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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 99-1021 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                       HECTOR LEON-DELFIS, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 99-1299 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                     ELADIO SANTIAGO-SANCHEZ, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Wallace, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________

    Eric M. Quetglas-Jordn, by appointment of the Court, for <br>appellant Hctor Len-Delfis. <br>    Joaqun Monserrate-Matienzo, with whom Joaqun Monserrate- <br>Peagarcano, was on brief, for appellant Eladio Santiago-Snchez. <br>    Aixa Maldonado-Quiones and Michelle Morales, Assistant United <br>States Attorneys, with whom Guillermo Gil, United States Attorney, <br>and Jorge E. Vega-Pacheco, Chief, Criminal Division, were on brief, <br>for appellee. <br> <br> <br>                       ____________________ <br> <br>                        February 16, 2000 <br>                       ____________________

         WALLACE, Senior Circuit Judge.  Hctor Len-Delfis and <br>Eladio Santiago-Snchez were tried together for their participation <br>in a conspiracy to embezzle money while they were employees of the <br>United States Department of Veterans Affairs in Puerto Rico.  Len- <br>Delfis was convicted of one count of conspiracy to embezzle monies <br>of the United States in violation of 18 U.S.C.  371, 641, 654.  <br>Santiago-Snchez was convicted of (1) conspiracy to embezzle monies <br>of the United States; (2) embezzlement of public money; <br>(3) embezzlement of money by an employee of the United States; and <br>(4) money laundering, in violation of 18 U.S.C.  371, 641, 654, <br>1957.  The district court had jurisdiction pursuant to 18 U.S.C. <br> 3231, and we have jurisdiction over these timely appeals pursuant <br>to 28 U.S.C.  1291.  We reverse Len-Delfis' conviction, but <br>affirm Santiago-Snchez's conviction. <br>                                I. <br>         The Department of Veterans Affairs (Department) <br>reimburses veterans for certain medical expenses.  To be <br>reimbursed, a veteran submits a claim with the help of a Department <br>benefits counselor.  A claim examiner inspects the claim to <br>determine accuracy and eligibility, then reviews the claim with a <br>senior claim examiner.  After the senior claim examiner approves <br>the claim, the veteran is paid.  The entire process normally takes <br>48 days to complete. <br>         The government alleged in its indictment that Department <br>employees in Puerto Rico encouraged veterans to submit inflated <br>medical expense claims fraudulently which they processed more <br>quickly than normal in return for a fifty-percent kickback.  It <br>stated that the government lost more than $1.3 million through this <br>embezzlement.  The government indicted six people for their <br>involvement, including Len-Delfis, a benefits counselor, and <br>Santiago-Snchez, a claim examiner. <br>         On appeal, Len-Delfis argues that the district court <br>erred in (1) not suppressing evidence of a confession he gave to <br>Federal Bureau of Investigation (FBI) agents following a polygraph <br>test and (2) not giving the jury a multiple conspiracy instruction.  <br>Len-Delfis, who filed his appellate brief first, attempted to <br>adopt by reference those arguments that Santiago-Snchez would <br>raise later in his brief.  Even assuming he can do so, Santiago- <br>Snchez raised no new issues that apply to Len-Delfis. <br>         Santiago-Snchez, in his brief, attempted to adopt by <br>reference Len-Delfis' argument regarding the jury instruction.  <br>See Fed. R. App. P. 28(i).  Additionally, he argues the district <br>court (1) made several evidentiary errors against him and <br>(2) should not have sentenced him to pay restitution. <br>                               II. <br>         Len-Delfis contends that the district court should have <br>granted his motion to suppress evidence of a confession he gave to <br>FBI agents after he took a polygraph test because he did not waive <br>his Sixth Amendment right to counsel for purposes of the post- <br>polygraph questioning.  In reviewing the denial of a motion to <br>suppress, we review the district court's findings of fact for clear <br>error and its conclusions of law and rulings on the <br>constitutionality of the government's conduct de novo.  See United <br>States v. Beras, 183 F.3d 22, 25 (1st Cir. 1999). <br>                                A. <br>         Len-Delfis testified to the following events at the <br>hearing on the motion to suppress.  Shortly before trial began in <br>June 1998, he and his attorney attempted to hold a meeting with the <br>Assistant United States Attorney prosecuting the case.  The meeting <br>was denied; however, Len-Delfis was asked, and agreed, to submit <br>to a polygraph test.  He reported to FBI special agents for the <br>test, but the appointment was rescheduled because he was not <br>accompanied by counsel.  On June 15, Len-Delfis and his attorney <br>arrived for the test.  Special Agent Lpez asked Len-Delfis to <br>sign two waiver of rights forms in Spanish:  a general Miranda <br>waiver, and a specific waiver for polygraph questioning.  