United States v. Brand

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

No. 94-1350

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RODRIGO BRAND,

Defendant, Appellant.

No. 94-1351

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

FELIX APONTE-VELAZQUEZ,

Defendant, Appellant.

No. 94-1352

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

CARMELO PULLIZA-DELGADO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Selya, Circuit Judge,

Aldrich and Coffin, Senior Circuit Judges.

Peter Goldberger with whom James H. Feldman, Jr., Pamela A. Wilk,

Alan Ellis and Law Offices of Alan Ellis, P.C. were on brief for

appellant Felix Aponte-Velazquez.
Graham A. Castillo Pagan with whom Luis Rafael Rivera was on

brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.
Luis Rafael Rivera with whom Graham A. Castillo Pagan was on

brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, Juan A. Pedrosa, Assistant

United States Attorney, and Nelson Perez-Sosa, Assistant United States

Attorney, were on brief for appellee.

March 26, 1996

ALDRICH, Senior Circuit Judge. Appellants Aponte,

Pulliza, and Brand raise several claims of error on appeal of

their convictions for various substantive offenses in

connection with a cocaine importation and distribution

scheme. Finding none meritorious, we affirm.

I. Reconstruction of Trial Record

After persistent efforts by appellate counsel to

obtain a complete trial transcript, the trial court

determined that certain portions -- closing arguments and the

court's jury charge -- had been permanently lost. Appellants

then moved this court for summary reversal, which we denied

without prejudice in an order requesting the court to attempt

a recreation adequate for appeal, or, if unable, to determine

whether appellants were prejudiced as a result of remaining

gaps. The court recreated its jury charge, and located a

transcript containing the complete closing argument on behalf

of Pulliza and a "substantial portion" of the closing

argument for Aponte. It received from Brand's trial attorney

some incomplete notes prepared for his closing, along with

assurances that it would be impossible to recreate the actual

argument. The government filed what the parties agreed is a

"reasonable recreation" of its main closing argument, as well

as a recreation of its rebuttal, which appellants view as

inadequate. All agreed that no contemporaneous objections

had

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been raised during these segments of the trial. The court

then certified that the record had been reconstructed

as best as the court and the parties
could. The defendants have not shown any
specific prejudice arising from the
absence of the trial transcript other
than the inconvenience of not having the
precise text . . . for purposes of
developing argument on appeal on the
basis of clear error.1

Appellants contend adequate appellate review of

their convictions is impossible because the court did not

produce a reasonable recreation of the missing transcripts,2

entitling them to reversal and a new trial. They concede

that due process does not automatically require reversal when

a defendant is denied a full verbatim trial transcript, see,

e.g., Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir. 1987) (an

"adequate substitute" may suffice) (citing cases), but

contend that non-compliance with the Court Reporter Act, 28

U.S.C. 753(b)(1), alone requires reversal and a new trial.

We disagree.

The Act provides, inter alia, that all open court

proceedings in criminal cases "shall be recorded verbatim."

28 U.S.C. 753(b)(1) (1982). This provision is mandatory,

United States v. Andiarena, 823 F.2d 673, 676 (1st Cir.

1. Appellants concede plain error is their sole recourse
with respect to the incomplete portions of the transcript.

2. We limit our consideration to the closing arguments and
jury charge, as any other alleged breaches in the record were
not brought to the attention of the district court.

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1987), and concededly not complied with in this case, yet

nothing prescribes automatic reversal of a defendant's

convictions for non-compliance, and we are aware of no cases

which so hold. Appellants cite Hardy v. United States, 375

U.S. 277 (1964), for the proposition that new counsel on

appeal3 cannot properly represent their clients without an

"entire transcript." Id. at 279-80. Hardy held that an

indigent federal defendant is entitled to a trial transcript

free of charge in order to perfect an appeal; we do not read

it to have created a rule mandating reversal for less than a

verbatim account.

Alternatively, appellants suggest we follow the

Fifth Circuit's view that new counsel on appeal may obtain

reversal for lack of a verbatim transcript under 753(b)(1)

merely by showing the missing portion is "substantial and

significant," United States v. Selva, 559 F.2d 1303, 1306

(5th Cir. 1977), and that any reconstruction thereof is less

than "substantially verbatim." United States v. Pace, 10

F.3d 1106, 1124-25 (5th Cir. 1993), cert. denied, U.S.

