United States v. Saccoccia

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

Nos. 93-1618
93-2208
94-1506

UNITED STATES OF AMERICA,
Appellee,

v.

STEPHEN A. SACCOCCIA,
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.

Samuel Rosenthal, with whom Curtis, Mallet-Prevost, Colt &

Mosle, Robert D. Luskin, and Comey Boyd & Luskin were on brief,

for appellant.
Nina Goodman, Attorney, Dep't of Justice, and Michael P.

Iannotti, Assistant United States Attorney, with whom Sheldon

Whitehouse, United States Attorney, James H. Leavey, Assistant

United States Attorney, and Michael E. Davitt, Assistant United

States Attorney, were on brief, for the United States.

June 28, 1995

SELYA, Circuit Judge. A jury convicted defendant-
SELYA, Circuit Judge.

appellant Stephen A. Saccoccia on racketeering, money laundering,

and related charges arising from his leadership of an

organization that laundered well over $100,000,000 in drug money

during the years 1986 through 1991. On appeal, Saccoccia

challenges his extradition, the timing of his trial, his

conviction, the forfeiture of certain assets, and the 660-year

sentence that the district court imposed. Finding that his

arguments do not wash, we affirm.

I. BACKGROUND
I. BACKGROUND

We sketch the bareboned facts in the light most amiable

to the government, see United States v. Ortiz, 966 F.2d 707, 710-

11 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993), leaving

much of the flesh and sinew for fuller articulation in connection

with our discussion of particular issues.

Appellant formerly controlled a network of precious

metals businesses located in Rhode Island, New York, and

California. He became enmeshed in money laundering through his

involvement with a fellow metalman, Barry Slomovits. At a point

in the mid-1980s, Slomovits was accepting millions of dollars in

cash each week from Duvan Arboleda, who represented a group of

Colombian drug lords (the Cali cartel). Slomovits used some of

this cash to purchase gold from appellant. By special

arrangement, the transactions were accomplished without

documentation.

In 1987, Arboleda and appellant agreed that they would

2

deal directly with each other. From that juncture forward,

appellant used his various businesses to cleanse money funnelled

to him by the Cali cartel and its emissaries (including Arboleda,

Fernando Duenas, and Raoul Escobar). Typically, Arboleda would

make large quantities of cash available to appellant; appellant

would send some of it to Slomovits in New York; Slomovits would

buy gold with the funds, resell the gold, and wire the proceeds

to accounts that appellant controlled. Slomovits received

apocryphal invoices from appellant's companies purporting to show

sales of gold for sums corresponding to the amounts of the wire

transfers.

Ahron Sharir, a manufacturer of gold chain, also washed

money for appellant. Appellant used Sharir's New York factory as

a drop-off point for incoming shipments of currency, and Sharir

laundered the cash by methods similar to those employed by

Slomovits. The shipments to Sharir's factory continued until

1988. From then on, the two men forsook the New York factory,

but continued to deal with each other. Appellant delivered cash

totalling over $35,000,000 to Sharir at other locations between

1988 and 1990.

By 1990, appellant's operations had expanded and had

become largely independent of Slomovits. Appellant would bid for

opportunities to launder money on behalf of the Cali cartel.

When the cartel accepted a bid, he or his couriers would receive

sacks of currency at prearranged delivery points. These

shipments ordinarily ranged between $50,000 and $500,000

3

(although one delivery totalled $3,000,000). The bills were

usually in small denominations. They would be counted,

transported to one of appellant's offices in California or Rhode

Island, then counted again, smurfed,1 and used to buy cashier's

checks payable to one of appellant's companies. These purchases

were made at various banks by underlings (e.g., David Izzi,

Anthony DeMarco, James Saccoccio, Kenneth Saccoccio) in

accordance with instructions received from appellant or his wife,

Donna Saccoccia. After the checks had been deposited in a

company account, the money would then be wired to a foreign bank

designated by Arboleda or Duenas. Along the way, appellant would

deduct a commission that usually approximated ten percent of the

laundered cash. This completed "la vuelta," the term used by the

Cali cartel to describe a complete cycle of drug smuggling

activities.

The spring of 1991 marked the beginning of the end of

appellant's career in high finance. During the early stages of

his operation, the money received in New York was transported to

Rhode Island by armored car and then deposited in an account

standing in the name of a controlled corporation, Trend Precious

Metals (Trend), at Citizens Bank. Between January 1, 1990 and

1The conspirators sought to avoid the currency transaction
reporting requirements applicable to large cash transactions,
see, e.g., 31 U.S.C. 5313 (1988); 31 C.F.R. 103.22(a)(1)

(1994), by subdividing the cash into units of less than $10,000.
The process of breaking down a large amount of cash into smaller,
unreportable amounts a criminal act when done to avoid the
reporting requirements, see 31 U.S.C.A. 5324 (West Supp. 1995)

is called "smurfing."

4

April 2, 1991, appellant and his wife wired over $136,000,000 out

of the Trend account to an assortment of foreign banks. Citizens

became suspicious and closed the account. In approximately the

same time frame, an employee of an armored car service warned

Richard Gizarelli, an unindicted coconspirator, that appellant

was under investigation. Gizarelli promptly informed appellant.

Notwithstanding these omens, appellant persisted. He

did, however, alter his modus operandi. Instead of using private

couriers to transport cash from New York to Rhode Island, he sent

any of four men Izzi, Carlo DeMarco, Anthony DeMarco, or

Vincent Hurley, often (but not always) operating in pairs to

haul the money to Rhode Island. And, although appellant's

cohorts continued to purchase bank checks from various Rhode

Island financial institutions, appellant began to send the checks

to his offices in California by air courier, often in canisters

labeled as containing gold (to which appellant's henchmen added

slag or scrap metal to increase weight). Accomplices used the

money to purchase gold, which was then sold on the open market.

The proceeds were eventually wired back to one of appellant's

remaining Rhode Island accounts.

In August of 1991, appellant convened a meeting at his

mother's home. He showed the conferees (who included Donna

Saccoccia, Izzi, and the two DeMarcos) a videotape that had been

discovered accidentally in a nearby building. The tape reflected

an ongoing surveillance of the back entrance to appellant's

5

Cranston coin shop. He advised his colleagues to start using the

store's front entrance. Soon thereafter, appellant departed for

Switzerland. In short order, the authorities indicted and

extradited him.

After unsuccessfully seeking to postpone prosecution on

health-related grounds,2 appellant went to trial on November 4,

1992, in the United States District Court for the District of

Rhode Island, along with several other indicted coconspirators

(including his wife). Appellant's attorney became ill during

trial, and the court declared a mistrial as to appellant.3 The

new trial began on February 17, 1993, and resulted in his

2The district court held a hearing regarding appellant's
professed ailments. Appellant had undergone a laminectomy at age
14 and had been hospitalized repeatedly during the next 20 years.
He suffered a relapse while he was incarcerated in Switzerland,
necessitating bed rest and medication. After being returned to
the United States, appellant claimed to have reinjured his back.
He also claimed that, on the eve of trial, a prison guard
assaulted him, aggravating his condition. The court heard
testimony from three physicians and concluded that "there [were]
no objective findings by any doctor that would confirm the
existence of any physical problem that would account for
[appellant's current] complaints of pain." Accordingly, the
court refused to grant a continuance.

3The first trial proceeded as to the other defendants. The
jury returned its verdict on December 18, 1992, convicting Donna
Saccoccia, Vincent Hurley, James Saccoccio, Kenneth Saccoccio,
Stanley Cirella and Anthony DeMarco on the RICO conspiracy count,
18 U.S.C. 1962(d), and finding each of them guilty on certain
other counts. Donna Saccoccia was convicted of 47 counts of
money laundering under 18 U.S.C. 1957 and 13 counts of money
laundering under 18 U.S.C. 1956(a)(2); Hurley was convicted of
one count of structuring transactions to avoid currency reporting
requirements, see 31 U.S.C. 5324(3), and one count of

interstate travel in aid of racketeering, see 18 U.S.C. 1952;

the two Saccoccios and Cirella were likewise convicted of
structuring violations under 31 U.S.C. 5324(3); and Anthony
DeMarco was convicted of filing false currency transaction
reports in violation of 31 U.S.C. 5324(2).

6

conviction. These appeals followed.

Saccoccia's appeals were consolidated for oral argument

with the appeals arising out of the first trial. See supra note

3. Notwithstanding the obvious differences in the trial records

and in the posture of the prosecutions for example, appellant

was the leader of the money laundering organization; unlike most

of the others, he was not tried for currency transaction

reporting (CTR) offenses; and he was convicted in a trial

separate from that of his codefendants appellant seeks to

incorporate by reference eight arguments advanced by other

defendants. Because appellant's position is not substantially

similar to that of the codefendants, and because he has failed to

develop the idiosyncracies of his own situation, we deem five of

those arguments to have been abandoned.4 See United States v.

David, 940 F.2d 722, 737 (1st Cir. 1991) ("Adoption by reference,

however, cannot occur in a vacuum; to be meaningful, the

arguments adopted must be readily transferrable from the

proponent's case to the adopter's case."), cert. denied, 504 U.S.

955 (1992).

4The five waived asseverations comprise: (1) whether the
CTR charges, and the evidence engendered thereby, violated the
Fifth Amendment privilege against self-incrimination; (2) whether
the district court's jury instructions overlooked the teachings
of Reves v. Ernst & Young, 113 S. Ct. 1163 (1993); (3) whether

the court erred in instructing the jury that coconspirators'
knowledge could be established by evidence of willful blindness;
(4) whether the court erred in determining the scope of the
charged conspiracy; and (5) whether the value of the washed funds
as calculated for sentencing purposes improperly included revenue
that the government conceded was legitimate in origin. In all
events, none of these contentions appears to have much bite.

7

Nevertheless, we are left with no shortage of food for

thought. Appellant has served up a bouillabaisse of other

offerings. We address his meatier propositions below, including

the three "incorporated" contentions that arguably have been

preserved. And although we do not deem detailed discussion

desirable, the record should reflect that we have masticated

appellant's remaining points and found them indigestible.

II. EXTRADITION
II. EXTRADITION

As a threshold matter, appellant maintains that his

trial and ensuing conviction violated the extradition treaty

between the United States and Switzerland, and, in the bargain,

transgressed the principles of dual criminality and specialty.

We reject these importunings.

A. Gaining Perspective.
A. Gaining Perspective.

Further facts are needed to place appellant's

extradition-related claims into a workable perspective. On

November 18, 1991, a federal grand jury returned the indictment

that inaugurated this prosecution. Count 1 charged appellant,

his wife, and eleven associates with RICO conspiracy. See 18

U.S.C. 1962(d) (1988). A RICO conspiracy, of course, requires

the government to prove, inter alia, an illicit agreement to

conduct a pattern of racketeering activity. See United States v.

Ruiz, 905 F.2d 499, 503 (1st Cir. 1990); see also 18 U.S.C.

1962(c) (1988). Proof of a pattern demands that the prosecution

show "at least two acts of racketeering activity." 18 U.S.C.

1961(5) (1988). These acts, which must themselves comprise

8

violations of specified criminal statutes, see id. 1961(1)(B),

are commonly referred to as "predicates" or "predicate acts."

See, e.g., Ruiz, 905 F.2d at 503.

In the instant indictment, the alleged racketeering

activity comprised, among other specified predicate acts,

incidents of money laundering, see 18 U.S.C. 1956, 1957, CTR

violations, see 31 U.S.C. 5324(1)-(3), and using travel and

facilities in interstate commerce to promote these money

laundering ventures, see 18 U.S.C. 1952(a)(3). The grand jury

also averred that the RICO conspiracy had been accomplished by

means that included failing to file the necessary CTRs for cash

transactions over $10,000. Counts 2-53 of the indictment charged

appellant and others with failing to file CTRs in specific

instances, see 31 U.S.C. 5324(1); counts 54-68 charged

appellant with illegally structuring monetary transactions in

order to avoid the CTR reporting requirements, see id. 5324(3);

counts 69-129 charged appellant and his wife with the use of

property derived from unlawful activities while engaging in

monetary transactions affecting interstate commerce, see 18

U.S.C. 1956; counts 130-142 charged appellant and his wife with

money laundering in violation of 18 U.S.C. 1956(a)(2); and

counts 143-150 charged appellant and others with Travel Act

violations under 18 U.S.C. 1952(a)(3). The indictment also

contained forfeiture allegations under the applicable RICO and

money laundering statutes. See 18 U.S.C. 982, 1963.

Six days after the grand jury returned the indictment,

9

Swiss authorities arrested the Saccoccias in Geneva. They

contested extradition on counts 1 through 68, and counts 143

through 150. On June 11, 1992, the Swiss Federal Tribunal (SFT)

granted extradition on all charges except those contained in

counts 2 through 68. The SFT reasoned that these 67 counts

constituted nonextraditable offenses because Swiss law did not

prohibit the underlying conduct. The SFT's discussion did not

specifically mention the forfeiture allegations.

The Swiss surrendered appellant to the United States.

He was transported to Rhode Island and arraigned on July 15. One

week later, the grand jury returned a superseding indictment.5

On July 30, the Justice Department, in the person of Michael

O'Hare, wrote to Tania Cavassini, a Swiss official, enclosing a

copy of the superseding indictment and inquiring whether it

required a waiver of the rule of specialty.

On December 1, 1992, apparently in response to an

inquiry from Cavassini, O'Hare transmitted a written assurance

that, although the court papers still formally listed appellant

5The charges laid against appellant in the superseding
indictment closely paralleled those contained in the original
bill. Specifically, the grand jury accused appellant of RICO
conspiracy (count 1), failure to file CTRs (counts 2-9), filing
false CTRs (counts 10-22), unlawfully structuring monetary
transactions to evade filing requirements (counts 23-37),
engaging in monetary transactions using property derived from
illegal activities (counts 38-98), money laundering (counts 121-
33), and interstate travel in aid of racketeering (counts 134-
41). Like the original indictment, the superseding indictment
alleged violations of CTR requirements as predicate offenses for
the RICO conspiracy and Travel Act counts, and reiterated the
forfeiture allegations. However, the superseding indictment did
include several counts not directed at appellant (counts 99-120).