A <br>translation of the first form reads as follows: <br>         INTERROGATORY; NOTIFICATION OF THE RIGHTS; <br>         YOUR RIGHTS <br> <br>           Before I make [sic] any questions you should <br>         understand what your rights are. <br> <br>           You have the right to keep silent. <br> <br>           Whatever you say can be used in the court <br>         against you. <br> <br>           You have the right to consult a lawyer so <br>         that he can instruct you before we make [sic] <br>         the questions and also you have the right that <br>         the lawyer be present during the <br>         interrogatory. <br> <br>           If you cannot pay for the expenses of a <br>         lawyer, one will be assigned to you before we <br>         begin the interrogatory, if you so wish. <br> <br>           If you decide to answer the questions now <br>         without the presence of a lawyer, still you <br>         have the right to deny to answer in any <br>         moment.  You also have the right to interrupt <br>         at any moment until you have consulted a <br>         lawyer. <br> <br>         RESIGNATION OF THE RIGHTS <br> <br>           I have read this statement of my rights and <br>         I understand what they are.  I am willing to <br>         make a statement and answer the questions.  I <br>         do not want a lawyer to be present at this <br>         moment.  I am conscious of what I do.  They <br>         have not made promises to me and I have not <br>         been threatened, and they have not put any <br>         pressure on me. <br> <br> <br>A translation of the second form reads as follows: <br>           CONSENT FOR INTERROGATORIES WITH THE USE OF <br>         POLYGRAPH <br> <br>           Before we make [sic] any question with the <br>         use of polygraph (liar [sic] detector) with <br>         respect to receipt of money from Veterans <br>         Administration clients you should have knowing <br>         [sic] of your rights <br> <br>           YOUR RIGHTS <br> <br>           You have the rights [sic] to deny to take an <br>         examination with the polygraph. <br> <br>           If you decide to take the examination with <br>         the polygraph, you have the right to deny to <br>         answer any question. <br> <br>           RESIGNATION OF RIGHTS AND CONSENT <br> <br>           I have read this statement about my rights <br>         and I understand my rights.  I am willing of <br>         my own voluntary [sic] to be questioned using <br>         the polygraph during my interview.  I <br>         understand and I know what to do.  Nobody made <br>         me promises, threatened [sic] neither have <br>         used any pressure against me in order to <br>         obtain my consent for the used [sic] of the <br>         polygraph.  I understand my consent for the <br>         used [sic] of the polygraph. . . . <br>Len-Delfis testified that he understood that the first waiver <br>applied to questions Agent Lpez would ask him before the actual <br>polygraph test, and that the second waiver applied to yes-or-no <br>questions asked during the polygraph test.  He testified that he <br>never consented to post-test questioning.  Len-Delfis stated that <br>Agent Lpez told him the test would take two to two and one-half <br>hours to complete and his attorney could not be present during the <br>test.  Len-Delfis' attorney decided to return to his office, and <br>he told Agent Lpez and Agent Narro, who would be observing the <br>testing, that he was available by telephone.  Additionally, he told <br>Len-Delfis to call him or return to his office immediately after <br>the test was administered. <br>         Len-Delfis testified that Agent Lpez asked only eight <br>questions, and the test took only 20 to 25 minutes.  Len-Delfis <br>thought he was free to leave after the test.  However, immediately <br>after the test, while he was still attached to the polygraph, Agent <br>Lpez asked him, "How do you think that you did?"  Len-Delfis <br>responded, "Well, I think I did well because all I did was tell the <br>truth."  Agent Lpez responded, "Look, you flunked the test, so how <br>about telling us the truth."  Len-Delfis remembered that Agent <br>Lpez immediately began to question him, joined by Agent Narro <br>shortly thereafter.  He felt pressured:  the agents told him the <br>United States Attorney would "destroy you in Court in front of your <br>family"; that he was a half-man; and that if he was going to <br>cooperate, "it has to be between today or tomorrow," and if he <br>delayed, they might press charges for other crimes.  In an <br>interview lasting over an hour that followed, Len-Delfis confessed <br>to his participation in the conspiracy. <br>         Agent Lpez testified at the suppression hearing that a <br>typical polygraph test consisted of pre-test questioning to <br>determine suitability for testing and to build rapport between the <br>examiner and the examinee; the test itself; and post-test <br>questioning to present the results of the test and allow the <br>examinee to explain the results if desired.  However, when Agent <br>Lpez was asked on cross-examination whether he informed Len- <br>Delfis and Len-Delfis' attorney that post-test questioning might <br>occur, he first answered, "I wasn't asked," and then, although not <br>clear, he seemed to testify that he had not explained the post-test <br>questioning procedure.  He also acknowledged that post-test <br>questioning was not mentioned in the waivers Len-Delfis signed.  <br>When asked why he told Len-Delfis that the test would take two to <br>two and one-half hours to complete, when in fact the test took less <br>than one-half hour, he answered "That was my estimate."  He stated <br>that FBI policy discouraged an attorney's presence during the test, <br>but he denied prohibiting Len-Delfis's attorney from attending.  <br>Agent Lpez said that after the test was finished, he merely said, <br>"Mr. Len, we have a problem.  You are not being . . . completely <br>honest," and that Len-Delfis then "started providing <br>explanations."  However, he denied pressuring or threatening Len- <br>Delfis during the post-test interview.  He also reminded the court <br>that Len-Delfis was interviewed by FBI Agent Johnson twice before, <br>in November 1996 during the initial FBI investigation of the case, <br>and that statements he made during the polygraph test conflicted <br>with these previous interviews. <br>         The district court denied the motion to suppress, <br>stating: <br>         I believe that Mr. Len was no newcomer to <br>         being interviewed by F.B.I. agents.  He had <br>         been interviewed previously on two occasions.  <br>         Here in front of his attorney he signed two <br>         waivers; one of them for the polygraph test, <br>         the other one for any questions that might be <br>         asked of him even at the time that the pre- <br>         test interview was held.  He even at that time <br>         according to the testimony of Agent Lpez, he <br>         stated that he had given prior information <br>         which was not correct.  The onus as counsel <br>         tried to impress upon the Court, the onus is <br>         not on the F.B.I. agent or the government <br>         agent taking the -- making the interview to <br>         stop and say, hey, do you want to call your <br>         attorney now.  He was aware where his attorney <br>         was. <br> <br>           As a matter of fact he had gone the day <br>         previously without an attorney and the agent <br>         said no, you come back with your attorney <br>         because we want your attorney to be present <br>         and so the perception of the Court is that he <br>         was aware of what was happening, that any <br>         statements he made after he was informed, that <br>         he did not pass, was not a subterfuge used by <br>         the government to obtain admissions.  <br>         Therefore, the Court understands that the <br>         statements he made post the interview, post <br>         the exam were voluntary and, therefore, the <br>         motion to suppress is denied. <br> <br>The confession Len-Delfis gave in the post-test interview was used <br>against him at trial.  During the jury's deliberation, it requested <br>to have testimony describing Len-Delfis' confession reread to <br>them, and shortly thereafter, the jury found Len-Delfis guilty. <br>         The factual issue of concern is whether Len-Delfis was <br>advised of and waived his Fifth and Sixth Amendment rights for the <br>post-test interview in which he made incriminating responses to FBI <br>questions.  At the suppression hearing, Len-Delfis testified that <br>Agent Lpez informed him about pre-test questioning but not about <br>post-test questioning.  Agent Lpez testified that he usually <br>explains that he will ask post-test questions; however, on cross- <br>examination, he appears from the record to state that he did not <br>inform Len-Delfis of this possibility.  In its appellate brief, at <br>oral argument, and in a post-oral argument letter, the government <br>pointed out portions of Agent Lpez's testimony that it contends <br>shows that he advised Len-Delfis about post-test questioning.  <br>Unfortunately, the district court did not make a specific finding <br>in this regard, nor did a party ask for such a finding.  However, <br>the court did make a finding that one of the waivers Len-Delfis <br>signed applied to pre-test questioning and the other wavier applied <br>to the polygraph questioning.  This at least suggests that the <br>court believed Len-Delfis's testimony that he was not informed <br>about post-test questioning.  The fact that the district court <br>failed to make any finding on this issue militates against the <br>government.  "It is a general principle of appellate jurisprudence <br>that a party desiring more particularized findings at the trial <br>court level must request them from the trial court."  United States <br>v. Tosca, 18 F.3d 1352, 1355 (6th Cir. 1994).  Absent a finding on <br>this issue, the responsibility falls on us to examine the record <br>and conclude whether the government met its burden of demonstrating <br>that a proper warning was given.  We have scrutinized the testimony <br>from the suppression hearing, and found substantial evidence to <br>support a finding that Agent Lpez did not inform Len-Delfis about <br>post-test questioning.  That was Len-Delfis' testimony, and <br>appears to be Agent Lpez's testimony when asked that specific <br>question on cross-examination.  Certainly this interpretation is <br>consistent with Agent Lpez's earlier testimony when he was called <br>upon to testify whether he advised Len-Delfis post-test <br>questioning might occur:  he merely responded "I wasn't asked." <br>         Based upon the record and the district court findings, we <br>assume that Len-Delfis was not advised by Agent Lpez of the <br>possible post-test interrogation. <br>                                B. <br>         The Sixth Amendment to the United States Constitution <br>states:  "In all criminal proceedings, the accused shall enjoy the <br>right . . . to have the assistance of counsel for his defense."  <br>That right "is indispensable to the fair administration of our <br>adversarial system of criminal justice."  Maine v. Moulton, 474 <br>U.S. 159, 168 (1985).  