, 114 S.Ct. 2180, 128 L.Ed.2d 899 (1994). True, in Hardy

the Court observed that the right established by Federal Rule

of Criminal Procedure 52(b) to have "plain errors or defects"

noticed by the court "is illusory if no transcript is

available at least to one whose lawyer on appeal enters the

3. Appellants have all obtained new counsel for this appeal.

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case after the trial is ended." 375 U.S. at 280. Yet this

was in the context of deciding whether or not appellant

should be afforded a transcript at all. We do not take this

statement to mean that if no verbatim transcript is available

that an effective appeal is not possible.

The majority of circuits construing 753(b)(1)

have held that to obtain reversal and a new trial, whether or

not there is new appellate counsel, defendant must show

specific prejudice to his ability to perfect an appeal,

beyond mere non-compliance with the act. See United States

v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985), cert. denied,

474 U.S. 1068, and cert. denied, 474 U.S. 1069 (1986)

(disagreeing with Selva); United States v. Sierra, 981 F.2d

123, 126-27 (3rd Cir. 1992), cert. denied, U.S. , 113

S.Ct. 2949, 124 L.Ed.2d 696 (1993) (same); United States v.

Antoine, 906 F.2d 1379, 1381 (9th Cir.), cert. denied, 498

U.S. 963 (1990) (same). But see United States v. Preciado-

Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993) (as successor

court to former Fifth Circuit, bound by Selva). We have

indicated preference for the majority view, see Sabatier v.

Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978) (holding that if

753(b)(1) applied to extradition proceedings, reversal on

account of non-compliance would require showing specific

prejudice), and explicitly adopt it today.

Appellants conceded to the trial court that the

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government's reconstruction of its main closing argument is

substantially accurate. This should enable effective review

for plain error, yet appellants make no particularized claim

that such error occurred. Nor do they make any claim that

plain error could have occurred during the closing arguments

of one of their own attorneys. With respect to the

government's rebuttal, we are hard-pressed to conceive what

sort of illegitimate argument could have been made during

these few moments that might have "so poisoned the well that

the trial's outcome was likely affected," Arrieta-Agressot v.

United States, 3 F.3d 525, 528 (1st Cir. 1993) (quoting

United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.

1987)), nor do appellants suggest any based on the

reconstruction that was submitted. In any event, given the

quantity and strength of the evidence against all three

appellants from the testimony of several co-conspirators --

eye-witnesses to their involvement in the various

preparations, possessions and transactions amounting to the

offenses charged -- we are not persuaded that any deficiency

could have risen to a miscarriage of justice; i.e., even if

the rebuttal was tainted by some imaginable error, we would

not find "a substantial chance that absent the error the jury

would have acquitted." Id. We therefore uphold the district

court's conclusion that appellants' ability to perfect an

appeal was not prejudiced, and turn now to the merits of

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their claims.

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II. Motion for Continuance

On the morning of trial the defense made a final

request for continuance based on the last minute decision of

Jorge Hernandez Miller, the lead co-conspirator, to plead

guilty and become the government's chief witness. Remaining

defendants argued this necessitated more time to adjust trial

strategy and gather information to impeach him. After

thorough exploration, the court, though sympathetic, saw no

justification for delay:

[Y]ou had the opportunity to interview
him . . . as you told me in chambers that
this has been done and now that all the
Jencks Act [material] has been turned
over . . . the latest bits of information
that were generated like the interviews
[of the witness] with the agents . . .
are going to be turned over to you
including rough notes, . . . I will not
continue this case.

A trial court has wide discretion to grant or deny

a request for continuance. United States v. Saccoccia, 58

F.3d 754, 770 (1st Cir. 1995). "Only an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay violates the right to the

assistance of counsel," and would amount to an abuse of that

discretion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983)

(internal quotations omitted). We assess appellants' special

reasons, plus relevant factors such as the amount of time

needed for effective preparation and the amount actually

available, diligence in preparing for trial and whether the

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defense contributed to its perceived predicament, the likely

utility of a continuance, inconvenience to the court,

opposing party, and witnesses, and any unfair prejudice

caused by the denial. Saccoccia, 58 F.3d at 770 (citations

omitted).

