
USCA1 Opinion

	




                            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
