USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1215

UNITED STATES OF AMERICA,

Appellee,

v.

ALFRED M. GABRIELE,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

___________________

____________________

Selya, Cyr and Boudin

Circuit Judges.
______________

____________________

John A. MacFadyen for appellant.

_________________
William C. Brown,
_________________

Attorney,

Department of

Justice, with

Sheldon Whitehouse, United

___________________

States Attorney,

and Michael E. Davi

________________

Assistant United States Attorney, were on brief for appellee.

____________________

August 23, 1995

____________________

CYR, Circuit

Judge.

Defendant Alfred

Gabriele chal-

CYR, Circuit Judge.

______________

lenges various district court

for

rulings underlying his convictions

participating in a conspiracy in

Influenced and

1962(c),

Corrupt Organizations

(d) (1991), and

violation of the Racketeer

Act ("RICO"), 18

for engaging in

tions in criminally derived property, id.

___

U.S.C.

six monetary transac-

1957.

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

This is the third and

final installment in the

appel-

late proceedings

arising out

of the extensive

money laundering

operation headed

by Stephen

Saccoccia from the

mid-1980s until

late 1991.

The earlier proceedings are reported in United States

_____________

v. Saccoccia, 58
_________

F.3d 754 (1st Cir. 1995), and

Hurley, __ F.3d ___

______

1561, 93-1562,

United States v.
_____________

(1st Cir. 1995) [Nos. 93-1511,

93-1563, 93-1616, 93-1617,

93-2006, 93-2207, 94-

1388, 94-1507, 94-1508 (1st Cir. July 20, 1995)].

was indicted for alleged

93-1560, 93-

After Gabriele

participation in the Saccoccia criminal

enterprise, he stipulated to the facts established by the govern-

ment at

his

the two earlier

codefendants.

We

trials involving Stephen

relate only

Saccoccia and

the background

information

material to Gabriele's involvement in the criminal enterprise.

The

money

through precious

located

laundering

metals companies

in Los Angeles, New

drug dealers transferred huge

operation primarily

controlled

York, and Rhode

functioned

by Saccoccia

Island.

and

Colombian

sums to the Saccoccia organization

for laundering.

Employing

various techniques, such as purchases

of gold

dered

and cashier's

the

drug monies

checks, the Saccoccia

and

funneled

Colombia by circuitous techniques (e.g.,

and

interstate transportation).

to Recovery Technologies, Inc.

Some

organization laun-

laundered funds

back

to

multiple wire transfers

of the gold was delivered

("RTI"), a precious metals dealer

located

in Attleboro, Massachusetts, and controlled and operated

by Gabriele.

and

The gold was kept in a safe

installed

at RTI

with Gabriele's

Gabriele prophetically observed in

ies:

"Steve

[Saccoccia] is going

purchased by Saccoccia

consent.

At

one point

relation to the gold deliver-

to put

us all

in jail some

day."

In the summer of

Rhode Island

1991, after learning that two

companies were

coccia

pointed out

riele.

Shortly thereafter,

acquire RTI from

under FBI video

the concealed

of his

surveillance, Sac-

surveillance cameras

to Gab-

Saccoccia announced his intention to

Gabriele and

hired Gabriele

as his

employee.

Saccoccia then began to divert to RTI the cash and gold shipments

which could no

longer be

coccia companies.

delivered undetected to

the two

Sac-

The deliveries

employees.

coded

RTI

were

monitored

by

Saccoccia

Among the persons at RTI, Gabriele alone knew about,

and participated in

Saccoccia.

to

The

language.

counting, the cash

shipments to

The coded

and gold shipments

RTI were recorded

records were

by Gabriele

kept in

the

from

in

desk in

Gabriele's private office, separate

During this period, Gabriele

from all other RTI records.1

again voiced concern that Saccoccia

"is going to put us all in jail."

From time

to

time Saccoccia

instructed

Gabriele

transfer the large sums of cash kept in the RTI safe.

to

On various

occasions Gabriele wired funds to designated banks at Saccoccia's

direction or turned over funds directly to Saccoccia couriers who

had been told to leave cash

Gabriele

discussed their

amounts for Gabriele.

ongoing cash

Saccoccia and

transactions in

a coded

conversation intercepted by the FBI in October 1991.

