United States v. Hurley

August 25, 1995
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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

UNITED STATES OF AMERICA,
Appellee,

v.
VINCENT HURLEY,

Defendant, Appellant.

No. 93-1560
UNITED STATES OF AMERICA,

Appellee,
v.

CARLO DeMARCO,
Defendant, Appellant.

No. 93-1561

UNITED STATES OF AMERICA,
Appellee,

v.
JAMES SACCOCCIO,

Defendant, Appellant.

No. 93-1562
UNITED STATES OF AMERICA,

Appellee,
v.

STANLEY CIRELLA,
Defendant, Appellant.

No. 93-1563
UNITED STATES OF AMERICA,

Appellee,
v.

KENNETH SACCOCCIO,
Defendant, Appellant.

No. 93-1616

UNITED STATES OF AMERICA,
Appellee,

v.
STEPHEN PIZZO,

Defendant, Appellant

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

Appellee,
v.

DONNA SACCOCCIA,
Defendant, Appellant.

No. 94-1388

UNITED STATES OF AMERICA,
Appellee,

v.
ANTHONY DeMARCO,

Defendant, Appellant.

ERRATA SHEET

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

On cover sheet, change government's counsel listing to read:
"Kathleen A. Felton, Criminal Division, Appellate Section, Department

of Justice and Michael P. Iannotti, Assistant United States Attorney,

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

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

Elwood, Criminal Division, Department of Justice, were on joint brief

for the United States."

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

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

UNITED STATES OF AMERICA,
Appellee,

v.
VINCENT HURLEY,

Defendant, Appellant.

No. 93-1560
UNITED STATES OF AMERICA,

Appellee,
v.

CARLO DeMARCO,
Defendant, Appellant.

No. 93-1561

UNITED STATES OF AMERICA,
Appellee,

v.
JAMES SACCOCCIO,

Defendant, Appellant.

No. 93-1562
UNITED STATES OF AMERICA,

Appellee,
v.

STANLEY CIRELLA,
Defendant, Appellant.

No. 93-1563

UNITED STATES OF AMERICA,

Appellee,
v.

KENNETH SACCOCCIO,
Defendant, Appellant.

No. 93-1616

UNITED STATES OF AMERICA,
Appellee,

v.
STEPHEN PIZZO,

Defendant, Appellant

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

Appellee,
v.

DONNA SACCOCCIA,
Defendant, Appellant.

No. 94-1388

UNITED STATES OF AMERICA,
Appellee,

v.
ANTHONY DeMARCO,

Defendant, Appellant.

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

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

Before

Selya, Cyr and Boudin,

Circuit Judges.

Terrance Reed and Edward C. Roy with whom Reed & Hostage, Roy &

Cook, James T. McCormick, McKenna & McCormick, Michael C. Andrews,

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

Inglis, and Garguilo, Rudnick & Garguilo were on joint briefs for

appellants Donna Saccoccia, Stanley Cirella, Kenneth Saccoccio,
Vincent Hurley, James Saccoccio, Carlo DeMarco and Stephen Pizzo.
Robert D. Watt, Jr. for appellant Anthony DeMarco.

Kathleen A. Felton, Criminal Division, Appellate Section,

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

Attorney, with whom Sheldon Whitehouse, United States Attorney, James

H. Leavey and Michael E. Davitt, Assistant United States Attorneys,

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

joint brief for the United States.

July 24, 1995

BOUDIN, Circuit Judge. The eight appellants challenge

their convictions, sentences and forfeitures for their

participation in an extensive money laundering operation

organized by Stephen Saccoccia. His conviction and sentence

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

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

the convictions of the eight appellants before us, their

sentences, and the forfeiture orders entered against them.

I. BACKGROUND
I. BACKGROUND

The eight appellants are Donna Saccoccia (wife of

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

brother Kenneth Saccoccio, Carlo DeMarco and his brother

Anthony DeMarco, Stanley Cirella and Stephen Pizzo. Along

with Stephen Saccoccia and others, appellants were indicted

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

violate the Racketeer Influenced and Corrupt Organizations

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

charged with substantive counts of money laundering, 18

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

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

1952.

One conspirator originally charged, David Izzi, pled

guilty before trial and testified for the government.

Stephen Saccoccia was severed and tried separately due to the

illness of his counsel. Alfred Gabriele, added as a

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conspirator in a superseding indictment, was also tried

separately, and his appeal is still pending. United States

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

the eight appellants in this case were tried together in the

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

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

At trial, the government's evidence consisted primarily

of the testimony of other participants in the money

laundering activities, of Colombian nationals involved in the

international drug trade, and of bank employees. The

government also offered bank records of financial

transactions and numerous court-ordered wiretap recordings.

Viewed in the light most favorable to the verdicts, United

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

evidence permitted a reasonable jury to find the following.

Stephen Saccoccia owned and controlled a number of

precious metals businesses, including Saccoccia Coin Company

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

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

International Metal Marketing ("International Metal") and

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

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

dealings, Stephen Saccoccia began laundering drug money for

Duvan Arboleda, a Colombian narcotics dealer. The laundering

operation, ultimately expanded to serve a second drug ring as

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well, took several forms but each began with Stephen

Saccoccia receiving large amounts of cash in New York,

generated from the sale of cocaine. Often, Saccoccia would

send one of his employees, usually unindicted co-conspirator

Richard Gizzarelli, to a prearranged location, such as a

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

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

Saccoccia's apartment in New York to count it.

