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USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
Nos. 93-1618
93-2208
94-1506
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN A. SACCOCCIA,
Defendant, Appellant.
_________________________
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
_________________________
Before
Selya, Cyr and Boudin, Circuit Judges. ______________
_________________________
Samuel Rosenthal, with whom Curtis, Mallet-Prevost, Col________________ __________________________
Mosle, Robert D. Luskin, and Comey Boyd & Luskin were on br _____ ________________ ___________________
for appellant.
Nina Goodman, Attorney, Dep't of Justice, and Michae_____________ _____
Iannotti, Assistant United States Attorney, with whom She ________ __
Whitehouse, United States Attorney, James H. Leavey, Assis __________ ________________
United States Attorney, and Michael E. Davitt, Assistant Un __________________
States Attorney, were on brief, for the United States.
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_________________________
June 28, 1995
_________________________
SELYA, Circuit Judge. A jury convicted defen SELYA, Circuit Judge.
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_____________
appellant Stephen A. Saccoccia on racketeering, money launder
and related charges arising from his leadership of
organization that laundered well over $100,000,000 in drug
during the years 1986 through 1991. On appeal, Sacco
challenges his extradition, the timing of his trial,
conviction, the forfeiture of certain assets, and the 660-
sentence that the district court imposed. Finding that
arguments do not wash, we affirm.
I. BACKGROUND I. BACKGROUND
We sketch the bareboned facts in the light most ami
to the government, see United States v. Ortiz, 966 F.2d 707,___ _____________ _____
11 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993), lea _____ ______
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much of the flesh and sinew for fuller articulation in connec
with our discussion of particular issues.
Appellant formerly controlled a network of prec
metals businesses located in Rhode Island, New York,
California. He became enmeshed in money laundering throug
involvement with a fellow metalman, Barry Slomovits. At a p
in the mid-1980s, Slomovits was accepting millions of dollar
cash each week from Duvan Arboleda, who represented a grou
Colombian drug lords (the Cali cartel). Slomovits used so
this cash to purchase gold from appellant. By spe
arrangement, the transactions were accomplished wit
documentation.
In 1987, Arboleda and appellant agreed that they
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2
deal directly with each other. From that juncture for
appellant used his various businesses to cleanse money funne
to him by the Cali cartel and its emissaries (including Arbol
Fernando Duenas, and Raoul Escobar). Typically, Arboleda
make large quantities of cash available to appellant; appel
would send some of it to Slomovits in New York; Slomovits
buy gold with the funds, resell the gold, and wire the proc
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to accounts that appellant controlled. Slomovits rece
apocryphal invoices from appellant's companies purporting to
sales of gold for sums corresponding to the amounts of the
transfers.
Ahron Sharir, a manufacturer of gold chain, also wa
money for appellant. Appellant used Sharir's New York factor
a drop-off point for incoming shipments of currency, and S
laundered the cash by methods similar to those employe
Slomovits. The shipments to Sharir's factory continued u
1988. From then on, the two men forsook the New York fact
but continued to deal with each other. Appellant delivered
totalling over $35,000,000 to Sharir at other locations bet
1988 and 1990.
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By 1990, appellant's operations had expanded and
become largely independent of Slomovits. Appellant would bi
opportunities to launder money on behalf of the Cali car
When the cartel accepted a bid, he or his couriers would rec
sacks of currency at prearranged delivery points. T
shipments ordinarily ranged between $50,000 and $500
3
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(although one delivery totalled $3,000,000). The bills
usually in small denominations. They would be coun
transported to one of appellant's offices in California or
Island, then counted again, smurfed,1 and used to buy cashi
checks payable to one of appellant's companies. These purc
were made at various banks by underlings (e.g., David I ____
Anthony DeMarco, James Saccoccio, Kenneth Saccoccio)
accordance with instructions received from appellant or his
Donna Saccoccia. After the checks had been deposited i
company account, the money would then be wired to a foreign
designated by Arboleda or Duenas. Along the way, appellant
deduct a commission that usually approximated ten percent of
laundered cash. This completed "la vuelta," the term used by
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Cali cartel to describe a complete cycle of drug smug
activities.
The spring of 1991 marked the beginning of the en
appellant's career in high finance. During the early stage
his operation, the money received in New York was transporte
Rhode Island by armored car and then deposited in an acc
standing in the name of a controlled corporation, Trend Prec
Metals (Trend), at Citizens Bank. Between January 1, 1990
____________________
1The conspirators sought to avoid the currency transac
reporting requirements applicable to large cash transacti
see, e.g., 31 U.S.C. 5313 (1988); 31 C.F.R. 103.22(a ___ ____
(1994), by subdividing the cash into units of less than $10,
The process of breaking down a large amount of cash into smal
unreportable amounts a criminal act when done to avoi
reporting requirements, see 31 U.S.C.A. 5324 (West Supp. 1 ___
is called "smurfing."
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4
April 2, 1991, appellant and his wife wired over $136,000,000
of the Trend account to an assortment of foreign banks. Citi
became suspicious and closed the account. In approximately
same time frame, an employee of an armored car service wa
Richard Gizarelli, an unindicted coconspirator, that appel
was under investigation. Gizarelli promptly informed appell
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Notwithstanding these omens, appellant persisted.
did, however, alter his modus operandi. Instead of using pri _____ ________
couriers to transport cash from New York to Rhode Island, he
any of four men Izzi, Carlo DeMarco, Anthony DeMarco,
Vincent Hurley, often (but not always) operating in pairs
haul the money to Rhode Island. And, although appella
cohorts continued to purchase bank checks from various
Island financial institutions, appellant began to send the c
to his offices in California by air courier, often in canis
labeled as containing gold (to which appellant's henchmen a
slag or scrap metal to increase weight). Accomplices use
money to purchase gold, which was then sold on the open mar
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The proceeds were eventually wired back to one of appella
remaining Rhode Island accounts.
In August of 1991, appellant convened a meeting at
mother's home. He showed the conferees (who included
Saccoccia, Izzi, and the two DeMarcos) a videotape that had
discovered accidentally in a nearby building. The tape refle
an ongoing surveillance of the back entrance to appella
5
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Cranston coin shop. He advised his colleagues to start usin
store's front entrance. Soon thereafter, appellant departe
Switzerland. In short order, the authorities indicted
extradited him.
After unsuccessfully seeking to postpone prosecutio
health-related grounds,2 appellant went to trial on Novembe
1992, in the United States District Court for the District
Rhode Island, along with several other indicted coconspira
(including his wife). Appellant's attorney became ill du
trial, and the court declared a mistrial as to appellant.3
new trial began on February 17, 1993, and resulted in
____________________
2The district court held a hearing regarding appella
professed ailments. Appellant had undergone a laminectomy at
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14 and had been hospitalized repeatedly during the next 20 ye
He suffered a relapse while he was incarcerated in Switzerl
necessitating bed rest and medication. After being returne
the United States, appellant claimed to have reinjured his b
He also claimed that, on the eve of trial, a prison
assaulted him, aggravating his condition. The court
testimony from three physicians and concluded that "there [
no objective findings by any doctor that would confirm
existence of any physical problem that would account
[appellant's current] complaints of pain." Accordingly,
court refused to grant a continuance.
3The first trial proceeded as to the other defendants.
jury returned its verdict on December 18, 1992, convicting
Saccoccia, Vincent Hurley, James Saccoccio, Kenneth Saccoc
Stanley Cirella and Anthony DeMarco on the RICO conspiracy co
18 U.S.C. 1962(d), and finding each of them guilty on cer
other counts. Donna Saccoccia was convicted of 47 count
money laundering under 18 U.S.C. 1957 and 13 counts of
laundering under 18 U.S.C. 1956(a)(2); Hurley was convicte
one count of structuring transactions to avoid currency repor
requirements, see 31 U.S.C. 5324(3), and one count___
interstate travel in aid of racketeering, see 18 U.S.C. 1 ___
the two Saccoccios and Cirella were likewise convicte
structuring violations under 31 U.S.C. 5324(3); and Ant
DeMarco was convicted of filing false currency transac
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reports in violation of 31 U.S.C. 5324(2).