10

as a defendant in respect to the CTR counts (for which

extradition had been denied), the prosecution did not intend to

press those counts. O'Hare explained that the prosecutor would

offer no evidence of appellant's guilt on those charges, with the

result that "American law [will require] the judge to direct the

jury to find the defendant not guilty." The following day,

Cavassini advised that, under a "final decision" dated November

20, 1992, the SFT had "granted extradition of [appellant] for the

facts enclosed in the Count Nr. 1 of the Superseding Indictment."

Cavassini also indicated that appellant's local counsel in Geneva

agreed with the SFT's decision and had scotched any possibility

of a further appeal.

On February 2, 1993, before the start of the trial with

which we are concerned, the government moved to dismiss those

counts of the superseding indictment (counts 2-37) that charged

appellant with CTR offenses. The district court complied. The

matter resurfaced in a slightly different shape ten days later

when appellant's Swiss lawyer, Paul Gully-Hart, wrote to

Cavassini expressing concern that appellant's impending

prosecution on charges in which CTR violations were embedded as

predicates for other offenses would insult the rule of specialty.

On March 2, Gully-Hart wrote again, this time enclosing a copy of

the prosecution's opening statement to the petit jury. Cavassini

forwarded both of these letters to O'Hare. On March 8, Cavassini

spoke with O'Hare and voiced her concern that appellant might be

convicted under count 1 solely on the basis of CTR offenses.

11

The next day, Assistant United States Attorney James

Leavey, a member of the prosecution team, advised Judge Torres

that he had spoken with O'Hare. Without conceding the legal

validity of Gully-Hart's point, Leavey asked the court to

instruct the jury that CTR violations could not serve as

predicates for purposes of either the RICO or Travel Act counts.

When the court acquiesced, the government submitted a redacted

indictment that deleted all references to CTR offenses from the

RICO and Travel Act counts. Appellant nonetheless moved for a

mistrial, invoking the rules of dual criminality and specialty.

The district court denied the motion, explaining that

it had agreed to the government's proposal purely as an

accommodation. In the judge's view, the precautions were not

legally required because the SFT had been pellucid in authorizing

prosecution on the RICO count even though the claimed CTR

violations were prominently displayed therein as potential

predicates. The judge noted, moreover, that evidence of

appellant's CTR violations was in all events admissible in

connection with the substantive money laundering counts (as to

which extradition had been approved). Appellant resurrected the

issue in his motion for a new trial following the adverse jury

verdict. The court stood firm.

B. Dual Criminality and Specialty.
B. Dual Criminality and Specialty.

Although the principles of dual criminality and

specialty are closely allied, they are not coterminous. We

elaborate below.

12

1. Dual Criminality. The principle of dual
1. Dual Criminality.

criminality dictates that, as a general rule, an extraditable

offense must be a serious crime (rather than a mere peccadillo)

punishable under the criminal laws of both the surrendering and

the requesting state. See Brauch v. Raiche, 618 F.2d 843, 847

(1st Cir. 1980). The current extradition treaty between the

United States and Switzerland embodies this concept. See Treaty

of Extradition, May 14, 1900, U.S.-Switz., Art. II, 31 Stat.

1928, 1929-30 (Treaty).

The principle of dual criminality does not demand that

the laws of the surrendering and requesting states be carbon

copies of one another. Thus, dual criminality will not be

defeated by differences in the instrumentalities or in the stated

purposes of the two nations' laws. See Peters v. Egnor, 888 F.2d

713, 719 (10th Cir. 1989). By the same token, the counterpart

crimes need not have identical elements. See Matter of

Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986).

Instead, dual criminality is deemed to be satisfied when the two

countries' laws are substantially analogous. See Peters, 888

F.2d at 719; Brauch, 618 F.2d at 851. Moreover, in mulling dual

criminality concerns, courts are duty bound to defer to a

surrendering sovereign's reasonable determination that the

offense in question is extraditable. See Casey v. Department of

State, 980 F.2d 1472, 1477 (D.C. Cir. 1992) (observing that an

American court must give great deference to a foreign court's

determination in extradition proceedings); United States v. Van

13

Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987) (similar), cert.

denied, 484 U.S. 1042 (1988).

Mechanically, then, the inquiry into dual criminality

requires courts to compare the law of the surrendering state that

purports to criminalize the charged conduct with the law of the

requesting state that purports to accomplish the same result. If

the same conduct is subject to criminal sanctions in both

jurisdictions, no more is exigible. See United States v. Levy,

905 F.2d 326, 328 (10th Cir. 1990), cert. denied, 498 U.S. 1049

(1991); see also Collins v. Loisel, 259 U.S. 309, 312 (1922) ("It

is enough [to satisfy the requirement of dual criminality] if the

particular act charged is criminal in both jurisdictions.").

2. Specialty. The principle of specialty a
2. Specialty.

corollary to the principle of dual criminality, see United States

v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988), cert. denied,

489 U.S. 1027 (1989) generally requires that an extradited

defendant be tried for the crimes on which extradition has been

granted, and none other. See Van Cauwenberghe, 827 F.2d at 428;

Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir.), cert. denied,

479 U.S. 882 (1986). The extradition treaty in force between the

United States and Switzerland embodies this concept, providing

that an individual may not be "prosecuted or punished for any

offense committed before the demand for extradition, other than

that for which the extradition is granted . . . ." Treaty, Art.

IX.

Enforcement of the principle of specialty is founded

14

primarily on international comity. See United States v. Thirion,

813 F.2d 146, 151 (8th Cir. 1987). The requesting state must

"live up to whatever promises it made in order to obtain

extradition" because preservation of the institution of

extradition requires the continuing cooperation of the

surrendering state. United States v. Najohn, 785 F.2d 1420, 1422

(9th Cir.) (per curiam), cert. denied, 479 U.S. 1009 (1986).

Since the doctrine is grounded in international comity rather

than in some right of the defendant, the principle of specialty

may be waived by the asylum state. See id.

Specialty, like dual criminality, is not a hidebound

dogma, but must be applied in a practical, commonsense fashion.

Thus, obeisance to the principle of specialty does not require

that a defendant be prosecuted only under the precise indictment

that prompted his extradition, see United States v. Andonian, 29

F.3d 1432, 1435-36 (9th Cir. 1994), cert. denied, 115 S. Ct. 938

(1995), or that the prosecution always be limited to specific

offenses enumerated in the surrendering state's extradition

order, see Levy, 905 F.2d at 329 (concluding that a Hong Kong

court intended to extradite defendant to face a continuing

criminal enterprise charge despite the court's failure

specifically to mention that charge in the deportation order).

In the same vein, the principle of specialty does not impose any

limitation on the particulars of the charges lodged by the

requesting nation, nor does it demand departure from the forum's

existing rules of practice (such as rules of pleading, evidence,

15

or procedure). See United States v. Alvarez-Moreno, 874 F.2d

1402, 1414 (11th Cir. 1989), cert. denied, 494 U.S. 1032 (1990);

Thirion, 813 F.2d at 153; Demjanjuk v. Petrovsky, 776 F.2d 571,

583 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986).

In the last analysis, then, the inquiry into specialty

boils down to whether, under the totality of the circumstances,

the court in the requesting state reasonably believes that

prosecuting the defendant on particular charges contradicts the

surrendering state's manifested intentions, or, phrased another

way, whether the surrendering state would deem the conduct for

which the requesting state actually prosecutes the defendant as

interconnected with (as opposed to independent from) the acts for

which he was extradited. See Andonian, 29 F.3d at 1435; United

States v. Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988), cert.

denied, 489 U.S. 1012 (1989); United States v. Paroutian, 299

F.2d 486, 490-91 (2d Cir. 1962).

C. Applying the Principles.
C. Applying the Principles.

A district court's interpretation of the principles of

dual criminality and specialty traditionally involves a question

of law and is, therefore, subject to plenary review in the court

of appeals. See Andonian, 29 F.3d at 1434; United States v.

Khan, 993 F.2d 1368, 1372 (9th Cir. 1993); United States v.

Abello-Silva, 948 F.2d 1168, 1173 (10th Cir. 1991), cert. denied,

113 S. Ct. 107 (1992). Marching beneath this banner, appellant

16

urges that his conviction must be set aside for three related

reasons.6 None has merit.

1. Predicate Acts. Appellant's flagship contention
1. Predicate Acts.

rests on the postulate that an offense which is itself

nonextraditable cannot serve as a predicate act in connection

with other, extraditable offenses; and that, therefore, the

government's use of nonextraditable CTR offenses as predicate

acts for purposes of the RICO and Travel Act counts crossed the

line into forbidden territory. Even if we assume, however, that

in some situations reliance on nonextraditable offenses as

predicates for other, extraditable offenses might run afoul of

dual criminality or specialty principles, the circumstances of

this case present no such problem.

6There is some dispute whether alleged violations of the
principle of specialty can be raised by a criminal defendant.
See, e.g., Demjanjuk, 776 F.2d at 583-84 (questioning whether the

person being extradited "has standing to assert the principle of
specialty"); Kaiser v. Rutherford, 827 F. Supp. 832, 835 (D.D.C.

1993) (asserting that "[t]he rule of specialty is not a right of
the accused but is a privilege of the asylum state and therefore
[the defendant] has no standing to raise this issue") (internal
quotation marks omitted). We need not probe the matter of
standing for three reasons. First, while we take no view of the
issue, we realize that there are two sides to the story, and the
side that favors individual standing has much to commend it.
See, e.g., United States v. Rauscher, 119 U.S. 407, 422-24 (1886)

(referring to specialty as a "right conferred upon persons
brought from a foreign country" via extradition proceedings);
Thirion, 813 F.2d at 151 & n.5 (to like effect); see also United

States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1992)

(suggesting the continuing vitality of the Rauscher decision).

Second, the government has advised us that, for policy reasons,
it does not challenge appellant's standing in this instance.
Third, appellant's asseverations are more easily dismissed on the
merits. See Norton v. Mathews, 427 U.S. 524, 532 (1976)

(explaining that jurisdictional questions may be bypassed when a
ruling on the merits will achieve the same result).

17

In general, we do not believe that there can be a

violation of the principle of specialty where the requesting

nation prosecutes the returned fugitive for the exact crimes on

which the surrendering nation granted extradition. So it is

here: the SFT twice approved appellant's extradition on counts

that prominently featured CTR offenses as predicates. This

approval to which we must pay the substantial deference that is

due to a surrendering court's resolution of questions pertaining

to extraditability, see, e.g., Casey, 980 F.2d at 1477 strongly

suggests that the RICO and Travel Act counts, despite their

mention of predicates which, standing alone, would not support

extradition, are compatible with the criminal laws of both

jurisdictions. Though a Swiss official may informally have

fretted about the prospect of a RICO or Travel Act conviction

based on nonextraditable predicates, we are reluctant to conclude

on this gossamer showing that the SFT did not know and appreciate

the clearly expressed contents of the indictment when it

sanctioned extradition.

To clinch matters, the prosecution avoided any

potential intrusion on the principles of either dual criminality

or specialty by taking a series of prophylactic actions at trial.

The fourth redacted indictment removed all references to CTR

offenses from the compendium of charges pressed against the

appellant. The judge then reinforced this fumigation of the

indictment by advising the jurors that they should not concern

18

themselves with whether appellant had committed any CTR

offenses.7 These precautions purged any taint, and knocked the

legs out from under the line of reasoning that appellant seeks to

pursue.

2. Keeping Faith. Next, appellant asserts that the
2. Keeping Faith.

government infringed on the principle of specialty by breaking

its promise to the Swiss government and introducing evidence of

CTR violations at appellant's trial. Abstractly, we agree with

the core element of appellant's premise: the principle of

specialty requires the requesting state to abide by the promises

it makes to the surrendering state in the process of procuring

extradition. See Najohn, 785 F.2d at 1422. But, concretely, we

are unable to discern any breach of faith in this instance.

Thus, we resist the conclusion that appellant would foist upon

us.

7The judge instructed the jury:

You have heard references during this trial
to currency transaction reporting
requirements and I should make it clear that
you are not being called upon to determine
whether the defendant violated or conspired
to violate any of those requirements.
Therefore, you may consider evidence
regarding the nature of currency transactions
with banks to the extent that such evidence,
in your view, may bear on the source of the
money involved and/or the purposes for which
the money may have been transferred or
transported. But in reaching your verdict,
you may not consider whether any such
transactions were or were not consistent with
transaction reporting requirements because, .
. . as I have just said, that is not an issue
in this case. . . .

19

To buttress the claim that the United States did not

keep its word, appellant avers that O'Hare's facsimile

transmission, sent on December 1, 1992, was the functional

equivalent of an assurance that the prosecutor would not present

any evidence to the jury regarding Saccoccia's noncompliance with

CTR requirements. Fairly read, the document despite its

iteration that the prosecutor "would present no evidence

regarding [Saccoccia's] guilt . . . on the charges for which

extradition was not granted" does not support appellant's

construction. O'Hare sent the transmittal in response to

Cavassini's expression of concern that appellant might be

convicted of charges for which extradition had been denied. His

reply, taken in context, see supra pp. 10-11, amounted to no more

than an assurance against that possibility. To read a promise

not to introduce any evidence relevant to CTR violations into

O'Hare's statement would necessitate wresting it from its

contextual moorings and unreasonably stretching its literal

meaning. We decline appellant's invitation to indulge in such

phantasmagoric wordplay.8

3. The Claimed "Prosecution." Appellant's third
3. The Claimed "Prosecution."

contention is that the government violated the principle of

8Of course, appellant had already been extradited and the
Swiss authorities had already approved the superseding indictment
before this supposed promise was made. This places a further
obstacle in appellant's path: it strikes us as problematic
whether the breach of a promise made after the defendant has been

extradited, without more, furnishes a basis for reversing an
ensuing conviction. In such circumstances, the surrendering
state, by definition, has not relied on the requesting state's
promise in deciding to return the defendant.

