United States v. Gabriele

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1215

UNITED STATES OF AMERICA,

Appellee,

v.

ALFRED M. GABRIELE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Selya, Cyr and Boudin

Circuit Judges.

John A. MacFadyen for appellant.

William C. Brown, Attorney, Department of Justice, with whom

Sheldon Whitehouse, United States Attorney, and Michael E. Davitt,

Assistant United States Attorney, were on brief for appellee.

August 23, 1995

CYR, Circuit Judge. Defendant Alfred Gabriele chal-
CYR, Circuit Judge.

lenges various district court rulings underlying his convictions

for participating in a conspiracy in violation of the Racketeer

Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.

1962(c), (d) (1991), and for engaging in six monetary transac-

tions in criminally derived property, id. 1957. We affirm.

I
I

BACKGROUND
BACKGROUND

This is the third and final installment in the appel-

late proceedings arising out of the extensive money laundering

operation headed by Stephen Saccoccia from the mid-1980s until

late 1991. The earlier proceedings are reported in United States

v. Saccoccia, 58 F.3d 754 (1st Cir. 1995), and United States v.

Hurley, F.3d (1st Cir. 1995) [Nos. 93-1511, 93-1560, 93-

1561, 93-1562, 93-1563, 93-1616, 93-1617, 93-2006, 93-2207, 94-

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

was indicted for alleged participation in the Saccoccia criminal

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

ment at the two earlier trials involving Stephen Saccoccia and

his codefendants. We relate only the background information

material to Gabriele's involvement in the criminal enterprise.

The money laundering operation primarily functioned

through precious metals companies controlled by Saccoccia and

located in Los Angeles, New York, and Rhode Island. Colombian

drug dealers transferred huge sums to the Saccoccia organization

for laundering. Employing various techniques, such as purchases

2

of gold and cashier's checks, the Saccoccia organization laun-

dered the drug monies and funneled laundered funds back to

Colombia by circuitous techniques (e.g., multiple wire transfers

and interstate transportation). Some of the gold was delivered

to Recovery Technologies, Inc. ("RTI"), a precious metals dealer

located in Attleboro, Massachusetts, and controlled and operated

by Gabriele. The gold was kept in a safe purchased by Saccoccia

and installed at RTI with Gabriele's consent. At one point

Gabriele prophetically observed in relation to the gold deliver-

ies: "Steve [Saccoccia] is going to put us all in jail some

day."

In the summer of 1991, after learning that two of his

Rhode Island companies were under FBI video surveillance, Sac-

coccia pointed out the concealed surveillance cameras to Gab-

riele. Shortly thereafter, Saccoccia announced his intention to

acquire RTI from Gabriele and hired Gabriele as his employee.

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

which could no longer be delivered undetected to the two Sac-

coccia companies.

The deliveries to RTI were monitored by Saccoccia

employees. Among the persons at RTI, Gabriele alone knew about,

and participated in counting, the cash and gold shipments from

Saccoccia. The shipments to RTI were recorded by Gabriele in

coded language. The coded records were kept in the desk in

3

Gabriele's private office, separate from all other RTI records.1

During this period, Gabriele again voiced concern that Saccoccia

"is going to put us all in jail."

From time to time Saccoccia instructed Gabriele to

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

occasions Gabriele wired funds to designated banks at Saccoccia's

direction or turned over funds directly to Saccoccia couriers who

had been told to leave cash amounts for Gabriele. Saccoccia and

Gabriele discussed their ongoing cash transactions in a coded

conversation intercepted by the FBI in October 1991.

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

acy charge, along with Saccoccia and others, and separately

charged with engaging in eight monetary transactions involving

criminally derived property. A jury convicted him of RICO

conspiracy and six monetary transaction charges.2

II
II

1The secret records kept by Gabriele related also to the so-
called Saccoccia "pool account" at RTI. Normally, RTI would sell
gold for a client, place the proceeds in the pool account, and
immediately wire the funds directly to the client. The secret
pool account records revealed, however, that the proceeds due
Saccoccia remained in RTI's bank account for much longer periods
of time, awaiting Saccoccia's instructions to wire the funds
frequently to third parties.