6
conviction. These appeals followed.
Saccoccia's appeals were consolidated for oral argu
with the appeals arising out of the first trial. See supra___ _____
3. Notwithstanding the obvious differences in the trial rec
and in the posture of the prosecutions for example, appel
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was the leader of the money laundering organization; unlike
of the others, he was not tried for currency transac
reporting (CTR) offenses; and he was convicted in a t
separate from that of his codefendants appellant seeks
incorporate by reference eight arguments advanced by o
defendants. Because appellant's position is not substanti
similar to that of the codefendants, and because he has faile
develop the idiosyncracies of his own situation, we deem fi
those arguments to have been abandoned.4 See United State___ ___________
David, 940 F.2d 722, 737 (1st Cir. 1991) ("Adoption by refere _____
however, cannot occur in a vacuum; to be meaningful,
arguments adopted must be readily transferrable from
proponent's case to the adopter's case."), cert. denied, 504_____ ______
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955 (1992).
____________________
4The five waived asseverations comprise: (1) whether
CTR charges, and the evidence engendered thereby, violate
Fifth Amendment privilege against self-incrimination; (2) whe
the district court's jury instructions overlooked the teac
of Reves v. Ernst & Young, 113 S. Ct. 1163 (1993); (3) whe _____ _____________
the court erred in instructing the jury that coconspirat
knowledge could be established by evidence of willful blindn
(4) whether the court erred in determining the scope of
charged conspiracy; and (5) whether the value of the washed f
as calculated for sentencing purposes improperly included re
that the government conceded was legitimate in origin. In
events, none of these contentions appears to have much bite.
7
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Nevertheless, we are left with no shortage of food
thought. Appellant has served up a bouillabaisse of o
offerings. We address his meatier propositions below, inclu
the three "incorporated" contentions that arguably have
preserved. And although we do not deem detailed discus
desirable, the record should reflect that we have mastic
appellant's remaining points and found them indigestible.
II. EXTRADITION II. EXTRADITION
As a threshold matter, appellant maintains that
trial and ensuing conviction violated the extradition tr
between the United States and Switzerland, and, in the bar
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transgressed the principles of dual criminality and specia
We reject these importunings.
A. Gaining Perspective. A. Gaining Perspective. ___________________
Further facts are needed to place appella
extradition-related claims into a workable perspective.
November 18, 1991, a federal grand jury returned the indict
that inaugurated this prosecution. Count 1 charged appell
his wife, and eleven associates with RICO conspiracy. See__
U.S.C. 1962(d) (1988). A RICO conspiracy, of course, requ
the government to prove, inter alia, an illicit agreemen_____ ____
conduct a pattern of racketeering activity. See United State___ ___________
Ruiz, 905 F.2d 499, 503 (1st Cir. 1990); see also 18 U.S.____ ___ ____
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1962(c) (1988). Proof of a pattern demands that the prosecu
show "at least two acts of racketeering activity." 18 U.S.C
1961(5) (1988). These acts, which must themselves comp
8
violations of specified criminal statutes, see id. 1961(1) ___ ___
are commonly referred to as "predicates" or "predicate ac
See, e.g., Ruiz, 905 F.2d at 503.
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___ ____ ____
In the instant indictment, the alleged racketee
activity comprised, among other specified predicate a
incidents of money laundering, see 18 U.S.C. 1956, 1957,___
violations, see 31 U.S.C. 5324(1)-(3), and using travel
___
facilities in interstate commerce to promote these
laundering ventures, see 18 U.S.C. 1952(a)(3). The grand___
also averred that the RICO conspiracy had been accomplishe
means that included failing to file the necessary CTRs for
transactions over $10,000. Counts 2-53 of the indictment cha
appellant and others with failing to file CTRs in spec
instances, see 31 U.S.C. 5324(1); counts 54-68 cha ___
appellant with illegally structuring monetary transactions
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order to avoid the CTR reporting requirements, see id. 5324 ___ ___
counts 69-129 charged appellant and his wife with the us
property derived from unlawful activities while engagin
monetary transactions affecting interstate commerce, see__
U.S.C. 1956; counts 130-142 charged appellant and his wife
money laundering in violation of 18 U.S.C. 1956(a)(2);
counts 143-150 charged appellant and others with Travel
violations under 18 U.S.C. 1952(a)(3). The indictment
contained forfeiture allegations under the applicable RICO
money laundering statutes. See 18 U.S.C. 982, 1963. ___
Six days after the grand jury returned the indict
9
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Swiss authorities arrested the Saccoccias in Geneva.
contested extradition on counts 1 through 68, and counts
through 150. On June 11, 1992, the Swiss Federal Tribunal (
granted extradition on all charges except those containe
counts 2 through 68. The SFT reasoned that these 67 co
constituted nonextraditable offenses because Swiss law di
prohibit the underlying conduct. The SFT's discussion did
specifically mention the forfeiture allegations.
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The Swiss surrendered appellant to the United Sta
He was transported to Rhode Island and arraigned on July 15.
week later, the grand jury returned a superseding indictme
On July 30, the Justice Department, in the person of Mic
O'Hare, wrote to Tania Cavassini, a Swiss official, enclosi
copy of the superseding indictment and inquiring whether
required a waiver of the rule of specialty.
On December 1, 1992, apparently in response to
inquiry from Cavassini, O'Hare transmitted a written assur
that, although the court papers still formally listed appel
____________________
5The charges laid against appellant in the superse
indictment closely paralleled those contained in the ori
bill. Specifically, the grand jury accused appellant of
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conspiracy (count 1), failure to file CTRs (counts 2-9), fi
false CTRs (counts 10-22), unlawfully structuring mone
transactions to evade filing requirements (counts 23-
engaging in monetary transactions using property derived
illegal activities (counts 38-98), money laundering (counts
33), and interstate travel in aid of racketeering (counts
41). Like the original indictment, the superseding indict
alleged violations of CTR requirements as predicate offenses
the RICO conspiracy and Travel Act counts, and reiterated
forfeiture allegations. However, the superseding indictment
include several counts not directed at appellant (counts 99-1
10
as a defendant in respect to the CTR counts (for
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extradition had been denied), the prosecution did not inten
press those counts. O'Hare explained that the prosecutor
offer no evidence of appellant's guilt on those charges, wit
result that "American law [will require] the judge to direct
jury to find the defendant not guilty." The following
Cavassini advised that, under a "final decision" dated Nove
20, 1992, the SFT had "granted extradition of [appellant] for
facts enclosed in the Count Nr. 1 of the Superseding Indictme
Cavassini also indicated that appellant's local counsel in Ge
agreed with the SFT's decision and had scotched any possibi
of a further appeal.
On February 2, 1993, before the start of the trial
which we are concerned, the government moved to dismiss t
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counts of the superseding indictment (counts 2-37) that cha
appellant with CTR offenses. The district court complied.
matter resurfaced in a slightly different shape ten days l
when appellant's Swiss lawyer, Paul Gully-Hart, wrote
Cavassini expressing concern that appellant's impen
prosecution on charges in which CTR violations were embedde
predicates for other offenses would insult the rule of specia
On March 2, Gully-Hart wrote again, this time enclosing a cop
the prosecution's opening statement to the petit jury. Cavas
forwarded both of these letters to O'Hare. On March 8, Cavas
spoke with O'Hare and voiced her concern that appellant mig
convicted under count 1 solely on the basis of CTR offenses.