20

specialty because it prosecuted him for CTR offenses. Since the

nonextraditable CTR counts, as they pertained to appellant, were

dismissed before the second trial began, his claim is founded on

no more than the fact that his name appeared on the indictment

during the first trial. While this may literally be

"prosecution," it is prosecution in name only and we will not

carry hollow formalism to a point at which it engulfs common

sense. Consequently, we hold that the mere existence of an

unredacted indictment, under the circumstances of this case, is

no reason to invalidate Saccoccia's conviction. Cf. Tacket v.

Delco Remy Div. of Gen. Motors Corp., 937 F.2d 1201, 1202 (7th

Cir. 1991) (Bauer, C.J.) (quoting doggerel to the effect that

"[s]ticks and stones may break your bones, but names can never

hurt you").

This leaves appellant's argument that he was illegally

"prosecuted" because CTR offenses were included as predicate acts

for purposes of the RICO and Travel Act counts until the fourth

redacted indictment surfaced. As we have already observed,

however, it would have been perfectly proper for the government

to seek convictions on those counts based on CTR predicates.

Hence, appellant's argument is without merit.9

For these reasons, we find appellant's conviction free

from taint under the applicable extradition laws.

9If more is needed and we do not believe that it is the
evidence of CTR violations, by and large, was independently
admissible to support various aspects of the money laundering
charges and other substantive counts for which extradition was
explicitly approved.

21

III. THE COVETED CONTINUANCE
III. THE COVETED CONTINUANCE

Appellant contends that the district court arbitrarily

refused him a lengthy continuance prior to the start of the

second trial,10 leaving him with insufficient preparation time.

Our analysis of the record indicates that the court acted within

its discretion in scotching appellant's request.

A. Setting the Stage.
A. Setting the Stage.

At arraignment, two attorneys, Jack Hill and Brian

Adae, entered appearances as appellant's counsel. Soon

thereafter, Austrian authorities arrested Hill for money

laundering. Hill languished in prison from August through

November of 1992. During that interval, he could not communicate

with, or effectively assist, Saccoccia. Adae, who had originally

been enlisted as local counsel, stepped into the breach and acted

as lead counsel. Shortly after the first trial began, Adae

became ill. The court granted appellant's motion for a mistrial

and ordered a severance. The case proceeded to verdict vis-a-vis

the other defendants. See supra note 3.

Naturally, the severance required a separate trial for

appellant. The district court proposed to start in early

February of 1993. Within a matter of days after the court

announced the schedule, Hill, recently released from an Austrian

prison, and Kenneth O'Donnell, a prominent Rhode Island defense

lawyer, entered appearances as appellant's counsel. On December

10Appellant does not assign error to the denial of the
continuances that he sought before the first (aborted) trial.
See supra note 2.

22

10, 1992, appellant signed an extensive waiver of the potential

conflict of interest posed by Hill's representation of him at a

time when Hill himself faced charges of money laundering arising

out of activities undertaken in conjunction with appellant.

On the same day, the court held a hearing anent the

waiver. Among other things, appellant requested that his trial

be rescheduled to April of 1993 so that his defense team could

have more time to prepare. He claimed this extra time was

necessary to review financial documents, study surveillance

tapes, glean exculpatory evidence, and analyze inconsistencies in

the statements of government witnesses. The court granted only a

two-week extension, from February 3 to February 17, noting that

the original indictment had been returned in 1991 and that

counsel already had enjoyed a considerable period for

preparation. Subsequent requests for continuances were also

denied.

B. Applicable Legal Principles.
B. Applicable Legal Principles.

Trial management is peculiarly within the ken of the

district court.11 That court has great latitude in managing

11As we wrote on an earlier occasion:

There is an important public interest in the
efficient operation of the judicial system
and in the orderly management of crowded
dockets. . . . The district judge is at the
helm, sensitive to the tides that ebb and
flow during a prolonged trial and
knowledgeable about systemic demands. He is,
therefore, the person best equipped to
balance the competing considerations.

United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990).

23

its docket, including broad discretion to grant or withhold

continuances. Only "an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay"

constitutes an abuse of that discretion. Morris v. Slappy, 461

U.S. 1, 11-12 (1983) (internal quotation marks omitted); see also

United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990)

(explaining that an appellate court "must show great deference"

to district court decisions of this nature, and should overturn

such decisions "only for a manifest abuse of discretion"). For

present purposes, this means that the decision below must endure

unless the party who moved for the continuance can demonstrate

that, in withholding relief, the trial court indulged a serious

error of law or suffered a meaningful lapse of judgment,

resulting in substantial prejudice to the movant.12 See, e.g.,

United States v. Saget, 991 F.2d 702, 708 (11th Cir.), cert.

denied, 114 S. Ct. 396 (1993); United States v. Dennis, 843 F.2d

652, 653 n.1 (2d Cir. 1988).

For the purpose of determining whether a denial of a

continuance constitutes an abuse of discretion, each case is sui

generis. See United States v. Torres, 793 F.2d 436, 440 (1st

12The Seventh Circuit has gone so far as to term trial court
decisions denying continuances "virtually unreviewable." United

States v. Stevenson, 6 F.3d 1262, 1265 (7th Cir. 1993) (internal

quotation marks omitted). We think this description heads in the
right direction but goes too far. See, e.g., United States v.

Soldevila-Lopez, 17 F.3d 480, 490 (1st Cir. 1994) (reversing

district court's refusal to grant a continuance on the ground
that newly emergent evidence justified more time); Delaney v.

United States, 199 F.2d 107, 115 (1st Cir. 1952) (finding that

nationwide publicity had created a hostile atmosphere, and that,
therefore, the district court should have granted a continuance).

24

Cir.), cert. denied, 479 U.S. 889 (1986). A reviewing court must

look first at the reasons contemporaneously presented in support

of the request for the continuance. See United States v.

Lussier, 929 F.2d 25, 28 (1st Cir. 1991). Other relevant factors

may include such things as the amount of time needed for

effective preparation, the amount of time actually available for

preparation, the amount of time previously available for

preparation and how assiduously the movant used that time, the

extent to which the movant has contributed to his perceived

predicament, the complexity of the case, the availability of

assistance from other sources, the probable utility of a

continuance, the extent of inconvenience to others (such as the

court, the witnesses, and the opposing party) should a

continuance ensue, and the likelihood of injustice or unfair

prejudice attributable to the denial of a continuance. See

United States v. Soldevila-Lopez, 17 F.3d 480, 488 (1st Cir.

1994); Lussier, 929 F.2d at 28; United States v. Zannino, 895

F.2d 1, 13-14 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).

C. Analysis.
C. Analysis.

Here, balancing the relevant considerations leaves us

confident that the circumstances justified the refusal to grant a

continuance. And, moreover, the record belies appellant's

contention that the court's obduracy unfairly prejudiced his

rights by leaving him insufficient time to prepare for trial.

Appellant's most loudly bruited point is that the government

produced 1600 hours of wiretap audio tapes, and that he had only

25

67 days, which he translates as equalling 1608 hours, to listen

to them. Although this lament has some superficial plausibility,

we agree with the district court that, notwithstanding the number

of tapes, it was reasonable to expect defense counsel to be ready

for trial in February. We explain briefly.

The grand jury indicted appellant in November of 1991.

Thus, appellant's counsel, collectively, had far more than 67

days in which to work on the case. Moreover, the lawyers had the

not-inconsiderable benefit of a dress rehearsal, including

unlimited access to the full record of the first trial (in which

virtually the entire case against appellant was aired).

O'Donnell, one of appellant's new attorneys, was especially

familiar with the situation because he had represented a

codefendant who had been acquitted in a separate trial.

Furthermore, Hill and O'Donnell could and no doubt did confer

with counsel for the codefendants and with Attorney Adae. In

short, the means for efficacious preparation were tidily at hand.

Appellant's other assertions of supposed prejudice also

lack force. For example, his suggestion that a continuance might

have enabled him to receive a complete transcript of Agent

Shedd's conversation with Duenas overlooks the fact that the

government provided him with the entire transcript. See infra

Part IV (E). His claim that more time was needed to obtain a

copy of a DEA report that he asserts would have bolstered the

testimony of an expert witness overlooks the fact that the expert

knew of the report and described its conclusions. See infra note

26

18. His claim that a continuance would have enabled him to

obtain enhanced versions of two of the surveillance tapes before

trial, see infra Part IV (F), is completely unpersuasive given

his assertion that the enhanced tapes, when received, were

"unclear" and "unintelligible." Appellant's Brief at 36. And,

finally, appellant's exhortation that a continuance would have

allowed him to investigate whether the laundered cash represented

gambling proceeds, as opposed to drug money, is unaccompanied by

any colorable basis for assuming that his supposition was

anything more than the most remote of possibilities.

In a nutshell, appellant has not made a sufficient

showing of undue prejudice to warrant us in second-guessing

either the district court's resolve to start the trial in mid-

February of 1993 or its decision to grant appellant a far more

modest delay than he requested. Since the record reflects no

pressing need for an extended continuance, and likewise fails to

demonstrate significant harm flowing from the lack of one, the

denial of the motion for a continuance cannot be said to have

substantially impaired appellant's defense. See, e.g., Dennis,

843 F.2d at 653 n.1. Thus, no cognizable error inheres.

D. Conflict of Interest.
D. Conflict of Interest.

Relatedly, appellant claims that the denial of a

continuance saddled him with conflict-ridden counsel. This

construct does not withstand scrutiny. To show an actual

conflict of interest, a criminal defendant "must demonstrate that

some plausible alternative defense strategy might have been

27

pursued" and "that this alternative strategy was not pursued

because of the attorney's other loyalties or interests." United

States v. Garcia-Rosa, 876 F.2d 209, 231 (1st Cir. 1989), cert.

granted and judgment vacated on other grounds, 498 U.S. 954

(1990). Appellant cannot meet this standard.

Appellant sees the conflict of interest as centered in

Hill's need to protect himself at his client's expense.

Appellant supports this accusation by repeated reference to

Hill's indictment in Austria on charges that he conspired with

appellant to launder the fruits of unlawful activity but

appellant does not suggest any way in which this alleged conflict

of interest adversely affected Hill's representation of him at

trial. What is more, appellant's claim that he was faced with an

intolerable dilemma he could accept Hill as his counsel or

proceed to trial with an attorney who was untutored in the case

is flatly contradicted by the record.

Appellant insisted, time and again, despite the

district court's painstaking explanation of his right to

conflict-free counsel, that Hill was the advocate of his

choosing. Appellant told the court unequivocally that he

understood the potential conflict, but desired Hill's services.

And he adhered to his position notwithstanding the court's

entreaty to reconsider and its advice that he would be "better

off" with an attorney free of any ties to the situation.

Last but surely not least appellant executed a

written waiver stating that, after "[h]aving been fully advised

28

of the possible adverse consequences arising from the actual or

potential conflicts with which Hill is or may be encumbered," he

"knowingly, voluntarily, intelligently, and irrevocably [wishes]

to waive any and all such actual or potential conflicts of

interest for the purpose of retaining Hill as his counsel." When

a defendant knowingly selects a course of action, fully cognizant

of its perils, he cannot later repudiate it simply because his

case curdles. In the circumstances at bar, it is neither unfair

nor unjust to hold appellant to his words. Thus, the district

court's determination that appellant had voluntarily and

knowingly waived his right to conflict-free representation is

unimpugnable. See Holloway v. Arkansas, 435 U.S. 475, 483 n.5

(1978) (stating that "a defendant may waive his right to the

assistance of an attorney unhindered by a conflict of

interests").

Appellant has another arrow in this quiver. He reasons

that the court should have overlooked his waiver of conflict-free

counsel because Hill's continued representation constituted an

unwaivable constitutional transgression. To be sure, a few

courts have found a per se Sixth Amendment violation "where trial

counsel was implicated in the crime for which his client was on

trial." Soldevila-Lopez, 17 F.3d at 487 n.4 (citing cases). But

these cases tend to involve circumstances in which an attorney

has reason to fear that a vigorous defense of the client might

unearth proof of the attorney's criminality. See, e.g., United

States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Although

29

Hill informed the court, in the vaguest of generalities, that he

feared being charged or called as a witness in appellant's case,

he provided no substantiation of these assertions, nor was he

able to explain how the hypothetical conflict would, at that

time, affect his representation of the appellant. Therefore, the

district court seems entirely justified in concluding that Hill's

representation of appellant would not be hampered by a realistic

foreboding that vigorous advocacy would uncover evidence of his

own crimes. Cf. William Shakespeare, Macbeth, Act I, sc. iii,

ll. 133-34 (1605) (noting that "present fears are less than

horrible imaginings").

The sockdolager is that, wholly apart from Hill's

status, appellant was also represented at trial by another

lawyer, O'Donnell, who had no conflict of interest.13 In an

effort to scale this rampart, appellant suggests that O'Donnell,

too, had an actual conflict of interest arising out of his

previous representation of a codefendant, Raymond Marotto. By

December of 1992, however, Marotto, a bank employee charged with

failing to file CTRs, had been acquitted in a separate trial.

Appellant's convoluted explanation of how O'Donnell's concluded

representation of Marotto created a conflict of interest is

difficult to follow. He seems to be saying, without any citation

13At the December 10, 1992 waiver hearing, O'Donnell told
the court that he had been "independently retained by [appellant]
to be local counsel and co-counsel." He assured the court that
he would "independently advise [appellant] with respect to any
matters that might be affected by any potential conflict of
interest Mr. Hill might have."

30

to the record, that Marotto (who was not called to testify at

appellant's trial) could have been a material witness. We reject

this unfounded speculation.