2At trial, Gabriele contended that Saccoccia, a long-time
RTI client, had been allowed to keep cash in the RTI safe because
the security systems at Saccoccia's Rhode Island companies were
temporarily off-line, and that the large amounts of cash he
handled for Saccoccia were not uncommon in the precious metals
industry. He maintained that the intercepted conversations were
inconclusive and that the inculpatory testimony from other
Saccoccia employees was unreliable.

4

DISCUSSION
DISCUSSION

Gabriele takes the district court to task on several

rulings, which we discuss in turn.

5

A. Section 1957
A. Section 1957

1. Mens Rea
1. Mens Rea

First, he claims that the mens rea element under

section 1957 is unconstitutionally vague, see, e.g., Kolender v.

Lawson, 461 U.S. 352, 357 (1983), and that the district court

therefore erred in denying his pretrial motion to dismiss the

section 1957 charges. The crux of the argument is that section

1957 is a rather novel statute, in that it criminalizes conduct

by a person once removed from that of the person who generated

the criminally derived property. Thus, he argues, the proscribed

conduct is not likely to appear unlawful to an ordinary citizen.

Second, he contends that section 1957 is unconstitu-

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

actions because a prudent business person could never be sure how

many suspicion-arousing "red flags" would be enough to lead a

jury to infer that the person "knew" that a client or customer

was engaged in criminal activity. Alternatively he suggests that

persons engaged in honest business dealings would be forced to

rely on racial or ethnic stereotyping, as by refusing to do

business with "known" criminals.

Section 1957(a) prohibits "knowingly engag[ing] in a

monetary transaction in criminally derived property that is of a

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

activity . . . ." 18 U.S.C. 1957(a). "Criminally derived

property" is "any property constituting, or derived from, pro-

6

ceeds obtained from a criminal offense." Id. 1957(f)(2). A

defendant may not be convicted under section 1957(a) unless he

knew that the transaction involved "criminally derived" property,

id. 1957(c), but he need not have known that the subject

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

denial of a pretrial motion to dismiss criminal charges is

reviewed de novo. See United States v. Aguilar-Aranceta, 957

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

First, given the prominent "red flags" that signaled

the criminal nature of the Saccoccia money laundering operation

to Gabriele (e.g., knowledge of government surveillance; eva-

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

strong evidence of Gabriele's mens rea ("some day Stephen Sac-

coccia is going to put us all in jail"), the instant constitu-

tional challenge to the "knowledge" requirement under section

1987 has the ring of desperation. See United States v. Baker, 19

F.3d 605, 614 (11th Cir. 1994) (rejecting comparable as-applied

challenge to 1957).

Second, the facial challenge to the statute is without

persuasive force. Section 1957 is but another in a substantial

line of federal criminal statutes whose only mens rea requirement

is "knowledge" of the prior criminal conduct that tainted the

property involved in the proscribed activity. See, e.g., 18

U.S.C. 2312 (prohibiting interstate transportation of automo-

biles "knowing the same to be stolen"); 2313 (same, for

receipt of such automobiles); 2314 (criminalizing interstate

7

transportation of goods "knowing the same to have been stolen,

converted, or taken by fraud"). Thus, Gabriele's policy argument

reduces to an attempt to second-guess the congressional decision

to criminalize a particular type of "knowing" conduct.

Gabriele further claims that the district court erred

in rejecting proposed jury instructions defining the section 1957

"knowledge" element with greater precision.3 As he did not

adequately renew his objections to the charge prior to the time

the jury retired to deliberate, see Fed. R. Crim. P. 30, we

review for plain error. See United States v. O'Connor, 28 F.3d

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

The district court carefully instructed the jury that

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

property involved in [the particular] monetary transaction was

obtained from the proceeds of some criminal offense," and that

the "knowledge" element was not met merely by a finding that

3Gabriele requested instructions (i) defining "knowing" as a
"clear and certain perception of fact or truth," not a mere
suspicion, Request No. 18; (ii) that he had no duty to investi-
gate the legality of the Saccoccia enterprise, Request No. 19;
and (iii) that he could not be convicted unless the jury found
that he knew it was a criminal offense to engage in monetary
transactions in criminally derived property, Request No. 18A
(citing Cheek v. United States, 498 U.S. 192 (1991)).