11
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The next day, Assistant United States Attorney
Leavey, a member of the prosecution team, advised Judge To
that he had spoken with O'Hare. Without conceding the l
validity of Gully-Hart's point, Leavey asked the court
instruct the jury that CTR violations could not serve
predicates for purposes of either the RICO or Travel Act cou
When the court acquiesced, the government submitted a reda
indictment that deleted all references to CTR offenses fro
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RICO and Travel Act counts. Appellant nonetheless moved f
mistrial, invoking the rules of dual criminality and specialt
The district court denied the motion, explaining
it had agreed to the government's proposal purely as
accommodation. In the judge's view, the precautions were
legally required because the SFT had been pellucid in authori
prosecution on the RICO count even though the claimed
violations were prominently displayed therein as poten
predicates. The judge noted, moreover, that evidence
appellant's CTR violations was in all events admissible
connection with the substantive money laundering counts (a
which extradition had been approved). Appellant resurrecte
issue in his motion for a new trial following the adverse
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verdict. The court stood firm.
B. Dual Criminality and Specialty. B. Dual Criminality and Specialty. ______________________________
Although the principles of dual criminality
specialty are closely allied, they are not coterminous.
elaborate below.
12
1. Dual Criminality. The principle of1. Dual Criminality.
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_________________
criminality dictates that, as a general rule, an extradit
offense must be a serious crime (rather than a mere peccadi
punishable under the criminal laws of both the surrenderin
the requesting state. See Brauch v. Raiche, 618 F.2d 843,___ ______ ______
(1st Cir. 1980). The current extradition treaty between
United States and Switzerland embodies this concept. See Tr ___
of Extradition, May 14, 1900, U.S.-Switz., Art. II, 31 S
1928, 1929-30 (Treaty).
The principle of dual criminality does not demand
the laws of the surrendering and requesting states be ca
copies of one another. Thus, dual criminality will not
defeated by differences in the instrumentalities or in the st
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purposes of the two nations' laws. See Peters v. Egnor, 888___ ______ _____
713, 719 (10th Cir. 1989). By the same token, the counter
crimes need not have identical elements. See Matter___ _____
Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 19 ________________________
Instead, dual criminality is deemed to be satisfied when the
countries' laws are substantially analogous. See Peters,___ ______
F.2d at 719; Brauch, 618 F.2d at 851. Moreover, in mulling______
criminality concerns, courts are duty bound to defer t
surrendering sovereign's reasonable determination that
offense in question is extraditable. See Casey v. Departmen___ _____ ________
State, 980 F.2d 1472, 1477 (D.C. Cir. 1992) (observing tha_____
American court must give great deference to a foreign cou
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determination in extradition proceedings); United States v.______________
13
Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987) (similar), c ____________
denied, 484 U.S. 1042 (1988). ______
Mechanically, then, the inquiry into dual crimina
requires courts to compare the law of the surrendering state
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purports to criminalize the charged conduct with the law of
requesting state that purports to accomplish the same result.
the same conduct is subject to criminal sanctions in
jurisdictions, no more is exigible. See United States v. L ___ _____________
905 F.2d 326, 328 (10th Cir. 1990), cert. denied, 498 U.S.
_____ ______
(1991); see also Collins v. Loisel, 259 U.S. 309, 312 (1922)___ ____ _______ ______
is enough [to satisfy the requirement of dual criminality] if
particular act charged is criminal in both jurisdictions.").
2. Specialty. The principle of specialty2. Specialty.
_________
corollary to the principle of dual criminality, see United St ___ ________
v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988), cert. den _______ _____ __
489 U.S. 1027 (1989) generally requires that an extra
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defendant be tried for the crimes on which extradition has
granted, and none other. See Van Cauwenberghe, 827 F.2d at___ ________________
Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir.), cert. den _____ ________ _____ __
479 U.S. 882 (1986). The extradition treaty in force between
United States and Switzerland embodies this concept, provi
that an individual may not be "prosecuted or punished for
offense committed before the demand for extradition, other
that for which the extradition is granted . . . ." Treaty,
IX.
Enforcement of the principle of specialty is fou
14
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primarily on international comity. See United States v. Thir ___ _____________ ___
813 F.2d 146, 151 (8th Cir. 1987). The requesting state
"live up to whatever promises it made in order to ob
extradition" because preservation of the institution
extradition requires the continuing cooperation of
surrendering state. United States v. Najohn, 785 F.2d 1420,_____________ ______
(9th Cir.) (per curiam), cert. denied, 479 U.S. 1009 (19 _____ ______
Since the doctrine is grounded in international comity ra
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than in some right of the defendant, the principle of speci
may be waived by the asylum state. See id. ___ ___
Specialty, like dual criminality, is not a hideb
dogma, but must be applied in a practical, commonsense fas
Thus, obeisance to the principle of specialty does not re
that a defendant be prosecuted only under the precise indict
that prompted his extradition, see United States v. Andonian___ _____________ _______
F.3d 1432, 1435-36 (9th Cir. 1994), cert. denied, 115 S. Ct._____ ______
(1995), or that the prosecution always be limited to spec
offenses enumerated in the surrendering state's extradi
order, see Levy, 905 F.2d at 329 (concluding that a Hong___ ____
court intended to extradite defendant to face a contin
criminal enterprise charge despite the court's fai
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specifically to mention that charge in the deportation or
In the same vein, the principle of specialty does not impose
limitation on the particulars of the charges lodged by
requesting nation, nor does it demand departure from the for
existing rules of practice (such as rules of pleading, evide
15
or procedure). See United States v. Alvarez-Moreno, 874___ _____________ ______________
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1402, 1414 (11th Cir. 1989), cert. denied, 494 U.S. 1032 (19 _____ ______
Thirion, 813 F.2d at 153; Demjanjuk v. Petrovsky, 776 F.2d_______ _________ _________
583 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986). _____ ______
In the last analysis, then, the inquiry into speci
boils down to whether, under the totality of the circumstan
the court in the requesting state reasonably believes
prosecuting the defendant on particular charges contradicts
surrendering state's manifested intentions, or, phrased ano
way, whether the surrendering state would deem the conduct
which the requesting state actually prosecutes the defendan
interconnected with (as opposed to independent from) the acts
which he was extradited. See Andonian, 29 F.3d at 1435; Un ___ ________ _
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States v. Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988), c ______ ______
denied, 489 U.S. 1012 (1989); United States v. Paroutian,______ _____________ _________
F.2d 486, 490-91 (2d Cir. 1962).
C. Applying the Principles. C. Applying the Principles. _______________________
A district court's interpretation of the principle
dual criminality and specialty traditionally involves a ques
of law and is, therefore, subject to plenary review in the c
of appeals. See Andonian, 29 F.3d at 1434; United State___ ________ ____________
Khan, 993 F.2d 1368, 1372 (9th Cir. 1993); United State
____ ____________
Abello-Silva, 948 F.2d 1168, 1173 (10th Cir. 1991), cert. den ____________ _____ __
113 S. Ct. 107 (1992). Marching beneath this banner, appel
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16
urges that his conviction must be set aside for three rel
reasons.6 None has merit.
1. Predicate Acts. Appellant's flagship conten 1. Predicate Acts. _______________
rests on the postulate that an offense which is it
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nonextraditable cannot serve as a predicate act in connec
with other, extraditable offenses; and that, therefore,
government's use of nonextraditable CTR offenses as predi
acts for purposes of the RICO and Travel Act counts crosse
line into forbidden territory. Even if we assume, however,
in some situations reliance on nonextraditable offenses
predicates for other, extraditable offenses might run afou
dual criminality or specialty principles, the circumstances
this case present no such problem.
