracies
______________________________________________________

At trial,

the government

court statements by several

unindicted

managers

supplied

money

organization.

the

to

of

be

The

rival

drug

laundered

The district

to United States v.
_____________

out-of-

most

important were

cartels

by

each

Stephen

of

two

which

Saccoccia's

court admitted the hearsay under

co-conspirator exception,

pursuant

evidence of

persons whom it characterized as

co-conspirators.

regional

offered

Fed.

R. Evid.

801(d)(2)(E),

Petrozziello, 548 F.2d 20 (1st

____________

-18-18-

Cir. 1977).

The court found that the regional managers were,

more probably

and

rendered a

than not, members of

final Petrozziello
____________

the Saccoccia conspiracy

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

The

because the

rings were

rivals.

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

Saccoccia organization.

separate

conspiracies

with

Whether

is sound

the

members

of

the

the government's premise of

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

part of the same conspiracy; their

conclusive

because

it

is

not

been

alleged rivalry is hardly

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

multiple

argument reinforced--although

the government's

government

fashion

conspiracy

the hearsay declarations.

says that this issue

conspiracy instruction.

an

perhaps only superficially--by

defense of

and that there was

instruction,

was not raised

no factual basis

The

in a timely

for a multiple

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

these

three

court could

grounds

but

we

be

sustained on

think

that

any one

of

untimeliness

is

sufficient, United States v. Akers,

______________
_____

Cir.

987 F.2d 507,

1993); Yoffe v. United States, 153 F.2d

_____
______________

Cir. 1946), and add

two further points.

for such an instruction

counsel

had

impossible for

completed

him

Second, the core of

to

570, 576 (1st

First,

was not made until after

his

closing

address

the

argument,

jury

on

513 (8th

the request

government

making

this

the government's case tended to

overarching conspiracy; and appellants make

it

point.

show an

little effort in

their brief to show that multiple conspiracies were a serious

possibility.

E.
E.

Sufficiency of the Evidence

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

jury

determine

to

defendants were

Robles,
______

the evidence

beyond

"would allow

reasonable

guilty as charged."

a rational

doubt

United States
_____________

that

the

v. Mena
____

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

_____ ______

S. Ct. 1550

them

(1994).

"directed"

Although appellants deny

the

enterprise,

premise in Oreto, holding

_____

rejected

this

of an enterprise by

in its operation.

of

legal

that an employee can "conduct"

"participate" in the conduct

integral role

we

that any

or

playing an

37 F.3d at 750.

By Oreto's
_____

test, a rational jury could convict each appellant.

Donna

Saccoccia relayed

other appellants

her husband's

instructions to

on numerous occasions, helped

count money,

and personally authorized the wire transfer of more

million

from the

Hurley

and Anthony

cash

Rhode

Trend

account to

DeMarco received

than $38

foreign bank

accounts.

and counted

the large

deliveries in New York and helped transport the cash to

Island.

James

and Kenneth

Saccoccio

and

Anthony

DeMarco did most of the legwork involved in money laundering,

exchanging millions

at

various banks.

of dollars in cash

Carlo

for cashier's checks

DeMarco travelled to

Connecticut to transport the

New York and

cash; Cirella and Stephen Pizzo

received and counted money at the coin shop.

-21-21-

Four appellants

of responsibility,

knowledge on

argue that apart from

the

evidence was

their part that the

their low levels

insufficient

to

show

Saccoccia organization was

engaged in money laundering or that the money being laundered

was

derived

from

Cirella, Pizzo

narcotics.

and James and

These

claims

are

Kenneth Saccoccio in

made

by

order to

defeat the showing of predicate acts available to the jury to

underpin

their RICO convictions.

implies that he was

Each of the

four says or

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

others, how to avoid police

discussed "washing .

jail.

James and

deposits

and

Kenneth

into

the money" and

means of

subdividings

of

the only plausible explanation.

10,

packages

Saccoccio

1990), discussing

of

among

avoiding

Kenneth Saccoccio were involved in

instance (July

$54,000

and Pizzo,

detection; and Pizzo and Cirella

manipulative

laundering was

one

. .

with Cirella

$9,000 for

conducted

the

so many

funds

that

Further, in

the division

deposit,

following

James

of

and

(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

since none

knowledge among

of the

conspirators were directly

the narcotics sales.

he was recorded,

it

as "drug

Cirella

of

while counting cash at

rests

and in

said something

involved with

one

that the

Trend, referring to

conversation with

jury might

have

drug origins of the proceeds.

James Saccoccio,

much thinner

Kenneth Saccoccio is an exception since

money";

referring to the

the underlings is

the

imputation of

Pizzo,

taken as

In the case

knowledge of

drugs

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

business

is notorious

and preeminent.

In

this case,

drug

the

evidence showed

and

that this fact was

Kenneth

jury

that narcotics were

well known to

Saccoccio, among others.

could

conclude

that James

origins, either from

the size and

deliveries, or

being told

from

the source of

Stephen Saccoccia and

We think

too

knew

that a rational

of

the money's

continuing nature of

that

the money

drugs; and Cirella and Pizzo are a fortiori cases.

_ ________

-23-23-

the cash

came

the

from

III.
III.

The Bank

any

CURRENCY TRANSACTION REPORT ISSUES

CURRENCY TRANSACTION REPORT ISSUES

Secrecy Act requires domestic

transactions involving

U.S.C.

more

5313; 31 C.F.R.

103.

customers

from providing

false

report.

31 U.S.C.

5324(2).1

banks to report

than $10,000

in cash,

31

The statute also prohibits

information

for

Further, under

bank's

the 1986

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

reporting

(3)

structure or assist in structuring . . . any transaction

with one or

5324.

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

more domestic

The most

financial institutions."

common method of "structuring" is

Id.
___

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.

a violator is subject to double

the fine and sentence if

he

another federal law or

as

or she structures while violating

part

of a

Hurley,

pattern of

James

convicted

of

and

crime.

Kenneth

Id.
___

5322(b).

Saccoccio,

structuring under

5322(a), and

31

and

Appellants

Cirella

U.S.C.