The money then followed two different routes. Some of

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

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

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

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

Saccoccia Coin in Rhode Island, either through armored car

service or in the car of a Saccoccia employee.

Once the cash reached Rhode Island, it was counted by

Saccoccia employees and divided into a number of packets in

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

the cash went to the Trend office in Cranston. Saccoccia

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

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

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

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

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

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

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accurate currency transaction reports, which are required by

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

Ultimately the local Rhode Island checks would be

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

the Trend account at Citizens Bank in Rhode Island. A

smaller portion of the cash sent to Rhode Island went to

Saccoccia Coin. That cash was used to buy gold without

documentation; the gold was then resold to legitimate

companies in exchange for checks recorded as payments for

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

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

enterprise.

At the Los Angeles end, the gold sent to International

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

account at Citizens Bank. Cash received by International

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

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

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

York eventually ended up in the Trend account at Citizens.

Citizens Bank closed the Trend account in April 1991.

Thereafter, cash was still transported from New York and

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

checks from various banks, but the checks were sent to

International Metal and Clinton Import/Export in Los Angeles.

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Donna Saccoccia assisted her husband in most aspects of

the operation, relayed his instructions to the others and

wired funds abroad to Colombian banks. Hurley and Anthony

DeMarco picked up cash from couriers in New York and

transported it to Rhode Island. Hurley, Anthony and Carlo

DeMarco, Kenneth and James Saccoccio, Cirella and Pizzo

received the cash deliveries in Rhode Island, counted the

money, and separated it into packets of smaller amounts for

transport to local banks. Anthony DeMarco and James and

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

A staggering amount of money moved through this

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

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

foreign bank accounts primarily in Colombia; more than $97

million of this amount was wired from the Trend account in

Citizens Bank jointly controlled by Donna and Stephen. Apart

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

Saccoccias and their employees as compensation.

All eight appellants were convicted of RICO conspiracy.

All but Carlo DeMarco and Pizzo were convicted of substantive

offenses. After post-trial motions, appellants were

sentenced in May 1993, and forfeiture judgments against each

appellant were entered pursuant to the RICO forfeiture

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

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

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substantive convictions (in addition to RICO conspiracy),

their sentences,and their forfeiture amountsare listed below:

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

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

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

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

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

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

These appeals followed.

II. THE RICO ISSUES
II. THE RICO ISSUES

The RICO conspiracy offense charged in this case

required the government to prove an agreement by appellants

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

enterprise's affairs through a pattern of racketeering

activity"; and the pattern alleged in this case required

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

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

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

instructions and the evidence relating to RICO.

A. The RICO Indictment
A. The RICO Indictment

The RICO conspiracy count alleged the formal requisites

of the offense including the assertion that each appellant

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

not specify which predicate acts each appellant committed or

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

argue that this lack of specificity is fatal to the

indictment because a sufficient indictment must "fairly

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

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

(1974).

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In count I, the indictment identified the enterprise,

its precise method of operation, the role played by each

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

appended lists specifically referenced in count I, the

indictment also set forth thousands of individual bank

transactions and wire transfers. What was lacking was any

identification of the particular transactions in which the

four complaining appellants were involved, since they acted

mainly as counters and subdividers of money deposited and

transferred by others.

But if a defendant were charged with conspiring to

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

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

period in which a series of identified shipments were made.

The government might never know which particular shipments

had been packed by the defendant; but his agreement to

participate in distributing multiple shipments could fairly

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

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

left in ignorance about what the government intended to

prove.

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

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

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

two defendants failed because "a RICO conspiracy count must

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charge as a minimum that each defendant agreed to commit two

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

the indictment did not charge even in the most general terms

that certain defendants had agreed to commit two predicate

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

in point.

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

The gravamen of the underlying offense is "to conduct or

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

enterprise's affairs" through a pattern of racketeering

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

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

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

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

management of the enterprise itself." Reves involved a civil

RICO suit against an outside accounting firm hired to audit

the books of an allegedly corrupt enterprise. Construing

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

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

insider employees who are "plainly integral to carrying out"

the racketeering activities fit within section 1962(c).

Here, appellants claim that the district court's

instruction on the meaning of "conduct or participate" was

erroneous in light of Reves. No objection to the instruction

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

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

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

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

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

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

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

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undermined "the fairness, integrity or public reputation of

judicial proceedings." Id. at 1778-79.

The instruction in this case was similar to the one we

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

appellants deem crucial--is that the Oreto instruction

encompassed defendants who perform acts "necessary to or

helpful in the operation of the enterprise," whereas the

instruction in this case encompassed defendants who perform

acts "related to the operation of the enterprise."

Appellants argue that the court's language embraced precisely

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

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

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

In the abstract, the relatedness reference might pose a

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

independent auditor in Reves. But in this case the

government's version of the evidence placed appellants

squarely in the role of employees of the enterprise. The

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

events, making the alleged ambiguity in the instructions

harmless. To the extent that appellants are challenging

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

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

(newly constituted panels bound by prior panel decisions in

point).

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

Appellants complain about two aspects of the district

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

use of a general "willful blindness" instruction and the

court's refusal to instruct the jury that willful blindness

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

one cannot simultaneously be willfully blind to a conspiracy

and also intend and agree to join the conspiracy.