____________________
6There is some dispute whether alleged violations of
principle of specialty can be raised by a criminal defen
See, e.g., Demjanjuk, 776 F.2d at 583-84 (questioning whether___ ____ _________
person being extradited "has standing to assert the principl
specialty"); Kaiser v. Rutherford, 827 F. Supp. 832, 835 (D. ______ __________
1993) (asserting that "[t]he rule of specialty is not a right
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the accused but is a privilege of the asylum state and there
[the defendant] has no standing to raise this issue") (inte
quotation marks omitted). We need not probe the matter
standing for three reasons. First, while we take no view of
issue, we realize that there are two sides to the story, an
side that favors individual standing has much to commen
See, e.g., United States v. Rauscher, 119 U.S. 407, 422-24 (1 ___ ____ _____________ ________
(referring to specialty as a "right conferred upon per
brought from a foreign country" via extradition proceedin
Thirion, 813 F.2d at 151 & n.5 (to like effect); see also Un _______ ___ ____ _
States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1 ______ _______________
(suggesting the continuing vitality of the Rauscher decisi ________
Second, the government has advised us that, for policy reas
it does not challenge appellant's standing in this insta
Third, appellant's asseverations are more easily dismissed on
merits. See Norton v. Mathews, 427 U.S. 524, 532 (1 ___ ______ _______
(explaining that jurisdictional questions may be bypassed w
ruling on the merits will achieve the same result).
17
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In general, we do not believe that there can
violation of the principle of specialty where the reques
nation prosecutes the returned fugitive for the exact crime
which the surrendering nation granted extradition. So i
here: the SFT twice approved appellant's extradition on co
that prominently featured CTR offenses as predicates.
approval to which we must pay the substantial deference tha
due to a surrendering court's resolution of questions pertai
to extraditability, see, e.g., Casey, 980 F.2d at 1477 stro ___ ____ _____
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suggests that the RICO and Travel Act counts, despite t
mention of predicates which, standing alone, would not sup
extradition, are compatible with the criminal laws of
jurisdictions. Though a Swiss official may informally
fretted about the prospect of a RICO or Travel Act convic
based on nonextraditable predicates, we are reluctant to conc
on this gossamer showing that the SFT did not know and apprec
the clearly expressed contents of the indictment when
sanctioned extradition.
To clinch matters, the prosecution avoided
potential intrusion on the principles of either dual crimina
or specialty by taking a series of prophylactic actions at tr
The fourth redacted indictment removed all references to
offenses from the compendium of charges pressed against
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appellant. The judge then reinforced this fumigation of
indictment by advising the jurors that they should not con
18
themselves with whether appellant had committed any
offenses.7 These precautions purged any taint, and knocke
legs out from under the line of reasoning that appellant see
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pursue.
2. Keeping Faith. Next, appellant asserts that
2. Keeping Faith. _____________
government infringed on the principle of specialty by brea
its promise to the Swiss government and introducing evidenc
CTR violations at appellant's trial. Abstractly, we agree
the core element of appellant's premise: the principle
specialty requires the requesting state to abide by the pro
it makes to the surrendering state in the process of procu
extradition. See Najohn, 785 F.2d at 1422. But, concretely,___ ______
are unable to discern any breach of faith in this insta
Thus, we resist the conclusion that appellant would foist
us.
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____________________
7The judge instructed the jury:
You have heard references during this trial
to currency transaction reporting
requirements and I should make it clear that
you are not being called upon to determine
whether the defendant violated or conspired
to violate any of those requirements.
Therefore, you may consider evidence
regarding the nature of currency transactions
with banks to the extent that such evidence,
in your view, may bear on the source of the
money involved and/or the purposes for which
the money may have been transferred or
transported. But in reaching your verdict,
you may not consider whether any such
transactions were or were not consistent with
transaction reporting requirements because, .
. . as I have just said, that is not an issue
in this case. . . .
19
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To buttress the claim that the United States did
keep its word, appellant avers that O'Hare's facsi
transmission, sent on December 1, 1992, was the functi
equivalent of an assurance that the prosecutor would not pre
any evidence to the jury regarding Saccoccia's noncompliance
CTR requirements. Fairly read, the document despite
iteration that the prosecutor "would present no evi
regarding [Saccoccia's] guilt . . . on the charges for
extradition was not granted" does not support appella
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construction. O'Hare sent the transmittal in response
Cavassini's expression of concern that appellant might
convicted of charges for which extradition had been denied.
reply, taken in context, see supra pp. 10-11, amounted to no___ _____
than an assurance against that possibility. To read a pro _________________________
not to introduce any evidence relevant to CTR violations
O'Hare's statement would necessitate wresting it from
contextual moorings and unreasonably stretching its lit
meaning. We decline appellant's invitation to indulge in
phantasmagoric wordplay.8
3. The Claimed "Prosecution." Appellant's t 3. The Claimed "Prosecution." ____________________________
contention is that the government violated the principle
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____________________
8Of course, appellant had already been extradited an
Swiss authorities had already approved the superseding indict
before this supposed promise was made. This places a fur
obstacle in appellant's path: it strikes us as proble
whether the breach of a promise made after the defendant has_____
extradited, without more, furnishes a basis for reversin
ensuing conviction. In such circumstances, the surrende
state, by definition, has not relied on the requesting sta
promise in deciding to return the defendant.
20
specialty because it prosecuted him for CTR offenses. Since
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nonextraditable CTR counts, as they pertained to appellant,
dismissed before the second trial began, his claim is founde
no more than the fact that his name appeared on the indict
during the first trial. While this may literally
"prosecution," it is prosecution in name only and we will
carry hollow formalism to a point at which it engulfs co
sense. Consequently, we hold that the mere existence o
unredacted indictment, under the circumstances of this case
no reason to invalidate Saccoccia's conviction. Cf. Tacket___ _____
Delco Remy Div. of Gen. Motors Corp., 937 F.2d 1201, 1202_____________________________________
Cir. 1991) (Bauer, C.J.) (quoting doggerel to the effect
"[s]ticks and stones may break your bones, but names can n
hurt you").
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This leaves appellant's argument that he was ille
"prosecuted" because CTR offenses were included as predicate
for purposes of the RICO and Travel Act counts until the fo
redacted indictment surfaced. As we have already obser
however, it would have been perfectly proper for the govern
to seek convictions on those counts based on CTR predica
Hence, appellant's argument is without merit.9
For these reasons, we find appellant's conviction
from taint under the applicable extradition laws.
____________________
9If more is needed and we do not believe that it is
evidence of CTR violations, by and large, was independe
admissible to support various aspects of the money launde
charges and other substantive counts for which extradition
explicitly approved.
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21
III. THE COVETED CONTINUANCE III. THE COVETED CONTINUANCE
Appellant contends that the district court arbitra
refused him a lengthy continuance prior to the start of
second trial,10 leaving him with insufficient preparation t
Our analysis of the record indicates that the court acted wi
its discretion in scotching appellant's request.
A. Setting the Stage.
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A. Setting the Stage. _________________
At arraignment, two attorneys, Jack Hill and B
Adae, entered appearances as appellant's counsel.
thereafter, Austrian authorities arrested Hill for
laundering. Hill languished in prison from August thr
November of 1992. During that interval, he could not communi
with, or effectively assist, Saccoccia. Adae, who had origin
been enlisted as local counsel, stepped into the breach and a
as lead counsel. Shortly after the first trial began,
became ill. The court granted appellant's motion for a mist
and ordered a severance. The case proceeded to verdict vis-a
the other defendants. See supra note 3. ___ _____
Naturally, the severance required a separate trial
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appellant. The district court proposed to start in e
February of 1993. Within a matter of days after the c
announced the schedule, Hill, recently released from an Aust
prison, and Kenneth O'Donnell, a prominent Rhode Island def
lawyer, entered appearances as appellant's counsel. On Dece
____________________
10Appellant does not assign error to the denial of
continuances that he sought before the first (aborted) tr
See supra note 2. ___ _____
22
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10, 1992, appellant signed an extensive waiver of the poten
conflict of interest posed by Hill's representation of him
time when Hill himself faced charges of money laundering ari
out of activities undertaken in conjunction with appellant.
On the same day, the court held a hearing anent
waiver. Among other things, appellant requested that his t
be rescheduled to April of 1993 so that his defense team c
have more time to prepare. He claimed this extra time
necessary to review financial documents, study surveill
tapes, glean exculpatory evidence, and analyze inconsistencie
the statements of government witnesses. The court granted on
two-week extension, from February 3 to February 17, noting
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the original indictment had been returned in 1991 and
counsel already had enjoyed a considerable period
preparation. Subsequent requests for continuances were
denied.