5324(3)

were

and

____________________

1In late 1992,

as

Congress recodified sections 5324(1)-(3)

sections 5324(a)(1)-(3) without

L. 102-550,

525(a),

substantive change, Pub.

106 Stat. 3672, 4064 (Oct.

28, 1992).

For simplicity,
which

we refer to the

appellants

were

earlier codification, under

indicted

and

convicted,

unless

otherwise noted.

-24-24-

5322(b),

and

now

challenge

their convictions

on

several

grounds.

A.
A.

Appellants

Due Process and Self-Incrimination

Due Process and Self-Incrimination
__________________________________

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

bank customers,

not directly decided this issue

as to

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

provide information to the government on

called upon to

countless occasions

and under a great variety

has framed

a disclosure

criminal conduct,

down such statutes.

(1968);

Marchetti
_________

Albertson v.
_________

(1965).

could

requirement

Where

Court has on

Haynes
______

v. United States,
_____________

v. United States,
______________

390

has upheld the

in due course lead

upon

occasion struck

390 U.S.

U.S. 39

Subversive Activities Control Bd.,

_________________________________

conduct is not

Congress

narrowly focused

the Supreme

But where the

the Court

of circumstances.

85

(1968);

382 U.S. 70

inherently criminal,

statutes even where

the reporting

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

_____

California hit

in

of the cases on point,

and run law that

upheld a

required motorists involved

an accident to halt and provide their names and addresses

to authorities.

involved in

Needless to

say, a fair

such accidents may be

situations that could result in

portion of

those

identifying themselves in

criminal jeopardy.

But

the

Court

found that

the

report

required

was

not

itself

confession of criminal conduct, and that the law was directed

to all auto

drivers in the state rather than

group "inherently

suspect of

a more limited

criminal activities."

Byers,
_____

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

_________

Of

course, a

based on

may invoke

1985), but reporting

aimed

statutes play a

the administration of government

the jurisprudence that governs

course.

the Fifth

Amendment

fairly remote risks, see In re Kave, 760 F.2d 343,

___ ___________

354 (1st Cir.

role in

witness

And although

central

(e.g., taxes), and

____

them has followed a different

the 1986 structuring

amendments were

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

-26-26-

itself

is not inherently more incriminating than the accident report

upheld in Byers.
_____

Anthony DeMarco makes

on the statute.

a different constitutional attack

He was convicted of five counts of willfully

"caus[ing] or attempt[ing] to

report.

31

U.S.C.

information that

"on

whose

5324(2).

the

transaction

Anthony DeMarco told bank

that

they

were

The bank

the teller secures from

behalf"

being conducted on

cause" a bank to file

report, based

on

the customer, asks

is

being

conducted.

tellers that the transactions were

his own

being

a false

behalf but

conducted

for

the evidence

Stephen

showed

Saccoccia.

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

unconstitutionally vague.

Due

process

requires

that

offenses with sufficient clarity

understand what

The

define

Kolender v. Lawson,
________
______

"on whose behalf" language is

and, on the present

facts, plainly pointed

to Stephen Saccoccia.

The cases

prior versions

reporting form, which

of the

statutes

that an ordinary person can

conduct is prohibited.

461 U.S. 352, 357 (1983).

reasonably clear

criminal

DeMarco cites all

involve

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.

States v. Belcher, 927 F.2d 1182, 1186-88 (11th

______
_______

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

______

United
______

Cir.), cert.
_____

-27-27-

B.
B.

Instructions: Willfulness
Instructions: Willfulness
_________________________

Appellants next

instructing

the

argue that the district

jury on

structuring violation.

willfulness

as

court erred in

an element

in

Last year, the Supreme Court rejected

the

majority

view

of the

circuits

and

held

that for

structuring conviction a defendant must know that what

doing

is

illegal.

Ratzlaf,
_______

114

S.

Ct. at

district court's instruction, given before

he is

658.2

The

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

or

mistake.

It requires

with

the

purpose

than

mere negligence

proof that a Defendant acted

of

either

disobeying

or

disregarding the law.

No objection was made to this

for plain error.

instruction, so we review

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

the structuring

F.2d 493

statute.

(1st Cir.

See
___

scienter requirement in

United States v.
______ ______

1993) (en banc)

_______

Aversa, 984
______

(anticipating Ratzlaf's
_______

____________________

2Following

the Supreme

United States, Congress

______________

Court's decision in

deleted

the statutory

requirement for structuring offenses.

(b),
(Sept.

5324(c); Pub. L. 103-325,

23, 1994); see H.R.
___

1st Sess. 147

(1994).

Ratzlaf v.
_______
willfulness

31 U.S.C.

5322(a),

411, 108

Stat. 2160, 2253

Conf. Rep. No.

652, 103d Cong.,

This recent change

appellants' appeals.

-28-28-

does not

affect

result), vacated, 114 S. Ct. 873 (1994).

_______

Marder, we
______

recently applied

pre-Ratzlaf instruction, 48
_______

cert. denied, 115

_____ ______

circuits.

In United States v.
_____________

the plain error

F.3d 564, 572 &

S. Ct. 1441

standard to

n.5 (1st Cir.),

(1995), as have

a number

of

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

F.2d at 502.

as a

984

The Supreme Court in Ratzlaf referred to Aversa

_______
______

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

cited with approval,

in which

defendant

id. at 659, another

___

we agreed that a

F.2d 844,

First Circuit case

jury could "infer

consciously avoided

requirements."

821

the structuring statute.

knowledge if a

learning about

the reporting

United States v. Bank of New England, N.A.,

_____________
__________________________

855 (1st

Cir.), cert.
_____

denied, 484
______

U.S. 943

(1987).

Ratzlaf
_______

did

Should the Supreme

not

formulate

any

Court address the

precise

instruction.

issue again, it

insist on actual knowledge and nothing less.

might

But "disobey or

disregard" is part of

See
___

1 L.

States
______

Sand, supra,
_____

a standard instruction on willfulness.

3A.01 at

3A-18.

See also United

___ ____ ______

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

______

or disregard" accords with Ratzlaf).