In due course, Gabriele was indicted on a RICO conspir-

acy

charge,

along with

Saccoccia

and

others, and

separately

charged

with engaging

criminally

derived

in eight monetary

property.

transactions involving

A jury

convicted

him

of RICO

conspiracy and six monetary transaction charges.2

II
II

____________________

1The secret records kept by Gabriele related also to the socalled Saccoccia "pool account" at RTI.
gold

for a client,

immediately
pool

Normally, RTI would sell

place the proceeds in

wire the funds directly

account records

the pool account, and

to the client.

revealed, however,

that the

Saccoccia remained in RTI's bank account for much

of time, awaiting

The secret

proceeds due

longer periods

Saccoccia's instructions to wire the

funds

frequently to third parties.

2At trial,

Gabriele contended

that Saccoccia,

a long-time

RTI client, had been allowed to keep cash in the RTI safe because
the security
temporarily

systems at Saccoccia's Rhode

off-line, and

handled for Saccoccia

industry.

that

the large

were not uncommon

He maintained

Island companies were

amounts

of cash

in the precious

he

metals

that the intercepted conversations were

inconclusive

and

that

the

inculpatory

testimony

from

other

Saccoccia employees was unreliable.

DISCUSSION
DISCUSSION
__________

Gabriele takes

the district

rulings, which we discuss in turn.

court to task

on several

A.
A.

Section 1957
Section 1957
____________

1. Mens Rea
1. Mens Rea
________

First,

he

claims

that

section 1957 is unconstitutionally

Lawson, 461 U.S.

______

therefore

352, 357

erred in

section 1957 charges.

1957 is a rather

by a person

rea
___

the district

pretrial motion to

crux of the argument is

novel statute, in that it

once removed from

the criminally derived property.

element

under

vague, see, e.g., Kolender v.

___ ____ ________

(1983), and that

denying his

The

the mens
____

court

dismiss the

that section

criminalizes conduct

that of the person

who generated

Thus, he argues, the proscribed

conduct

is not likely to appear unlawful to an ordinary citizen.

Second,

tional

he contends

that section 1957

is unconstitu-

on its face, in that it chills legitimate business trans-

actions because a prudent business person could never be sure how

many suspicion-arousing "red

jury to

infer that the

flags" would

person "knew" that a

was engaged in criminal activity.

persons engaged in

rely

on

racial or

be enough

to lead

client or customer

Alternatively he suggests that

honest business dealings

ethnic stereotyping,

as

would be forced

by refusing

to

to do

business with "known" criminals.

Section

1957(a) prohibits

"knowingly engag[ing]

monetary transaction in criminally derived property that

in a

is of a

value greater than $10,000 and is derived from specified unlawful

activity .

property" is

. ."

18 U.S.C.

"any property

1957(a).

"Criminally

constituting, or derived

derived

from, pro-

ceeds obtained from a

defendant may

criminal offense."

not be convicted

Id.
___

1957(f)(2).

under section 1957(a)

unless he

knew that the transaction involved "criminally derived" property,

id.
___

1957(c),

but

he need

not

have known

that

the subject

property was derived from "specified unlawful activity," id.

___

denial

of

pretrial motion

reviewed de novo.
__ ____

See
___

to

dismiss

United States
_____________

criminal

The

charges is

v. Aguilar-Aranceta,
________________

957

F.2d 18, 21 (1st Cir.), cert. denied, 113 S. Ct. 105 (1992).
_____ ______

First, given

the criminal

to Gabriele

sionary

the prominent

nature of the Saccoccia

(e.g.,

knowledge of

"red flags"

that signaled

money laundering operation

government surveillance;

eva-

tactics; large volumes of secreted cash), as well as the

strong evidence of

coccia

is going to

tional

challenge to

Gabriele's mens rea

____ ___

put us all in

Sac-

jail"), the instant constitu-

the "knowledge"

1987 has the ring of desperation.