B. Applicable Legal Principles. B. Applicable Legal Principles.
___________________________
Trial management is peculiarly within the ken of
district court.11 That court has great latitude in mana
____________________
11As we wrote on an earlier occasion:
There is an important public interest in the
efficient operation of the judicial system
and in the orderly management of crowded
dockets. . . . The district judge is at the
helm, sensitive to the tides that ebb and
flow during a prolonged trial and
knowledgeable about systemic demands. He is,
therefore, the person best equipped to
balance the competing considerations.
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United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990). _____________ _____
23
its docket, including broad discretion to grant or wit
continuances. Only "an unreasoning and arbitrary insistence
expeditiousness in the face of a justifiable request for de
constitutes an abuse of that discretion. Morris v. Slappy,
______ ______
U.S. 1, 11-12 (1983) (internal quotation marks omitted); see
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___
United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1 ______________ _____
(explaining that an appellate court "must show great defere
to district court decisions of this nature, and should over
such decisions "only for a manifest abuse of discretion").
present purposes, this means that the decision below must en
unless the party who moved for the continuance can demonst
that, in withholding relief, the trial court indulged a ser
error of law or suffered a meaningful lapse of judg
resulting in substantial prejudice to the movant.12 See, e ___
United States v. Saget, 991 F.2d 702, 708 (11th Cir.), c ______________ _____
denied, 114 S. Ct. 396 (1993); United States v. Dennis, 843______ _____________ ______
652, 653 n.1 (2d Cir. 1988).
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For the purpose of determining whether a denial
continuance constitutes an abuse of discretion, each case is
generis. See United States v. Torres, 793 F.2d 436, 440_______ ___ _____________ ______
____________________
12The Seventh Circuit has gone so far as to term trial c
decisions denying continuances "virtually unreviewable." Un _
States v. Stevenson, 6 F.3d 1262, 1265 (7th Cir. 1993) (inte ______ _________
quotation marks omitted). We think this description heads in
right direction but goes too far. See, e.g., United State___ ____ ___________
Soldevila-Lopez, 17 F.3d 480, 490 (1st Cir. 1994) (rever _______________
district court's refusal to grant a continuance on the gr
that newly emergent evidence justified more time); Delane_____
United States, 199 F.2d 107, 115 (1st Cir. 1952) (finding______________
nationwide publicity had created a hostile atmosphere, and t
therefore, the district court should have granted a continuan
24
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Cir.), cert. denied, 479 U.S. 889 (1986). A reviewing court_____ ______
look first at the reasons contemporaneously presented in sup
of the request for the continuance. See United States___ ____________
Lussier, 929 F.2d 25, 28 (1st Cir. 1991). Other relevant fac _______
may include such things as the amount of time needed
effective preparation, the amount of time actually available
preparation, the amount of time previously available
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preparation and how assiduously the movant used that time,
extent to which the movant has contributed to his perce
predicament, the complexity of the case, the availability
assistance from other sources, the probable utility o
continuance, the extent of inconvenience to others (such as
court, the witnesses, and the opposing party) shoul
continuance ensue, and the likelihood of injustice or un
prejudice attributable to the denial of a continuance.
United States v. Soldevila-Lopez, 17 F.3d 480, 488 (1st______________ _______________
1994); Lussier, 929 F.2d at 28; United States v. Zannino,
_______ _____________ _______
F.2d 1, 13-14 (1st Cir.), cert. denied, 494 U.S. 1082 (1990). _____ ______
C. Analysis.
C. Analysis. ________
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Here, balancing the relevant considerations leave
confident that the circumstances justified the refusal to gra
continuance. And, moreover, the record belies appella
contention that the court's obduracy unfairly prejudiced
rights by leaving him insufficient time to prepare for tr
Appellant's most loudly bruited point is that the govern
produced 1600 hours of wiretap audio tapes, and that he had
25
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67 days, which he translates as equalling 1608 hours, to li
to them. Although this lament has some superficial plausibil
we agree with the district court that, notwithstanding the nu
of tapes, it was reasonable to expect defense counsel to be r
for trial in February. We explain briefly.
The grand jury indicted appellant in November of 1
Thus, appellant's counsel, collectively, had far more tha
days in which to work on the case. Moreover, the lawyers ha
not-inconsiderable benefit of a dress rehearsal, inclu
unlimited access to the full record of the first trial (in
virtually the entire case against appellant was air
O'Donnell, one of appellant's new attorneys, was especi
familiar with the situation because he had represente
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codefendant who had been acquitted in a separate tr
Furthermore, Hill and O'Donnell could and no doubt did co
with counsel for the codefendants and with Attorney Adae.
short, the means for efficacious preparation were tidily at
Appellant's other assertions of supposed prejudice
lack force. For example, his suggestion that a continuance
have enabled him to receive a complete transcript of
Shedd's conversation with Duenas overlooks the fact that
government provided him with the entire transcript. See i ___
Part IV (E). His claim that more time was needed to obta
copy of a DEA report that he asserts would have bolstered
testimony of an expert witness overlooks the fact that the ex
knew of the report and described its conclusions. See infra___ _____
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26
18. His claim that a continuance would have enabled hi
obtain enhanced versions of two of the surveillance tapes be
trial, see infra Part IV (F), is completely unpersuasive___ _____
his assertion that the enhanced tapes, when received,
"unclear" and "unintelligible." Appellant's Brief at 36.
finally, appellant's exhortation that a continuance would
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allowed him to investigate whether the laundered cash represe
gambling proceeds, as opposed to drug money, is unaccompanie
any colorable basis for assuming that his supposition
anything more than the most remote of possibilities.
In a nutshell, appellant has not made a suffic
showing of undue prejudice to warrant us in second-gues
either the district court's resolve to start the trial in
February of 1993 or its decision to grant appellant a far
modest delay than he requested. Since the record reflects
pressing need for an extended continuance, and likewise fail
demonstrate significant harm flowing from the lack of one,
denial of the motion for a continuance cannot be said to
substantially impaired appellant's defense. See, e.g., Den ___ ____ __
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843 F.2d at 653 n.1. Thus, no cognizable error inheres.
D. Conflict of Interest. D. Conflict of Interest.
____________________
Relatedly, appellant claims that the denial o
continuance saddled him with conflict-ridden counsel.
construct does not withstand scrutiny. To show an ac
conflict of interest, a criminal defendant "must demonstrate
some plausible alternative defense strategy might have
27
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pursued" and "that this alternative strategy was not pur
because of the attorney's other loyalties or interests." Un _
States v. Garcia-Rosa, 876 F.2d 209, 231 (1st Cir. 1989), c
______ ___________
granted and judgment vacated on other grounds, 498 U.S._________________________________________________
(1990). Appellant cannot meet this standard.
Appellant sees the conflict of interest as centere
Hill's need to protect himself at his client's expe
Appellant supports this accusation by repeated reference
Hill's indictment in Austria on charges that he conspired
appellant to launder the fruits of unlawful activity
appellant does not suggest any way in which this alleged conf
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of interest adversely affected Hill's representation of hi
trial. What is more, appellant's claim that he was faced wit
intolerable dilemma he could accept Hill as his counse
proceed to trial with an attorney who was untutored in the ca
is flatly contradicted by the record.
Appellant insisted, time and again, despite
district court's painstaking explanation of his right
conflict-free counsel, that Hill was the advocate of
choosing. Appellant told the court unequivocally that
understood the potential conflict, but desired Hill's servi
And he adhered to his position notwithstanding the cou
entreaty to reconsider and its advice that he would be "be
off" with an attorney free of any ties to the situation.