Appellants allege the court failed to address

"special circumstances of an emergent nature beyond their

control." They claim that after Miller's change of plea they

suddenly faced an unexpected need to gather impeachment

material and to do additional preparation, as they had

divided responsibilities among themselves due to the

considerable volume of trial material involved,4 and

Miller's defection overburdened the remaining defendants.

They contend they "could not have been more diligent," would

have found valuable impeachment material if granted

additional time, and were prejudiced in cross-examining

Miller because of the denial; inconvenience to others, by

comparison, was minimal.

Appellants' accusations against the court are

unfounded. As the court pointed out, the defense had had

ample time and substantial assistance from the court to

prepare for trial, and although more might have helped, that

is always true. Defense counsel could have anticipated that

4. Aponte points out that discovery involved "some 1453
documents totaling over 5000 pages."

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a division of labor strategy might leave them in a bind if

one dropped out, especially since the original indictment

included some 31 co-defendants who had been pleading out on a

regular basis up to and even during trial. The court was

very careful to elicit from counsel precisely what more they

thought they needed and hoped to find to impeach Miller, and

why. It gave a thoroughly reasoned response, observing that

the defense had been given unlimited access to the witness

for four days prior to the start of trial and at least

several more afterward until he took the stand, a "dream for

a defense attorney," as well as notes government agents had

taken during their interviews of the witness. There was no

abuse of discretion in ruling this was sufficient.

We add only that we do not see, even with

hindsight, what more a continuance would have achieved. The

defense had apparently hoped to discredit Miller by

implicating him in the uncharged murders of several

accomplices in the cocaine conspiracy, and wished more time

to locate, interview and subpoena witnesses who could tie

Miller to these crimes. The court, however, in a pre-trial

ruling, had strictly prohibited introduction of extrinsic

evidence of Miller's involvement in the murders and limited

cross-examination in reference to these crimes strictly to

questioning his motivation to enter the plea agreement,5 in

5. This ruling has not been appealed.

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accordance with Federal Rule of Evidence 608(b).6 See

Tigges v. Cataldo, 611 F.2d 936, 938 (1st Cir. 1979). As to

this, post.

III. Prosecutorial Misconduct

Before trial government counsel had informed the

defense and the court that Miller had stated during plea

negotiations that he had decided to plead guilty because "he

thought that he was going to be imputed with some murders to

which he denies, and . . . the reason that motivated him is

because he wanted to clear the record that in fact he did not

participate in those murders." During a pre-trial interview

Miller had told defense counsel roughly the same -- that he

was afraid "the government . . . [was] going to bring a

massacre against him, a murder against him, but he also

stated to us that in fact he did not do that." The plea

agreement was admitted in evidence. It made no mention, of

course, of murders.

During cross-examination defense counsel sought

vigorously to impeach Miller's testimony linking their

clients to the drug venture by attempting to solicit an

6. (b) Specific instances of conduct.
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting the witness' credibility,
other than conviction of crime . . . may
not be proved by extrinsic evidence.

Fed.R.Evid. 608(b).

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admission from Miller that he was motivated to cooperate with

the government by a desire to "minimize the severity of the

accusations against himself," specifically by avoiding being

implicated in, or charged with, the murders. Miller

repeatedly denied such motivation, professing only a desire

to "repent" and "tell the truth."

Appellants now contend this was an outright lie

that due process required the government to correct.7 They

rely principally upon Napue v. Illinois, 360 U.S. 264 (1959),

which held that a defendant's due process rights under the

Fourteenth Amendment required reversal of his conviction

where the prosecutor failed to correct a witness' denial of

receiving promises of leniency in exchange for his testimony,

knowing it was false, even though the prosecutor had not

himself solicited the falsity. 360 U.S. at 269. The Court

said this principle, "implicit in any concept of ordered

liberty, does not cease to apply merely because the false

testimony goes only to the credibility of the witness." Id.