4Gabriele did not object to the definition of "knowing,"
following the jury charge. See supra note 3. Although he

clearly delineated the grounds for objecting to numerous other
jury instructions, see infra Section II.B.2, he simply renewed

his objections to Requests 18A and 19 by reference. See O'Con-

nor, 28 F.3d at 221 (under Fed. R. Crim. P. 30, party must state

distinctly the grounds for objecting, and may not rely on previ-
ous written articulation of grounds).

8

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

known." Like terms denoting other mens rea elements, "knowledge"

is not readily susceptible to a more precise definition than is

derived from the connotation suggested by the term itself. Our

review confirms that the district court instruction in all

respects delineated the appropriate "knowledge" element for

application by the jury. See United States v. Noone, 913 F.2d

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

reversible error if instruction given was substantially correct

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

U.S. 906 (1991).5

Finally, Gabriele contends that the jury instruction on

"willful blindness" was error.6 Since the government adduced no

evidence that Gabriele had engaged in any particular conduct for

the purpose of precluding his acquisition of actual knowledge

that Saccoccia was engaged in unlawful activities, Gabriele

argues that the "willful blindness" instruction necessarily

5Since the 1957 mens rea requirement includes no "wilful-

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

been improper as a matter of law. See United States v. Brandon,

17 F.3d 409, 448 (1st Cir.) (noting that requested instruction
which includes an incorrect statement of the law should not be
given), cert. denied, 115 S. Ct. 80 (1994).

6The instruction stated, inter alia: "In deciding whether a

defendant acted knowingly, you may infer that the Defendant had
knowledge of a fact if you find that [he] deliberately closed his
eyes to a fact that otherwise would have been obvious to him."
Further, the court cautioned the jury: "It's up to you to decide
whether . . . this Defendant deliberately closed his eyes to a
fact and, if so, what inference should be drawn. It's important,

however, to bear in mind that mere negligence or mistake in
failing to learn a fact is not sufficient." (Emphasis added.)

9

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

have known" that the gold and cash he received from Saccoccia

derived from criminal activity. Once again, we review for plain

error.7

A willful blindness instruction is warranted if (1) the

defendant claims lack of knowledge; (2) the evidence would

support an inference that the defendant consciously engaged in a

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

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

of knowledge was mandatory. See United States v. Brandon, 17

F.2d 409, 452 (1st Cir.), cert. denied, 115 S. Ct. 80 (1994);

United States v. Richardson, 14 F.3d 666, 671 (1st Cir. 1994).

Gabriele concedes that the first and third elements were met but

argues that the instruction was improper because the government

failed to prove that though confronted with various "red flags,"

7The following colloquy occurred at side-bar immediately
after the jury charge:

[Defense counsel]: I specifically object to
. . . the willful blindness, so-called con-
scious avoidance instruction. I incorporate
by reference all of the argument that I made
in support of that objection that was made at
the conference, at the charge conference.
Should I put them on the record or incorpo-
rate them by reference?

Court: Your arguments? You mean as far as
incorporated that by reference?

[Defense counsel]: Thank you.

We have held that counsel must comply with the requirements of
Rule 30 unless the district court expressly forbids it. See

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

10

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

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

in instructing jury on "willful blindness" where evidence indi-

cated that defendant had been presented with a succession of

"flags of suspicion" in business dealings). There was no plain

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

inferred if the jury were to find that Gabriele consciously

avoided the import of the conspicuous "red flags" involved here

(e.g., government surveillance, large stores of cash, use of

coded language).8

2. Motion for Judgment of Acquittal
2. Motion for Judgment of Acquittal

The pre-1992 version of section 1957(f)(1) defined

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

exchange, in or affecting interstate or foreign commerce, of

funds or a monetary instrument . . . by, through or to a finan-

cial institution (as defined in section 5312 of title 31) . . .

." 18 U.S.C. 1957(f)(1) (1988).9 Gabriele contends that the

8To the extent that Gabriele suggests that a willful blind-
ness instruction was unwarranted because the government presented
direct evidence of actual knowledge (viz., Gabriele's repeated

statements about "jail"), we note that the jury was free to
discredit the more direct evidence, yet find the requisite
"knowledge" based solely on a reasonable inference of willful
blindness.