Last but surely not least appellant execut
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written waiver stating that, after "[h]aving been fully ad
28
of the possible adverse consequences arising from the actua
potential conflicts with which Hill is or may be encumbered,
"knowingly, voluntarily, intelligently, and irrevocably [wis
to waive any and all such actual or potential conflicts
interest for the purpose of retaining Hill as his counsel."
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a defendant knowingly selects a course of action, fully cogni
of its perils, he cannot later repudiate it simply because
case curdles. In the circumstances at bar, it is neither un
nor unjust to hold appellant to his words. Thus, the dist
court's determination that appellant had voluntarily
knowingly waived his right to conflict-free representation
unimpugnable. See Holloway v. Arkansas, 435 U.S. 475, 483___ ________ ________
(1978) (stating that "a defendant may waive his right to
assistance of an attorney unhindered by a conflict
interests").
Appellant has another arrow in this quiver. He rea
that the court should have overlooked his waiver of conflict-
counsel because Hill's continued representation constitute
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unwaivable constitutional transgression. To be sure, a
courts have found a per se Sixth Amendment violation "where t
counsel was implicated in the crime for which his client was
trial." Soldevila-Lopez, 17 F.3d at 487 n.4 (citing cases)._______________
these cases tend to involve circumstances in which an atto
has reason to fear that a vigorous defense of the client
unearth proof of the attorney's criminality. See, e.g., Un ___ ____ _
States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Alt ______ ________
29
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Hill informed the court, in the vaguest of generalities, tha
feared being charged or called as a witness in appellant's c
he provided no substantiation of these assertions, nor was
able to explain how the hypothetical conflict would, at
time, affect his representation of the appellant. Therefore,
district court seems entirely justified in concluding that Hi
representation of appellant would not be hampered by a reali
foreboding that vigorous advocacy would uncover evidence of
own crimes. Cf. William Shakespeare, Macbeth, Act I, sc.___ _______
ll. 133-34 (1605) (noting that "present fears are less
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horrible imaginings").
The sockdolager is that, wholly apart from Hi
status, appellant was also represented at trial by ano
lawyer, O'Donnell, who had no conflict of interest.13 I
effort to scale this rampart, appellant suggests that O'Donn
too, had an actual conflict of interest arising out of
previous representation of a codefendant, Raymond Marotto.
December of 1992, however, Marotto, a bank employee charged
failing to file CTRs, had been acquitted in a separate tr
Appellant's convoluted explanation of how O'Donnell's concl
representation of Marotto created a conflict of interest
difficult to follow. He seems to be saying, without any cita
____________________
13At the December 10, 1992 waiver hearing, O'Donnell
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the court that he had been "independently retained by [appell
to be local counsel and co-counsel." He assured the court
he would "independently advise [appellant] with respect to
matters that might be affected by any potential conflict
interest Mr. Hill might have."
30
to the record, that Marotto (who was not called to testif
appellant's trial) could have been a material witness. We re
this unfounded speculation.
As O'Donnell himself pointed out, Marotto's case tu
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on whether he did or did not have a responsibility to
CTRs. There is nothing in the record that suggests that Mar
had any knowledge that might have been useful in appella
defense. We have routinely dismissed analogous conflict
interest claims, see, e.g., Garcia-Rosa, 876 F.2d at 231___ ____ ___________
holding when defendant "provide[d] no substantiation" for
assertion that his counsel had a conflict of interest
manifested itself when he did not call as a witness a person
he previously had represented), and we dismiss appellant's c
on the same basis. It is simply too flimsy.
E. The Mid-Trial Motion. E. The Mid-Trial Motion. ____________________
At the close of the government's case, appel
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submitted a proffer in support of a renewed motion fo
continuance. The proffer suggested a global conspiracy "bet
the Israeli intelligence services and the CIA," and asserted
he had witnesses who "would testify about such matters as
Israeli defense industry" and "[t]he method by which the buil
of Israeli religious schools is financed by Hasidic Jews in
United States who engage in money laundering." Appellant cla
that his counsel needed time to investigate the matters descr
in the proffer.
The district court found the proffer to be "too
31
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and unsubstantiated to constitute a basis for grantin
continuance" because its "conclusory allegations" offere
explanation as to its relevancy to the case. Moreover, the c
found no evidence that diligent efforts had been made to as
availability of the testimony and documents in a proper
frame. Hence, the court determined that the proffer afforde
inadequate basis for the requested continuance.
We discern no abuse of discretion. While the pro
weaves a tale of intrigue worthy of an Oliver Stone screenp
we are unable to distill sufficient relevance or likelihoo
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success from its sinister allegations to suggest tha
continuance, if granted, would have proven useful.
IV. MONEY AND DRUGS IV. MONEY AND DRUGS
In order to obtain a conviction on the money launde
counts, as charged in the superseding indictment, the govern
had the burden of proving that the laundered funds were der
from the narcotics trade. See 18 U.S.C. 1956(a)(2). Appel ___
challenges both the admissibility and the sufficiency of
evidence introduced for this purpose. The challenge
unavailing.
A. Standard of Review.
A. Standard of Review. __________________
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finds that evidence is relevant, Fed. R. Evid. 401, but
defendant nonetheless objects to it on the ground that its
is overborne by the potential mischief it may cause, Fe
Evid. 403, the trial court must "strike a balance bet
probative worth and likely prejudice." Zannino, 895 F.2d at_______
17. The district court is the primary arbiter of how t
scales should be calibrated. On appeal, we will reverse
determination only if admitting the evidence constitute
palpable abuse of discretion. See United States v. De La C ___ _____________ _______
902 F.2d 121, 124 (1st Cir. 1990); United States v. Rodri
______________ _____
Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989). This_______
difficult row to hoe: "Only rarely and in extraordina
compelling circumstances will we, from the vista of a
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appellate record, reverse a district court's on-the-spot jud
concerning the relative weighing of probative value and un
effect." Freeman v. Package Mach. Corp., 865 F.2d 1331,_______ ____________________
(1st Cir. 1988).
When no contemporaneous objection appears of rec
the complaining party's burden increases. In that situat
appellate review is for "plain error." United States_____________
Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993), cert. denied,_________ _____ ______
S. Ct. 2714 (1994); see also Fed. R. Crim. P. 52(b). When___ ____
plain error standard prevails, we reverse only if a miscue
poisoned the well that the trial's outcome was likely affect
Sepulveda, 15 F.3d at 1188 (quoting United States v. Me _________ _____________ _
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33
Lozano, 829 F.2d 268, 274 (1st Cir. 1987)). ______
A different standard of review takes center stage
a defendant challenges the sufficiency of the evidence suppor
his conviction. In that connection, the inquiry turns
whether, "after assaying all the evidence in the light
amiable to the government, and taking all reasonable infere
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focuses on evidence adduced, or remarks made, at four diffe
points during his trial. First, appellant accuses the govern
of eliciting testimony concerning the birthplaces of Escobar
Garcia (both of whom were born in Colombia), while not inqui
about any other individual's place of birth. Second, the c
permitted Sharir to testify that appellant told him to be car
because he was dealing with Colombians, who would go after
family if they were crossed. Third, when Donald Semesky, an
34
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agent, offered expert testimony as to the modus operan_____ ______
Colombian drug cartels, he mentioned, among other things,
two Colombian cartels control the illegal importation of coc
into the United States, and that their narcotics traffic
generates much cash, necessitating money laundering. Fourth,
government's summation hammered these same points.
Due to the singular importance of keeping our cri
justice system on an even keel, respecting the rights of
persons, courts must not tolerate prosecutors' eff
gratuitously to inject issues like race and ethnicity
criminal trials. See McClesky v. Kemp, 481 U.S. 279, 309 &___ ________ ____
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(1987); United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 19 _____________ ___
Emphasizing a person's national origin not only may r
concerns of relevancy, undue prejudice, and prosecuto
misconduct, but also may pose issues of constitutional dimens
See, e.g., United States v. Vue, 13 F.3d 1206, 1213 (8th___ ____ _____________ ___
1994); United States v. Rodriguez Cortes, 949 F.2d 532, 541_____________ ________________
Cir. 1991).