Nor did the fact that the jury was presented with other

grounds for questioning the witness' credibility "turn[] what

was otherwise a tainted trial into a fair one." Id. at 270.

7. Defense counsel made no indication to the court at the
time that the defense believed the government was under an
obligation to clarify Miller's statements about his
motivation to plead, and, indeed, indicated satisfaction with
coverage of the issue when the court inquired prior to
allowing examination of Miller to proceed into another area.

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Appellants contend defense counsels' equal knowledge of

Miller's pre-trial admissions cannot alleviate the government

of its duty in this case to bring this impeachment "evidence"

before the jury.

There are two answers to this. The first is that

the court had already ruled that testimony of murders was too

prejudicial to be admitted. But, more important, although

defendant refused this specific characterization of his

motives, he did concede to believing the plea agreement meant

that "if I speak about things of which I have knowledge or in

which I have taken part, I wouldn't be indicted for them,"

and "would be sentenced to fewer years." This was a

sufficient acknowledgment that his claim of rebirth was less

than genuine; there could be no question the government had

no duty to go further.

IV. Jury Instructions

Having raised no objections to any aspect of the

jury instructions at trial, Aponte now claims plain error

both in the court's explanation of reasonable doubt and in

its failure to give a requested instruction on the

defendant's exercise of his right to remain silent. The

following instructions (emphasis ours) contain the alleged

errors:

A reasonable doubt is a doubt based
upon reason and common sense, and may
arise from a careful and impartial
consideration of all the evidence, or

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from lack of evidence. Proof beyond a
reasonable doubt is proof that leaves you
firmly convinced that the defendant is
guilty.

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If after a careful and impartial

consideration with your fellow jurors of
all the evidence, you are not convinced

beyond a reasonable doubt that the

defendant is guilty, it is your duty to

find the defendant not guilty. On the

other hand, if after a careful and

impartial consideration with your fellow
jurors of all the evidence, you are

convinced beyond a reasonable doubt that

the defendant is guilty, it is your duty

to find the defendant guilty.

. . . Each defendant is presumed to
be innocent and does not have to testify
or present any evidence to prove
innocence. The government has the burden

of proving every element of the charge

beyond a reasonable doubt. If it fails

to do so, you must return a not-guilty

verdict.

A.

Aponte contends that by the first paragraph the

court permitted the jury to convict by a degree of proof

lower than constitutionally required. He argues that "firmly

convinced" suggests a burden of proof akin to the civil

"clear and convincing" standard, use of which is

impermissible in a criminal case. See Addington v. Texas,

441 U.S. 418, 425 (1979) (clear and convincing is an

"intermediate standard" between preponderance of the evidence

and proof beyond a reasonable doubt); In re Winship, 397 U.S.

358, 363-64 (1970) (guilt in a criminal case must be proved

by no less a standard than "beyond a reasonable doubt").

According to Aponte, it is linguistically impossible to

conceive how "firmly convinced"

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could equate with "beyond a reasonable doubt," when "clear

and convincing" does not.

Assessing the instructions as a whole, Victor v.

Nebraska, U.S. , , 114 S.Ct. 1239, 1243, 127

L.Ed.2d 583 (1994), we conclude that the emphasized portions

adequately and ultimately conveyed an accurate, unambiguous

and comprehensible description of the government's burden and

the standard for acquittal. Whether or not the "firmly

convinced" definition alone would be constitutionally

sufficient to convey the meaning of proof beyond a reasonable

doubt, the court's further exposition here left no doubt that

the jury's duty was to convict only upon reaching consensus

as to guilt beyond a reasonable doubt.8 Nothing further is

required. United States v. Andujar, 49 F.3d 16, 23 (1st Cir.

1995).

B.

As was his right, Aponte elected not to testify,

and requested the following instruction be given to the jury:

8. The "firmly convinced" language has withstood similar
attack in a variety of contexts. See United States v.

Velazquez, 980 F.2d 1275, 1278 (9th Cir. 1992), cert. denied,

U.S. , 113 S.Ct. 2979, 125 L.Ed.2d 677 (1993)
(upholding same pattern instruction used here); United States

v. Hunt, 794 F.2d 1095, 1100-1101 (5th Cir. 1986) ("firmly

convinced" adequately conveys "beyond a reasonable doubt"
standard); United States v. Taylor, 997 F.2d 1551, 1557 (D.C.