The district judge first instructed the jury on the

substantive counts. He then gave a detailed explanation of

the RICO conspiracy count, including the requirement that the

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

commit the substantive offenses that are the objects of the

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

infer knowledge of the conspiracy from negligence, mistake,

or ignorance; instead, the defendant must act "voluntarily

and intentionally." After lengthy instructions on the RICO

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

then did he give the "willful blindness" instruction:

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

The willful blindness instruction appears to have been

aimed at the "knowing" requirements of substantive counts.

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

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given us no reason to think that it diluted the express

"intent" requirement for the conspiracy count. Here the

trial judge adequately guarded against that risk with

cautionary instructions stressing that the defendants must

have joined the conspiracy intentionally, see United States

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

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

convicted without finding deliberate agreement.

Second, appellants object to the district court's

refusal of their request for an instruction that each

appellant had to know of the existence and general nature of

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

it was entangled with other requests and the district court

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

had in substance been given. Although nothing in the statute

explicitly requires such knowledge, there is some precedent,

including a comment from this court, suggesting it is

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

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

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

We think that in substance the jury was told, although

somewhat indirectly, that appellants had to be aware of the

enterprise and its general character in order to be guilty

under the RICO conspiracy charge. The court instructed that

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

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conspiracy existed "to conduct or participate in the affairs

of an enterprise through a pattern of racketeering activity."

The court subsequently told the jury that the government must

also prove "that the defendant knew the conspiracy existed

and knew of its unlawful purpose."

Perhaps in theory one might imagine a defendant who knew

of and joined in a conspiracy to conduct an enterprise but

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

however, the government's evidence showed that appellants

knowingly engaged in structuring transactions on an ongoing

basis within the framework of Stephen Saccoccia's business

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

no doubt that appellants knew what they were doing and knew

they were doing it within the framework of the Saccoccia

organization. If the instruction deviated from perfection,

the deviation was assuredly harmless.

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

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

court statements by several persons whom it characterized as

unindicted co-conspirators. The most important were two

regional managers of rival drug cartels each of which

supplied money to be laundered by Stephen Saccoccia's

organization. The district court admitted the hearsay under

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

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

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

more probably than not, members of the Saccoccia conspiracy

and rendered a final Petrozziello ruling at the close of

evidence.

Appellants say first that the two drug ring managers

could not conceivably be members of the same conspiracy with

each other because the rings were rivals. The government

responds that the hearsay exception does not require that the

conspiracy used to support the hearsay evidence be the same

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

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

dealer necessarily conspired with the members of the

Saccoccia organization. Whether the government's premise of

separate conspiracies is sound or squares with what the

district court found is not evident from its brief.

Nevertheless, appellants--who bear the burden on appeal

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

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

part of the same conspiracy; their alleged rivalry is hardly

conclusive because it is not necessary that all co-

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

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

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

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

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appellants make no effort to muster the evidence on this

issue, or even to argue it.

Alternatively, appellants argue that the court should at

least have given a multiple conspiracy instruction, an

argument reinforced--although perhaps only superficially--by

the government's defense of the hearsay declarations. The

government says that this issue was not raised in a timely

fashion and that there was no factual basis for a multiple

conspiracy instruction. In declining to give such a charge,

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

addition, that the proposed multiple conspiracy instruction

was itself deficient.

The district court could be sustained on any one of

these three grounds but we think that untimeliness is

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

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

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

for such an instruction was not made until after government

counsel had completed his closing argument, making it

impossible for him to address the jury on this point.

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

overarching conspiracy; and appellants make little effort in

their brief to show that multiple conspiracies were a serious

possibility.

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

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In reviewing sufficiency claims, we normally consider

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

and then ask whether the evidence "would allow a rational

jury to determine beyond a reasonable doubt that the

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

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

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

them "directed" the enterprise, we rejected this legal

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

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

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

test, a rational jury could convict each appellant.

Donna Saccoccia relayed her husband's instructions to

other appellants on numerous occasions, helped count money,

and personally authorized the wire transfer of more than $38

million from the Trend account to foreign bank accounts.

Hurley and Anthony DeMarco received and counted the large

cash deliveries in New York and helped transport the cash to

Rhode Island. James and Kenneth Saccoccio and Anthony

DeMarco did most of the legwork involved in money laundering,

exchanging millions of dollars in cash for cashier's checks

at various banks. Carlo DeMarco travelled to New York and

Connecticut to transport the cash; Cirella and Stephen Pizzo

received and counted money at the coin shop.

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Four appellants argue that apart from their low levels

of responsibility, the evidence was insufficient to show

knowledge on their part that the Saccoccia organization was

engaged in money laundering or that the money being laundered

was derived from narcotics. These claims are made by

Cirella, Pizzo and James and Kenneth Saccoccio in order to

defeat the showing of predicate acts available to the jury to

underpin their RICO convictions. Each of the four says or

implies that he was unaware of money laundering but working

for what he understood to be a legitimate business.

The jury was entitled to find that these four appellants

knew that they were engaged in unlawful money laundering.

Stephen Saccoccia discussed with Cirella and Pizzo, among

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

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

jail. James and Kenneth Saccoccio were involved in so many

deposits and manipulative subdividings of funds that

laundering was the only plausible explanation. Further, in

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

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

Kenneth Saccoccio conducted the following (recorded)

conversation with Izzi:

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

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

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

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

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

evidence of knowledge among the underlings is much thinner

since none of the conspirators were directly involved with

the narcotics sales. Kenneth Saccoccio is an exception since

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

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

Cirella said something that the jury might have taken as

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

of James Saccoccio, the imputation of knowledge of drugs

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

close association with Kenneth.