As O'Donnell himself pointed out, Marotto's case turned

on whether he did or did not have a responsibility to file

CTRs. There is nothing in the record that suggests that Marotto

had any knowledge that might have been useful in appellant's

defense. We have routinely dismissed analogous conflict of

interest claims, see, e.g., Garcia-Rosa, 876 F.2d at 231 (so

holding when defendant "provide[d] no substantiation" for his

assertion that his counsel had a conflict of interest that

manifested itself when he did not call as a witness a person whom

he previously had represented), and we dismiss appellant's claim

on the same basis. It is simply too flimsy.

E. The Mid-Trial Motion.
E. The Mid-Trial Motion.

At the close of the government's case, appellant

submitted a proffer in support of a renewed motion for a

continuance. The proffer suggested a global conspiracy "between

the Israeli intelligence services and the CIA," and asserted that

he had witnesses who "would testify about such matters as the

Israeli defense industry" and "[t]he method by which the building

of Israeli religious schools is financed by Hasidic Jews in the

United States who engage in money laundering." Appellant claimed

that his counsel needed time to investigate the matters described

in the proffer.

The district court found the proffer to be "too vague

31

and unsubstantiated to constitute a basis for granting a

continuance" because its "conclusory allegations" offered no

explanation as to its relevancy to the case. Moreover, the court

found no evidence that diligent efforts had been made to assure

availability of the testimony and documents in a proper time

frame. Hence, the court determined that the proffer afforded an

inadequate basis for the requested continuance.

We discern no abuse of discretion. While the proffer

weaves a tale of intrigue worthy of an Oliver Stone screenplay,

we are unable to distill sufficient relevance or likelihood of

success from its sinister allegations to suggest that a

continuance, if granted, would have proven useful.

IV. MONEY AND DRUGS
IV. MONEY AND DRUGS

In order to obtain a conviction on the money laundering

counts, as charged in the superseding indictment, the government

had the burden of proving that the laundered funds were derived

from the narcotics trade. See 18 U.S.C. 1956(a)(2). Appellant

challenges both the admissibility and the sufficiency of the

evidence introduced for this purpose. The challenge is

unavailing.

A. Standard of Review.
A. Standard of Review.

A district court has considerable discretion when

determining whether evidence is admissible. See United States v.

Paulino, 13 F.3d 20, 25 (1st Cir. 1994); Zannino, 895 F.2d at 16-

17; United States v. Nivica, 887 F.2d 1110, 1126 (1st Cir. 1989),

32

cert. denied, 494 U.S. 1005 (1990). Where, as here, the court

finds that evidence is relevant, Fed. R. Evid. 401, but the

defendant nonetheless objects to it on the ground that its value

is overborne by the potential mischief it may cause, Fed. R.

Evid. 403, the trial court must "strike a balance between

probative worth and likely prejudice." Zannino, 895 F.2d at 16-

17. The district court is the primary arbiter of how these

scales should be calibrated. On appeal, we will reverse its

determination only if admitting the evidence constituted a

palpable abuse of discretion. See United States v. De La Cruz,

902 F.2d 121, 124 (1st Cir. 1990); United States v. Rodriguez-

Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989). This is a

difficult row to hoe: "Only rarely and in extraordinarily

compelling circumstances will we, from the vista of a cold

appellate record, reverse a district court's on-the-spot judgment

concerning the relative weighing of probative value and unfair

effect." Freeman v. Package Mach. Corp., 865 F.2d 1331, 1340

(1st Cir. 1988).

When no contemporaneous objection appears of record,

the complaining party's burden increases. In that situation,

appellate review is for "plain error." United States v.

Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993), cert. denied, 114

S. Ct. 2714 (1994); see also Fed. R. Crim. P. 52(b). When the

plain error standard prevails, we reverse only if a miscue "so

poisoned the well that the trial's outcome was likely affected."

Sepulveda, 15 F.3d at 1188 (quoting United States v. Mejia-

33

Lozano, 829 F.2d 268, 274 (1st Cir. 1987)).

A different standard of review takes center stage when

a defendant challenges the sufficiency of the evidence supporting

his conviction. In that connection, the inquiry turns on

whether, "after assaying all the evidence in the light most

amiable to the government, and taking all reasonable inferences

in its favor, a rational factfinder could find, beyond a

reasonable doubt, that the prosecution successfully proved the

essential elements of the crime." United States v. O'Brien, 14

F.3d 703, 706 (1st Cir. 1994). In performing the requisite

analysis, we do not assess the credibility of witnesses, see id.,

nor do we force the government to disprove every reasonable

hypothesis of innocence, see United States v. Echeverri, 982 F.2d

675, 677 (1st Cir. 1993).

B. National Origin Evidence.
B. National Origin Evidence.

Appellant contends that the prosecution made unfair use

of impermissibly suggestive innuendo and stereotypes about

Colombians, thereby inviting reversal. Appellant's argument

focuses on evidence adduced, or remarks made, at four different

points during his trial. First, appellant accuses the government

of eliciting testimony concerning the birthplaces of Escobar and

Garcia (both of whom were born in Colombia), while not inquiring

about any other individual's place of birth. Second, the court

permitted Sharir to testify that appellant told him to be careful

because he was dealing with Colombians, who would go after his

family if they were crossed. Third, when Donald Semesky, an IRS

34

agent, offered expert testimony as to the modus operandi of

Colombian drug cartels, he mentioned, among other things, that

two Colombian cartels control the illegal importation of cocaine

into the United States, and that their narcotics trafficking

generates much cash, necessitating money laundering. Fourth, the

government's summation hammered these same points.

Due to the singular importance of keeping our criminal

justice system on an even keel, respecting the rights of all

persons, courts must not tolerate prosecutors' efforts

gratuitously to inject issues like race and ethnicity into

criminal trials. See McClesky v. Kemp, 481 U.S. 279, 309 & n.30

(1987); United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990).

Emphasizing a person's national origin not only may raise

concerns of relevancy, undue prejudice, and prosecutorial

misconduct, but also may pose issues of constitutional dimension.

See, e.g., United States v. Vue, 13 F.3d 1206, 1213 (8th Cir.

1994); United States v. Rodriguez Cortes, 949 F.2d 532, 541 (1st

Cir. 1991).

This does not mean, however, that all evidence touching

upon race or national origin automatically must be excluded. A

trial involves a search for the truth, and, as such, it cannot be

entirely antiseptic. The trick is to separate impermissible uses

of highly charged evidence from those uses that are proper and

permissible. See United States v. Alzanki, F.3d ,

(1st Cir. 1995) [No. 94-1645, slip op. at 25-26]; Doe, 903 F.2d

at 25. Thus, while it has proven acceptable on occasion for a

35

prosecutor to introduce evidence of oppressive Kuwaiti customs to

buttress the reasonableness of the victim's professed belief, see

Alzanki, F.3d at [slip op. at 26], or to make an

"unembellished reference to evidence of race simply as a factor

bolstering an eyewitness identification of the culprit," Doe, 903

F.2d at 25 (dictum), or to remark that an Iranian defendant

likely assumed that his "American wife" would not be searched at

customs, United States v. Tajeddini, 996 F.2d 1278, 1285 (1st

Cir. 1993),14 or to describe drugs as coming from Colombia to

give the jury a complete view of the conspiracy's endeavors to

import cocaine, see United States v. Ovalle-Marquez, 36 F.3d 212,

220 (1st Cir. 1994), cert. denied, 115 S. Ct. 1322 (1995),

aggressive prosecutors sometimes go too far. When that occurs,

courts must act. We have, for instance, reversed convictions

when, as in Rodriguez Cortes, the government's strategem

blatantly invited the jury to find the defendant guilty by reason

of his national origin. See Rodriguez Cortes, 949 F.2d at 541

(finding abuse of discretion in admission of defendant's

Colombian identification card); see also Vue, 13 F.3d at 1212-13

(reversing conviction because district court admitted testimony

14It is noteworthy that in Tajeddini the prosecutor made the

challenged comment in an effort to rebut the defendant's protest
that he could not have known that he was smuggling heroin because
he did not try to hide the drugs in a secret compartment in his
luggage. See 996 F.2d at 1285. In that respect, Tajeddini

resembles United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1986)

(finding defendant's claim that he lacked the wherewithal to be a
major drug dealer properly rebutted by evidence about the modest
price of heroin in Pakistan, the practice among Pakistani dealers
of selling drugs on credit, and the tendency of all Pakistanis,
regardless of wealth, to dress alike).

36

tying defendant's ethnic group, the Hmong, to 95% of the local

opium trade); Doe, 903 F.2d at 23-27 (reversing conviction due to

admission of testimony on modus operandi of Jamaican drug gangs

and prosecutor's inflammatory comments thereon).

In determining the propriety of evidence implicating

ethnicity or national origin, context is critical. In the case

at bar, all the evidence about Colombia, viewed in context, was

properly admitted and used. By like token, the prosecutor's

comments were not beyond the pale.

Appellant's first contention is factually incorrect.

The prosecutor asked several witnesses other than Escobar and

Garcia (e.g., Sharir and Slomovits) where they were born. Seen

in this light, the casual questioning about place of birth, not

objected to at trial, cannot conceivably plunge to the plane of

plain error.

Similarly, Sharir's testimony that Saccoccia told him

to be wary because he was dealing with Colombians is highly

probative on the issue of appellant's knowledge that the

laundered funds were derived from illegal activities. Moreover,

common sense suggests that drug traffickers are more likely than,

say, Avon ladies, to harm the families of business associates if

a deal sours. It is, therefore, a gross exaggeration to declare

that the evidence had no purpose other than to suggest that

Colombians are prone to violence.

Similarly, Agent Semesky's testimony was relevant and

appropriate in several respects. First, it went a long way

37

toward explaining the nature of money laundering and the basis

for appellant's activities. This is a perfectly legitimate use

of evidence. See Doe, 903 F.2d at 19 & n.21 (citing cases).

Even the testimony about the cartels' control over the American

drug trade was relevant on the issue of whether the cash that

appellant scrubbed clean was in fact derived from illegal

activities. The evidence could support a jury's plausible,

though circumstantial, inference of an illicit source of funds

based on appellant's repeated wire transfers of millions of

dollars in laundered money to a country that functions as the

nerve center of the world's traffic in cocaine.

The only remotely problematic references to Colombia

are those contained in the summation. For example, a prosecutor

stated:

[Agent Semesky] told you as an expert,
something you probably already knew, that
cocaine comes from Colombia. That it's run
by cartels in Colombia. That they ship the
money up here and it gets out into the
streets. That's the reason for all these ten
and twenty dollar bills. These are grams of
coke . . . .

Later on, after reminding the jurors that the case involved

roughly $100,000,000 "generated on the streets of New York that

is sent back to Colombia," a prosecutor posed a series of

rhetorical questions:

If we're not talking about cocaine, what are
we talking about? Is this from coffee
vendors? Is this money coming from people
out in the streets selling Colombian coffee?
Oh, I have had a good day today. Five
hundred thousand dollars, unfortunately, it's
all in twenty dollar bills. Think of the

38

change they had to give. This is a case
about Roberto Juri and Tulio Alzate and
Fernando Duenas and Stephen Saccoccia, not
Juan Valdez, ladies and gentlemen. The
evidence in this case and the only reasonable
inference you can draw is drug money.

Appellant did not interject a contemporaneous objection to any of

these comments.15

It strains credulity to suggest, as Saccoccia does,

that the prosecution was arguing that only drugs and coffee come

from Colombia. The remark about coffee vendors was obviously

intended to show the unlikelihood that any legitimate business

would generate the volume of cash that flowed through appellant's

operation. The quip about Juan Valdez,16 while an unnecessary

15The closing argument also contained the following passage:

[W]e are asking you to draw some outrageous
innuendo that because people are Colombians,
they are involved in cocaine. The Government
simply is not suggesting that. What we are
suggesting is based on the evidence, the
cocaine comes from Colombia. Juan Carlos
Garcia testified that he was born in Colombia
and Raoul Escobar testified that he was born
in Colombia. This defendant went on two
occasions he went to Colombia to discuss
money-laundering with Tulio Alzate and
Roberto Juri.

Although we cannot tell whether the prosecutor misspoke or
whether his remarks were mistranscribed, we believe that the
first sentence contains an error. The overall meaning of the
passage is clear in urging the jury not to make a prejudicial
inference based solely on nationality.

16We take judicial notice that the fictional Juan Valdez is
a prominent persona in coffee advertisements. See Fed. R. Evid.

201(b)(1); 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal

Practice and Procedure 5105, at 489 (1977) (noting that facts

that are "generally known within the territorial jurisdiction of
the trial court" include those which "exist in the unaided memory
of the populace"). Clad in a serape and sombrero and accompanied

39

aside, cannot be said to emphasize emotion over facts. See Doe,

903 F.2d at 25. Viewed as a whole, the prosecution's evidence

and comments about Colombia provide no basis for disturbing the

jury's verdict.

Before ending our elaboration we note, as an adscript,

that appellant himself is not Colombian, but is of Italian

ancestry. This mitigates one of the most serious dangers of

evidence about a person's national origin: that the jury will

believe the defendant is guilty because of stereotyping.

Appellant has not cited any case in which a court has reversed a

conviction due to evidence touching upon a national origin not

shared by the defendant. This is not to say that injustice and

unfair prejudice may never result from a conviction based on

improper use of evidence about the national origin of a

defendant's friends or business associates. But, the ricochet

effect of such evidence is likely to do less harm, on average,

than the direct impact of evidence about the defendant's country

of origin.

C. The Dog Show.
C. The Dog Show.

Appellant faults the district court for admitting

evidence that Bosco von Schleudersitz (Bosco), a nine-year-old

German shepherd trained to detect narcotics,17 alerted to the

by his faithful donkey, Valdez regularly appears in supermarkets
and private kitchens to remind consumers of the virtues of
Colombian coffee.