Accordingly, the Supreme Court has <br>recognized <br>         that the assistance of counsel cannot be <br>         limited to participation in a trial; to <br>         deprive a person of counsel during the period <br>         prior to trial may be more damaging than <br>         denial of counsel during the trial itself.  <br>         Recognizing that the right to the assistance <br>         of counsel is shaped by the need for the <br>         assistance of counsel, we have found that the <br>         right attaches at earlier, critical stages in <br>         the criminal justice process where the results <br>         might well settle the accused's fate and <br>         reduce the trial itself to a mere formality. <br> <br> <br>Id. at 170 (internal quotation and citations omitted). <br>         Pursuant to the Sixth Amendment, "a person is entitled to <br>the help of a lawyer at or after the time that judicial proceedings <br>have been initiated against him -- whether by way of formal charge, <br>preliminary hearing, indictment, information, or arraignment."  <br>Brewer v. Williams, 430 U.S. 387, 398 (1977) (internal quotation <br>and citations omitted).  Thus, the government does not, and cannot, <br>dispute that Len-Delfis' Sixth Amendment right to counsel attached <br>previous to the questioning at issue, because he was arraigned on <br>May 7, 1997, prior to the polygraph test and post-test questioning <br>on June 15, 1998.  See id.; see also Michigan v. Jackson, 475 U.S. <br>625, 629 (1986) ("The arraignment signals the initiation of <br>adversary judicial proceedings and thus the attachment of the Sixth <br>Amendment . . . .") (internal quotation and citation omitted).  <br>Additionally, the government does not, and cannot, challenge that <br>Len-Delfis' Sixth Amendment right to counsel applied to the post- <br>polygraph questioning.  See id. at 630 (stating that after <br>arraignment, "government efforts to elicit information from the <br>accused, including interrogation, represent critical stages at <br>which the Sixth Amendment applies") (internal quotation omitted).  <br>Thus, the issue is whether Len-Delfis validly waived that right <br>for purposes of questioning that occurred after the polygraph test. <br>         The government has the burden to "prove an intentional <br>relinquishment or abandonment" of the Sixth Amendment right to <br>counsel.  Brewer, 430 U.S. at 404, quoting Johnson v. Zerbst, 304 <br>U.S. 458, 464 (1938), overruled in part on other grounds by Edwards <br>v. Arizona, 451 U.S. 477 (1981); see also Jackson, 475 U.S. at 633.  <br>The Court has stated "that we should 'indulge every reasonable <br>presumption against waiver of fundamental constitutional rights.'"  <br>Jackson, 475 U.S. at 633, quoting Johnson, 304 U.S. at 464.  <br>"Doubts must be resolved in favor of protecting the constitutional <br>claim."  Jackson, 475 U.S. at 633.  "The determination of whether <br>there has been an intelligent waiver of the right to counsel must <br>depend, in each case, upon the particular facts and circumstances <br>surrounding that case, including the background, experience, and <br>conduct of the accused."  Johnson, 304 U.S. at 464. <br>         In Edwards, the Court, considering the Fifth Amendment <br>right to counsel, held that after an accused person in custody <br>"expressed his desire to deal with the police only through counsel, <br>[he] is not subject to further interrogation by the authorities <br>until counsel has been made available to him, unless the accused <br>himself initiates further communication, exchanges, or <br>conversations with the police."  Edwards, 451 U.S. at 484-85.  <br>Several years later, in Michigan v. Jackson, the Court held that <br>the rule in Edwards also applied after a defendant invoked his <br>Sixth Amendment right to counsel: <br>         We thus hold that, if police initiate <br>         interrogation after a defendant's assertion, <br>         at an arraignment or similar proceeding, of <br>         his [Sixth Amendment] right to counsel, any <br>         waiver of the defendant's right to counsel for <br>         that police-initiated interrogation is <br>         invalid. <br> <br>           Although the Edwards decision itself rested <br>         on the Fifth Amendment and concerned a request <br>         for counsel made during custodial <br>         interrogation, the [lower court] correctly <br>         perceived that the reasoning of that case <br>         applies with even greater force to these <br>         [Sixth Amendment] cases. <br> <br> <br>475 U.S. at 636; see also Moulton, 474 U.S. at 170-71 ("Once the <br>right to counsel has attached and been asserted, the State must of <br>course honor it. . . .  [A]t the very least, the prosecutor and <br>police have an affirmative obligation not to act in a manner that <br>circumvents and thereby dilutes the protection afforded by the <br>right to counsel.") (footnote omitted).  Jackson makes it clear <br>that once a defendant's Sixth Amendment right to counsel attaches, <br>the police cannot initiate questioning in the absence of counsel <br>without violating that right. <br>         While looking at the totality of the circumstances, <br>several courts have articulated relevant facts to be considered in <br>identifying "the background, experience, and conduct of the <br>accused," Johnson, 304 U.S. at 464, in determining whether a signed <br>waiver of one's Fifth or Sixth Amendment right to counsel for <br>purposes of a polygraph test carries over to post-polygraph <br>interrogation.  