("some day Stephen

requirement under

section

See United States v. Baker, 19

___ _____________

F.3d 605,

614 (11th Cir. 1994)

challenge to

_____

(rejecting comparable as-applied

1957).

Second, the facial challenge

persuasive force.

Section

to the statute is without

1957 is but another in

a substantial

line of federal criminal statutes whose only mens rea requirement

____ ___

is "knowledge"

of the

property involved

U.S.C.

2312

biles "knowing

receipt of

in

prior criminal

the proscribed

conduct that tainted

activity.

See, e.g.,
___ ____

(prohibiting interstate transportation of

the

same to

be

stolen");

such automobiles);

2313

2314 (criminalizing

the

18

automo-

(same,

for

interstate

transportation of goods

"knowing the same

converted, or taken by fraud").

reduces to an attempt

to have been

stolen,

Thus, Gabriele's policy argument

to second-guess the congressional decision

to criminalize a particular type of "knowing" conduct.

Gabriele further

claims that the

district court erred

in rejecting proposed jury instructions defining the section 1957

"knowledge"

element

with greater

adequately renew his objections

precision.3

As

he

to the charge prior to

did not

the time

the jury

retired to

deliberate,

review for plain error.

See
___

see Fed.
___

R. Crim.

P. 30,

United States v. O'Connor, 28

_____________
________

we

F.3d

218, 220-21 (1st Cir. 1994).4

The district

court carefully instructed

the jury that

Gabriele could not be convicted unless he "knew that the money or

property involved

obtained from

the

in [the

particular] monetary transaction

the proceeds of

"knowledge" element

some criminal offense,"

was not

met merely

by a

was

and that

finding that

____________________

3Gabriele requested instructions (i) defining "knowing" as a

"clear

and

certain perception

suspicion, Request No.

gate the

that

he knew

transactions

in

truth," not

be convicted unless the

a criminal offense

criminally

to engage

derived property,

a mere

duty to investi-

Saccoccia enterprise, Request

he could not
it was

or

18; (ii) that he had no

legality of the

and (iii) that

of fact

jury found

in monetary

Request

(citing Cheek v. United States, 498 U.S. 192 (1991)).

No. 19;

No. 18A

_____

4Gabriele
following the

_____________

did not

object to

jury charge.

clearly delineated

the grounds

jury instructions,

see infra
___ _____

his objections to Requests 18A

nor, 28
___

the definition

See supra
___ _____

note

of "knowing,"

3.

Although

he

for objecting to

numerous other

Section II.B.2, he

simply renewed

and 19 by reference.

See
___

O'Con______

F.3d at 221 (under Fed. R. Crim. P. 30, party must state

_____

distinctly

the grounds for objecting, and may not rely on previ-

ous written articulation of grounds).

Gabriele "might have known," "should have known," or "could

known."

Like terms denoting other mens rea elements, "knowledge"

____ ___

is not readily susceptible

to a more precise definition

derived from the connotation

review

respects

have

confirms

that

delineated

application by

the

the

the jury.

than is

suggested by the term itself.

district court

appropriate

See
___

instruction

"knowledge"

United States v.
_____________

Our

in

all

element

for

Noone, 913 F.2d

_____

20, 30 (1st Cir. 1990) (refusal to give requested instruction not

reversible error

if instruction given was

substantially correct

and substantially covered defendant's request), cert. denied, 500

_____ ______

U.S. 906 (1991).5

Finally, Gabriele contends that the jury instruction on

"willful blindness" was

error.6

Since the government adduced no

evidence that Gabriele had engaged in any

the

purpose of

that

Saccoccia

argues

that

precluding his

was

the

acquisition of

engaged in

"willful

particular conduct for

unlawful

blindness"

actual knowledge

activities,

instruction

Gabriele

necessarily

____________________

5Since the
ness"

1957 mens rea requirement includes no

____ ___

"wilful-

element, a Cheek instruction, see supra note 3, would have

_____
___ _____

been improper
17 F.3d 409,
which

as a matter of law.
448 (1st Cir.)

See United States v. Brandon,

___ _____________
_______

(noting that requested

includes an incorrect statement

of the law

instruction

should not be

given), cert. denied, 115 S. Ct. 80 (1994).