_______

at this point with nuances in

Further we

are dealing

language, and state of mind is

-29-29-

usually based

on inference

The instruction in

rather than on

this case,

direct evidence.

if error at

all, is

neither

plain nor the cause of a miscarriage of justice.

C.
C.

Hurley and Cirella were

violating

another federal

illegal activity

month period.

Count 67
Count 67
________

convicted of structuring

law or

involving more

31 U.S.C.

as part

of a

pattern of

than $100,000 within

5322(b), 5324(3).

while

a 12-

The indictment

charged that they, together with James and Kenneth Saccoccio,

structured a set

each in several

of six

bank deposits of

$8,000 to

different bank accounts on October

The indictment said:

$9,000

2, 1990.

[T]he

defendants

structured,

assisted

structuring and

attempted to structure

in

the

structuring

transaction

quantity of currency in
or more portions

in

and assist

by

dividing

excess of $10,000 into two

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.

later

Bank records showed

that

transactions.

day

that after the conversation and

Kenneth

Saccoccio

made

two

$9,000

The jury convicted Hurley and Cirella on count

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

The first argument is

judge,

without

based on the fact that

objection,

instructed

the

the trial

jury

that

-30-30-

structuring can occur either

into deposits under

sum

into

amounts

reportable amount.

as limiting

by dividing a sum

over $10,000

that figure or by dividing

the original

that

are over

$10,000

Appellants read the

the offense

to the

but

reduce

the

indictment language

"under $10,000"

theory and

argue that

the "over $10,000"

convict on

a different theory of

causing

e.g.,
____

a constructive

theory permitted the

the offense, impermissibly

amendment of

United States v. Atisha,

_____________
______

jury to

the indictment.

804 F.2d 920,

See,
___

927 (6th Cir.

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

_____ ______

The

apparent strength of the argument is that the taped

evidence showed

amounts

over

appears

to

these two appellants being

$10,000

and the

dovetail with

"over

this

told to assemble

$10,000"

evidence.

But

instruction

the

"over

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

of

structuring, and

count 67.

instances

had nothing

Further, the

"over

(involving DeMarco,

in particular

$10,000" theory

Kenneth and

to

fit

do with

those

James Saccoccio)

where

the

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

original

sum.

On the

other

hand, the

only deposits

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

Thus, reading the instructions in

we

think

that

government's case

the

jury

had

on count 67

to

relation to evidence,

understand

amounted to this:

that

the

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

deposited,

under

as in

$10,000

fact they

to

avoid

were.

reports

and

The practice

then

of giving

general instructions in multiple count cases, and letting the

jury sort

out their application

common and permissible.

what

would

happened, we have

have

been

variance if the jury

$10,000"

theory to

according to the

Given

no reason to

this

interpretation

of

consider whether there

constructive amendment

rather

had been instructed to apply

count 67.

facts, is

See generally 3
______________

than

the "over

C. Wright,

Federal Practice and Procedure

_______________________________

(describing distinction

516, at 26

as "shadowy").

We

(2d ed.

1982)

do consider, but

reject, appellants' claim that the evidence was inadequate to

connect their

his

delivery of $30,000 to

later deposits of amounts

Kenneth Saccoccio with

under $10,000 that

day.

The

timing made the connection a permissible inference.

In a

was

different attack,

facially defective

specify, the

appellants argue that

because

it alleged,

other federal law concurrently

count 67

but failed

to

violated or the

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

months.

This additional allegation was not

the violation but was needed

provided

by

section 5322(b).

needed to prove

to trigger the enhanced penalty

Appellants

rely on

United
______

States v.
______

Hajecate, 683
________

F.2d 894,

901-02 (5th Cir.

1982),

where the Fifth

Circuit

-32-32-

cert. denied, 461

_____ ______

overturned

U.S. 927 (1983),

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

described the

count

smurfing operation

where

the

in detail,

government

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

example.

Cross

references are permissible

United States v. Yefsky,

_____________
______

There is

which count 67 was but

in indictments.

994 F.2d 885, 894 (1st

no showing that either

a single

Cir. 1993).

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.

there is insufficient evidence

be

illegal,

as Ratzlaf
_______

entitled to judgments

dissent contended

would

frustrate

reasonable

required, and

of acquittal.

statute;

inferences could

n.19, 669-70.

that

that they knew structuring to

that they

In Ratzlaf
_______

that the majority's

the

They say

the

be drawn.

itself, the

knowledge requirement

majority

114

said

S. Ct.

Our case presents just this issue.

-33-33-

were thus

that

at 663

There is

no direct evidence that

that structuring was a crime.

either appellant knew

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

in proportion

to

Kenneth Saccoccio

he knew that his

disguise proceeds; and that

the

deposits

both were paid

they made.

made a recorded statement

In

addition,

indicating that

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

requirement is

down amounts

operation

that

the

met if

of

Ratzlaf's
_______

persons engaged in

are generally

conscious that

is illegal, even if

requirements of the law.

one

thrust

they do not

wilfulness

depositing broken

their laundering

know the precise

This circuit in Aversa was the only

______

to anticipate Ratzlaf and

_______

its aims.

But those

aims were

structured

transactions to

we are fully sympathetic with

to screen

disguise

out persons

amounts in

who

situations

where the actor might reasonably have no idea that the course

of conduct was unlawful.

See Ratzlaf, 114

___ _______

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

______

S. Ct. at 660-61;

____________________

3After hearing
roadblock,

that

Hurley had

Kenneth Saccoccio

encountered

said, "Imagine

if we

police
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.

is not countered, as

their brief suggests, by the

they generally gave their

when

requested by

reasonably think

names and identifying

banks: couriers

that an

This

fact that

information

in their

position could

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
_______

or no terms; and in

answer

with an abstract jury

instruction in yes

its wake, courts and juries must

more concrete questions of how much is enough.

a defendant's

structuring is genuinely innocent

try to

Where

of criminal

intent, we think

is proper

no

that under Ratzlaf a

_______

matter

how

unattractive the

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

______

saturated with

that

judgment of acquittal

context.