There are plenty of cash-generating businesses but among

those that require the illicit laundering of funds, the drug

business is notorious and preeminent. In this case, the

evidence showed that narcotics were the source of the cash

and that this fact was well known to Stephen Saccoccia and

Kenneth Saccoccio, among others. We think that a rational

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

origins, either from the size and continuing nature of the

deliveries, or from being told that the money came from

drugs; and Cirella and Pizzo are a fortiori cases.

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

The Bank Secrecy Act requires domestic banks to report

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

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

customers from providing false information for a bank's

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

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

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

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

with one or more domestic financial institutions." Id.

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

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

reporting threshold or into amounts that are larger but still

less likely to attract attention.

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

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

or she structures while violating another federal law or as

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

Hurley, James and Kenneth Saccoccio, and Cirella were

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

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

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

grounds.

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

Appellants first contend that the reporting requirement

violates the Fifth Amendment by requiring them to provide

incriminating information to the government about themselves.

The Supreme Court has not directly decided this issue as to

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

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

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

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

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

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

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

In our complex society, individuals are called upon to

provide information to the government on countless occasions

and under a great variety of circumstances. Where Congress

has framed a disclosure requirement narrowly focused upon

criminal conduct, the Supreme Court has on occasion struck

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

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

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

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

the Court has upheld the statutes even where the reporting

could in due course lead the government to uncover criminal

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

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

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

California hit and run law that required motorists involved

in an accident to halt and provide their names and addresses

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

involved in such accidents may be identifying themselves in

situations that could result in criminal jeopardy. But the

Court found that the report required was not itself a

confession of criminal conduct, and that the law was directed

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

group "inherently suspect of criminal activities." Byers,

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

Of course, a witness may invoke the Fifth Amendment

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

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

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

the jurisprudence that governs them has followed a different

course. And although the 1986 structuring amendments were

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

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

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

tax and regulatory concerns. Many of the reports are filed

by legitimate cash-oriented businesses and the report itself

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is not inherently more incriminating than the accident report

upheld in Byers.

Anthony DeMarco makes a different constitutional attack

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

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

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

information that the teller secures from the customer, asks

"on whose behalf" the transaction is being conducted.

Anthony DeMarco told bank tellers that the transactions were

being conducted on his own behalf but the evidence showed

that they were being conducted for Stephen Saccoccia.

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

unconstitutionally vague.

Due process requires that criminal statutes define

offenses with sufficient clarity that an ordinary person can

understand what conduct is prohibited. Kolender v. Lawson,

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

reasonably clear and, on the present facts, plainly pointed

to Stephen Saccoccia. The cases DeMarco cites all involve

prior versions of the reporting form, which used different

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

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

of the form was promulgated to remedy this ambiguity. United

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

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

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B. Instructions: Willfulness
B. Instructions: Willfulness

Appellants next argue that the district court erred in

instructing the jury on willfulness as an element in a

structuring violation. Last year, the Supreme Court rejected

the majority view of the circuits and held that for a

structuring conviction a defendant must know that what he is

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

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

jury that, in addition to knowledge, willfulness was required

and continued:

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

No objection was made to this instruction, so we review

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

a failure to object followed by a wholly unexpected change of

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

an en banc argument to consider the scienter requirement in

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

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

2Following the Supreme Court's decision in Ratzlaf v.

United States, Congress deleted the statutory willfulness

requirement for structuring offenses. 31 U.S.C. 5322(a),
(b), 5324(c); Pub. L. 103-325, 411, 108 Stat. 2160, 2253
(Sept. 23, 1994); see H.R. Conf. Rep. No. 652, 103d Cong.,

1st Sess. 147 (1994). This recent change does not affect
appellants' appeals.

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

Marder, we recently applied the plain error standard to a

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

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

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

32 (3d Cir. 1994).

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

Aversa held that "reckless disregard" of the law satisfied

the willfulness requirement of the structuring statute. 984

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

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

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

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

defendant consciously avoided learning about the reporting

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

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

(1987).

Ratzlaf did not formulate any precise instruction.

Should the Supreme Court address the issue again, it might

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

disregard" is part of a standard instruction on willfulness.

See 1 L. Sand, supra, 3A.01 at 3A-18. See also United

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

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

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

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usually based on inference rather than on direct evidence.

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

plain nor the cause of a miscarriage of justice.

C. Count 67
C. Count 67

Hurley and Cirella were convicted of structuring while

violating another federal law or as part of a pattern of

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

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

charged that they, together with James and Kenneth Saccoccio,

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

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

The indictment said:

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

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

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

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

bills. Bank records showed that after the conversation and

later that day Kenneth Saccoccio made two $9,000

transactions. The jury convicted Hurley and Cirella on count

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

The first argument is based on the fact that the trial

judge, without objection, instructed the jury that

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

into deposits under that figure or by dividing the original

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

reportable amount. Appellants read the indictment language

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

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

convict on a different theory of the offense, impermissibly

causing a constructive amendment of the indictment. See,

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

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

The apparent strength of the argument is that the taped

evidence showed these two appellants being told to assemble

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

appears to dovetail with this evidence. But the "over

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

of structuring, and had nothing in particular to do with

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

instances (involving DeMarco, Kenneth and James Saccoccio)

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

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

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

Thus, reading the instructions in relation to evidence,

we think that the jury had to understand that the

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

Cirella, to facilitate specified unreported deposits of under

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

aid of and with the expectation that they would be subdivided

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

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

general instructions in multiple count cases, and letting the

jury sort out their application according to the facts, is

common and permissible. Given this interpretation of

what happened, we have no reason to consider whether there

would have been a constructive amendment rather than a

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

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

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

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

reject, appellants' claim that the evidence was inadequate to

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

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

timing made the connection a permissible inference.