Cir. 1993) (same); see also United States v. Williams, 20

F.3d 125, 131 (5th Cir.), cert. denied, U.S. , 115

S.Ct. 239, 130 L.Ed.2d 162 (1994); United States v. Barrera-

Gonzales, 952 F.2d 1269, 1272-73 (10th Cir. 1992); United

States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995).

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Under the law, a defendants [sic] does
not need to testify, since it is the
Government who must prove her [sic]9
guilty beyond a reasonable doubt. No
presumption or inference of guilt may be
made or drawn.

The court declined, instructing instead as quoted above.

While he did not object, Aponte now claims violation of his

constitutional rights.

The Fifth Amendment guarantees a criminal defendant

both the right to remain silent and that no adverse

inferences may be drawn from his exercise of this right.

Carter v. Kentucky, 450 U.S. 288, 305 (1981). Further, "when

the defendant makes a timely request that a prophylactic

instruction be given . . . [the court] has the constitutional

obligation . . . to minimize the danger that the jury will

give evidentiary weight to a defendant's failure to testify."

Id.10 We have not read Carter to require use of the exact

wording requested, however, so long as the trial court's

instructions complied with this obligation. United States v.

Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989).

9. The district court apparently accepted from Aponte's
appellate counsel a set of proposed jury instructions that
counsel believed had been submitted to the court but were
inexplicably absent from the record. We note that these
instructions were not prepared for Aponte, but for a Sonia
Berrios Rodriguez, but since the government did not object to
their inclusion in the appellate record as Aponte's requested
instructions, we will treat them as such.

10. This obligation is also imposed by statute. 18 U.S.C.
3481 (formerly designated as 28 U.S.C. 632). See United

States v. Bruno, 308 U.S. 287 (1939).

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Our question is whether instructing that the

government has the burden of proof and that defendant does

not have to testify or present evidence adequately

communicates that no adverse inferences may be drawn from the

fact that he does not testify. The government urges that we

answered this affirmatively in Ladd, where we approved an

instruction that the defendant's silence "cannot even be

considered by you in arriving at your verdict." Id. Not so.

A jury might well think that a defendant's right not to

testify means merely that he cannot be called as a witness,

leaving it to draw such conclusions from his silence as it

felt warranted. An instruction not to consider his failure

to testify precisely forbids drawing inferences. Ladd, 877

F.2d at 1089. Here, however, the court mentioned nothing

beyond the defendant's right not to testify or present

evidence. Carter v. Kentucky makes clear that, once request

for a no-adverse-presumption instruction has been made, the

"full and free exercise" of the constitutionally guaranteed

privilege against self-incrimination requires more than

instruction on the right not to testify and to be presumed

innocent until proven guilty. 450 U.S. at 305. See also

United States v. Eiland, 741 F.2d 738, 743 (5th Cir. 1984)

(holding instructions similar to those given here

constitutionally deficient under Carter).

We also find, per United States v. Olano, 507 U.S.

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725, , 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993), that

the forfeited error was "plain," and "affect[ed] substantial

rights" within the meaning of Fed.R.Civ.P. 52(b). See Bruno

v. United States, 308 U.S. 287, 293-94 (1939) (failure to

give requested instruction cautioning against drawing

presumptions from defendant's failure to testify was not a

mere "technical erro[r] . . . which do[es] not affect . . .

substantial rights . . . ."). We therefore perceive

discretion to reverse, but no obligation to do so.

Fed.R.Civ.P. 52(b); Olano, 113 S.Ct. at 1778. See also

Chapman v. California, 386 U.S. 18, 23 (1967) (not every

constitutional error automatically requires reversal).