17The dog's original trainer, a former Luftwaffe pilot,
named him after the German word for "ejection seat."

40

presence of drugs in bundles of cash brought to local banks by

appellant's henchmen. At trial Bosco's handler, Sgt. Edward

Conley, testified that he took Bosco to a bank in Cranston, Rhode

Island on March 23, 1990. Bosco "searched" several areas of the

bank, such as the vault and teller stations, and did not react.

Conley then took Bosco to a room in which a bag containing $9,000

was located, and, when he instructed Bosco to search for drugs,

the dog "showed a strong, positive aggressive alert, shaking the

bag, ripping it apart, grabbing the money in his mouth, and

ripping the money." According to Conley, a similar search, with

similar results, took place on April 20, 1990, at a different

bank in Johnston, Rhode Island. In each instance, the currency

to which Bosco reacted had been brought to the bank by

appellant's associates in order to purchase cashier's checks.

To meet this testimony, appellant called two experts

who attacked the reliability of Bosco's response. One of these

witnesses, Thomas Knott, testified that the manner in which

Conley orchestrated the sniff tests did not properly control

against the possibility of a false alert. The second expert, Dr.

James Woodford, criticized the testing protocol because the sniff

tests were not verified by chemical field tests. Woodford also

testified as to the widespread contamination of United States

currency with illegal drugs and the tenuous nature of the link

between a canine alert and a conclusion that particular currency

derived from narcotics trafficking ("[I]f there were drugs on

41

that money, it doesn't mean that it is drug money.").18

Appellant insists that the probative value of the dog

sniff evidence is substantially outweighed by its prejudicial

effect, and that the district court erred in refusing to exclude

the evidence under Fed. R. Evid. 403. This claim deserves

serious attention, for recent decisions about the evidentiary

value of a trained dog's alert to currency are not uniform.

Compare, e.g., United States v. U.S. Currency, $30,060.00, 39

F.3d 1039, 1041-43 (9th Cir. 1994) (noting widespread

contamination and concluding that "the probative value of a

positive dog alert in currency forfeiture cases in Los Angeles is

significantly diminished"); United States v. Carr, 25 F.3d 1194,

1215 (3d Cir.) (Becker, J., concurring in part and dissenting in

part) (stating that "a substantial portion of United States

currency now in circulation is tainted with sufficient traces of

controlled substances to cause a trained canine to alert"), cert.

18Appellant criticizes the district court for prohibiting
Dr. Woodford from testifying more fully about a Drug Enforcement
Administration (DEA) report that found one-third of the bills in
a random sample of currency to be contaminated by cocaine. See

Jones v. DEA, 819 F. Supp. 698, 720 (M.D. Tenn. 1993) (citing DEA

report). This criticism is overblown. The court permitted the
witness to describe the report's conclusions and to indicate that
he had relied on those findings. See Fed. R. Evid. 703

(authorizing reliance on facts or data "of a type reasonably
relied upon by experts in the particular field in forming
opinions or inferences upon the subject"). The court's decision
to preclude attribution of the report was well within its
discretion. Moreover, because the report was available to
appellant despite the government's alleged failure to disclose it
in a timeous manner, the rule of Brady v. Maryland, 373 U.S. 83

(1963), does not profit appellant's cause. See Sepulveda, 15

F.3d at 1178 ("The lack of demonstrable prejudice sounds the
death knell for a `delayed discovery' claim."); Devin, 918 F.2d

at 289 (similar).

42

denied, 115 S. Ct. 742 (1994); and Jones v. DEA, 819 F. Supp.

698, 721 (M.D. Tenn. 1993) (suggesting that "continued reliance

of courts and law enforcement officers on dog sniffs to separate

`legitimate' currency from `drug-connected' currency is logically

indefensible") with, e.g., United States v. $67,220.00 in U.S.

Currency, 957 F.2d 280, 285-86 (6th Cir. 1992) (noting that "a

positive dog reaction [to currency] is at least strong evidence

of a connection to drugs"); United States v. $215,300 U.S.

Currency, 882 F.2d 417, 419 (9th Cir. 1989) (upholding forfeiture

based in part on a canine alert to currency), cert. denied, 497

U.S. 1005 (1990); and United States v. Hernando Ospina, 798 F.2d

1570, 1583 (11th Cir. 1986) (finding canine sniff evidence to be

both probative and helpful to the jury in concluding that

laundered money constitutes drug proceeds).

In the end, we reject appellant's asseveration. We do

not think that the district court, based on the information of

record in this case, abused its discretion in admitting the

canine sniff evidence.19

Even though widespread contamination of currency

plainly lessens the impact of dog sniff evidence, a trained dog's

19Because appellant neither introduced nor proffered the
materials discussed by other courts suggesting that a very high
percentage of United States currency is contaminated with drug
residue, see, e.g., Carr, 25 F.3d at 1215 n.6 (reviewing

estimates suggesting that between one-third and 97% of United
States currency is drug-contaminated); United States v. $639,558

in U.S. Currency, 955 F.2d 712, 714 n.2 (D.C. Cir. 1992)

(similar), those materials could not inform the district court's
decision. Cf. Carr, 25 F.3d at 1202 n.3 (declining to take

judicial notice that nearly all currency contains detectable
traces of illegal narcotics).

43

alert still retains some probative value. Ordinary experience

suggests that currency used to purchase narcotics is more likely

than other currency to have come into contact with drugs. Here,

moreover, the evidence supports an inference that Bosco's

frenzied reaction was caused by more than a mere trace of

contamination.

The record contains corroboration of Bosco's olfactory

evidence. Several witnesses testified that ordinary human senses

could detect something unusual about the money that appellant's

associates brought to the banks. One teller testified that he

occasionally noticed that the money felt "dusty . . . almost

floury from pizza dough, that type of feeling." Another teller

reported that she noticed an odor or fragrance, akin to that of

an orchid. This evidence, along with Conley's testimony that the

dog did not react in other areas of the banks, buttressed the

lower court's belief that the dog sniff evidence had probative

force.

Conversely, though the dog sniff evidence likely

bolstered the prosecution's case and served to inculpate the

defendant, we are not convinced that it presented a substantial

risk of unfair prejudice. See generally Rodriguez-Estrada, 877

F.2d at 156 ("By design, all evidence is meant to be prejudicial;

it is only unfair prejudice which must be avoided."). After all,

the court allowed appellant to call two expert witnesses who

debunked Bosco's reaction to the currency. If, on one hand, the

jury believed the experts, it doubtless discounted the value of

44

the canine alert. If, on the other hand, the jury disbelieved

appellant's experts, it was entitled to place a greater value on

the canine sniff. See, e.g., Quinones-Pacheco v. American

Airlines, Inc., 979 F.2d 1, 5 (1st Cir. 1992) (explaining that

"expert opinion testimony, even if not directly contradicted, is

not ordinarily binding on a jury").

In any event, considering the high degree of deference

we owe to a district court's balancing of probative value against

unfairly prejudicial effects, see Rodriguez-Estrada, 877 F.2d at

156, we cannot say that the trial court abused its wide

discretion in admitting the evidence of Bosco's reaction to the

currency delivered by appellant's associates.

D. Testimony of Juan Carlos Garcia.
D. Testimony of Juan Carlos Garcia.

Juan Carlos Garcia, a participant in the money

laundering activities, testified for the government at

appellant's trial. Garcia said that in 1987, while living in the

United States, he began working for his brother-in-law, Fernando

Duenas. Following Duenas' orders, Garcia would respond when

paged on his beeper, arrange to retrieve a quantity of cash, and

deposit the money in one of several bank accounts maintained

under the names of Duenas, Duenas' wife (Garcia's sister), or

Duenas' brother. By the end of 1987 the cash had mushroomed from

$10,000-$20,000 per shipment to $150,000-$200,000 per shipment.

Garcia met appellant for the first time in May 1989.

With Duenas' blessing, the two men agreed that appellant would

accept bundles of cash from Garcia and send the money to

45

Colombia. On countless occasions thereafter, appellant received

money from Garcia and redirected it to accounts controlled by

Duenas.

At trial, the district court permitted Garcia, over

objection, to testify that, in 1988, Duenas told him that a man

named "Caesar" would call and give him something other than

money. Garcia knew Caesar because Caesar had brought money to

him on a previous occasion. Caesar called and informed Garcia

that he would be delivering a kilogram of cocaine. Subsequently,

Caesar handed Garcia a shopping bag containing a block of a

granular substance, beige in color. Garcia tried to sell the

merchandise, as directed by Duenas, but he was unable to do so.

He eventually delivered the package to another individual on

Duenas' instructions.

Appellant assigns error to the trial court's admission

of the testimony anent the package. The assignment of error has

twin foci: (1) the conversations between Duenas and Garcia, and

(2) Caesar's assurance that the package contained cocaine.20

We believe that the court lawfully admitted the evidence.

The Evidence Rules provide that "a statement by a

coconspirator of a party during the course and in furtherance of

the conspiracy" is not considered hearsay. Fed. R. Evid.

801(d)(2)(E). Here, the first prong of the rule is satisfied.

20The court gave limiting instructions referable to this
evidence, telling the jury that it could only be considered on
the issue of whether the money appellant laundered was in fact
the proceeds of narcotics trafficking.

46

The record contains adequate evidence that Duenas, Garcia, and

Caesar were involved in a single conspiracy to launder money. By

joining that conspiracy at a later date, appellant effectively

adopted coconspirator declarations previously made. See United

States v. Murphy, 852 F.2d 1, 8 (1st Cir. 1988), cert. denied,

489 U.S. 1022 (1989); see also United States v. Baines, 812 F.2d

41, 42 (1st Cir. 1987) ("[A] conspiracy is like a train. When a

party knowingly steps aboard, he is part of the crew, and assumes

conspirator's responsibility for the existing freight or

conduct regardless of whether he is aware of just what it is

composed.").

The second prong of the rule is also satisfied; the

statements were made during and in furtherance of the very

conspiracy that appellant joined. For one thing, we have held

that "when a number of people combine efforts to manufacture,

distribute and retail narcotics, there is a single conspiracy, a

`chain conspiracy,' despite the fact that some of the individuals

linking the conspiracy together have not been in direct contact

with others in the chain." United States v. Rivera-Santiago, 872

F.2d 1073, 1080 (1st Cir.), cert. denied, 492 U.S. 910 (1989).

For another thing, money laundering and narcotics trafficking are

symbiotic activities, each of which may require the other in

order to continue. Duenas' efforts to have Garcia sell the

cocaine for him and the group's ongoing campaign to launder money

can rationally be seen as adjacent links in the lengthy chain

that binds up the narcotics trafficking cycle. Thus, the

47

district court acted within its proper province in deeming both

activities part of the same conspiracy, and in holding that the

attempted narcotics sale was in furtherance of it. Consequently,

the challenged statements were properly admitted under Rule

801(d)(2)(E).

We note, moreover, as did the district court, that a

statement made by an unavailable declarant21 falls outside the

hearsay exclusion if the statement "at the time of its making . .

. so far tended to subject the declarant to civil or criminal

liability . . . that a reasonable person in the declarant's

position would not have made the statement unless believing it to

be true." Fed. R. Evid. 804(b)(3). Duenas' and Caesar's

statements to Garcia were tantamount to admissions that they were

dealing cocaine. Because such statements were against the

declarants' penal interest, they came within the encincture of

Rule 804(b)(3) and were admissible on that basis.

Finally, appellant's suggestion that the admission of

Garcia's testimony abridged the Confrontation Clause is off base.

It is well settled that a statement falling within a firmly

rooted hearsay exception will not be held to violate the

Confrontation Clause. See Ohio v. Roberts, 448 U.S. 56, 66

(1980); Puleio v. Vose, 830 F.2d 1197, 1204-05 (1st Cir. 1987),

cert. denied, 485 U.S. 990 (1988). It is equally well settled

that the exceptions for coconspirator declarations and for

21The district court made an explicit, warrantable finding
that Duenas was unavailable for trial. Caesar, whose last name
is unknown, apparently has disappeared into thin air.

48

declarations against penal interest are both firmly rooted in our

jurisprudence. See Bourjaily v. United States, 483 U.S. 171, 183

(1987) (discussing coconspirator exception); United States v.

Innamorati, 996 F.2d 456, 474 n.4 (1st Cir. 1993) (discussing

declaration against interest exception), cert. denied, 114 S. Ct.

1073 (1994).

E. Testimony of Agent Shedd.
E. Testimony of Agent Shedd.

In the late 1980s, the DEA set up a network of sham

corporations ostensibly to provide a money laundering service to

underworld elements. DEA Special Agent James Shedd participated

in this reverse sting operation (dubbed "Operation Pisces").

Duenas dealt with the Pisces network in 1987 and 1988. At trial,

a prosecutor suggested that Shedd would testify as follows: "Mr.

Duenas told him that ninety-nine percent of the money that he was

turning over to the undercover agent was, in fact, drug money."

On the basis of this representation, the lower court denied a

motion in limine by which the defense sought to exclude Shedd's

testimony regarding Duenas' statements. Shedd told the jury

about thirty-seven transactions in which Duenas supplied cash

that the DEA undercover operation laundered for him. Shedd also

described several conversations with Duenas in which Duenas

reportedly said that he laundered money for Colombian drug

traffickers and "that ninety-nine percent of the money that

money-launderers deal in Bogota comes from narcotics proceeds."

During cross-examination, appellant's counsel

49

challenged Shedd about this statement. Shedd and Duenas

conversed in Spanish, and some of their conversations had been

recorded. Defense counsel called Shedd's attention to one such

conversation. The translation indicated that Duenas made the

contested comment during a discussion in which he explained that,

although it was against the law, foreign currency routinely

circulated in Colombia. He apparently added: "Logically, the

[foreign] currency that circulates the most over there . . . is

the dollar . . . which ninety-nine percent of it comes from drug

dealing." Shedd responded that his direct testimony had been

premised not on a single discussion, but on an overall impression

gained from a lengthy conversation with Duenas.22 Appellant

then moved to strike Shedd's testimony. Judge Torres denied the

motion.