_____ ______

6The instruction stated, inter alia:

_____ ____
defendant acted knowingly, you may

"In deciding whether a

infer that the Defendant

had

knowledge of a fact if you find that [he] deliberately closed his

eyes to a fact

that otherwise would have

Further, the court cautioned the jury:

whether

. . .

been obvious to

him."

"It's up to you to decide

this Defendant deliberately closed

his eyes to a

fact

and, if so, what inference should be drawn. It's important,

____ _________ ______ __ _____

however,

to

bear in

mind that

mere

negligence or

mistake in

failing to learn a fact is not sufficient." (Emphasis added.)

suggested that the jury could convict if it found that he "should

have known" that

derived

error.7

the gold

and cash he

from criminal activity.

received from

Saccoccia

Once again, we review for plain

A willful blindness instruction is warranted if (1) the

defendant

claims

lack

of

knowledge; (2)

support an inference that the defendant

the

evidence

would

consciously engaged in a

course of deliberate ignorance; and (3) the proposed instruction,

as a whole, could not lead the jury to conclude that an inference

of knowledge was

F.2d 409, 452

mandatory.

See United States

___ _____________

(1st Cir.), cert.

_____

United States v. Richardson, 14

______________
__________

Gabriele

F.3d 666, 671

S. Ct. 80

17

(1994);

(1st Cir. 1994).

concedes that the first and third elements were met but

argues that

failed to

denied, 115
______

v. Brandon,
_______

the instruction was improper

because the government

prove that though confronted with various "red flags,"

____________________

7The following

colloquy

occurred at

side-bar

immediately

after the jury charge:

[Defense counsel]:

I specifically

. .

blindness, so-called con-

. the willful

scious avoidance instruction.

by reference all of

object to

I incorporate

the argument that I made

in support of that objection that was made at

the

conference,

Should I

at

the charge

put them on the

conference.

record or incorpo-

rate them by reference?

Court:

Your arguments?

You mean as far

as

incorporated that by reference?

[Defense counsel]:

We
Rule

have held that counsel

30 unless

Thank you.

must comply with

the district

court expressly

O'Connor, 28 F.3d at 221.

________

10

the requirements of
forbids it.

See
___

he nonetheless said "I don't want to know what they mean."

mistaken, however.

in instructing

cated

He is

See, e.g., id. at 671 (finding no plain error

___ ____ ___

jury on "willful blindness"

that defendant

"flags of suspicion" in

had been

where evidence indi-

presented with

business dealings).

succession of

There was

no plain

error in the district court instruction that "knowledge" could be

inferred

if

the jury

avoided the import

(e.g.,

were

to find

Gabriele consciously

of the conspicuous "red flags"

government surveillance,

coded language).8

that

large

stores of

involved here

cash, use

of

2.
2.

Motion for Judgment of Acquittal

Motion for Judgment of Acquittal
________________________________

The

pre-1992

version

of section

1957(f)(1)

defined

"monetary

transaction" as "the deposit, withdrawal, transfer, or

exchange,

in or

affecting

funds or a monetary

cial

."

interstate or

foreign commerce,

instrument . . . by, through or

institution (as defined in section 5312

18 U.S.C.

1957(f)(1)

(1988).9

of

to a finan-

of title 31) . . .

Gabriele

contends that the

____________________

8To the extent that Gabriele suggests that

a willful blind-

ness instruction was unwarranted because the government presented

direct evidence
______
statements
discredit
"knowledge"

of actual

about
the

knowledge (viz.,

"jail"), we

more

direct

based solely

note that
evidence, yet

on a

Gabriele's repeated

the

jury was

find

the

reasonable inference

free to

requisite

of willful

blindness.

9RTI is a "financial institution" for

1957(f)(1) purposes.

See
___

31 U.S.C.

5312(a)(2)(N)

cious metals").

(term includes "a

Gabriele's reply brief

argues that these

shipments were made "to him at RTI," not to RTI.

not make

this argument, either in

dealer in pre-

As Gabriele did

the district court or

opening brief on appeal, it is deemed waived.

cash

in his

See United States

___ _____________

v. De Masi, 40 F.3d 1306, 1312 (1st Cir. 1994) (issues not raised
_______
in trial court cannot

be raised on appeal); id.