Cf.
___

But where the context is itself

consciousness of illegality, we

do not think

Ratzlaf requires the jury to ignore it in assessing the

_______

defendant's state of mind.

IV.
IV.

A.
A.

After

returned

July

15,

government

MISCELLANEOUS TRIAL ISSUES

MISCELLANEOUS TRIAL ISSUES

Donna Saccoccia's Continuance Request

Donna Saccoccia's Continuance Request
_____________________________________

contesting

extradition,

by Switzerland

1992,

and

turned over

to the

was

Saccoccia

United States,

arraigned

the bulk

Donna

on

of its

that

was

arriving on

date.

discovery

The

in late

-35-35-

July.

In

continuance,

September,

her

he was instead

counsel

requested

granted 30 days,

60-day

and trial was

set to begin on November 2.

Ten days before

for

trial Donna Saccoccia's

another continuance, which was denied.

attorney asked

As a result, her

team of lawyers had

prepare

for

government

her

Pointing

that

the

evidence (over

10,000 pages

claims

trial.

investigation,

quantity of

and

just over 100 days after

the

of

to

number

the

financial documents),

of

the

length of

of charges

1600 hours of

denial

arraignment to

second

and

the

the

surveillance tape

Donna Saccoccia

continuance

was

prejudicial error.

Although the government

counsel

were

able

to

proceedings, this is at

asserts that Donna

prepare

during

the

least open to dispute.

of the issues were common to

Saccoccia's

extradition

Still, many

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

evidence and

do

documents,

research.

search

Although

for

few

exculpatory

issues

were

peculiar to Donna Saccoccia, the common issues bulked large.

Given the broad discretion

United States v. Lussier,

_____________
_______

especially

defendant

in

the

trial--we

929 F.2d 25, 27 (1st

complex

have

enjoyed by trial judges, see

___

task

no

of

organizing

hesitance

-36-36-

Cir. 1991)--

in

multi-

upholding

the

district court's denial

counsel

appears

indication

of a second

to have

of prejudice.

performed

The time

continuance.

ably

and

Her

lead

there is

allowed was

no

generally

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

1978),

and the

preparation time

cases

overturning convictions

involve more

United States v. Gallo,

_____________
_____

for lack

severe circumstances.

763 F.2d 1504 (6th Cir.

of

E.g.,
____

1985) (RICO

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

1017 (1986).

-37-37-

B.
B.

Carlo DeMarco's Severance Request

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

trial he moved

DeMarco, his

substantive offense.

for a

severance on the

Midway

ground that

brother and co-defendant, would

behalf in a separate

trial.

through the

Carlo offered the

Anthony

testify on his

affidavit of

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

important facts)

that Carlo

except that he was

"was not

to

be told

working for a gold dealer."

anything

The district

court held that the motion was untimely and without merit.

In

United States v. Drougas,

_____________
_______

1984), we held that to

circumstances,

fact be forthcoming

19 (1st Cir.

show an abuse of discretion

defendant

testimony is genuinely

748 F.2d 8,

must show

that

necessary, exculpatory,

in a severed trial.

the

in these

proffered

and will

in

It is doubtful that

the affidavit

from counsel satisfied this

United States
_____________

v. Perkins, 926
_______

1991).

that

motions to

trial.

had

In all events,

F.2d 1271, 1280-81

Fed. R. Crim.

sever must

be

Defense counsel's claim

chance

to

requirement.

-38-38-

(1st Cir.

P. 12(b)(5) specifies

made where

feasible before

that he had

not previously

consult adequately

counsel is manifestly lame.

See
___

with

his

co-defense

C.
C.

Minimization of Electronic Surveillance

Minimization of Electronic Surveillance
_______________________________________

Cirella, Hurley

suppress the

and Anthony

DeMarco moved at

government's recordings made

and listening devices installed

trial to

by telephone taps

in Trend and Saccoccia Coin.

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

2518(5), which requires that

"in

such

communications

way

as

to

not otherwise

surveillance shall be conducted

minimize

the

subject to

interception

of

interception under

this chapter . . . ."

the

suppression

We uphold the trial judge's

motion

without

reaching

the

denial of

question of

whether the remedy for a violation would be suppression.

Scott
_____

v. United States, 436

______________

U.S. 128,

135-36 n.10

See
___

(1978)

(raising but not deciding the issue).

Scott
_____

made

interception

clear

137-40.

directives

the statute

of non-pertinent

reasonable effort

at

that

conversations;

monitoring device,

conversations but

the government

described

off monitoring equipment

it supplied

three-quarters of

not

the time

statistics

they did so because

436 U.S.

the

agents'

for irrelevant

showing

that the agents

forbid

requires a

to minimize such interceptions.

Here,

to turn

does

that

turned off

about

the

the conversation was

deemed non-pertinent; and it

to the

district court, and

agents and

pointed to regular reports made

to ongoing contacts

the prosecutors sometimes

between the

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

complicated

deliberately

activities.

enterprise

operation

in

disguised

The

was

which

by

the

the

conspirators

terminology and

other, banks

clients.

related by

blood

were often

interspersed with

hard to see how the

and

conduct

company's

code phrases

that

for each

the participants

and incriminating

was

legitimate

used code names

Many of

or marriage,

widespread

illegal

employed

mimicked industry

and

were

exchanges

personal conversation.

It is

agents could have done more than

make a

good-faith determination to turn off recording devices when a

conversation

operation.

was

seemingly

unrelated

to

the

laundering

Here,

as in United States
_____________

(1st Cir.

1989),

"[d]efendants [have]

tending to show, or

to

calls

after

innocuous."

Hurley's lawyer

v. Uribe, 890
_____

it

flawed by

became

A so-called

clear

survey

example,

gold

evidence

of listening

calls

the

-40-40-

son of

a substantial number

of pertinence

conversation regarding

words

were

recorded; but the survey

though the Saccoccia

industry

the

conducted by

subjective criteria

the son classified

non-pertinent even

employed

that

purported to show that

his

offered no

even to suggest, a pattern

of non-pertinent conversations were

was

F.2d 554, 558

as code

(for

gold as

employees regularly

phrases

for

money

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.