Appellant maintains that the district court made no

fewer than four errors in connection with this testimony. First,

appellant posits that Duenas' statements were barred by the

hearsay rule. This claim fails. The court was warranted in

finding that these were coconspirator declarations and, thus,

admissible under Rule 801(d)(2)(E). See, e.g., Sepulveda, 15

F.3d at 1180; Ortiz, 966 F.2d at 714-15.

Appellant's second contention is that Duenas'

statement, in its true form, was irrelevant because it was

22Shedd also offered the following syllogism: "Ninety-nine
percent of the money, of the U.S. dollars that's in Colombia is
drug money. He's a money launderer, then ninety-nine percent of
the money that he launders comes from drug money."

50

nothing more than a gross generalization about the Colombian

economy. We disagree. Though courts are sometimes cautious

about admitting abstract data as proof of what actually happened

in an individual case, a percentage like "ninety-nine percent" is

quite powerful, and far surpasses the usual test that evidence is

relevant if it has "any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence." Fed. R. Evid. 401. Trial courts are afforded wide

discretion in determining whether evidence clears this low

threshold, see United States v. Tierney, 760 F.2d 382, 387 (1st

Cir.), cert. denied, 474 U.S. 843 (1985), and we will disturb an

exercise of that discretion only if manifest abuse appears, see

Sepulveda, 15 F.3d at 1194; United States v. Griffin, 818 F.2d

97, 101 (1st Cir.), cert. denied, 484 U.S. 844 (1987).

Under this deferential standard, the district court

acted within its lawful powers in deeming Duenas' statements

relevant to the issue of whether the money appellant laundered

was in fact derived from narcotics trafficking. Duenas' remark,

even in the diluted form that was heralded on cross-examination,

has at least some probative value in ascertaining whether the

drug trade was the source of the funds that appellant washed,

much as the fact that a lake is contaminated has some probative

value in ascertaining whether a stream that feeds the lake is

contaminated.

Appellant's third sally alleges error in Shedd's

51

explanation that his initial testimony about Duenas' statement

was based on an overall impression from several hours of

conversation. Although a witness is generally not permitted to

testify about his subjective interpretations of what has been

said by another person, he may do so if his opinion is rationally

based on his perception and is helpful either to an understanding

of his testimony or to the determination of a fact in issue. See

United States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980), cert.

denied, 454 U.S. 844 (1981). In this case, we conclude that the

district court acted lawfully in leaving the testimony intact.

Shedd tendered his explanation of Duenas' statement in

direct response to a question by appellant's counsel on cross-

examination. The answer was not followed by a timely objection

or motion to strike. While appellant challenged Shedd's

qualifications to offer an opinion about Duenas' state of mind in

a subsequent motion to strike, this was too late. See United

States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (holding that

Evidence Rule 103 requires that objections be made at the time

evidence is offered); United States v. Parodi, 703 F.2d 768, 783

(4th Cir. 1983) (same). The proper time to have registered an

objection to Shedd's explanation was immediately after it was

uttered. Accordingly, any objection to the explanation has been

waived. And, moreover, even if the court erred in permitting the

answer to stand, it looms as harmless beyond all doubt in the

context of a very efficacious cross-examination.

Appellant's final contention is that the prosecution

52

knowingly offered Shedd's testimony despite having a transcript

that refuted it, and, to make a bad situation worse, deliberately

withheld the transcript from the defense. Having carefully

examined the record, we find no valid reason to conclude that the

prosecution intentionally mischaracterized Shedd's proposed

testimony during the in limine hearing, and no hint of

prosecutorial misconduct in the handling of the transcript. At

any rate, it is perfectly clear that defense counsel obtained the

unexpurgated transcript in ample time to conduct a very effective

cross-examination on the following day. There was no prejudice

and, hence, no reversible error. See Devin, 918 F.2d at 290.

F. The Wiretap Tapes.
F. The Wiretap Tapes.

The district court allowed the prosecution to introduce

tape recordings of two conversations in which Saccoccia's

employees made reference to drugs. The tapes are not entirely

audible, and the parties disagree about what was said during two

potentially significant conversations. The government asserts

that, in a discussion that took place at Trend's offices, Kenneth

Saccoccio referred to cash that he and Hurley were counting as

"fuckin' drug money." Appellant claims that this portion of the

tape was inaudible. The other conversation took place at

Saccoccia Coin Company. In it, Stanley Cirella spoke to Stephen

Pizzo about an ongoing investigation of appellant's organization.

According to the government, Cirella declared that "he" a

pronoun that we take in context to refer to Saccoccia had told

him that "they [the authorities] ain't doin' this [conducting the

53

investigation] because of the coke, they're doin' this because of

the washing of money." Appellant contends that Cirella said

"gold" rather than "coke."

The issue on appeal is whether the district court

abused its discretion in allowing the taped conversations to be

presented to the jury in conjunction with the government's

transcript. In appellant's view, the inaudible portions of the

tapes are so critical as to make the rest more misleading than

helpful. See United States v. Carbone, 798 F.2d 21, 24 (1st Cir.

1986). Having listened to the tapes, see United States v.

Carbone, 880 F.2d 1500, 1503 (1st Cir. 1989), cert. denied, 493

U.S. 1078 (1990), we believe that they are reasonably audible and

that the judge appropriately left their interpretation to the

jury. What was or was not said during a tape-recorded

conversation is ordinarily a question of fact, not a question of

law.

Appellant's fallback position is that, even if the

government accurately transcribed the tapes, the lower court

erred in failing to tell the jury that any statements about the

source of the laundered money were relevant only to the speakers'

subjective beliefs. This position hinges on the premise that, in

the absence of a concinnous foundation showing the speakers'

knowledge, the comments cannot constitute proof vis-a-vis Stephen

Saccoccia (who did not participate in the discourse) as to

whether the money in fact emanated from drug transactions.

We disagree with appellant's premise for two reasons.

54

First, Evidence Rule 104(b) provides that "[w]hen the relevancy

of evidence depends upon the fulfillment of a condition of fact,

the court shall admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the fulfillment of

the condition." In addressing foundational issues, the trial

judge acts as a gatekeeper, examining the evidence and deciding

"whether the jury could reasonably find the conditional fact . .

. by a preponderance of the evidence." Huddleston v. United

States, 485 U.S. 681, 690 (1988). The conditional fact may be

based on "reasonable inference from the circumstantial evidence."

Onujiogu v. United States, 817 F.2d 3, 5 (1st Cir. 1987); see,

e.g., Veranda Beach Club Ltd. Partnership v. Western Sur. Co.,

936 F.2d 1364, 1372 (1st Cir. 1991).

In light of the wide discretion afforded to trial

judges in deciding whether an adequate foundation has been laid,

see Real v. Hogan, 828 F.2d 58, 64 (1st Cir. 1987), we think that

Judge Torres acted unexceptionably in determining that the jury

could rationally infer that appellant's employees would not refer

to the cash as "drug money" without some basis in fact. The men

who made the statements were substantially involved in

appellant's operation and could easily have had opportunities to

learn of the money's origins.

As we have indicated, there is a second reason why

appellant is mistaken insofar as he sees personal knowledge about

the source of the funds as a prerequisite to general

admissibility of the comments. Both statements were made by

55

coconspirators and are thus admissible under Evidence Rule

801(d)(2)(E) without a showing of personal knowledge. See United

States v. Goins, 11 F.3d 441, 443-44 (4th Cir. 1993), cert.

denied, 114 S. Ct. 2107 (1994) (holding that the personal

knowledge requirement of Evidence Rule 602 "does not apply to

statements of a co-conspirator admissible as non-hearsay under

Rule 801(d)(2)(E)"); cf. Brookover v. Mary Hitchcock Memorial

Hosp., 893 F.2d 411, 415-18 (1st Cir. 1990) (finding no

requirement of personal knowledge for admission of a statement

under Rule 801(d)(2)(D)).

For these two reasons the challenged statements were

properly before the jury, and the court acted appropriately in

refusing appellant's proposed limiting instruction.

G. The Sufficiency of the Evidence.
G. The Sufficiency of the Evidence.

Viewing the evidence as a whole and keeping in mind

that the prosecution's burden of proof can be satisfied by either

direct or circumstantial evidence, see O'Brien, 14 F.3d at 706,

we conclude that a rational factfinder could determine beyond a

reasonable doubt that the money appellant laundered was in fact

derived from the narcotics trade.

Rehashing the evidence would serve no useful purpose.

We do take special note, however, that appellant's money-washing

operation matched Agent Semesky's description of how Colombian

drug rings traditionally laundered ill-gotten gains, and that, as

the district court observed, it is difficult to conceive of any

non-narcotics-related business that could create a comparable

56

cascade of creased currency. That the waves of cold cash

typically appeared in well-worn bills of small denomination makes

the tie tighter. Then, too, the jury heard competent evidence

that Duenas, who furnished money for appellant to launder,

himself performed monetary ablutions for narcotics traffickers

(and, on one occasion, supplied cocaine for an associate to

sell). The canine alert to currency that appellant's associates

had gathered furnished some added support for the theory that the

money emanated from drug sales. Finally, appellant's own

employees suggested on two occasions that the washed funds were

linked to narcotics.

Taken in the ensemble, these pieces of evidence provide

an adequate foundation on which the jury could build a finding

that appellant laundered drug money. Jurors, after all, are not

expected to resist commonsense inferences based on the realities

of human experience. See Veranda Beach Club, 936 F.2d at 1372

("The law is not so struthious as to compel a factfinder to

ignore that which is perfectly obvious."); United States v.

Ingraham, 832 F.2d 229, 240 (1st Cir. 1987) (similar), cert.

denied, 486 U.S. 1009 (1988).

V. FORFEITURE
V. FORFEITURE

The court bifurcated appellant's trial, separating the

substantive criminal charges from the forfeiture claims.

Appellant waived his right to trial by jury on the latter counts.

All counsel assured the judge that they had no additional

evidence to present at the second anticipated phase of the trial

57

and, therefore, that the hearing on forfeiture would "be purely a

matter of legal argument." Accordingly, the judge scheduled

arguments for March 26, 1993.

On the assigned date, appellant was before a California

court in connection with a separate action. His counsel objected

to proceeding in appellant's absence. See Herring v. New York,

422 U.S. 853, 863-65 (1975) (remarking a defendant's

constitutional right to make a closing argument, even in a bench

trial); Fed. R. Crim. P. 43(a) ("The defendant shall be present

at . . . every stage of the trial including . . . the imposition

of sentence . . . ."). Specifically, counsel stated that (1) he

required appellant's assistance "in responding to whatever it is

the government may say about the evidence as it relates to the

law that's going to be argued," and (2) appellant might wish to

exercise his right to make a closing statement. The court then

offered to proceed on the understanding that appellant's counsel

could make incremental arguments at the sentencing hearing, with

appellant present.23 When counsel persisted in his original

position, the court terminated the session.

The disposition hearing was held on May 12, 1993.

Appellant was present throughout. The district court determined

that he should forfeit all the money laundered during the life of

23Noting that forfeiture is part of the sentencing process,
and that Saccoccia would be present for sentencing, the court
suggested to defense counsel that "to the extent the sentencing
includes the potential for forfeiture order, you can be heard on
that issue just as you would on any other sentencing issue at
that time."

58

the conspiracy, and, using bank records, fixed the amount at

$136,344,231.86. See United States v. Saccoccia, 823 F. Supp.

994, 1006 (D.R.I. 1993). At the government's urging, the court

subsequently amended the forfeiture order to specify substitute

assets for forfeiture.24 See 18 U.S.C. 1963(m) (1988).

Appellant assigns error. He strives to persuade us,

inter alia, that applicable extradition doctrines barred

forfeiture; that the court ignored the strictures of due process;

and that the forfeiture order swept too broadly. We are not

convinced.

A. Extradition/Forfeiture.
A. Extradition/Forfeiture.

Appellant asserts that the forfeiture entered against

him violates the rule of specialty because it is tantamount to

prosecution and conviction for an offense on which extradition

was neither sought nor granted. He also suggests that the

principle of dual criminality prohibits the forfeiture because

Swiss law does not render a defendant criminally liable for

forfeiture by reason of unlawful money transfers. These

initiatives fail because they ignore the irresistible conclusion

that, at least for present purposes, criminal forfeiture is a

24In discussing substitutions, Saccoccia seeks to
incorporate by reference his codefendants' plaint that the court
improperly allowed the government to add property subject to
forfeiture while the cases were on appeal. We reject this
remonstrance. The district court did not "amend" its judgment,
but, rather, ordered forfeiture of substitute assets based on a
supportable finding that appellant had transferred forfeited
proceeds beyond the jurisdiction of the court. Contrary to
appellant's intimation, this procedure did not insult his
constitutional entitlement to due process, nor did it run afoul
of the Double Jeopardy Clause.

59

punishment, not a separate criminal offense.

We think that the genealogy of modern criminal

forfeiture is important. The device is born out of the mating of

two historically distinct traditions. One parent is civil

forfeiture, an in rem proceeding rooted in the notion that

property used in, or intimately associated with, criminal

activity acquires a taint, and that such property is therefore

forfeitable even if not owned by the miscreant. See United

States v. Sandini, 816 F.2d 869, 872 (3d Cir. 1987). The second

parent is old-hat criminal forfeiture, which traditionally

operated as an incident of a felony conviction in personam

against a convicted defendant, requiring him to forfeit his

property to the crown. See United States v. Nichols, 841 F.2d

1485, 1486 (10th Cir. 1988). The forfeiture provisions of RICO

combine both traditions because they act in personam against the

defendant, yet require a nexus between the forfeited property and

the crime.25 See id. at 1486-88 (reviewing historical aspects

of forfeiture); Saccoccia, 823 F. Supp. at 1001.