This does not mean, however, that all evidence touc ___
upon race or national origin automatically must be excluded.
trial involves a search for the truth, and, as such, it canno
entirely antiseptic. The trick is to separate impermissible
of highly charged evidence from those uses that are proper
permissible. See United States v. Alzanki, ___ F.3d ___,
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___ _____________ _______
(1st Cir. 1995) [No. 94-1645, slip op. at 25-26]; Doe, 903___
at 25. Thus, while it has proven acceptable on occasion f
35
prosecutor to introduce evidence of oppressive Kuwaiti custo
buttress the reasonableness of the victim's professed belief,
Alzanki, ___ F.3d at ___ [slip op. at 26], or to make_______
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"unembellished reference to evidence of race simply as a fa
bolstering an eyewitness identification of the culprit," Doe,
___
F.2d at 25 (dictum), or to remark that an Iranian defen
likely assumed that his "American wife" would not be searche
customs, United States v. Tajeddini, 996 F.2d 1278, 1285______________ _________
Cir. 1993),14 or to describe drugs as coming from Colombia
give the jury a complete view of the conspiracy's endeavor
import cocaine, see United States v. Ovalle-Marquez, 36 F.3d___ _____________ ______________
220 (1st Cir. 1994), cert. denied, 115 S. Ct. 1322 (19
_____ ______
aggressive prosecutors sometimes go too far. When that occ
courts must act. We have, for instance, reversed convict
when, as in Rodriguez Cortes, the government's strat _________________
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blatantly invited the jury to find the defendant guilty by re
of his national origin. See Rodriguez Cortes, 949 F.2d at___ ________________
(finding abuse of discretion in admission of defenda
Colombian identification card); see also Vue, 13 F.3d at 121 ___ ____ ___
(reversing conviction because district court admitted testi
____________________
14It is noteworthy that in Tajeddini the prosecutor made_________
challenged comment in an effort to rebut the defendant's pro
that he could not have known that he was smuggling heroin bec
he did not try to hide the drugs in a secret compartment in
luggage. See 996 F.2d at 1285. In that respect, Taje ___ ____
resembles United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1 _____________ ____
(finding defendant's claim that he lacked the wherewithal to
major drug dealer properly rebutted by evidence about the mo
price of heroin in Pakistan, the practice among Pakistani dea
of selling drugs on credit, and the tendency of all Pakista
regardless of wealth, to dress alike).
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36
tying defendant's ethnic group, the Hmong, to 95% of the l
opium trade); Doe, 903 F.2d at 23-27 (reversing conviction du___
admission of testimony on modus operandi of Jamaican drug_____ ________
and prosecutor's inflammatory comments thereon).
In determining the propriety of evidence implica
ethnicity or national origin, context is critical. In the
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at bar, all the evidence about Colombia, viewed in context,
properly admitted and used. By like token, the prosecut
comments were not beyond the pale.
Appellant's first contention is factually incorr
The prosecutor asked several witnesses other than Escobar
Garcia (e.g., Sharir and Slomovits) where they were born.____
in this light, the casual questioning about place of birth,
objected to at trial, cannot conceivably plunge to the plan
plain error.
Similarly, Sharir's testimony that Saccoccia told
to be wary because he was dealing with Colombians is hi
probative on the issue of appellant's knowledge that
laundered funds were derived from illegal activities. Moreo
common sense suggests that drug traffickers are more likely t
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toward explaining the nature of money laundering and the b
for appellant's activities. This is a perfectly legitimate
of evidence. See Doe, 903 F.2d at 19 & n.21 (citing cas ___ ___
Even the testimony about the cartels' control over the Amer
drug trade was relevant on the issue of whether the cash
appellant scrubbed clean was in fact derived from ill
activities. The evidence could support a jury's plausi
though circumstantial, inference of an illicit source of f
based on appellant's repeated wire transfers of millions
dollars in laundered money to a country that functions as
nerve center of the world's traffic in cocaine.
The only remotely problematic references to Colo
are those contained in the summation. For example, a prosec
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38
change they had to give. This is a case
about Roberto Juri and Tulio Alzate and
Fernando Duenas and Stephen Saccoccia, not
Juan Valdez, ladies and gentlemen. The
evidence in this case and the only reasonable
inference you can draw is drug money.
Appellant did not interject a contemporaneous objection to an
these comments.15
It strains credulity to suggest, as Saccoccia
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that the prosecution was arguing that only drugs and coffee
from Colombia. The remark about coffee vendors was obvio
intended to show the unlikelihood that any legitimate busi
would generate the volume of cash that flowed through appella
operation. The quip about Juan Valdez,16 while an unneces
____________________
15The closing argument also contained the following pass
[W]e are asking you to draw some outrageous
innuendo that because people are Colombians,
they are involved in cocaine. The Government
simply is not suggesting that. What we are
suggesting is based on the evidence, the
cocaine comes from Colombia. Juan Carlos
Garcia testified that he was born in Colombia
and Raoul Escobar testified that he was born
in Colombia. This defendant went on two
occasions he went to Colombia to discuss
money-laundering with Tulio Alzate and
Roberto Juri.
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Although we cannot tell whether the prosecutor misspoke
whether his remarks were mistranscribed, we believe that
first sentence contains an error. The overall meaning of
passage is clear in urging the jury not to make a prejudi
inference based solely on nationality.
16We take judicial notice that the fictional Juan Valdez
a prominent persona in coffee advertisements. See Fed. R. E ___
201(b)(1); 21 Charles A. Wright & Kenneth W. Graham, Jr., Fe __
Practice and Procedure 5105, at 489 (1977) (noting that f ______________________
that are "generally known within the territorial jurisdictio
the trial court" include those which "exist in the unaided me
of the populace"). Clad in a serape and sombrero and accompa
39
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aside, cannot be said to emphasize emotion over facts. See___
903 F.2d at 25. Viewed as a whole, the prosecution's evi
and comments about Colombia provide no basis for disturbin
jury's verdict.
Before ending our elaboration we note, as an adscr
that appellant himself is not Colombian, but is of Ita
ancestry. This mitigates one of the most serious danger
evidence about a person's national origin: that the jury
believe the defendant is guilty because of stereotyp
Appellant has not cited any case in which a court has revers
conviction due to evidence touching upon a national origin
shared by the defendant. This is not to say that injustice
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unfair prejudice may never result from a conviction base
improper use of evidence about the national origin o
defendant's friends or business associates. But, the rico
effect of such evidence is likely to do less harm, on aver
than the direct impact of evidence about the defendant's cou
of origin.
C. The Dog Show. C. The Dog Show. ____________
Appellant faults the district court for admit
evidence that Bosco von Schleudersitz (Bosco), a nine-year
German shepherd trained to detect narcotics,17 alerted to
____________________
by his faithful donkey, Valdez regularly appears in supermar
and private kitchens to remind consumers of the virtues
Colombian coffee.
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17The dog's original trainer, a former Luftwaffe pi
named him after the German word for "ejection seat."
40
presence of drugs in bundles of cash brought to local banks
appellant's henchmen. At trial Bosco's handler, Sgt. E
Conley, testified that he took Bosco to a bank in Cranston,
Island on March 23, 1990. Bosco "searched" several areas of
bank, such as the vault and teller stations, and did not re
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Conley then took Bosco to a room in which a bag containing $9
was located, and, when he instructed Bosco to search for dr
the dog "showed a strong, positive aggressive alert, shakin
bag, ripping it apart, grabbing the money in his mouth,
ripping the money." According to Conley, a similar search,
similar results, took place on April 20, 1990, at a diffe
bank in Johnston, Rhode Island. In each instance, the curr
to which Bosco reacted had been brought to the ban
appellant's associates in order to purchase cashier's checks.