Those circumstances include who requested the <br>polygraph examination; who initiated the post-polygraph <br>questioning; whether the signed waiver clearly specifies that it <br>applies to post-polygraph questioning or only to the polygraph <br>test; and whether the defendant has consulted with counsel.  See <br>Wyrick v. Fields, 459 U.S. 42, 47 (1982) (per curiam); United <br>States v. Johnson, 816 F.2d 918, 921 n.4 (3d Cir. 1987); United <br>States v. Gillyard, 726 F.2d 1427, 1427-29 (9th Cir. 1984); United <br>States v. Eagle Elk, 711 F.2d 80, 82 (8th Cir. 1983). <br>         After careful review, we cannot accept the district <br>court's holding that Len-Delfis waived his right to counsel for <br>purposes of the post-polygraph questioning.  The difficulty began <br>when the district court applied the wrong legal standard.  The <br>district court stated that "the onus is not on the F.B.I. agent or <br>the government agent" to avoid questioning.  However, because Len- <br>Delfis' Sixth Amendment right to counsel had clearly attached, the <br>government could not initiate questioning in the absence of counsel <br>without potentially violating that right.  See Jackson, 475 U.S. at <br>636; Moulton, 474 U.S. at 170-71.  Had Len-Delfis initiated the <br>post-polygraph discussion, we might reach a different outcome.  But <br>he did not.  Both he and Agent Lpez testified that the agents <br>began the post-polygraph dialogue.  The agents were required to <br>respect Len-Delfis' right to counsel by not questioning him in the <br>absence of his attorney. <br>         In addition, the evidence indicates that Len-Delfis did <br>not waive his right to counsel.  Len-Delfis was neither told that <br>post-test questioning would occur nor signed a waiver that <br>specifically mentioned the possibility of post-test questioning.  <br>Additionally, the FBI agents who questioned Len-Delfis knew that <br>he was actually represented by counsel; that he did not request the <br>polygraph test but only consented to it after suggestion by the <br>Assistant United States Attorney; and that Agent Lpez initiated <br>the post-polygraph conversation and questioning, not Len-Delfis. <br>         It is true, as the district court found, that Len-Delfis <br>was previously questioned by the FBI.  However, the factual <br>circumstances surrounding that questioning were entirely different <br>than the post-polygraph questioning:  the previous interrogations <br>occurred while the FBI was first investigating this case, before <br>Len-Delfis' Fifth or Sixth Amendment rights to counsel attached.  <br>Additionally, there is no indication that Len-Delfis was a "career <br>criminal" or that aside from these two previous, limited <br>examinations he was intimately acquainted with the criminal justice <br>system.  In any case, that the FBI previously questioned Len- <br>Delfis does not alone outweigh other facts pointing to an unknowing <br>and involuntary waiver for purposes of the post-polygraph <br>questioning. <br>         It is also true that Len-Delfis signed two waivers of <br>rights on the day of the interrogation.  The district court relied <br>upon these waivers in support of its holding that Len-Delfis <br>waived his right to counsel for post-polygraph questioning.  <br>However, the district court found that one waiver applied to pre- <br>test questioning, and one to polygraph test questioning.  It does <br>not follow that Len-Delfis waived his right to counsel for post- <br>test questioning because he waived his right to pre-test and test <br>questioning:  waivers of rights are specific.  See United States v. <br>Eaton, 890 F.2d 511, 513 (1st Cir. 1989) (right to counsel); United <br>States v. Allee, 888 F.2d 208, 214 (1st Cir. 1989) (per curiam) <br>(right against self-incrimination); United States v. Johnson, 816 <br>F.2d at 922 n.4 (right to counsel).  The waivers Len-Delfis signed <br>did not specifically mention the possibility of post-polygraph <br>questioning, and Agent Lpez failed to explain that post-polygraph <br>questioning would occur.  All these facts suggest exactly the <br>opposite conclusion than that made by the district court:  that <br>Len-Delfis' having signed two previous waivers did not mean he <br>knowingly and intelligently waived his rights for post-polygraph <br>questioning. <br>         Looking at the totality of the circumstances and <br>specifically focusing on the relevant inquiry articulated by courts <br>referred to above, we hold that the district court erred in <br>concluding that Len-Delfis intelligently and knowingly waived his <br>Sixth Amendment right to counsel for the post-test interrogation <br>and that his confession was not admissible.  Even so, we will not <br>reverse a conviction because of trial error in admitting evidence <br>obtained in violation of a defendant's Sixth Amendment right to <br>counsel unless the error was "harmless beyond a reasonable doubt."  <br>Milton v. Wainwright, 407 U.S. 371, 372 (1972).  We recently <br>stated: <br>           The ordinary test for harmless error is <br>         sometimes said to turn on whether it is <br>         "highly probable" that the improperly admitted <br>         evidence "contributed" to the conviction.  But <br>         since any relevant evidence wrongly admitted <br>         probably was considered by the jury (and <br>         therefore "contributed" in a literal sense), a <br>         more useful formulation of the harmless error <br>         question is to ask whether the result would <br>         have been the same if the disputed evidence <br>         had not been admitted.  