Partially as a result of this mixed heritage, courts

have struggled to categorize the resultant hybrid modern

criminal forfeiture as either a punishment for, or an element

25The district court imposed forfeiture pursuant to both a
money laundering statute, see 18 U.S.C. 982, and a RICO

statute, see id. 1963. Although there are some slight

differences in the operation of the two statutes, see Saccoccia,

823 F. Supp. at 1001-05, these differences do not affect our
analysis of the extradition issues. For simplicity's sake, we
refer only to the RICO forfeiture statute. Nonetheless, our
discussion is equally applicable to criminal forfeiture under the
money laundering laws.

60

of, a criminal offense. The majority view regards criminal

forfeiture for narcotics offenses under 21 U.S.C. 853 as part

of the punishment imposed on a defendant. See, e.g., United

States v. Elgersma, 971 F.2d 690, 694 (11th Cir. 1992) (holding

that "criminal forfeiture is part of the sentencing process and

not an element of the crime itself"); United States v. Hernandez-

Escarsega, 886 F.2d 1560, 1576-77 (9th Cir. 1989) (similar),

cert. denied, 497 U.S. 1003 (1990); Sandini, 816 F.2d at 875

(similar). Other straws in the wind blow in the same direction.

See, e.g., Alexander v. United States, 113 S. Ct. 2766, 2772

(1993) (characterizing a RICO forfeiture order against a

pornography merchant as "a punishment for past criminal

conduct"); United States v. Kingsley, 851 F.2d 16, 18 n.2 (1st

Cir. 1988) (noting in dictum that "in personam criminal

forfeiture . . . is intended to directly punish persons convicted

of a criminal offense by forcing them to forfeit the proceeds

obtained as a result of that offense"). Withal, there remains

some nagging doubt about whether forfeiture is strictly a

punishment as opposed to a separate substantive charge. See,

e.g., Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617,

628 n.5 (1989) (stating in dictum that "forfeiture is a

substantive charge in the indictment against a defendant"); Fed.

R. Crim. P. 31(e) advisory committee's note (noting committee's

assumption that "the amount of the interest or property subject

to criminal forfeiture is an element of the offense to be alleged

and proved").

61

We resolve that doubt favorably to the government to

the extent necessary to rebut Saccoccia's claims. Thus, we hold

that, for purposes of extradition law, forfeiture is neither a

free-standing criminal offense nor an element of a racketeering

offense under RICO, but is simply an incremental punishment for

that proscribed conduct. Consequently, a defendant may be

subjected to a forfeiture order even if extradition was not

specifically granted in respect to the forfeiture allegations.

We base this ruling primarily on three pillars: the weight of

authority counsels in this direction; the punitive aspects of

criminal forfeiture predominate (among other things, RICO

forfeiture retains the functional traits of a punishment since it

is definitively imposed only after the defendant's guilt has

otherwise been determined); and, finally, treating criminal

forfeiture as a punishment in the extradition milieu is

consistent with the emphasis that the doctrine of dual

criminality places on the unlawfulness of the defendant's

conduct, and, correspondingly, on the lack of any requirement

that a crime have identical elements or penalties in the two

jurisdictions, see Collins, 259 U.S. at 312; Levy, 905 F.2d at

328.

It follows, therefore, that appellant was properly

subjected to a criminal forfeiture order even if he was not

extradited on forfeiture charges and even if Swiss law does not

provide for criminal forfeiture under comparable circumstances.

B. Procedural Aspects.
B. Procedural Aspects.

62

Appellant also declaims that the procedure employed

with regard to the forfeiture order deprived him of four

intertwined rights: the right to present a closing argument, the

right to be present to assist counsel during the closing

argument, the right to entry of a verdict of forfeiture, and the

right to be present for entry of a verdict. This quadrat of

complaints is unavailing.

The first two grievances are not supported by the

record. Even though appellant was absent on March 26, the court

offered his counsel the opportunity to make further arguments at

the disposition hearing (at which appellant was in attendance).

Affording appellant this opportunity satisfied his right to make

a closing statement and his right personally to assist counsel.

The fact that appellant chose not to avail himself of the

afforded opportunity is beside the point.

Appellant's next contention arises out of the idea that

the court violated Fed. R. Crim. P. 32(b) and 31(e) by ordering

forfeiture without entering a special verdict. Because appellant

did not object to the district court's decision to make an oral

forfeiture order followed by a written decision, however, our

review is limited to a hunt for plain error. See United States

v. Taylor, F.3d , (1st Cir. 1995) [No. 93-1381, slip

op. at 6-7]; Griffin, 818 F.2d at 99.

To be sure, Rule 31(e) requires that a special verdict

be returned when the indictment or information contains a

forfeiture allegation. But, Rule 31(a) makes it transpicuously

63

clear that this requirement is geared to jury trials. See Fed.

R. Crim. P. 31(a) (stating that the verdict "shall be returned by

the jury to the judge in open court"). When the judge is the

factfinder, the procedure for making factual determinations is

governed by Fed. R. Crim. P. 23(c). That rule provides:

In a case tried without a jury the court
shall make a general finding and shall in
addition, on request made before the general
finding, find the facts specially. Such
findings may be oral. If an opinion or
memorandum of decision is filed, it will be
sufficient if the findings of fact appear
therein.

Fed. R. Crim. P. 23(c).

In the instant case, the judge entered an oral order,

followed very shortly by a written memorandum limning his

findings of fact. In our opinion, this procedure did not

constitute plain error. See, e.g., Gibbs v. Buck, 307 U.S. 66,

78 (1939); see also Aoude v. Mobil Oil Corp., 862 F.2d 890, 895

(1st Cir. 1988) (observing that reversal "would be an empty

ritual" once the lower court had remedied its original error and

belatedly made written findings). Thus, we deny appellant's

request that the forfeiture order be vacated on this score.

C. Extent of the Forfeiture.
C. Extent of the Forfeiture.

Appellant maintains that the "proceeds" subject to RICO

forfeiture should not include all the funds laundered by his

organization, but only the organization's profit. He does not

dwell on this thesis, instead electing to incorporate the

codefendants' argument to this effect. We, too, prefer not to

linger. The district court treated this contention at length,

64

and we find ourselves in substantial agreement with the reasoning

explicated in that court's opinion. See Saccoccia, 823 F. Supp.

at 1001-03.

VI. SENTENCING
VI. SENTENCING

Without objection, the district court predicated its

sentencing calculations on the November 1, 1992 edition of the

federal sentencing guidelines.26 See United States v.

Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) ("Barring any

ex post facto problem, a defendant is to be punished according to

the guidelines in effect at the time of sentencing."). The court

compiled appellant's criminal history score and placed him in

category II. Turning to the other side of the grid, the court

started with the money laundering guideline. Since appellant had

been convicted under 18 U.S.C. 1956(a)(2)(A), he had a base

offense level (BOL) of 23. See U.S.S.G. 2S1.1(a)(1). The court

then added 13 levels because the value of the laundered funds

exceeded $100,000,000, see id. 2S1.1(b)(2)(N), and three levels

premised on a finding that appellant knew (or believed) that the

funds were derived from narcotics sales, see id. 2S1.1(b)(1).

Finding appellant to be the organizer and leader of the money

laundering enterprise, the court escalated four levels pursuant

to U.S.S.G. 3B1.1(a). Finally, citing appellant's unsuccessful

attempt to use his medical history as a device for extracting a

26In large part, the district judge adopted the calculations
recommended by the probation department. We concentrate on how
the court arrived at the guideline sentencing range (GSR), and do
not differentiate between the judge's original thinking and his
acceptance of the probation department's ideas.

65

continuance, see supra note 2, and stressing that the feigned

illness occurred shortly after the court had denied appellant's

request for postponement of the trial on other grounds, Judge

Torres went up two levels for obstructing justice. See U.S.S.G.

3C1.1. These calculations yielded an adjusted offense level of

45 for the money laundering counts.

The court then turned to the RICO conspiracy count.

Inasmuch as the applicable guideline, id. 2E1.1, prescribes the

use of an offense level equal to the greater of 19 or the

adjusted offense level for the underlying conduct (here, money

laundering), appellant's adjusted offense level remained

unchanged. The court took a similar look at the Travel Act

counts with a similar result (the applicable guideline, U.S.S.G.

2E1.2, directs the use of an offense level equal to the greater

of 6 or the adjusted offense level for the underlying conduct).

At the bottom line, then, the counts of conviction produced a

total offense level (TOL) of 45. See id. 3D1.2(d), 3D1.3(b).

A TOL of 43 or higher requires the imposition of a

sentence of life imprisonment regardless of the offender's

criminal history category.27 See U.S.S.G. Ch.5, Pt.A

27The Sentencing Commission recently submitted to Congress
proposed guideline amendments that apparently would reduce the
sentence mandated for conduct of the kind at issue here. See 60

Fed. Reg. 25,074, 25,085-86 (1995). The proposed changes will
become effective on November 1, 1995, absent congressional action
to the contrary. See 28 U.S.C. 994(p) (1988). The Commission

has not yet decided whether the changes, if they become law,
should apply retrospectively. See 60 Fed. Reg. at 25,074. If

the amendments are eventually determined to warrant retroactive
application, appellant may then be in a position to seek
appropriate relief in the district court. See United States v.

66

(Sentencing Table). However, the offenses of conviction in this

case all carry maximum sentences less than life. When, as in

this instance, the maximum sentence for each offense of

conviction is lower than the minimum punishment mandated by the

applicable GSR, the guidelines require imposition of consecutive

sentences "to the extent necessary to produce a combined sentence

equal to the total punishment." Id. 5G1.2(d). Applying this

principle, the district court concluded that sentences on the

several counts of conviction should run consecutively to the

extent necessary to effectuate a life sentence. Because the

sentencing guidelines prescribe life in prison for persons who,

like appellant, sport a TOL of 43 or higher, whereas all the

counts of convictions have statutory maxima that are expressed in

terms of a finite number of years, the court imposed the longest

possible sentence on each count and ran the sentences consecutive

to one another. The result: an incarcerative sentence of 660

years.28

Appellant assails this sentence on manifold grounds.

His principal lines of attack are that mandatory life sentences

Connell, 960 F.2d 191, 197 n.10 (1st Cir. 1992); United States v.

Miller, 903 F.2d 341, 349 (5th Cir. 1990). We express no opinion

on the subject, but merely note the possibility and proceed
without further reference to what the future may bring.

28The district court imposed this type of sentence rather
than attempting to estimate the length of appellant's life and
then fashioning a sentence of corresponding duration. We find no
fault with this approach. Despite the superficial severity of a
660-year sentence, it is neither more nor less than the
functional equivalent of life without parole. We treat the
sentence in this light in evaluating its correctness under the
guidelines and its harshness for Eighth Amendment purposes.

67

under the guidelines are illegal; that the district court

misconceived its authority in imposing sentence; that the court

violated the Ex Post Facto Clause; and that the court erred in

making an upward adjustment for obstruction of justice.

A. The Mandatory Life Sentence.
A. The Mandatory Life Sentence.

Appellant contends that the imposition of a mandatory

life sentence is illegal both because Congress disavowed

consecutive sentences and because, in all events, a life sentence

in the circumstances of this case insults the Eighth Amendment's

proscription against cruel and unusual punishment. Neither of

these contentions is convincing.

1. Congressional Intent. It is apodictic that the
1. Congressional Intent.

sentencing guidelines cannot sweep more broadly than Congress'

grant of power to the Sentencing Commission permits. See United

States v. Cooper, 962 F.2d 339, 342 (4th Cir. 1992). Thus, if a

guideline conflicts with a statute, the latter prevails. See

Stinson v. United States, 113 S. Ct. 1913, 1918-19 (1993); United

States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992), cert. denied, 113

S. Ct. 1830 (1993). Appellant perceives such a collision here.

In his view, Congress mandated a strong statutory preference for

concurrent sentences, and the Sentencing Commission's instruction

that fixed-year sentences should be imposed consecutively to

effectuate life imprisonment, see U.S.S.G. 5G1.2(d), must yield

the right of way to Congress' expressed preference.

Appellant hinges this conclusion on Congress' enactment

of two statutory provisions, namely, 28 U.S.C. 994(l)(2) &

68

994(v) (1988). We think he reads the cited statutes with much

too sanguine an eye. Neither statute prohibits the imposition of

consecutive sentences. Rather, section 994(l)(2) merely declares

the "general inappropriateness" of consecutive sentences for a

conspiracy and its object offense, and section 994(v) merely

directs the Commission to "limit[] consecutive terms of

imprisonment" for convictions on related general and specific

offenses.29 While these statutes arguably imply a general

congressional preference for concurrent sentences, they do not,

as appellant intimates, outlaw consecutive sentences. On the

contrary, the statutory scheme leaves ample room for courts,

following the lead of the Sentencing Commission, to deploy

consecutive sentences in appropriate circumstances.

Two observations show the virtual inevitability of this

conclusion. In the first place, U.S.S.G. 5G1.2 became effective

only with the consent of Congress. We consider this to be

powerful evidence that Congress itself saw no inconsistency

between the guideline provision and the statutory scheme. See

United States v. Luedecke, 908 F.2d 230, 233 (7th Cir. 1990). In

the second place, Congress minced no words in ceding the

Commission discretion to determine what particular circumstances

29To the extent appellant's argument is based on a claimed
congressional preference for concurrent sentences in connection
with conspiracy and its object offenses, and in connection with
general and specific offenses, the 36 consecutive ten-year
sentences imposed for separate violations of 18 U.S.C. 1957 are
unaffected. These sentences total 360 years. Barring a lifespan
of biblical proportions, appellant's time on this mortal coil
will not exceed so lengthy an interval.

69

would trigger the need for consecutive sentences. See 18 U.S.C.