1952.

But, he says,

statutory phrase) he

there is no allegation

that (in the

"thereafter" performed or

attempted an

act to further the unlawful activity.

This

18 U.S.C.

is a legitimate argument.

Id.
___

But we

think that the

quoted statutory phrase must be read in light of its apparent

purpose: to screen out interstate travel by a

however

malign

his

purpose,

advance the illegal activity.

ultimately

racketeer who,

does

Here, Hurley's

nothing

to

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
________

v.

Brown, 770
_____

funds for laundering.

F.2d

768,

772

Accord United States

______ _____________

(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

-41-41-

(as

claimed

by

the

government) the general

(incorporated in

independently

unnecessary

was

Hurley's

count 143

supply a

trip

to

by reference to

subsequent act.

to discuss

insufficient

particular

descriptions of Hurley's

which

evidence,

that

he

unquestionably

involvement depended

pieces of

count 1)

We

the jury

was

it

the evidence

participated

occurred.

on inferences

could

also think

Hurley's argument that

show

activities

in

the

While

from different

entitled to

draw

those

inferences.

E.
E.

Donna Saccoccia's Mental Competence

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

condition.

The

trial proceeded with no

such an examination

about six

alluded

mental

months

to

or suggestion

after the

possible

capacity.

psychologist who

she

relation to her current mental

was mentally

The

of incompetency,

trial--the

sentence

further request for

presentence

reduction

defense then

until--

report

for diminished

retained

clinical

examined Donna Saccoccia and concluded that

incompetent

and had

been throughout

the

trial.

Two days before sentencing, trial counsel filed a motion

seeking a

is

competency hearing, which is

"reasonable

"mentally

cause"

incompetent to

to

believe

the extent

required where there

that

that he

defendant

is

is

unable to

-42-42-

understand

the

nature and

consequences of

the proceedings

against him or to assist properly in his defense."

4241(a).

In

psychologist testified

two-day

that

understand the proceedings

preliminary

Donna

18 U.S.C.

proceeding,

Saccoccia

but opined that she

was

able

the

to

did not have

the ability to assist

and passivity.

counsel because of depression, anxiety

The district court

competency hearing

found that a

was not required and

full-scale

Donna Saccoccia now

appeals that decision.

This is a close issue.

gives

is

his opinion does not resolve the matter, even if there

no countervailing expert evidence on the other side.

Figueroa-Vazquez
________________

Cir.

The fact that a reputable expert

1983).

substantial

specific

counsel's

v. United States, 718

______________

But here

the expert

examination and

conclusions--have

comment

expressed in

at

the

the presentence

F.2d 511,

appears to

512 (1st

have made

his concerns--although

degree

arraignment

report.

of

For

the

not his

support in

and

See
___

trial

concerns

obvious reasons,

competency

doctrine.

claims

not

hand, the focus of

doubting whether

case

to

ordinary

waiver

the incompetency claim

case is upon Donna Saccoccia's

to assist in her defense.

the

subject

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

____
________

On the other

in this

are

well

ability or inability

The trial judge had some basis for

the psychologist understood

enough to

make

-43-43-

judgment,

the issues

but far

in

more

important is the

during

the

silence of

the trial.

first

An

to notice

defense counsel

on this

experienced trial lawyer

a lack

of

ought to be

cooperation or

ability to

assist so severe as to raise competency questions.

no complaint

presentence

from trial counsel

report

reawakened

There was

until after trial

counsel's

point

interest

when the

in

the

matter.

Neither

appeal

the preliminary

has counsel

problems

This

at

with Donna

is not

been

able

Saccoccia's

a conclusive

competency hearing

to

point

to

assistance

objection

any

during

since (in

nor on

specific

trial.

theory) the

impairment

might

information

character

judge,

hearing,

helpful

of the

who

prevent

to

claim

presided

counsel

from

ever

the defense;

but

weakens its

force.

over

is entitled to some

the trial

and

the

learning

generalized

The

the

of

district

preliminary

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.
V.

A.
A.

SENTENCING ISSUES
SENTENCING ISSUES

Ex Post Facto Claim

Ex Post Facto Claim
___________________

Under the RICO sentencing guidelines, the district judge

properly

employed

the

money

laundering

guideline

sentencing appellants on the RICO conspiracy count.

in

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

narcotics sales.

effective

on

the laundered money

Id.
___

November

2S1.1(b)(1).

1, 1991;

was the

proceeds of

That provision became

previously,

the

increase

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

narcotics.

In

a claim

not

argue that the district

broader guideline,

laundering

guideline

because (they say) the

took effect.

the RICO

sentencing, appellants

court erred by applying the

offense occurred

F.2d 800, 801 n.1

that

raised at

in

conspiracy

before the

See United States v.

___ ______________

The

new and

last actual money

April 1991

(1st Cir. 1991).

now

new

Cousens, 942
_______

government responds

itself continued

at least

until

November 1991, asserting that no ex post facto problem exists

__ ____ _____

where the crime continues

guideline sentence.

722,

739

E.g.,
____

(1st Cir.),

David can arguably

_____

after the effective date of

United States v. David, 940

_____________
_____

cert.
_____

denied, 502
______

U.S.

a new

F.2d

989 (1991).

be distinguished, but the issue

need not

be decided here.

The

new guideline

enhancement to

language was

cases in which

intended to

apply the

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

was in

proceeds

of narcotics

trafficking

were the same

thing.

money

so belief

A defendant who

fact

the

and knowledge

merely believed

the

drug proceeds were involved would (because of the correctness

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

Appellants

misinterpreted

contend

the phrase

that

"knew

the

district

or believed"

court

to allow

an

increase based on a

or should have known

examined

showing that appellants merely suspected

that drug money was involved.

the transcript

conjecture.

of the

In some cases,

direct knowledge, and in

remarks

an appellant was

reject this

shown to have

others, knowledge was inferred from

circumstances; but in each

court's

sentencing and

We have

case a fair reading of

show that

the

judge

the trial

determined that

the

appellant knew the source of the laundered funds.