We have therefore said <br>         that a conviction will be upheld if it is <br>         "highly probable" that the result would have <br>         been the same. <br> <br> <br>United States v. Vigneau, 187 F.3d 82, 86 (1st Cir. 1999) <br>(citations omitted).  Additionally, "for certain errors that are <br>constitutional in character, the error must be harmless beyond a <br>reasonable doubt."  Id. (internal quotation omitted).  In this <br>case, we cannot say, beyond a reasonable doubt, that it is highly <br>probable that the jury would still have convicted Len-Delfis in <br>the absence of the incriminating evidence.  Confessions are by <br>nature highly probative and likely to be at the center of a jury's <br>attention.  Here, we have additional indications that the jury <br>contemplated that evidence:  it requested to hear the description <br>of the confession again during its deliberations, and then <br>convicted him.  Therefore, we reverse his conviction and remand for <br>a new trial at which the confession obtained after the polygraph <br>test is suppressed.  See Jackson, 475 U.S. at 628-29 (affirming <br>state court holding that evidence obtained in violation of <br>defendant's Sixth Amendment right to counsel should have been <br>suppressed at trial). <br>                               III. <br>         Len-Delfis also argues that the district court should <br>have given the jury a multiple conspiracy defense instruction.  <br>Because we reverse Len-Delfis' conviction, it is unnecessary to <br>address this argument as to him.  See United States v. Gray, 63 <br>F.3d 57, 61 n.3 (1st Cir. 1995).  In addition, Santiago-Snchez did <br>not raise this issue in the district court, but attempted to do so <br>on appeal by a reference in his brief to Len-Delfis' argument. <br>         Santiago-Snchez's brief merely states that he "herein <br>joins in the [multiple conspiracy defense instruction] issue <br>presented to the Honorable Circuit Court . . . by co-appellee <br>Hctor Len Delfis."  He does not attempt to explain how this <br>argument applies to him, and he fails to disclose that he neither <br>proposed a multiple conspiracy defense instruction in the district <br>court nor objected when one was not given.  See United States v. <br>Portela, 167 F.3d 687, 699 (1st Cir. 1999) (reviewing failure to <br>give jury instruction for plain error when defendant failed to <br>object at trial); United States v. Crochiere, 129 F.3d 233, 237 <br>(1st Cir. 1997) (reviewing failure to give jury instruction for <br>plain error when defendant neither proposed jury instruction nor <br>objected at trial); Senra v. Cunningham, 9 F.3d 168, 171 (1st Cir. <br>1993) (holding defendant waived objection to jury instruction when <br>he failed to object at trial).  Len-Delfis objected to the <br>district court's failure to include a multiple conspiracy <br>instruction, but we typically require defendants in joint criminal <br>trials to raise their own objections at trial.  See United States <br>v. Palow, 777 F.2d 52, 54 (1st Cir. 1985) (defendant waived claim <br>that trial should have been severed, regardless of fact that other <br>defendants moved for severance, because he did not individually <br>move for severance).  This rule is relaxed only when the district <br>court specifically states that an objection from one defendant will <br>be considered an objection for all defendants.  See United States <br>v. Alzanki, 54 F.3d 994, 1005 n.11 (1st Cir. 1995); United States <br>v. Seplveda, 15 F.3d 1161, 1180 (1st Cir. 1993).  Neither Len- <br>Delfis nor Santiago-Snchez have informed us that the district <br>court made such a statement in this case. <br>         In United States v. Zannino, 895 F.2d 1, 17 (1st Cir. <br>1990), we refused to consider Zannino's attempt to incorporate <br>other appellants' arguments by reference because his attempt was <br>perfunctory and failed to explain how those arguments specifically <br>applied to him.  That is the case here.  For that reason, and also <br>because Santiago-Snchez failed to raise this argument in the trial <br>court, we reject his effort to incorporate by reference, as we did <br>in the similar case of United States v. Saccoccia, 58 F.3d 754, 790 <br>(1st Cir. 1995). <br>                               IV. <br>         Santiago-Snchez also argues that the district court <br>erred in allowing the government to introduce rebuttal evidence <br>against him concerning money that was seized from him in a related <br>civil in rem proceeding and subsequently disallowing him to <br>introduce surrebuttal evidence on that subject.  These errors, <br>Santiago-Snchez argues, violated his Sixth Amendment right to <br>confrontation.  We review the admission of rebuttal and surrebuttal <br>evidence for abuse of discretion.  See Faigin v. Kelly, 184 F.3d <br>67, 85 (1st Cir. 1999) (rebuttal evidence); Kines v. Butterworth, <br>669 F.2d 6, 13 (1st Cir. 1981) (surrebuttal evidence). <br>         The government introduced in its case in chief a bank <br>teller's testimony that Santiago-Snchez made two bank deposits in <br>1996, one of $39,000 and the other of $20,000, which allegedly <br>related to money laundering charges against him.  During Santiago- <br>Snchez's defense, his wife testified that their family's finances <br>in 1996 were such that Santiago-Snchez could have deposited the <br>$59,000 from personal funds.  On cross-examination, the government <br>asked her about money that was seized from Santiago-Snchez in a <br>civil forfeiture in rem proceeding that predated, but stemmed from <br>the same facts alleged in, the criminal trial.  