3584(a) (1988) (providing in part that "if multiple terms of

imprisonment are imposed on a defendant at the same time . . .

the terms may run concurrently or consecutively"); see also

United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir. 1993)

(holding that section 3584(a) authorizes the Sentencing

Commission "to write guidelines that say when, and to what

extent, [incarcerative] terms should be concurrent or

consecutive").

We will not flog a dead horse. Because Congress gave

the Sentencing Commission expansive authority to promulgate

guidelines specifying when sentences should be consecutive or

concurrent, and then directed sentencing courts to refer to the

guidelines in order to determine whether "multiple sentences to

terms of imprisonment should be ordered to run concurrently or

consecutively," 28 U.S.C. 994(a)(1)(D), the court below

possessed the power indeed, the responsibility to impose a

series of consecutive sentences effectuating the clearly

expressed command of U.S.S.G. 5G1.2.

2. The Eighth Amendment. Appellant bemoans his
2. The Eighth Amendment.

sentence as mocking the Eighth Amendment's proscription against

cruel and unusual punishments. This ululation is more cry than

wool.

In Solem v. Helm, 463 U.S. 277 (1983), the Supreme

Court held that "as a matter of principle . . . a criminal

sentence must be proportionate to the crime for which the

70

defendant has been convicted." Id. at 290. This opinion did not

usher in a regime of strict proportionality review applicable to

all criminal sentences, for the Court restricted its holding to

penalties that are "grossly" or "significantly" disproportionate

to the underlying criminal activity. Id. at 288, 303. The Court

did not in any way, shape, or form, then or thereafter, suggest

that the Eighth Amendment requires a precise calibration of crime

and punishment in noncapital cases.

Solem looms as the high water mark of the

proportionality approach. In the pre-Solem era, the Court

consistently recognized the legislature's primacy in determining

the appropriate punishment for criminal behavior, see e.g.,

Rummel v. Estelle, 445 U.S. 263, 274 (1980); Hutto v. Davis, 454

U.S. 370, 374 (1982) (per curiam), and the Court has sounded much

the same note in the post-Solem era, see, e.g., Harmelin v.

Michigan, 501 U.S. 957, 962 (1991) (opinion of Scalia, J.)

(expressing the view that the length of the sentence actually

imposed in respect to a felony conviction is entirely a matter of

legislative prerogative); id. at 998-99 (opinion of Kennedy, J.)

(similar; listing cases). Throughout, the Justices have made it

quite clear that strict judicial scrutiny of statutorily mandated

penalties in noncapital cases is not to be countenanced. See,

e.g., Gore v. United States, 357 U.S. 386, 393 (1958). The

Constitution does not require legislatures to balance crimes and

punishments according to any single standard, or to achieve

perfect equipoise. Indeed, the Solem Court itself acknowledged

71

the need for judges to "grant substantial deference to the broad

authority that legislatures necessarily possess in determining

the types and limits of punishment for crimes." Solem, 463 U.S.

at 290.

The Court also has sounded two cautionary notes.

First, "[t]he inherent nature of our federal system" necessarily

produces "a wide range of constitutional sentences." Id. at 291

n.17; see also Rummel, 445 U.S. at 282. Second, "Eighth

Amendment judgments should not be, or appear to be, merely the

subjective views of individual [judges]; judgment should be

informed by objective factors to the maximum possible extent."

Coker v. Georgia, 433 U.S. 584, 592 (1977); accord Solem, 463

U.S. at 290. For these reasons, "a reviewing court rarely will

be required to engage in extended analysis to determine that a

sentence is not constitutionally disproportionate." Id. at 290

n.16.

The Justices' most recent pronouncements fully support

the conclusion that serious crimes may result in the imposition

of sentences as severe as life imprisonment without working any

constitutional insult. In Solem, the Court explicitly contrasted

the defendant's "relatively minor" offenses, id. at 296-97, with

"very serious offenses" such as drug trafficking, id. at 299, and

suggested that statutes providing for life imprisonment might be

applied constitutionally to inveterate drug dealers or other

violent criminals, id. at 299 n.26.

Harmelin, fairly read, emits an even clearer signal.

72

There, the Court considered the application of the constitutional

prohibition against cruel and unusual punishment to a mandatory

sentence of life imprisonment without parole imposed in a

narcotics case against a defendant who possessed more than 650

grams of cocaine. See Harmelin, 501 U.S. at 961. Justice

Scalia, in an opinion joined on this point by the Chief Justice,

rejected the extended proportionality analysis developed in Solem

and declared that nothing in the Eighth Amendment guarantees

proportionate sentences. See id. at 965. He concluded that

"Solem was simply wrong," id., because the Eighth Amendment

provided protection with respect to modes and methods of

punishment, not the length of incarceration, see id. at 966-67.

Justice Kennedy, joined by Justices O'Connor and Souter, wrote a

concurring opinion that, when combined with Justice Scalia's

opinion, aggregated the five votes necessary to uphold Harmelin's

sentence. Justice Kennedy thought that stare decisis counseled

adherence to a "narrow proportionality principle," id. at 996,

one that recognizes that the "Eighth Amendment does not require

strict proportionality between crime and sentence. Rather, it

forbids only extreme sentences that are `grossly

disproportionate' to the crime," id. at 1001 (quoting Solem).

After noting the grave harm to society wreaked by illegal drugs,

Justice Kennedy found nothing "grossly disproportionate" in

either the length nor the mandatory nature of Harmelin's

sentence. See id. at 1001-08.

A dispassionate application of Harmelin to this case

73

defeats appellant's attack on the constitutionality of his

sentence. Although the Justices in Harmelin disagreed on the

status of proportionality review under the Eighth Amendment, a

majority found insufficient disproportionality to forestall a

mandatory sentence of life without parole for possession of over

650 grams of cocaine. With this as a reference point,

appellant's sentence can hardly be deemed "grossly

disproportionate" to the underlying conduct conduct which, by

all accounts, significantly facilitated narcotics trafficking on

a Brobdingnagian scale.30

To say more would be supererogatory. We know that

Harmelin is not an aberration; in Hutto, another case that

teaches much the same lesson, the Court upheld, against a

proportionality attack, a sentence of 40 years in prison for

possessing nine ounces of marijuana with the intent to distribute

it. 454 U.S. at 374. We also know that Congress not the

judiciary is vested with the authority to define, and attempt

to solve, the societal problems created by drug trafficking

across national and state borders. The Supreme Court has made it

plain that the use of severe penalties as part of the legislative

armamentarium does not constitute cruel and unusual punishment.

30Appellant's reliance on United States v. Heath, 840 F.

Supp. 129 (S.D. Fla. 1993), is misplaced. In Heath, the district

court, after expressing concern over the proscription against
cruel and unusual punishment, declined to impose a life sentence
as directed by the guidelines, and instead departed downward by
extrapolating from the sentencing table. See id. at 130-32. We

deal with appellant's claim that the court below should have
departed downward in Part VI(B), infra.

74

See, e.g., Harmelin, supra; Hutto, supra; see also United States

v. Munoz, 36 F.3d 1229, 1239 (1st Cir. 1994), cert. denied, 115

S. Ct. 1164 (1995). Under this light, the flimsiness of

appellant's Eighth Amendment challenge becomes apparent.

B. The Refusal to Depart.
B. The Refusal to Depart.

As a general rule, "a district court's refusal to

depart, regardless of the suggested direction, is not

appealable." United States v. Romolo, 937 F.2d 20, 22 (1st Cir.

1991). There is, of course, an exception that applies "if the

record supports an inference that the sentencing court's failure

to depart did not represent an exercise of factfinding or

discretion, but was instead the product of a court's

miscalculation about whether it possessed the authority to

depart." United States v. Amparo, 961 F.2d 288, 292 (1st Cir.),

cert. denied, 113 S. Ct. 224 (1992); accord United States v.

Pierro, 32 F.3d 611, 618-19 (1st Cir. 1994), cert. denied, 115 S.

Ct. 919 (1995). Appellant attempts to wedge his case within the

dimensions of this exception on the ground that the sentencing

court believed, erroneously, that it lacked discretion to impose

concurrent sentences. This claim misconstrues the record.

In United States v. Quinones, 26 F.3d 213 (1st Cir.

1994), we held that a court may deviate from U.S.S.G. 5G1.2 "if,

and to the extent that, circumstances exist that warrant a

departure." Id. at 216. Although Quinones had not yet been

decided when Judge Torres sentenced Saccoccia, we are satisfied

that he understood this principle and anticipated our holding.

75

At the disposition hearing, appellant argued that the

district court had authority under 18 U.S.C. 3584(a) to depart

downward and impose concurrent sentences on all counts

notwithstanding the terms of U.S.S.G. 5G1.2. The court

acknowledged that it possessed such authority, but it concluded

(appropriately, we think) that because the guidelines required

consecutive sentences in appellant's case, it could only impose

concurrent sentences if the case satisfied the conditions for a

downward departure, that is, if it found mitigating circumstances

not considered by the Sentencing Commission. See U.S.S.G.

5K2.0. Discerning no such mitigation, the court eschewed a

downward departure. In other words, the court realized that it

could impose concurrent sentences as a specie of downward

departure, cf. Quinones, 26 F.3d at 216 (authorizing the

imposition of consecutive sentences as a specie of upward

departure), but it chose not to do so because, in its judgment,

the facts did not warrant a downward departure.

This ends our jaunt. Inasmuch as the district court

correctly understood that it possessed the power to depart from

the GSR but made a discretionary decision to refrain from

exercising that power, we lack jurisdiction to address

appellant's claim. See Pierro, 32 F.3d at 619 (explaining that a

discretionary refusal to depart by a judge who recognizes his

power, but who says, in effect, that the case before him is not

"sufficiently unusual to warrant departing," is not reviewable on

appeal).

76

C. Ex Post Facto Concerns.
C. Ex Post Facto Concerns.

Appellant seeks to incorporate an argument advanced on

appeal by his codefendants to the effect that the district

court's sentencing determinations abridged the Ex Post Facto

Clause, U.S. Const. art. I, 9, cl. 3. In appellant's view, the

court's error lay in increasing his TOL based on an amendment to

the money laundering guideline, U.S.S.G. 2S1.1(b)(1),31 that

did not become effective until November 1, 1991 during the

lifespan of the conspiracy, but subsequent to the last proven

instance of money laundering. This criticism fails for at least

three reasons.

First, appellant did not broach the topic at

sentencing. He has, therefore, waived it. See United States v.

Dietz, 950 F.2d 50, 55 (1st Cir. 1991) (explaining that "in

connection with sentencing as in other contexts, . . . arguments

not seasonably addressed to the trial court may not be raised for

the first time in an appellate venue"); accord, e.g., United

States v. Piper, 35 F.3d 611, 620 n.6 (1st Cir. 1994), cert.

denied, 115 S. Ct. 1118 (1995); Sepulveda, 15 F.3d at 1202.

Second, appellant was not only the mastermind of the

money laundering ring, but also its chief executive officer,

31The amendment inserted the words "or believed" into
section 2S1.1(b)(1), see U.S.S.G. App. C, Amend. No. 378 (1992),

with the result that the guideline, subsequent thereto, read in
pertinent part: "If the defendant knew or believed that the

funds were the proceeds of an unlawful activity involving the
manufacture, importation, or distribution of narcotics or other
controlled substances, increased [his BOL] by 3 levels."
(Emphasis supplied to show added language).

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comptroller, sales manager, and director of operations. The

weight of the evidence heavily preponderates in favor of a

finding that appellant knew and believed of the money's origins.

Indeed, appellant wholly fails to demonstrate how and where the

district court erred in determining his level of "knowledge or

belief," or why the guideline revision makes any real difference

in his case. This failure typical of litigants who attempt to

incorporate by reference arguments which, if made in earnest,

deserve individualized attention is fatal to appellant's cause.

See, e.g., Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

Third, even if appellant were somehow to surmount the

two hurdles we have just described, he could prevail only upon a

showing of plain error. See United States v. Olano, 113 S. Ct.

1770, 1776-78 (1993); United States v. Olivier-Diaz, 13 F.3d 1,

5-6 (1st Cir. 1993). Given the strict requirements that attend

amelioration under the plain error doctrine, and the substantial

discretion invested in appellate courts with regard to the

doctrine's use, see generally Taylor, F.3d at [slip op.

at 6-7], plain error is plainly absent here. Put bluntly, we

detect nothing in appellant's belated assault that causes us to

question "the fundamental fairness or basic integrity of the

proceeding below in [any] major respect." Id. at [slip op.

at 7].

D. Obstruction of Justice.
D. Obstruction of Justice.

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Appellant's fourth line of attack suggests that the

sentencing court erred in elevating his offense level for

obstruction of justice. This sortie is moot. The only practical

effect of the adjustment is to raise the TOL from 43 to 45.

Since life imprisonment is mandatory at or above TOL 43, see

U.S.S.G. 5G1.2; see also U.S.S.G. 5A, comment. (n.2) ("An

offense level of more than 43 is to be treated as an offense

level of 43."), canceling the enhancement would accomplish

nothing.

It is this court's settled practice not to address an

allegedly erroneous sentencing computation if, and to the extent

that, correcting it will neither change the defendant's sentence

nor relieve him from some unfair collateral consequence. See,

e.g., Sepulveda, 15 F.3d at 1199; United States v. Bradley, 917

F.2d 601, 604 (1st Cir. 1990). We believe that this philosophy

is fully applicable in a situation where, as here, correction of

an allegedly erroneous finding would not eliminate the certainty

of a mandatory sentence of life imprisonment. Courts should not

tilt at windmills.

VII. CONCLUSION
VII. CONCLUSION

We need go no further. Having scoured the record and

carefully considered appellant's entire asseverational array

(including some arguments not specifically discussed herein), we

detect no reversible error. As we see it, appellant was lawfully

extradited, fairly tried, justly convicted, and appropriately

punished.

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Affirmed.
Affirmed.

80