To meet this testimony, appellant called two exp
who attacked the reliability of Bosco's response. One of t
witnesses, Thomas Knott, testified that the manner in
Conley orchestrated the sniff tests did not properly con
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against the possibility of a false alert. The second expert,
James Woodford, criticized the testing protocol because the s
tests were not verified by chemical field tests. Woodford
testified as to the widespread contamination of United St
currency with illegal drugs and the tenuous nature of the
between a canine alert and a conclusion that particular curr
derived from narcotics trafficking ("[I]f there were dru
41
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that money, it doesn't mean that it is drug money.").18
Appellant insists that the probative value of the
sniff evidence is substantially outweighed by its prejudi
effect, and that the district court erred in refusing to exc
the evidence under Fed. R. Evid. 403. This claim dese
serious attention, for recent decisions about the evident
value of a trained dog's alert to currency are not unif
Compare, e.g., United States v. U.S. Currency, $30,060.00_______ ____ ______________ _________________________
F.3d 1039, 1041-43 (9th Cir. 1994) (noting widesp
contamination and concluding that "the probative value o
positive dog alert in currency forfeiture cases in Los Angele
significantly diminished"); United States v. Carr, 25 F.3d 1
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_____________ ____
1215 (3d Cir.) (Becker, J., concurring in part and dissentin
part) (stating that "a substantial portion of United St
currency now in circulation is tainted with sufficient trace
controlled substances to cause a trained canine to alert"), c
____________________
18Appellant criticizes the district court for prohibi
Dr. Woodford from testifying more fully about a Drug Enforce
Administration (DEA) report that found one-third of the bill
a random sample of currency to be contaminated by cocaine.
Jones v. DEA, 819 F. Supp. 698, 720 (M.D. Tenn. 1993) (citin_____ ___
report). This criticism is overblown. The court permitte
witness to describe the report's conclusions and to indicate
he had relied on those findings. See Fed. R. Evid.___
(authorizing reliance on facts or data "of a type reason
relied upon by experts in the particular field in for
opinions or inferences upon the subject"). The court's deci
to preclude attribution of the report was well within
discretion. Moreover, because the report was available
appellant despite the government's alleged failure to disclos
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in a timeous manner, the rule of Brady v. Maryland, 373 U.S_____ ________
(1963), does not profit appellant's cause. See Sepulveda,___ _________
F.3d at 1178 ("The lack of demonstrable prejudice sounds
death knell for a `delayed discovery' claim."); Devin, 918_____
at 289 (similar).
42
denied, 115 S. Ct. 742 (1994); and Jones v. DEA, 819 F. S ______ ___ _____ ___
698, 721 (M.D. Tenn. 1993) (suggesting that "continued reli
of courts and law enforcement officers on dog sniffs to sepa
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`legitimate' currency from `drug-connected' currency is logic
indefensible") with, e.g., United States v. $67,220.00 in
____ ____ ______________ ______________
Currency, 957 F.2d 280, 285-86 (6th Cir. 1992) (noting tha________
positive dog reaction [to currency] is at least strong evi
of a connection to drugs"); United States v. $215,300______________ _________
Currency, 882 F.2d 417, 419 (9th Cir. 1989) (upholding forfei ________
based in part on a canine alert to currency), cert. denied,_____ ______
U.S. 1005 (1990); and United States v. Hernando Ospina, 798___ _____________ _______________
1570, 1583 (11th Cir. 1986) (finding canine sniff evidence t
both probative and helpful to the jury in concluding
laundered money constitutes drug proceeds).
In the end, we reject appellant's asseveration.
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not think that the district court, based on the informatio_______________________
record in this case, abused its discretion in admitting_____________________
canine sniff evidence.19
Even though widespread contamination of curr
plainly lessens the impact of dog sniff evidence, a trained
____________________
19Because appellant neither introduced nor proffered
materials discussed by other courts suggesting that a very
percentage of United States currency is contaminated with
residue, see, e.g., Carr, 25 F.3d at 1215 n.6 (revie ___ ____ ____
estimates suggesting that between one-third and 97% of Un
States currency is drug-contaminated); United States v. $639 ______________ ___
in U.S. Currency, 955 F.2d 712, 714 n.2 (D.C. Cir. 1 _________________
(similar), those materials could not inform the district cou
decision. Cf. Carr, 25 F.3d at 1202 n.3 (declining to___ ____
judicial notice that nearly all currency contains detect
traces of illegal narcotics).
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43
alert still retains some probative value. Ordinary experi
suggests that currency used to purchase narcotics is more li
than other currency to have come into contact with drugs. H
moreover, the evidence supports an inference that Bos
frenzied reaction was caused by more than a mere trace
contamination.
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The record contains corroboration of Bosco's olfac
evidence. Several witnesses testified that ordinary human se
could detect something unusual about the money that appella
associates brought to the banks. One teller testified tha
occasionally noticed that the money felt "dusty . . . al
floury from pizza dough, that type of feeling." Another te
reported that she noticed an odor or fragrance, akin to tha
an orchid. This evidence, along with Conley's testimony that
dog did not react in other areas of the banks, buttressed
lower court's belief that the dog sniff evidence had proba
force.
Conversely, though the dog sniff evidence li
bolstered the prosecution's case and served to inculpate
defendant, we are not convinced that it presented a substan
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risk of unfair prejudice. See generally Rodriguez-Estrada,___ _________ _________________
F.2d at 156 ("By design, all evidence is meant to be prejudic
it is only unfair prejudice which must be avoided."). After______
the court allowed appellant to call two expert witnesses
debunked Bosco's reaction to the currency. If, on one hand,
jury believed the experts, it doubtless discounted the valu
44
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the canine alert. If, on the other hand, the jury disbeli
appellant's experts, it was entitled to place a greater valu
the canine sniff. See, e.g., Quinones-Pacheco v. Amer ___ ____ ________________ ___
Airlines, Inc., 979 F.2d 1, 5 (1st Cir. 1992) (explaining
_______________
"expert opinion testimony, even if not directly contradicte
not ordinarily binding on a jury").
In any event, considering the high degree of defer
we owe to a district court's balancing of probative value aga
unfairly prejudicial effects, see Rodriguez-Estrada, 877 F.2
___ _________________
156, we cannot say that the trial court abused its
discretion in admitting the evidence of Bosco's reaction to
currency delivered by appellant's associates.
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D. Testimony of Juan Carlos Garcia. D. Testimony of Juan Carlos Garcia. _______________________________
Juan Carlos Garcia, a participant in the
laundering activities, testified for the government
appellant's trial. Garcia said that in 1987, while living in
United States, he began working for his brother-in-law, Fern
Duenas. Following Duenas' orders, Garcia would respond
paged on his beeper, arrange to retrieve a quantity of cash,
deposit the money in one of several bank accounts mainta
under the names of Duenas, Duenas' wife (Garcia's sister),
Duenas' brother. By the end of 1987 the cash had mushroomed
$10,000-$20,000 per shipment to $150,000-$200,000 per shipmen
Garcia met appellant for the first time in May 1
With Duenas' blessing, the two men agreed that appellant
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accept bundles of cash from Garcia and send the money
45
Colombia. On countless occasions thereafter, appellant rece
money from Garcia and redirected it to accounts controlle
Duenas.
At trial, the district court permitted Garcia,
objection, to testify that, in 1988, Duenas told him that a
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named "Caesar" would call and give him something other
money. Garcia knew Caesar because Caesar had brought mone
him on a previous occasion. Caesar called and informed Ga
that he would be delivering a kilogram of cocaine. Subsequen
Caesar handed Garcia a shopping bag containing a block
granular substance, beige in color. Garcia tried to sell
merchandise, as directed by Duenas, but he was unable to do
He eventually delivered the package to another individual
Duenas' instructions.
Appellant assigns error to the trial court's admis
of the testimony anent the package. The assignment of error
twin foci: (1) the conversations between Duenas and Garcia,
(2) Caesar's assurance that the package contained cocain
We believe that the cour
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