Pizzo and James Saccoccio assert that even

did

not

misunderstand

inadequate to show

was

the

standard,

that they knew

the proceeds of narcotic sales.

the

if the court

evidence

that the laundered

from Pizzo's

disputed

money

As explained earlier in

the opinion, the evidence on this point was sufficient.

apart

was

reference to

"the coke,"

Even

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.
B.

Other Sentencing Errors

Other Sentencing Errors
_______________________

The offense level for money laundering offenses is keyed

to the value of the laundered funds.

Appellants contend

court

erred in

that in

U.S.S.G.

various respects

determining the

value of

2S1.1(b)(2).

the sentencing

the funds

and in

determining the varying amounts that it found each individual

appellant

reasonably

1B1.3(a)(1)(B).

had

foreseen.

U.S.S.G.

These are largely factual issues, reviewable

only for clear error.

United States v. LaCroix, 28 F.3d 223,

_____________
_______

231

We

of

(1st Cir. 1994).

error and

supportable,

have examined each of these claims

think that the

and

that

none

district court's

involves

any

findings are

issue

of

law

requiring discussion.

Something

district

entitled

rather

court's

to a

than

participant.

DeMarco

closer to an issue of law is presented by the

determination

two-level

to

the

reduction as

four-level

See U.S.S.G.
___

participated

that

3B1.2.

for only

Carlo

DeMarco

a minor

decrease

as

participant

minimal

The issue arises because

few

months in

the

conspiracy and was held responsible for only $3.9 million

the

$136 million conspiracy.

conspiracy,

the

court found

But

that

-47-47-

was

RICO

of

as to that segment of the

the

range of

DeMarco's

activities

made

him

minor

rather

than

minimal

he was entitled

to have

participant.

On appeal

DeMarco argues that

his role determined in

government

against the

responsible.

argues

light of the entire conspiracy.

that his

role

foreseeable conduct for

No

case law

should

be measured

which he has

discussing this

issue

The

only

been held

has been

cited.

judge

But we think that common sense permitted the district

to

determine

that

actively in several roles

DeMarco--who

participated

over a significant period

involved with a substantial

quite

and was

amount of laundered funds--was a

minor and not a minimal participant.

VI.
VI.

Between January

Saccoccia

wired

appellant was

the

by Colombian

government

jointly and

under one of RICO's

1963(a)(3).

1990 and April 1991,

$136,344,231.86

apparently controlled

indictment,

FORFEITURE ISSUES
FORFEITURE ISSUES

This

took

Stephen and Donna

to foreign

bank

accounts

drug suppliers.

the

position

severally liable for

In the

that

each

this amount

several forfeiture provisions, 18 U.S.C.

subsection

requires

defendant

to

forfeit

"any property

proceeds which the

constituting,

derived from,

person obtained, directly or

from racketeering activity . . . ."

the

or

Id.
___

any

indirectly,

By special verdict,

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

other appellants.

994

(D.R.I.

1993).

section 1963(a)(3)

appellant even

United States v.
_____________

The

court

forfeitures on the

Saccoccia, 823 F.
_________

held that

included laundered

Supp

proceeds

under

funds obtained

by an

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

Pizzo

full amount;

were aware

that the

Saccoccio brothers,

mainly of the

Rhode Island

Cirella and

operation and

therefore

through

active

liable

only

Trend and

only

for

the

$37,456,100.79

Saccoccia Coin;

from

responsible

for

August

and that

through

$3,927,357.55

that

Carlo DeMarco,

November

he

laundered

had

1991,

was

deposited

or

otherwise known about.

After appellants filed notices of appeal, the government

filed a

motion seeking

U.S.C.

forfeiture of substitute

assets, 18

982(b), 1963(m); following various proceedings, the

____________________

4The jury
of $52,800

also imposed a separate

under the money laundering provision, 18 U.S.C.

982, in connection with a

nor

other section

appellants

forfeiture on Hurley

by the

appeal except

982

reporting violation.
forfeitures imposed

district

judge have

on grounds identical to

in connection with the RICO forfeitures.

Neither this

on three

other

been challenged

on

those discussed below

-49-49-

district court ultimately

million had

appellant

any

determined that

been transferred

was liable to pay

other assets

forfeiture orders

of

that

and their

out of the

because the

jurisdiction, each

the amounts in

appellant.

$136

Both

question out of

the

extension to substitute

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

original

assets

A.
A.

The opening

to the

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

question is whether the

$136 million wired

Colombians constituted, at least as to the appellants

who handled or controlled these funds before they were wired,

"any property

which

constituting, or

the person

obtained,

racketeering activity .

18

U.S.C.

means net

directly

. . in

1963(a)(3).

derived

from, any

or

proceeds

indirectly,

violation of section

Appellants argue

profits, see United States v.

___ ______________

from

1962."

that "proceeds"

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

and the

apparently retained by

(presumably smaller)

the Saccoccias

amounts passed along

to other

appellants.

the $137

them

Alternatively, appellants contend that

million could fairly

since

it

represents

be regarded as

amounts

none of

"obtained" by

transmitted

by

the

Saccoccias to the drug owners themselves.

Section 1963(a)(3)

forfeiture

provisions in

was added by Congress

1984, and its

-50-50-

to other RICO

legislative history

explains without qualification that "the

term `proceeds' has

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

the

unreasonable burden

profits."

on

the government

of proving

S. Rep. No. 225, 98th Cong., 2d Sess.

net

199 (1984).

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

________
_____________

Court made clear its desire for generous construction

RICO forfeiture

provisions, in

command that

RICO (although

interpreted.

See id.
___ ___

and Russello,
________

Congress' unusual

a criminal statute)

be broadly

Given the

legislative history

the broader definition of

"proceeds" seems to

us a rather easy call.

at 27.

line with

of the

The

point

Saccoccia

is

borne

could surely

"proceeds"

which

every

the booty

forfeit, and that Congress

that

the $136 million

it to the Colombians.