9RTI is a "financial institution" for 1957(f)(1) purposes.
See 31 U.S.C. 5312(a)(2)(N) (term includes "a dealer in pre-

cious metals"). Gabriele's reply brief argues that these cash
shipments were made "to him at RTI," not to RTI. As Gabriele did
not make this argument, either in the district court or in his
opening brief on appeal, it is deemed waived. See United States

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

in trial court cannot be raised on appeal); id. at 1318 (issues

initially raised in appellate reply brief deemed waived).

11

government's evidence merely showed as to five of the six

counts of conviction under section 1957 that he received cash

shipments from Saccoccia, counted and held them for safekeeping,

then returned them through Saccoccia's emissaries. Although mere

receiving and holding comes within the broader definition of

"transaction" found in the money laundering statute, see 18

U.S.C. 1956(c)(3) ("transaction" includes "delivery by,

through, or to a financial institution") (emphasis added),

Gabriele argues that the language of section 1957(f)(1) clearly

contemplates something more; namely, evidence that the defendant

in some manner further facilitated the laundering process itself;

for example, by commingling a cash "deposit" with the financial

institution's own funds, altering the form of the property

deposited (e.g., by purchasing gold or a cashier's check), or

transferring the deposit, or its proceeds, to third parties, as

by wire transfer.

The denial of a Rule 29 motion for judgment of acquit-

tal is reviewed de novo to determine whether any rational fact-

finder could have found that the evidence presented at trial,

together with all reasonable inferences, viewed in the light most

favorable to the government, established each element of the

particular offense beyond a reasonable doubt. See United States

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

Ct. 407 (1993).

Gabriele cites neither legislative history nor authori-

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

12

in its specialized sense so as to reach only bank deposits.10

The plain language of section 1957(f)(1) explicitly criminalizes

the knowing acceptance of a "transfer . . . to" a "financial

institution," such as RTI, see 31 U.S.C. 5312, knowing that the

transfer involved criminally derived property. See United States

v. Bohai Trading Co., 45 F.3d 577, 581 (1st Cir. 1995). We see

no significance in the fact that Congress chose to insert in

section 1956(c)(3) an illustrative list of the types of covered

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

. . a transfer . . . and with respect to a financial institution

includes . . .") (emphasis added), then chose not to repeat that

list in the non-illustrative definition appearing in section

1957(f)(1) ("the term `monetary transaction' means the deposit,

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

Further, given its particular intention to target money

laundering in these companion statutes, we see no basis for the

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

the conduct of those transferees who actually "launder" the cash

or other property deposited (i.e., effect an alteration in its

form). The evidence in this case clearly established that

Saccoccia arranged to "transfer" these large cash sums for the

very purpose of having RTI hold the cash safe from the recent-

ly discovered government surveillance at Saccoccia's two Rhode

10Not only is there no indication that the term "deposit"
was used in this specialized sense, but it is significant, we
think, that non-conventional financial institutions, such as
precious metals dealers including RTI were expressly
covered by the statute.

13

Island companies for eventual laundering in the normal course.

We think this evidence demonstrated "deposits" or "transfers"

sufficient to satisfy the statute. For these reasons, the motion

for judgment of acquittal was properly denied.

14

B. RICO Conspiracy
B. RICO Conspiracy

1. The "Conduct or Participate" Instruction
1. The "Conduct or Participate" Instruction

Section 1962(c) makes it a criminal offense "for any

person employed by or associated with any enterprise [affecting

interstate commerce] to conduct or participate, directly or

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

pattern of racketeering activity." 18 U.S.C. 1962(c) (emphasis

added). Gabriele argues that it was error to instruct the jury

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

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

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

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

1172 (1993) (independent accounting firm must be shown to have

"participated" in, or played "some part in directing," the

enterprise). Although Gabriele preserved the present claim with

a timely Rule 30 objection, it is foreclosed by recent circuit

precedent. See Hurley, F.3d at [slip. op. at 12-13]

(finding no plain error, noting that Reves has no relevance to

defendants who were "employees," as distinguished from indepen-

dent or outside participants like the accounting firm in Reves)