In a different attack, appellants argue that count 67

was facially defective because it alleged, but failed to

specify, the other federal law concurrently violated or the

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

months. This additional allegation was not needed to prove

the violation but was needed to trigger the enhanced penalty

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

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

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

overturned a structuring conviction because the structuring

count did not specify the other illegal act or pattern.

Here, count 67 did incorporate by cross reference the 22

introductory paragraphs of count 1 where the government

described the smurfing operation in detail, identified the

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

were involved. Hurley and Cirella had to know that the

pattern of illegal activity alleged by the government was the

vast smurfing enterprise of which count 67 was but a single

example. Cross references are permissible in indictments.

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

There is no showing that either appellant was prejudicially

misled.

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

Kenneth and James Saccoccio make a more promising attack

on their own convictions for structuring. They say that

there is insufficient evidence that they knew structuring to

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

entitled to judgments of acquittal. In Ratzlaf itself, the

dissent contended that the majority's knowledge requirement

would frustrate the statute; the majority said that

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

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

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There is no direct evidence that either appellant knew

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

permitted the jury to conclude that both knew that drug money

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

were designed to disguise proceeds; and that both were paid

in proportion to the deposits they made. In addition,

Kenneth Saccoccio made a recorded statement indicating that

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

common role and association a jury could reasonably infer

that James had the same level of apprehension.3

We think that the thrust of Ratzlaf's wilfulness

requirement is met if persons engaged in depositing broken

down amounts are generally conscious that their laundering

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

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

one to anticipate Ratzlaf and we are fully sympathetic with

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

structured transactions to disguise amounts in situations

where the actor might reasonably have no idea that the course

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

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

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

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

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

that both knew that their own activities were unlawful. This

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

they generally gave their names and identifying information

when requested by banks: couriers in their position could

reasonably think that an individual deposit standing alone

would not appear irregular, while remaining aware that anyone

with a full knowledge of their activities would condemn them.

Ratzlaf dealt with an abstract jury instruction in yes

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

answer more concrete questions of how much is enough. Where

a defendant's structuring is genuinely innocent of criminal

intent, we think that under Ratzlaf a judgment of acquittal

is proper no matter how unattractive the context. Cf.

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

saturated with consciousness of illegality, we do not think

that Ratzlaf requires the jury to ignore it in assessing the

defendant's state of mind.

IV. MISCELLANEOUS TRIAL ISSUES
IV. MISCELLANEOUS TRIAL ISSUES

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

After contesting extradition, Donna Saccoccia was

returned by Switzerland to the United States, arriving on

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

government turned over the bulk of its discovery in late

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

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

set to begin on November 2.

Ten days before trial Donna Saccoccia's attorney asked

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

team of lawyers had just over 100 days after arraignment to

prepare for her trial. Pointing to the length of the

government investigation, the number of charges and the

quantity of evidence (over 1600 hours of surveillance tape

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

claims that the denial of the second continuance was

prejudicial error.

Although the government asserts that Donna Saccoccia's

counsel were able to prepare during the extradition

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

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

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

counsel, who had eight months to prepare, examine the

government's tapes and documents, search for exculpatory

evidence and do research. Although a few issues were

peculiar to Donna Saccoccia, the common issues bulked large.

Given the broad discretion enjoyed by trial judges, see

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

especially in the complex task of organizing a multi-

defendant trial--we have no hesitance in upholding the

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

counsel appears to have performed ably and there is no

indication of prejudice. The time allowed was generally

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

1978), and the cases overturning convictions for lack of

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

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

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

1017 (1986).

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

Carlo DeMarco, an employee of Stephen Saccoccia for only

about three months, was convicted of RICO conspiracy but not

charged with any substantive offense. Midway through the

trial he moved for a severance on the ground that Anthony

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

behalf in a separate trial. Carlo offered the affidavit of

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

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

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

court held that the motion was untimely and without merit.

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

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

circumstances, a defendant must show that the proffered

testimony is genuinely necessary, exculpatory, and will in

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

the affidavit from counsel satisfied this requirement. See

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

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

that motions to sever must be made where feasible before

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

had a chance to consult adequately with his co-defense

counsel is manifestly lame.

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

Cirella, Hurley and Anthony DeMarco moved at trial to

suppress the government's recordings made by telephone taps

and listening devices installed in Trend and Saccoccia Coin.

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

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

"in such a way as to minimize the interception of

communications not otherwise subject to interception under

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

the suppression motion without reaching the question of

whether the remedy for a violation would be suppression. See

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

(raising but not deciding the issue).

Scott made clear that the statute does not forbid

interception of non-pertinent conversations but requires a

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

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

directives to turn off monitoring equipment for irrelevant

conversations; it supplied statistics showing that about

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

monitoring device, they did so because the conversation was

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

to the district court, and to ongoing contacts between the

agents and the prosecutors sometimes involving guidance on

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

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

The Saccoccia enterprise was a widespread and

complicated operation in which the illegal conduct was

deliberately disguised by the company's legitimate

activities. The conspirators employed code phrases that

mimicked industry terminology and used code names for each

other, banks and clients. Many of the participants were

related by blood or marriage, and incriminating exchanges

were often interspersed with personal conversation. It is

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

good-faith determination to turn off recording devices when a

conversation was seemingly unrelated to the laundering

operation.