Olano contemplates that we guide our discretion

under Rule 52(b) by further determining whether the error

"seriously affect[ed] the fairness, integrity or public

reputation of the judicial proceedings." 113 S.Ct. at 1779

(internal quotations omitted). We have long realized that

among the things we may consider is the weight of the

evidence of guilt or innocence, without casting it favorably

to the government or presuming that credibility issues were

resolved in its favor, Arrieta-Agressot, 3 F.3d at 528, to

determine whether the error could have made any difference to

the verdict.11 We do not view Olano as having removed or

11. At this stage of review for forfeited error the
assessment is whether the error was "harmless beyond a
reasonable doubt," and differs from so-called "harmless

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limited such an assessment from our discretionary

consideration as a general matter. However, the Court has

deemed a small number of "structural defects" not amenable to

"quantitative[] assess[ment]," Arizona v. Fulminante, 499

U.S. 279, 308 (1991), including total deprivation of the

right to counsel at trial (Gideon v. Wainwright, 372 U.S. 335

(1963)), and lack of an impartial judge (Tumey v. Ohio, 273

U.S. 510 (1927)). Id. at 309. See also id. at 310 (citing

additional cases); Sullivan v. Louisiana, 508 U.S. 275, ,

113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993)

(constitutionally deficient reasonable doubt instruction).

The distinction these special errors share is that they are

"structural defects in the trial mechanism" which affect "the

entire conduct of the trial from beginning to end" and

"without [which] a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or

innocence," rather than being simply "error[s] in the trial

process itself." Fulminante, 499 U.S. at 309-10 (internal

quotations omitted). We think failure to give a requested

Carter instruction falls comfortably in the latter category.

It is not the sort of error for which an assessment of the

evidence is unsuitable precisely because it concerns the

evidentiary value the jury may give to a defendant's election

error" review only in that the defendant bears the burden of
persuasion. Olano, 113 S.Ct. at 1778.

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not to testify on his own behalf. Carter, 450 U.S. at 305.

On this basis we are confident in saying that the

uncontradicted evidence against appellants Aponte and

Pulliza, from the testimony of several co-conspirators

involved in various aspects of the scheme, was overwhelming,

and the verdict rendered would have ensued regardless of the

error. In sum, although "the failure to limit the jurors'

speculation on the meaning of [the defendant's] silence, when

the defendant makes a timely request that a prophylactic

instruction be given, exacts an impermissible toll on the

full and free exercise of [defendant's Fifth Amendment

privileges]," id., we do not believe it could have seriously

affected the fairness of the proceedings.

V. Double Jeopardy

Aponte maintains that because the same offenses

underlying his convictions also formed the basis of a civil

forfeiture of some personal assets, pursuant to the

Controlled Substances and Money Laundering Acts, 21 U.S.C.

881(a)(6) and (7) and 18 U.S.C. 981, respectively, his

criminal sentence constitutes a prohibited second punishment,

for the same offenses, in violation of the Double Jeopardy

Clause of the Fifth Amendment. See, e.g., United States v.

Dixon, U.S. , , 113 S.Ct. 2849, 2855-56, 125

L.Ed.2d 556 (1993). The Clause only becomes relevant,

however, once a defendant has first been placed in jeopardy,

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and "even then, it is only the second proceeding that is

constitutionally endangered." United States v. Pierce, 60

F.3d 886, 889 (1st Cir. 1995), pet. for cert. filed, Oct. 19,

1995 (No. 95-6474). Aponte contends, against all authority,

that jeopardy in the criminal case did not attach until his

sentencing, well after imposition of the civil penalty.12

We regard it as beyond question that "jeopardy attaches when

the jury is empaneled and sworn." Crist v. Bretz, 437 U.S.

28, 35 (1978). Pierce, 60 F.3d at 889. A glance at the

sequence of events in this case, supra note 12, reveals that

the criminal sanction therefore cannot have been second to

the forfeiture, and thus whether or not civil sanctions under

21 U.S.C. 881(a)(6) and (7) and 18 U.S.C. 981 even

constitute punishment for the purposes of the Double Jeopardy

Clause is a question we need not reach.

The convictions of appellants are therefore

affirmed.

12. The following chronology is pertinent:

Jury empaneled: September 21, 1993
Criminal trial began: September 22, 1993
Verdicts read: October 1, 1993
Civil action commenced: Nov. 4, 1993
Forfeiture stipulated: March 9, 1994
Forfeiture order: March 10, 1994
Criminal sentencing: March 21, 1994

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