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

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

The government introduced ample evidence unchal-

lenged on appeal that Gabriele, unlike the accounting firm in

Reves, was not an independent "outsider" but a full-fledged

"employee" of the Saccoccia enterprise, as evidenced by Sac-

15

coccia's anticipated "purchase" of RTI from Gabriele and his

instructions to underlings to leave cash for Gabriele. Even

employees not engaged in directing the operations of the RICO

enterprise are criminally liable if they are "plainly integral to

carrying [it] out." See id. The district court gave precisely

this instruction. See Reves, 113 S. Ct. at 1173.11

2. Other RICO-Related Instructions
2. Other RICO-Related Instructions

Gabriele contends that the district court declined to

give five other jury instructions which were essential to enable

the jury to differentiate section 1957 from RICO conspiracy

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

spectrum." Brief for Appellant at 46. Although this challenge

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

jury instructions represented substantially correct statements of

the applicable law not substantially covered in the instructions

given, and their omission seriously undermined Gabriele's ability

to mount a defense. See Brandon, 17 F.3d at 448; see also Noone,

913 F.2d at 30. We discern no error.

Request No. 6 would have precluded conviction unless

the jury found that RTI was part of the RICO enterprise, on the

theory that Gabriele could not have "participated" unless he

"directed" a component part of the enterprise. Thus, it was

predicated on an incorrect view of the law. See supra Section

11To the extent Gabriele is intimating that Reves did not

determine whether an employee's contribution to the enterprise
may be so insignificant as not to constitute "participation," id.

at 1173 n.9, we need note only that Gabriele's participation was
by no means insignificant.

16

II.B.1. Whether or not RTI was part of the RICO enterprise,

there was ample evidence from which the jury could find that

Gabriele "participated" as a Saccoccia employee who was "plainly

integral to carrying out" the enterprise even though he did not

"direct" its operations. Id.

Request No. 9 proposed to instruct the jury that

Gabriele's commission of two predicate acts, without more, would

not establish his agreement to "participate" in the RICO enter-

prise. Request No. 12 would have precluded conviction unless the

jury found that Gabriele "knew of the conspiracy's essential

features, general scope, and overall goals." These requests were

substantially covered by the final charge, which repeatedly

reminded the jury that acquittal was required unless it found

that Gabriele "under[stood] the unlawful nature of the plan" and

entered into a "mutual agreement" to accomplish "some unlawful

purpose."

Request No. 16 stated that "a person who may have

furnished goods, money, or services to another person who he

knows is or will be engaged in criminal activity and that these

goods or services may be used in that activity does not by

furnishing such goods, money or services necessarily become a

member of the conspiracy." See Direct Sales Co. v. United

States, 319 U.S. 703 (1943). The truism underlying the requested

instruction is that the seller's mere knowledge of the existence

of a conspiracy is not in itself sufficient to convict him as a

conspirator; the seller must also have intended that the sale

17

promote the unlawful goals of the conspiracy. See, e.g., United

States v. Garcia-Rosa, 876 F.2d 209, 216 (1st Cir. 1989), cert.

denied, 493 U.S. 1030, cert. granted and vacated on other

grounds, 498 U.S. 954 (1990). Nonetheless, as we have noted, the

Direct Sales Co. instruction normally is not essential if the

trial court advises the jury that the defendant cannot be con-

victed absent a finding that he joined the conspiracy with intent

to further its unlawful purposes. Brandon, 17 F.3d at 448-49.

The jury charge repeatedly brought home the latter point.

Request No. 20 stated a "theory of the defense," in

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

. . . that the defendant agreed to participate in the [conspira-

cy] . . . or that he had knowledge that his transaction may have

involved criminally derived property." As a theory of the

defense, the request overreached by attempting to coopt the

court. To the extent the request purposed a "reasonable doubt"

standard, it was surplusage, since the charge delineated the

requisite elements under section 1962(c) and (d), and repeatedly

instructed the jury that the government had the burden of proving

each element beyond a reasonable doubt. See United States v.

Long, 977 F.2d 1264, 1272 (8th Cir. 1992) (where lack of knowl-

edge is defense, jury instructions on conspiracy, intent, and

specific intent adequately covered "theory of the defense").12

There was no instructional error relating to the RICO conspiracy.

12Since there was no instructional error, Gabriele's "cumu-
lative error" claim goes nowhere.