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

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

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

to calls after it became clear that the calls were

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

Hurley's lawyer purported to show that a substantial number

of non-pertinent conversations were recorded; but the survey

was flawed by his subjective criteria of pertinence (for

example, the son classified conversation regarding gold as

non-pertinent even though the Saccoccia employees regularly

employed gold industry words as code phrases for money

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laundering transactions). The district court properly

disregarded the study.

D. Count 143

Count 143 charged Hurley with a Travel Act violation for

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

Rhode Island, to promote specified unlawful activity, namely,

structuring and money laundering. Hurley admits that the

indictment charged the first two requisites--interstate

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

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

statutory phrase) he "thereafter" performed or attempted an

act to further the unlawful activity. Id.

This is a legitimate argument. But we think that the

quoted statutory phrase must be read in light of its apparent

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

however malign his purpose, ultimately does nothing to

advance the illegal activity. Here, Hurley's transportation

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

of the ongoing laundering operation. The particular trip was

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

the delivery of funds for laundering. Accord United States

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

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

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

thus no need to consider whether (as claimed by the

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government) the general descriptions of Hurley's activities

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

independently supply a subsequent act. We also think it

unnecessary to discuss Hurley's argument that the evidence

was insufficient to show that he participated in the

particular trip which unquestionably occurred. While

Hurley's involvement depended on inferences from different

pieces of evidence, the jury was entitled to draw those

inferences.

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

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

trial counsel made and then abandoned a suggestion that she

be examined professionally in relation to her current mental

condition. The trial proceeded with no further request for

such an examination or suggestion of incompetency, until--

about six months after the trial--the presentence report

alluded to a possible sentence reduction for diminished

mental capacity. The defense then retained a clinical

psychologist who examined Donna Saccoccia and concluded that

she was mentally incompetent and had been throughout the

trial.

Two days before sentencing, trial counsel filed a motion

seeking a competency hearing, which is required where there

is "reasonable cause" to believe that a defendant is

"mentally incompetent to the extent that he is unable to

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understand the nature and consequences of the proceedings

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

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

psychologist testified that Donna Saccoccia was able to

understand the proceedings but opined that she did not have

the ability to assist counsel because of depression, anxiety

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

competency hearing was not required and Donna Saccoccia now

appeals that decision.

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

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

is no countervailing expert evidence on the other side. See

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

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

substantial examination and his concerns--although not his

specific conclusions--have a degree of support in trial

counsel's comment at the arraignment and the concerns

expressed in the presentence report. For obvious reasons,

competency claims are not subject to ordinary waiver

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

On the other hand, the focus of the incompetency claim

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

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

doubting whether the psychologist understood the issues in

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

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important is the silence of defense counsel on this point

during the trial. An experienced trial lawyer ought to be

the first to notice a lack of cooperation or ability to

assist so severe as to raise competency questions. There was

no complaint from trial counsel until after trial when the

presentence report reawakened counsel's interest in the

matter.

Neither at the preliminary competency hearing nor on

appeal has counsel been able to point to any specific

problems with Donna Saccoccia's assistance during trial.

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

impairment might prevent counsel from ever learning of

information helpful to the defense; but the generalized

character of the claim weakens its force. The district

judge, who presided over the trial and the preliminary

hearing, is entitled to some latitude in making judgment on

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

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

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

hearing, we sustain the district court's ruling.

V. SENTENCING ISSUES
V. SENTENCING ISSUES

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

Under the RICO sentencing guidelines, the district judge

properly employed the money laundering guideline in

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

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

time of sentencing increased a defendant's base offense level

for money laundering by three levels if the defendant "knew

or believed" that the laundered money was the proceeds of

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

effective on November 1, 1991; previously, the increase

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

narcotics.

In a claim not raised at sentencing, appellants now

argue that the district court erred by applying the new and

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

laundering offense occurred in April 1991 before the new

guideline took effect. See United States v. Cousens, 942

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

that the RICO conspiracy itself continued at least until

November 1991, asserting that no ex post facto problem exists

where the crime continues after the effective date of a new

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

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

David can arguably be distinguished, but the issue need not

be decided here.

The new guideline language was intended to apply the

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

trafficking was involved, but the knowledge turned out to be

mistaken because (for example) the operation was a government

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

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

proceeds of narcotics trafficking so belief and knowledge

were the same thing. A defendant who merely believed the

drug proceeds were involved would (because of the correctness

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

Appellants contend that the district court

misinterpreted the phrase "knew or believed" to allow an

increase based on a showing that appellants merely suspected

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

examined the transcript of the sentencing and reject this

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

direct knowledge, and in others, knowledge was inferred from

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

court's remarks show that the judge determined that the

appellant knew the source of the laundered funds.

Pizzo and James Saccoccio assert that even if the court

did not misunderstand the standard, the evidence was

inadequate to show that they knew that the laundered money

was the proceeds of narcotic sales. As explained earlier in

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

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

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

of small bills and other circumstances made it entirely

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reasonable to infer that direct participants in the

enterprise knew that the funds were derived from drugs.

B. Other Sentencing Errors
B. Other Sentencing Errors

The offense level for money laundering offenses is keyed

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

Appellants contend that in various respects the sentencing

court erred in determining the value of the funds and in

determining the varying amounts that it found each individual

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

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

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

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

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

supportable, and that none involves any issue of law

requiring discussion.