Saccoccia

in violation of

money laundering.

reason why

imagining

be described as

Stephen

racketeering activity

through

by

had been caught with

gold just before delivering

or gold

out

As

in cash or

The cash

property representing

had

"obtained"

from

section 1962, namely,

a matter of

in that

Stephen

policy, there is

situation ought

would desire such a result.

to be

See
___

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

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

_____ ______

The

be

more difficult question

is whether property should

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.

property

the

once held by a

effect--when

"obtained" to cover

defendant on behalf

combined

provision--of converting

To read

with

the

of another has

substitute

the forfeiture into a

fine.

assets

Thus,

at

first, the

temptation

narrowly, having

is to

in mind the

read

the word

low level

"obtained"

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

forfeiture under RICO

kinds.

Looking

as a kind of shadow fine,

the amount transported is some measure of the

from

the

certainly

transaction.

at

And

since

criminal

the size of

potential harm

temporary

custody

is

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

18 U.S.C.

very hard to escape

982(b)(2).

the implications of

There, Congress has expressly

carved

out a narrow safe harbor, which protects against forfeiture a

defendant who

"acted merely

but

retain

did

not

the

as an intermediary

property"

-52-52-

unless

the

who handled

defendant

conducted

three

total of $100,000

provision

or more

or more

indicates

separate statute

that

separate transactions

in a twelve-month

Congress

was necessary

itself

involving a

period.

thought

for a "passing

This

that a

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.
B.

Vicarious Liability
Vicarious Liability
___________________

The question remains whether a defendant's forfeiture is

limited

to the

obtained or

members

laundered funds

whether it

of the

funds obtained

attributed

extends to funds

conspiracy.

latter position with one

The

to the

defendant himself

obtained by

district

court took

important qualification:

by other members

only

that the

extent

of the conspiracy

that

they were

other

the

laundered

would be

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

personally obtained

The

statutory

"proceeds

which

forfeiture solely to

by an individual defendant

language

speaks

the person
___ ______

of

violator

obtained" by

funds

are several.

forfeiting

violating section

1962.

the

18 U.S.C.

plight

of

1963(a)(3) (emphasis added).

defendant

who

custodian of cash and passed it

was

merely

In addition,

temporary

on is even starker than that

-53-53-

of a person who never possessed the cash at all.

is a

respectable basis for holding

Thus, there

that vicarious liability

for

co-conspirator behavior

does

not exist

under

section

1963.

The

arguments

stronger.

Under

conspiracy

criminal

are

pointing

established

substantively

conduct of

the

concept,

defendant

at

conspirators.

although

the

rules, which

case

for

seem

U.S.S.G.

1B1.3(a)(1)(B).

it

of the

conspiracy.

have aspects both of

Using the

attribute

conduct

It

to

of

co-

would be odd,

from this

comes to

foreseeable

foreseeable

to depart

of

us

the

Guidelines

the

to

members

328 U.S. 640 (1946).

sentencing

conduct when

way

law,

liable

Sentencing

not impossible,

attributed

other

other members

Pinkerton v. United States,

_________
_____________

same

the

apply the

principle of

forfeiture

substantive liability and

of penalty.

It

is

largely

conspirator

fortuitous

happened to

whether

possess

particular point.

If conclusive

physically handled

the money,

counter could

be liable

level conspirators could

long

defendant,

the

the laundered

weight were

sums, while

easily escape

foreseeable

individual co-

funds at

given to

a low-level courier

for vast

as the amount handled by

an

who

or money

other higher

responsibility.

So

others is foreseeable as to a

amount represents

measure of liability.

-54-54-

the

sounder

Finally,

each

court

we have to give

of appeals

concluded that

several

that

some weight to

has

addressed

the forfeiture provisions

liability.

E.g.,
____

Masters,
_______

924

the fact that

the topic

has

involve joint

and

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).

______

of

putting the

matter,

This is a somewhat backward way

since "joint

and several"

roughly

describes the result without explaining the underlying theory

of liability.

that

Here, we think the theory is the familiar rule

member

of

conspiracy

foreseeable acts of other members

furtherance

of the conspiracy.

47; U.S.S.G.

1B1.3(a)(1)(B).

Appellants

liability for

the assumption

appear

to

is

responsible

for

the

of the conspiracy taken in

Pinkerton,
_________

think

that

328 U.S. at 646-

their

vicarious

amounts they did not physically touch rests on

that the Colombian drug

"obtained" $136 million were

lords who ultimately

members of the same conspiracy.

On this premise, appellants advance

a number of arguments as

to

be

why

such

a conspiracy

cannot

the

short answer

is

in this

that

is

mistaken;

individual

appellants are

their

convicted

American

co-conspirators

liable

premise

because

-55-55-

The

out under

indictment or evidence

the

case.

made

obtained the funds, regardless of the

status assigned to the

Colombians.

Nor

do

we

see

forfeiture violates

Eighth Amendment.

any

the

basis

for

"excessive

Although

the

claim

fines"

the provision is

a defendant

liable for

foreseeably laundered by himself and

is

quite

rational

based

on

of

the

applicable to

Ct. 2766

an amount of

money

his own co-conspirators

proportionality

Harmelin v. Michigan, 501 U.S. 957 (1991).

________
________

of the appellants was

the

clause

forfeitures, see Alexander v. United States, 113 S.

___ _________
_____________

(1993), holding

that

analysis.

In this case none

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

imposes vicarious

conspirators.

disallows

The government

appellant so much of

is

But there

unattractive

passing-on

defense

liability for the foreseeable

only once but, subject

appellant.

can collect its

then

acts of co-

$136 million

to that cap, it can collect

from any

that amount as was foreseeable

to that

is no reason to think that this result

to

Congress,

which

requested

broad

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

this policy in Russello.

________

C.
C.

The indictment

each

of the

Substituted Assets
Substituted Assets
__________________

in this case

appellants

sought forfeitures against

of approximately

$140 million

and

-56-56-

expressly

provides

or

invoked

18 U.S.C.

transferred

forfeiture of any other

of"

Section

1963(m)

that if property subject to forfeit cannot be found

has been

value

1963(m).

the property

then "the

court

shall order

property of the defendant up

subject to

forfeit.

the

to the

See also 18
_________

U.S.C.