She said the amount <br>seized was the family's entire savings, but she was unsure exactly <br>how much money was seized, although she did not think that it <br>exceeded $200,000.  When the government questioned her about the <br>legitimate sources of the amount seized, the sum from sources she <br>could explain came to $105,500.  As rebuttal evidence, the <br>government sought to introduce records from the in rem proceeding <br>indicating that the amount seized was $203,000.  This evidence, the <br>government argued, served to impeach Santiago-Snchez's wife's <br>testimony and was circumstantial evidence of Santiago-Snchez's <br>wrongdoing.  The defense sought an opportunity for surrebuttal to <br>show that other persons claimed parts of the $203,000 in the in rem <br>forfeiture proceeding.  The district court admitted the rebuttal <br>evidence but disallowed surrebuttal. <br>         We first examine Santiago-Snchez's argument that the <br>rebuttal evidence should not have been admitted.  He argues that <br>the evidence was irrelevant pursuant to Federal Rules of Evidence <br>401 and 402.  However, evidence of possession or control over <br>substantial sums of money from unexplained sources is relevant in <br>criminal cases involving money.  See, e.g., United States v. Ford, <br>22 F.3d 374, 383 (1st Cir. 1994); United States v. Figueroa, 976 <br>F.2d 1446, 1454 (1st Cir. 1992).  Here, the government seized <br>$203,000, the source of which Santiago-Snchez's wife did not fully <br>explain.  Thus, the rebuttal evidence was relevant and admissible. <br>         In the alternative, Santiago-Snchez argues the evidence <br>was more prejudicial than probative pursuant to Federal Rule of <br>Evidence 403.  "This is a difficult row to hoe:  'Only rarely -- <br>and in extraordinarily compelling circumstances -- will we, from <br>the vista of a cold appellate record, reverse a district court's <br>on-the-spot judgment concerning the relative weighing of probative <br>value and unfair effect.'"  Saccoccia, 58 F.3d at 773, quoting <br>Freeman v. Package Mach. Corp., 865 F.2d 1331, 1340 (1st Cir. <br>1988).  This is not one of those rare circumstances. <br>         The government's conspiracy and money laundering charges <br>against Santiago-Snchez alleged that he was in possession of large <br>sums of illegally secured money.  That he can explain other sources <br>for that money goes to the weight of that evidence, not <br>admissibility.  See United States v. Newton, 891 F.2d 944, 949 (1st <br>Cir. 1989), citing United States v. Tramunti, 513 F.2d 1087, 1105 <br>(2d Cir. 1975).  Evidence of the forfeited money shows that <br>Santiago-Snchez possessed large amounts of money, the legitimate <br>source of which was not fully explained.  The district court was <br>thus within its discretion to allow the rebuttal evidence. <br>         Santiago-Snchez also argues he should have been given an <br>opportunity to provide surrebuttal evidence that would have shown <br>that other individuals claimed part of the seized money.  "A trial <br>court has great discretion over the permissible scope of testimony <br>in surrebuttal . . . ."  United States v. Gaines, 170 F.3d 72, 83 <br>(1st Cir. 1999).  Surrebuttal is only allowed "'to explain away new <br>facts brought forward by the proponent in rebuttal, or evidence to <br>impeach a witness who testified in rebuttal.'"  Id., quoting F.W. <br>Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162, 166-67 (1st <br>Cir. 1951).  Ordinarily, surrebuttal is not allowed when it <br>concerns issues raised prior to the opponent's rebuttal and the <br>proffered evidence could have been introduced at that time.  See <br>Gaines, 170 F.3d at 83 (affirming district court's decision to <br>disallow surrebuttal concerning an "issue . . . raised prior to <br>. . . rebuttal" when party elected not to introduce evidence); <br>Kines, 669 F.2d at 13-14 (holding, in collateral review of state <br>court decision, that there was no error in rejecting surrebuttal <br>that was cumulative and could have been introduced before state's <br>rebuttal). <br>         As indicated, the surrebuttal Santiago-Snchez proffered <br>dealt with claims other persons had to the money seized in the in <br>rem proceeding.  The district court was well within its discretion <br>in not allowing it.  First, it concerned a subject that was at <br>issue before the government introduced its rebuttal evidence:  the <br>legitimate source of the money seized in the in rem proceeding.  <br>After the government's cross-examination of Santiago-Snchez's <br>wife, in which she was questioned about the source of the money <br>seized, the defense could have introduced evidence about any other <br>claims to that money; however, it chose not to.  See Gaines, 170 <br>F.3d at 83 (disallowing surrebuttal on issue raised prior to <br>rebuttal when party elected not to introduce evidence).  Second, <br>the surrebuttal was not proffered to impeach a rebuttal witness or <br>explain away new facts raised during rebuttal.  Santiago-Snchez <br>did not try to introduce evidence suggesting the amount seized was <br>less than $203,000; thus, it was not offered for impeachment <br>purposes.  He also could not have explained away new facts raised <br>in rebuttal, because Santiago-Snchez's wife had already testified <br>as to other persons' claims to the money in her direct examination.  <br>Further evidence on that subject would have been repetitive.  For <br>these reasons, the district court did not abuse its discretion in <br>disallowing Santiago-Snchez's proffered surrebuttal. <br>         Santiago-Snchez also argues, as he did before the <br>district court, that the surrebuttal should have been allowed <br>pursuant to "the rule of completeness which underlies" Federal Rule <br>of Evidence 106.  