Something closer to an issue of law is presented by the

district court's determination that Carlo DeMarco was

entitled to a two-level reduction as a minor participant

rather than to the four-level decrease as a minimal

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

DeMarco participated for only a few months in the RICO

conspiracy and was held responsible for only $3.9 million of

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

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

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activities made him a minor rather than a minimal

participant.

On appeal DeMarco argues that he was entitled to have

his role determined in light of the entire conspiracy. The

government argues that his role should be measured only

against the foreseeable conduct for which he has been held

responsible. No case law discussing this issue has been

cited. But we think that common sense permitted the district

judge to determine that DeMarco--who participated quite

actively in several roles over a significant period and was

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

minor and not a minimal participant.

VI. FORFEITURE ISSUES
VI. FORFEITURE ISSUES

Between January 1990 and April 1991, Stephen and Donna

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

apparently controlled by Colombian drug suppliers. In the

indictment, the government took the position that each

appellant was jointly and severally liable for this amount

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

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

forfeit "any property constituting, or derived from, any

proceeds which the person obtained, directly or indirectly,

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

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

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the other appellants having waived a jury trial on forfeiture

issues.4

The district court imposed separate forfeitures on the

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

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

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

appellant even though later passed along to the Colombians,

and that each appellant was responsible for funds foreseeably

obtained by other co-conspirators. The court found that

Hurley, Stephen and Donna Saccoccia, and Anthony DeMarco were

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

the full amount; that the Saccoccio brothers, Cirella and

Pizzo were aware mainly of the Rhode Island operation and

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

through Trend and Saccoccia Coin; and that Carlo DeMarco,

active only from August through November 1991, was

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

otherwise known about.

After appellants filed notices of appeal, the government

filed a motion seeking forfeiture of substitute assets, 18

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

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

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district court ultimately determined that because the $136

million had been transferred out of the jurisdiction, each

appellant was liable to pay the amounts in question out of

any other assets of that appellant. Both the original

forfeiture orders and their extension to substitute assets

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

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

The opening question is whether the $136 million wired

to the Colombians constituted, at least as to the appellants

who handled or controlled these funds before they were wired,

"any property constituting, or derived from, any proceeds

which the person obtained, directly or indirectly, from

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

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

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

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

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

15 percent commission apparently retained by the Saccoccias

and the (presumably smaller) amounts passed along to other

appellants. Alternatively, appellants contend that none of

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

them since it represents amounts transmitted by the

Saccoccias to the drug owners themselves.

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

forfeiture provisions in 1984, and its legislative history

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explains without qualification that "the term `proceeds' has

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

the unreasonable burden on the government of proving net

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

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

Court made clear its desire for generous construction of the

RICO forfeiture provisions, in line with Congress' unusual

command that RICO (although a criminal statute) be broadly

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

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

us a rather easy call.

The point is borne out by imagining that Stephen

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

gold just before delivering it to the Colombians. The cash

or gold could surely be described as property representing

"proceeds" which Stephen Saccoccia had "obtained" from

racketeering activity in violation of section 1962, namely,

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

every reason why the booty in that situation ought to be

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

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

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

The more difficult question is whether property should

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

merely been held in custody by that individual and has been

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

property once held by a defendant on behalf of another has

the effect--when combined with the substitute assets

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

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

narrowly, having in mind the low level courier who merely

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

were diverted.

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

courier who gets a very small cut differs from intermediaries

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

who is effectively paying much of the money back to suppliers

and servitors of various kinds. Looking at criminal

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

the amount transported is some measure of the potential harm

from the transaction. And since temporary custody is

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

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

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

"obtained" should be read more narrowly.

Finally, it is very hard to escape the implications of

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

out a narrow safe harbor, which protects against forfeiture a

defendant who "acted merely as an intermediary who handled

but did not retain the property" unless the defendant

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conducted three or more separate transactions involving a

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

provision indicates that Congress itself thought that a

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

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

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

appellants in this case.

B. Vicarious Liability
B. Vicarious Liability

The question remains whether a defendant's forfeiture is

limited to the laundered funds that the defendant himself

obtained or whether it extends to funds obtained by other

members of the conspiracy. The district court took the

latter position with one important qualification: laundered

funds obtained by other members of the conspiracy would be

attributed only to the extent that they were reasonably

foreseeable to the particular defendant. Saccoccia, 823 F.

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

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

The arguments for limiting forfeiture solely to funds

personally obtained by an individual defendant are several.

The statutory language speaks of a violator forfeiting

"proceeds which the person obtained" by violating section

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

the plight of a defendant who was merely a temporary

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

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

is a respectable basis for holding that vicarious liability

for co-conspirator behavior does not exist under section

1963.

The arguments pointing the other way seem to us

stronger. Under established case law, members of a

conspiracy are substantively liable for the foreseeable

criminal conduct of the other members of the conspiracy.

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

same concept, the Sentencing Guidelines attribute to a

defendant at sentencing the foreseeable conduct of co-

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

although not impossible, to depart from this principle of

attributed conduct when it comes to apply the forfeiture

rules, which have aspects both of substantive liability and

of penalty.

It is largely fortuitous whether an individual co-

conspirator happened to possess the laundered funds at a

particular point. If conclusive weight were given to who

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

counter could be liable for vast sums, while other higher

level conspirators could easily escape responsibility. So

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

defendant, the foreseeable amount represents the sounder

measure of liability.