982(b)

(similar

provision

statute incorporated from 21 U.S.C.

the

original

jury

verdicts

in

money

853(p)).

contain

laundering

In this case,

determination

of

forfeiture only as to Hurley; forfeiture findings against the

other appellants were made

thereafter by the district court,

as earlier described.

Appellants

convictions in

government

filed

notices

May and

moved

in

June 1993.

the

forfeiture provisions of

property of the

funds.

of

appeal

On July

district

court

its judgments

from

their

16, 1993,

the

to

the

amend

to substitute

other

appellants for the $137 million in laundered

After a hearing, the court granted these motions.

appeal, appellants

jurisdiction

to

argue

enter

that

those

the

orders

district

because

court

On

lacked

appeals

had

already been taken.

This

notice of

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

appeal divests the district

to adjudicate

any matters

related to

court of jurisdiction

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

inconsistent

retains

429

to

decide

with the pendency of the appeal.

Mohasco Indus., Inc.

_____________________

denied,
______

authority

U.S. 886

example, determine

F.2d 404,

(1976).

411

the

substitution

cert.
_____

may, for

appeal has been

See In re Nineteen Appeals,

___ _______________________

982

Cir. 1992); International Paper Co.

________________________

v. Whitson, 595 F.2d 559, 561-62 (10th Cir.

_______

that

(1st Cir.)

execution of a judgment that has been

stayed.

F.2d 603, 609 n.10 (1st

not

See Spound v.
___ ______

district court

attorneys' fees after an

taken or act in aid of

appealed but not

534

matters

of

assets orders

1979).

fit

We think

within

this

general category.

The

Criminal forfeiture orders are

something of a

initial

in

absent

waiver of

verdict.

statute

forfeiture is

See Fed.
___

jury trial,

R.

Crim. P.

is

the indictment

specified in

7(c)(2); 31(e).

and,

the jury

But

the

says that an order substituting assets is to be made

by "the court."

that

sought

mongrel.

18 U.S.C.

1963(m).

The implication

is

such an order may commonly be entered after the initial

forfeiture has been determined.

not even know

Indeed, the government might

that substitution is necessary until

to take possession

of the property specified

it seeks

in the initial

forfeiture order.

Under

these circumstances,

we

see no

reason why

the

taking

of the

appeal

authority to enter

should divest

the district

an order forfeiting

court of

substitute property.

-58-58-

Appellants do not provide any reason to think that this would

interfere

with,

consideration of

or

contradict,

the original

the

court

judgment of a

of

appeals'

conviction and

sentence, including the

such

interference and

general rule

inconsistency is

barring district

pendency of an appeal.

Cir. 1985).

initial forfeiture order.

There

Avoiding

the purpose

court proceedings

of the

during the

Venen v. Sweet, 758 F.2d 117, 121 (3d

_____
_____

is no reason to

extend this ban

further

than its own rationale.

Of

course,

eventually

new

the

substitute

assets order,

if

one

is

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

___

appeal

can

Similarly, a decision

be

taken

directly

of the appeals

from

this

court on the

order.

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

in

precisely

this

Geriatrico, Inc. v.
_________________

manner.

the same problem and is

See,
___

Rivera-Santos,
_____________

e.g.,
____

resolved

Casa Marie Hogar

_________________

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

forfeiture

orders

argument

were

laundered monies and that

is

limited

that

to

the

original

forfeitures

RICO

of

the

the orders extending forfeiture to

substitute assets constituted either a second prosecution for

the same

offense or

See North Carolina v.

___ ______________

also
____

1995).

multiple punishments for

Pearce, 395 U.S. 711, 717

______

that offense.

(1969); see
___

Witte v. United States, 63 U.S.L.W. 4576 (U.S. June 14,

_____
_____________

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

in principle

why the

regarded either

multiple

order

as a

punishment.

may

be

should be

second prosecution or

forbidden

The fact

entered

conviction does

than

substitute assets provision

at

one of

time

a number

original

a second prosecution,

any more

after

is a

second prosecution.

entered in the original proceeding

of steps,

conviction sanctions,

substitute assets

the

after conviction

The substitution order is

as

some

not make it

sentencing

that the

as a

that are

primarily relating

known to the

to post-

defendant from

the outset.

As

for

Constitution

offense

where

the

claim

does not

of

prevent

the sanctions

multiple

multiple

are

punishment,

the

sanctions for

one

specified

in advance

by

Congress

conviction:

sentence.

and

imposed

fine

in

reasonable

and imprisonment
___

The situations

proximity

is a

to

the

common federal

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.

209-12 (1984)

Arizona v. Rumsey, 467 U.S. 203,

_______
______

(death sentence);

Pearce, 395 U.S.

______

at 723-26

(penalty for appeal).

VII.
VII.

A number

have

of the remaining arguments

been addressed by

Stephen Saccoccia's

again.

These

Colombians,

testimony by

refer

to

CONCLUSION
CONCLUSION

the court in

conviction

on

the

admission

Agent Shedd,

cocaine

and

not

be

discussed

certain references to

of dog

and on

drug

the decision affirming

and need

include attacks on

made by appellants

sniff

evidence,

tape excerpts

money.

the

on

claimed to

Similarly,

Donna

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

waived,

are in

discussion

Several

substance covered

of

Stephen

additional

by the

Saccoccia's

arguments

(e.g.,
____

earlier opinion's

counterpart

Kenneth

claims.

Saccoccio's

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

deemed not to require separate treatment.

The

charges

paragraph statutes

had

to

apply to

in this

case

with intricate

numerous

defendants and occurring over

In these

web of

provisions that

transactions

multi-

the jury

involving multiple

a considerable period of time.

circumstances, we have

not only as individually

involved

reviewed appellants' claims

presented, but also with an

-61-61-

eye to

making

enmeshed

certain

that no

in criminal

while several

innocent

proceedings.

debatable issues

person

has been

We

are satisfied

have been raised

there was no prejudicial error and that the verdict

by the jury was a just one.

Affirmed.
________

wrongly

that

on appeal,

returned

-62-62-