18

C. The Motion for Mistrial and the
C. The Motion for Mistrial and the

Privilege Against Self-Incrimination
Privilege Against Self-Incrimination

Finally, Gabriele argues that the district court

violated his Fifth Amendment privilege against self-incrimination

by stating to the jury, following the close of the government's

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

and we will hear the rest of the story." (Emphasis added.) See

Griffin v. California, 380 U.S. 609 (1965); United States v.

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

1069 (1984). Gabriele insists that the jury necessarily drew the

improper inference that he would take the stand to "tell his

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

adds that the district court instruction given in lieu of his

request for a mistrial was inadequate, because the court merely

noted that a defendant bears no burden of proof in a criminal

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

drawn from a defendant's decision to exercise his constitutional

right not to testify at trial.

Whether a statement in the presence of the jury in-

fringed upon the privilege against self-incrimination is a

question normally reviewed de novo. See United States v. Glantz,

810 F.2d 316, 320 n.2 (1st Cir.), cert. denied, 482 U.S. 929

(1987). On the other hand, the denial of a motion for mistrial

is reviewed for abuse of discretion. See United States v.

Rullan-Rivera, F.3d , (1st Cir. 1995) [No. 94-1890,

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

19

Gabriele interposed no timely objection,13 however, we review

only for plain error. See Fed. R. Crim. P. 52(b). In all

events, we find neither plain error nor abuse of discretion in

the denial of the motion for mistrial.

First, the colloquial expression utilized by the trial

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

merely to inform the jury that though the government's case had

been completed, the defense as distinguished from the defen-

dant's testimony had yet to be heard. Although appellate

review is plenary, Glantz, 810 F.2d at 320 n. 2, we think it

would be imprudent to attribute the more ominous import now urged

by Gabriele on appeal, in light of the view apparently taken by

the trial court and counsel at the time. See United States v.

Robinson, 485 U.S. 25, 30-31 (1988) (noting, in context of

challenge to ambiguous statements of prosecutor arguably

constituting improper comment on defendant's exercise of privi-

lege against self-incrimination "we do not think that an

13The government argues that the challenged comment must be
viewed as innocuous because even the defense failed to perceive

the statement as an infringement upon Gabriele's privilege
against self-incrimination, as evidenced by the fact that the
defense objected solely on the ground that the jury might con-
strue the statement as shifting the burden of proof to the
defense. Gabriele responds that he delayed his Fifth Amendment
objection until the defense rested, because he had not yet
decided whether to take the stand.
We think the delay in interposing an objection on the Fifth
Amendment ground effected a waiver. Whether or not Gabriele ever
took the stand, the district court's statement (as construed by
Gabriele) could have had a coercive effect upon his decision
whether to testify. Thus, had the alleged Fifth Amendment
infringement been perceived, it seems clear that it would have
been more advantageous to raise it before that decision had to be

made.

20

appellate court may substitute its reading . . . for that of the

trial court and counsel"). Thus, we think it would amount to

impermissible conjecture to conclude that the jury understood the

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

on the failure of the accused to testify.'" See Glantz, 810 F.2d

at 322 (noting that the challenged comment must be "manifestly

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

and necessarily take it to be a comment on the failure of the

accused to testify") (emphasis added) (citation omitted). It

would be particularly problematic to do so here, since the

defense clearly signaled that it perceived the statement to be

objectionable at the time only because the jury might take it as

a license to shift the burden of proof. We believe, therefore,

that an appellate court would be overreaching were it to attrib-

ute to the jury the more ominous interpretation now proposed by

the defense. See Robinson, 485 U.S. at 30.

Second, even assuming the jury so interpreted the

judge's statement, the preliminary instructions emphatically

charged that "a defendant has a right to remain silent . . .

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

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

charge once again stated that "the fact that a defendant has, in

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

incrimination] should not be considered in any way by you as

proving anything one way or the other." Thus, we see no sound

basis for departing from the customary presumption that juries

21

follow their instructions. See Rullan-Rivera, F.3d at

[No. 94-1890, 1995 U.S. App. LEXIS 18434, at *5 (1st Cir. July

21, 1995)]. Accordingly, the district court did not abuse its

discretion in denying the motion for mistrial.

The district court judgment is affirmed.

22