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

each court of appeals that has addressed the topic has

concluded that the forfeiture provisions involve joint and

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

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

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

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

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

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

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

describes the result without explaining the underlying theory

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

that a member of a conspiracy is responsible for the

foreseeable acts of other members of the conspiracy taken in

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

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

Appellants appear to think that their vicarious

liability for amounts they did not physically touch rests on

the assumption that the Colombian drug lords who ultimately

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

On this premise, appellants advance a number of arguments as

to why such a conspiracy cannot be made out under the

indictment or evidence in this case. The short answer is

that the premise is mistaken; individual appellants are

liable because their convicted American co-conspirators

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obtained the funds, regardless of the status assigned to the

Colombians.

Nor do we see any basis for the claim that the

forfeiture violates the "excessive fines" clause of the

Eighth Amendment. Although the provision is applicable to

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

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

foreseeably laundered by himself and his own co-conspirators

is quite rational based on a proportionality analysis.

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

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

another day forfeitures imposed on top of separate fines.

We appreciate the fact that a formidable penalty can be

inflicted when one disallows a passing-on defense then

imposes vicarious liability for the foreseeable acts of co-

conspirators. The government can collect its $136 million

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

appellant so much of that amount as was foreseeable to that

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

is unattractive to Congress, which requested a broad

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

this policy in Russello.

C. Substituted Assets
C. Substituted Assets

The indictment in this case sought forfeitures against

each of the appellants of approximately $140 million and

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

provides that if property subject to forfeit cannot be found

or has been transferred then "the court shall order the

forfeiture of any other property of the defendant up to the

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

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

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

the original jury verdicts contain a determination of

forfeiture only as to Hurley; forfeiture findings against the

other appellants were made thereafter by the district court,

as earlier described.

Appellants filed notices of appeal from their

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

government moved in the district court to amend the

forfeiture provisions of its judgments to substitute other

property of the appellants for the $137 million in laundered

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

appeal, appellants argue that the district court lacked

jurisdiction to enter those orders because appeals had

already been taken.

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

notice of appeal divests the district court of jurisdiction

to adjudicate any matters related to the appeal." United

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

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

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district court retains authority to decide matters not

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

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

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

example, determine attorneys' fees after an appeal has been

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

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

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

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

that the substitution of assets orders fit within this

general category.

Criminal forfeiture orders are something of a mongrel.

The initial forfeiture is sought in the indictment and,

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

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

statute says that an order substituting assets is to be made

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

that such an order may commonly be entered after the initial

forfeiture has been determined. Indeed, the government might

not even know that substitution is necessary until it seeks

to take possession of the property specified in the initial

forfeiture order.

Under these circumstances, we see no reason why the

taking of the appeal should divest the district court of

authority to enter an order forfeiting substitute property.

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Appellants do not provide any reason to think that this would

interfere with, or contradict, the court of appeals'

consideration of the original judgment of a conviction and

sentence, including the initial forfeiture order. Avoiding

such interference and inconsistency is the purpose of the

general rule barring district court proceedings during the

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

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

than its own rationale.

Of course, the substitute assets order, if one is

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

a new appeal can be taken directly from this order.

Similarly, a decision of the appeals court on the original

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

by overturning the conviction itself or the initial

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

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

section 1983 case presents the same problem and is resolved

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

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

1994) (separate appeal of counsel fees subsequent to original

judgment on the merits).

Appellants' other attack on the substitute assets orders

is that those orders countervail the double jeopardy clause,

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

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Appellants' basic argument is that the original RICO

forfeiture orders were limited to forfeitures of the

laundered monies and that the orders extending forfeiture to

substitute assets constituted either a second prosecution for

the same offense or multiple punishments for that offense.

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

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

1995).

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

in principle why the substitute assets provision should be

regarded either as a second prosecution or as a forbidden

multiple punishment. The fact that the substitute assets

order may be entered at some time after the original

conviction does not make it a second prosecution, any more

than sentencing after conviction is a second prosecution.

The substitution order is entered in the original proceeding

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

conviction sanctions, that are known to the defendant from

the outset.

As for the claim of multiple punishment, the

Constitution does not prevent multiple sanctions for one

offense where the sanctions are specified in advance by

Congress and imposed in reasonable proximity to the

conviction: a fine and imprisonment is a common federal

sentence. The situations in which later increased penalties

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have been condemned as multiple punishments are quite remote

from this case and involve aggravating elements that are not

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

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

(penalty for appeal).

VII. CONCLUSION
VII. CONCLUSION

A number of the remaining arguments made by appellants

have been addressed by the court in the decision affirming

Stephen Saccoccia's conviction and need not be discussed

again. These include attacks on certain references to the

Colombians, on the admission of dog sniff evidence, on

testimony by Agent Shedd, and on tape excerpts claimed to

refer to cocaine and drug money. Similarly, Donna

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

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

discussion of Stephen Saccoccia's counterpart claims.

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

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

deemed not to require separate treatment.

The charges in this case involved a web of multi-

paragraph statutes with intricate provisions that the jury

had to apply to numerous transactions involving multiple

defendants and occurring over a considerable period of time.

In these circumstances, we have reviewed appellants' claims

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

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making certain that no innocent person has been wrongly

enmeshed in criminal proceedings. We are satisfied that

while several debatable issues have been raised on appeal,

there was no prejudicial error and that the verdict returned

by the jury was a just one.

Affirmed.

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