___

at 1318 (issues

initially raised in appellate reply brief deemed waived).

11

government's

evidence merely

showed

as to

five of

the six

counts

of conviction under section 1957

shipments from Saccoccia, counted

that he received cash

________

and held them for safekeeping,

____

then returned them through Saccoccia's emissaries.

receiving

and holding

"transaction"

U.S.C.

through,

found

in the

1956(c)(3)

or

to
__

Gabriele argues

comes

within the

money
_____

financial

broader definition

laundering
__________

("transaction"

of

statute, see
_______ ___

18

"delivery
________

by,

includes

institution")

that the language of

Although mere

(emphasis

added),

section 1957(f)(1) clearly

contemplates something more; namely, evidence

____

that the defendant

in some manner further facilitated the laundering process itself;

for

example, by commingling a cash

institution's

own

funds,

altering

"deposit" with the financial

the form

of

the

property

deposited

(e.g., by purchasing

transferring the deposit, or

gold or

a cashier's

check), or

its proceeds, to third parties,

as

by wire transfer.

The

denial of a Rule 29 motion for judgment of acquit-

tal is reviewed de
__

novo to determine whether any

____

finder

found that the

could have

rational fact-

evidence presented

at trial,

together with all reasonable inferences, viewed in the light most

favorable

to the

government,

particular offense beyond

established each

a reasonable doubt.

element of

the

See United States

___ _____________

v. Hernandez, 995 F.2d 307, 311 (1st Cir.), cert. denied, 114
_________
_____ ______

S.

Ct. 407 (1993).

Gabriele cites neither legislative history nor authori-

ty

for the contention that the statutory term "deposit" was used

12

in its specialized

sense so

The plain language of

the

as to reach

only bank

deposits.10

section 1957(f)(1) explicitly criminalizes

knowing acceptance of

a "transfer
________

institution," such as RTI, see 31 U.S.C.

___

. .

. to"

a "financial

5312, knowing that the

transfer involved criminally derived property.

See United States

___ _____________

v. Bohai Trading Co., 45

_________________

no

significance in

the fact

section 1956(c)(3) an

"transfers," id.
___

. . a

F.3d 577, 581 (1st Cir. 1995).

that Congress

illustrative list of the types

____________

insert in

of covered

1956(c)(3) ("the term 'transaction' includes .

________

transfer . . . and with respect to a financial institution

includes . . .") (emphasis added), then

________

list

chose to

We see

in the

non-illustrative

1957(f)(1) ("the term

chose not to repeat that

definition appearing

`monetary transaction' means

_____

in

section

the deposit,

withdrawal, or transfer . . .") (emphasis added).

Further, given its particular intention to target money

laundering in these companion

statutes, we see no basis

for the

conjecture that section 1957(f)(1) was intended to proscribe only

the conduct of those transferees

or other property

form).

who actually "launder" the cash

deposited (i.e., effect

The evidence

Saccoccia arranged

in

this

case clearly

to "transfer" these

government surveillance

established

large cash sums

very purpose of having RTI hold the cash

ly discovered

an alteration in

its

that

for the

safe from the recent-

at Saccoccia's

two Rhode

____________________

10Not only
was used in
think,
precious

that

is there no

this specialized
non-conventional

metals

dealers

indication that the

sense, but it

term "deposit"

is significant,

financial institutions,
including RTI

covered by the statute.

13

were

such

we

as

expressly

Island companies

We

think this

for eventual laundering in the normal course.

evidence demonstrated

sufficient to satisfy the statute.

"deposits" or

"transfers"

For these reasons, the motion

for judgment of acquittal was properly denied.

14

B.
B.

RICO Conspiracy
RICO Conspiracy
_______________

1. The "Conduct or Participate" Instruction

1. The "Conduct or Participate" Instruction
________________________________________

Section 1962(c)

makes it

a criminal offense

"for any

person employed

interstate

by or associated with

commerce]

to

conduct

or

any enterprise [affecting

participate,
___________

directly or
________ __

indirectly, in the conduct of such enterprise's affairs through a

__________ __ ___ _______ __

pattern of racketeering activity."

added).