That rule states:  "When a writing or recorded <br>statement or part thereof is introduced by a party, an adverse <br>party may require the introduction at that time of any other part <br>or any other writing or recorded statement which ought in fairness <br>to be considered contemporaneously with it."  Whether Rule 106 <br>provides an independent ground for admitting evidence at trial is <br>an open question in this circuit.  See United States v. Boylan, 898 <br>F.2d 230, 257 n.16 (1st Cir. 1990).  In order for us to accept <br>Santiago-Snchez's Rule 106 argument, we would have to answer this <br>open question.  However, Santiago-Snchez has not fully briefed <br>this issue or given us any reason to hold that Rule 106 furnishes <br>an independent ground to admit evidence in this case.  We leave the <br>resolution of that question to another day after it has been <br>properly raised and fully briefed. <br>                                V. <br>         Santiago-Snchez also argues that the district court <br>erred in sentencing him to pay restitution because the government <br>already seized a larger amount of money from him in the civil <br>forfeiture in rem action.  He argues that restitution in this <br>criminal action, in addition to forfeiture in rem in a civil <br>action, raises potential double jeopardy problems and is unfair.  <br>We review restitution sentencing orders for abuse of discretion; <br>related findings of fact are upheld unless clearly erroneous, and <br>legal questions involved in the order are reviewed de novo.  See <br>United States v. Vaknin, 112 F.3d 579, 586 (1st Cir. 1997). <br>         There is no potential double jeopardy problem in this <br>case.  The Supreme Court has consistently concluded that the Double <br>Jeopardy Clause "does not apply to [civil forfeitures] because they <br>do not impose punishment."  United States v. Ursery, 518 U.S. 267, <br>274 (1996).  As we recently stated:  "A completed civil forfeiture <br>of property does not constitute 'jeopardy' under the Double <br>Jeopardy Clause, and does not bar the subsequent criminal <br>prosecution and punishment of the defendant whose property was <br>forfeited."  United States v. Candelaria-Silva, 166 F.3d 19, 43 <br>(1st Cir. 1999); see also United States v. One Parcel of Real <br>Property with Bldgs., Appurtenances, and Improvements, Known as 154 <br>Manley Road, Located in Burrillville, R.I., 91 F.3d 1 (1st Cir. <br>1996) (per curiam) (following Ursery). <br>         Santiago-Snchez also argues that restitution in this <br>case is unfair (1) because he "lacks any degree of control over the <br>assets from which the restitution is to proceed" inasmuch as the <br>government, in the civil in rem case, seized the embezzled money; <br>and (2) the civil in rem case began first and has been stayed only <br>to protect his constitutional rights in the criminal case.  <br>Significantly, Santiago-Snchez does not contest that federal <br>statutes authorize restitution in this case; he merely argues that <br>restitution is unfair.  However, the language of the sentencing <br>guidelines and related statutes regarding restitution is plain and <br>allows the district court no discretion.  The applicable sentencing <br>guideline clearly states:  "The court shall . . . enter a <br>restitution order if such order is authorized under 18 U.S.C. <br> 3663-3664 . . . ."  U.S.S.G.  5E1.1(a)(1) (emphasis added).  <br>Section 3664 likewise states that "the court shall order <br>restitution to each victim in the full amount of each victim's <br>losses as determined by the court and without consideration of the <br>economic circumstances of the defendant."  18 U.S.C. <br> 3664(f)(1)(A) (emphasis added).  These provisions show that the <br>Sentencing Commission and Congress were more concerned about the <br>inherent fairness of making crime victims whole than fairness to <br>defendants who were found guilty of financial crimes.  Cf. United <br>States v. Porter, 90 F.3d 64, 70 (2d Cir. 1996) ("Congress has <br>decided to protect the interests of victims of crime."). <br>         Of course, restitution may not be ordered if "full <br>restitution has been made" or if "the complication and prolongation <br>of the sentencing process resulting from the fashioning of a <br>restitution requirement outweighs the need to provide restitution <br>to any victims through the criminal process."  U.S.S.G.  5E1.1(b).  <br>To the extent Santiago-Snchez implies that the first of these <br>situations applies because the government has seized money in the <br>civil in rem proceeding, he is incorrect.  Seizure of money in a <br>civil in rem proceeding does not constitute restitution.  Full <br>restitution has not been made in the civil case because that case <br>has not been completed, a final judgment issued, and the money <br>restored to the proper owner.  In other words, even though money <br>that might belong to the government has been seized from Santiago- <br>Snchez, the final adjudication of whether that money in fact <br>belongs to the government or to Santiago-Snchez has not been made, <br>and money properly belonging to the government has not been <br>released to it.  Thus, Santiago-Snchez has not yet made the <br>government whole.  Thus, the district court did not abuse its <br>discretion in ordering restitution. <br>         AFFIRMED as to Santiago-Snchez; REVERSED AND REMANDED as <br>to Len-Delfis. <br></pre>

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