Gabriele

18 U.S.C.

1962(c) (emphasis

argues that it was error to

instruct the jury

that it need not find that he "directed" the Saccoccia enterprise

since "an enterprise is operated not just by upper management but

also by lower rung participants who act on the direction of upper

management."

See Reves v. Ernst & Young, 113 S. Ct. 1163, 1170,

___ _____
______________

1172 (1993) (independent

"participated"

enterprise).

in,

or

accounting firm must

played

Although Gabriele

timely Rule 30 objection,

"some part

in

be shown to

directing,"

have

the

preserved the present claim with

it is foreclosed

by recent circuit

precedent.

(finding

See
___

Hurley,
______

__ F.3d

no plain error, noting

defendants who

at ___

that Reves has

_____

were "employees," as

dent or outside

[slip. op.

at 12-13]

no relevance to

distinguished from indepen-

participants like the accounting

firm in Reves)
_____

(citing United States v. Oreto, 37 F.3d 739, 750 (1st Cir. 1994),
_____________
_____

cert. denied, 115 S. Ct. 1161 (1995)).

_____ ______

The government

introduced

ample evidence

unchal-

lenged

on appeal

that Gabriele, unlike the accounting firm in

Reves,
_____

was

independent

"employee"

not an

of the

Saccoccia

"outsider"

enterprise, as

15

but a

full-fledged

evidenced by

Sac-

coccia's

anticipated "purchase"

instructions

employees not

to underlings

of

RTI from

to leave

engaged in directing
_________

cash for

Gabriele and

his

Gabriele.

Even

the operations

of the

RICO

enterprise are criminally liable if they are "plainly integral to

carrying [it] out."

this instruction.

See id.
___ ___

The district

court gave precisely

See Reves, 113 S. Ct. at 1173.11

___ _____

2. Other RICO-Related Instructions

2. Other RICO-Related Instructions
_______________________________

Gabriele contends

that the district court

give five other jury instructions

the jury to

declined to

which were essential to enable

differentiate section 1957

from RICO conspiracy

"two offenses occupying opposite ends of the white collar [crime]

spectrum."

Brief for

Appellant at 46.

Although

this challenge

was duly preserved as well, we will reverse only if the requested

jury instructions represented substantially correct statements of

the applicable law not

substantially covered in the instructions

given, and their omission seriously undermined Gabriele's ability

to mount a defense.

913 F.2d at 30.

See Brandon, 17 F.3d at 448; see also Noone,

___ _______
___ ____ _____

We discern no error.

Request No.

the jury found that RTI

___

6 would have

precluded conviction

unless

was part of the RICO enterprise,

on the

theory

that Gabriele

"directed"

a component

could

not have

part of

predicated on an incorrect

"participated" unless

the enterprise.

view of the

law.

Thus,

he

it was

See supra
___ _____

Section

intimating that Reves

_____

did not

____________________

11To the
determine

extent Gabriele is

whether an employee's

contribution to

the enterprise

may be so insignificant as not to constitute "participation," id.

___
at

1173 n.9, we need note only that Gabriele's participation was

by no means insignificant.

16

II.B.1.

there

Whether or

was ample

not RTI was

evidence from

Gabriele "participated" as a

integral to carrying out"

"direct" its operations.

Request

No.

prise.

jury

which the

the RICO

enterprise,

jury could

find that

Saccoccia employee who was "plainly

the enterprise even though he

did not

Id.
___

proposed

Gabriele's commission of two

not establish his

part of

to instruct

the

jury

that

predicate acts, without more, would

_______ ____

agreement to "participate" in the

RICO enter-

Request No. 12 would have precluded conviction unless the

found that

Gabriele

"knew of

the conspiracy's

features, general scope, and overall goals."

substantially

covered

by

the

final

essential

These requests were

charge,

which repeatedly

reminded the

jury that

acquittal was

required unless it

that Gabriele "under[stood] the unlawful nature of

entered into

a "mutual

agreement" to accomplish

found

the plan" and

"some unlawful

purpose."

Request No.

furnished

knows is or

goods

or

furnishing

member

16

goods, money,

stated that

or services

person who

to another

will be engaged in criminal activity

services may

such goods,

of the

be

instruction is

used in

money or

conspiracy."

States, 319 U.S. 703 (1943).

______

of

"a

See
___

that

may

have

person who

he

and that these

activity does

services necessarily

Direct Sales Co.

_________________

not by

become a

v.

United
______

The truism underlying the requested

that the seller's mere knowledge of the existence

a conspiracy is not in itself

sufficient to convict him as a

conspirator; the

seller must

also have intended

that the

sale

17

promote

the unlawful goals of the conspiracy.

States v. Garcia-Rosa, 876

______
___________

denied,
______

493

U.S.

1030,

See, e.g., United

___ ____ ______

F.2d 209, 216 (1st Cir.

cert.
_____

grounds, 498 U.S. 954 (1990).

_______

granted
_______

and
___

1989), cert.
_____

vacated on
_______ __

other
_____

Nonetheless, as we have noted, the

Direct Sales Co. instruction

_________________

normally is

trial

that the defendant

court advises the jury

not essential

if the

cannot be con-

victed absent a finding that he joined the conspiracy with intent

to

further its unlawful purposes.

Brandon, 17
_______

F.3d at 448-49.

The jury charge repeatedly brought home the latter point.

Request

No. 20

stated a "theory

of the

defense," in

Gabriele's words; namely "that the Government has failed to prove

. . . that the defendant agreed to participate in the

[conspira-

cy] . . . or that he

had knowledge that his transaction may have

involved

criminally

derived

defense,

the

court.

To the

standard,

property."

request overreached

by

As

attempting

extent the request purposed a

it was

surplusage,

since the

theory

of the

to coopt

the

"reasonable doubt"

charge delineated

the

requisite elements under section

1962(c) and (d), and repeatedly

instructed the jury that the government had the burden of proving

each element beyond

a reasonable

Long, 977 F.2d 1264, 1272 (8th

____

edge

is defense,

specific intent

doubt.

See
___

United States
_____________

Cir. 1992) (where lack of

jury instructions

adequately covered

on conspiracy,

"theory of

v.

knowl-

intent, and

the defense").12

There was no instructional error relating to the RICO conspiracy.

____________________

12Since there was no instructional error, Gabriele's

lative error" claim goes nowhere.

18

"cumu-

C.
C.

The Motion for Mistrial and the

The Motion for Mistrial and the
_______________________________
Privilege Against Self-Incrimination
Privilege Against Self-Incrimination
____________________________________

Finally,

Gabriele

argues

that

the

district

court

violated his Fifth Amendment privilege against self-incrimination

by stating to the

case:

the government's

"You may return to the jury room for your afternoon recess

and we will

Griffin

jury, following the close of

hear the rest of the story."

___ ____ __ ___ _____

v. California,

380 U.S.

(Emphasis added.)

609 (1965);

United

See
___

States v.

_______

__________

______________

Lavoie, 721 F.2d 407, 410 (1st Cir. 1983), cert. denied, 465 U.S.
______
_____ ______

1069 (1984).

improper

Gabriele insists that the jury necessarily drew the

inference that

he would

take the

stand to

"tell his

story," whereas in fact he rightfully elected not to testify.

adds that the

request for

noted that

district court

instruction given in

a mistrial was inadequate, because

a defendant

bears no burden

lieu of

He

his

the court merely

of proof in

a criminal

case, while failing to emphasize that no adverse inference may be

drawn from a defendant's

decision to exercise his constitutional

right not to testify at trial.

Whether

fringed

upon

the

a statement

in the

privilege

against

question normally reviewed de novo.

presence of the

jury in-

self-incrimination

is

See United States v. Glantz,

__ ____

810 F.2d

316, 320 n.2

(1987).

On the other hand, the

is

reviewed for

Rullan-Rivera, ___
_____________

abuse

___ _____________

(1st Cir.),

cert. denied,
_____ ______

______

482 U.S.

929

denial of a motion for mistrial

of discretion.

F.3d ___, ___

See United States

___ ______________

(1st Cir. 1995)

[No. 94-1890,

1995 U.S. App. LEXIS 18434, at *4 (1st Cir. July 21, 1995)].

19

v.

As

Gabriele

only

interposed no

for plain

events,

error.

timely objection,13

See Fed.
___

we find neither plain

R.

however, we

Crim. P.

error nor abuse

review

52(b).

In all

of discretion in

the denial of the motion for mistrial.

First, the colloquial expression utilized by the

trial

judge ("we will hear the rest of the story") plainly was intended

merely to inform the

been completed, the

dant's

testimony

review

is plenary,

jury that though the government's

defense
_______

had yet

as distinguished from

to be

heard.

Glantz, 810 F.2d

______

case had

the defen-

Although appellate

at 320

n. 2,

we think it

would be imprudent to attribute the more ominous import now urged

by Gabriele on

the trial

appeal, in light of the

court and counsel at

view apparently taken by

the time.

See
___

United States v.
_____________

Robinson,
________

485

challenge

to

U.S.

25,

ambiguous

constituting improper

lege against

30-31 (1988)

statements of

(noting,

in

context of

prosecutor

arguably

comment on defendant's exercise

self-incrimination

"we

do

of privi-

not think

that

an

____________________

13The government argues that

viewed as
the

the challenged comment must be

innocuous because even the defense

statement

as

an

infringement

upon

failed to perceive
________

Gabriele's

against

self-incrimination, as

evidenced by

defense

objected solely on the

ground that the

strue

the statement

defense.

Gabriele

objection until

as

shifting the

the fact

burden

defense

rested, because

that the

jury might conof proof

responds that he delayed his

the

privilege

to

the

Fifth Amendment
he

had

not

yet

decided whether to take the stand.

We

think the delay in interposing an objection on the Fifth

Amendment ground effected a waiver.

took the stand, the
Gabriele)
whether

district court's statement (as construed

could have
to

testify.

infringement been

Whether or not Gabriele ever

had a
Thus,

coercive effect
had

the

perceived, it seems

upon his

alleged Fifth
clear that it

by

decision

Amendment

would have

been more advantageous to raise it before that decision had to be

______
made.

20

appellate court may substitute its reading . . . for

trial court and

counsel").

Thus, we think

that of the

it would amount

to

impermissible conjecture to conclude that the jury understood the

trial judge's reference to the "rest of the story" as "'a comment

on the failure of the accused to testify.'"

See Glantz, 810 F.2d

___ ______

at 322

(noting that the

challenged comment must

be "manifestly

intended or . . . of such character that the jury would naturally

_________

and

necessarily take it
___________

accused

would

to testify")

comment on the

(emphasis added)

be particularly

defense clearly

to be a

problematic

signaled that it

failure of the

(citation omitted).

to

do

so here,

It

since

perceived the statement

the

to be

objectionable at the time only because the jury might take it

license to shift the burden of

that

proof.

as

We believe, therefore,

an appellate court would be overreaching were it to attrib-

ute to the jury

the defense.

the more ominous interpretation now

See Robinson, 485 U.S. at 30.

___ ________

Second,

judge's

proposed by

statement,

even

the

assuming

the

preliminary

jury so

interpreted

instructions

the

emphatically

charged

that "a

defendant has a

right to

remain silent

. . .

[and] you should understand that if he does not [take the witness

stand], you should not draw any inferences from that."

charge once again stated that "the fact

The final

that a defendant has, in

this case, . . . chosen to exercise [the privilege against

incrimination]

proving anything

basis for

should not

be considered

one way or the

departing from

other."

in any

way by

Thus, we

the customary presumption

21

self-

you as

see no sound

that juries

follow their instructions.

[No. 94-1890, 1995 U.S.

21,

1995)].

See Rullan-Rivera,
___ _____________

App. LEXIS 18434, at

Accordingly, the

___ F.3d at

*5 (1st Cir.

district court did

discretion in denying the motion for mistrial.

The district court judgment is affirmed.

___ ________ _____ ________ __ ________

___

July

not abuse its

22