
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1406                                    UNITED STATES,                                      Appellee,                                          v.                                  RICHARD G. KAYNE,                                Defendant - Appellant.                                 ____________________          No. 94-1407                                    UNITED STATES,                                      Appellee,                                          v.                                   EDWARD B. KALP,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                 Cyr, Circuit Judge,                                      _____________                         and Skinner,* Senior District Judge.                                       _____________________                                        ____________________          *   Judge  Skinner,  of the  District  of Massachusetts,  sat  by          designation, heard  oral argument  in this matter  and thereafter          recused  himself.   The remaining  two panelists  therefore issue                                _____________________               Francis  J. DiMento,  with whom  DiMento &  Sullivan was  on               ___________________              ___________________          brief  for  appellant  Richard  G.  Kayne; John  L.  Roberts,  by                                                     _________________          Appointment of the Court, for appellant Edward B. Kalp.               Mark J. Balthazard, Assistant  United States Attorney,  with               __________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                    July 24, 1996                                 ____________________                                        ____________________          this opinion pursuant to 28 U.S.C.   46(d).                                         -2-                    TORRUELLA, Chief Judge.   Defendants-appellants  Edward                    TORRUELLA, Chief Judge.                               ___________          Kalp and  Richard Kayne were  charged with twenty-nine  counts of          mail  fraud, in violation of 18 U.S.C.    1341.  After a six week          trial, a  jury convicted  both defendants  on fifteen counts  and          acquitted  them on four; the judge granted a motion for acquittal          on one; and  the government  dropped the remaining  counts.   The          defendants were  sentenced to 36-months imprisonment, and ordered          to pay $339,466 in restitution.   On appeal, Kayne and Kalp argue          (1) that jeopardy had attached  in a prior government proceeding;          (2) that  certain evidence was improperly admitted;  (3) that the          evidence  submitted  below  was  not sufficient  to  sustain  the          convictions; and (4) that Kalp received ineffective assistance of          counsel at trial.  For the reasons laid out below, we affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    In  the  late 1970s,  many  new  investors entered  the          market for rare coins.  Unlike  knowledgeable hobbyists and "vest          pocket" dealers, these  newcomers had  no specialized  expertise,          and  were just  looking  for a  stable  investment.   Seeking  to          capitalize  on this  booming market,  defendants Edward  Kalp and          Richard  Kayne left  a  distinguished Boston  coin brokerage  and          established  the Rare Coin Galleries of  America ("RCGA") in July          1982.   Kalp, the President  of RCGA, functioned  as the in-house          numismatist,  examining  and  valuing  coins  for  purchase  from          wholesalers,  and pricing  them  for resale.    Kayne, as  RCGA's          marketing  director,  recruited  financial planners and solicited          customers.  For four years RCGA operated successfully, generating                                         -3-          millions  of   dollars  in  revenues  from   approximately  3,000          customers.                    A typical RCGA investor paid between $5,000 and $25,000          for a portfolio of coins.  In the  rare coin market, the value of          a  coin  is dependent  upon its  "grade,"  which is  a numismatic          measure  of  comparative  wear  on  a  70  point  scale.    Small          distinctions in grade can yield large differences in the value of          a  coin.   For example,  among relatively  pristine, uncirculated          "mint state"  ("MS") coins, an MS65 coin  can fetch ten times the          price of an  MS63.  For "certified" coins, grade is determined by          a  certification  service  which  typically employs  a  panel  of          numismatists.    Prior  to  1986, the  only  independent  grading          service  was  the American  Numismatic  Association Certification          Service  ("ANACS").    For  "raw"  coins  (which  have  not  been          certified),  grade  and  value  may be  established  between  two          knowledgeable  collectors,   or  an  amateur  may   rely  on  the          representation of a respected  numismatist.  Most of the  raw and          certified coins which RCGA  supplied its customers were purported          to be MS65 coins.                    By mid-1986, at least two federal agencies had received          many complaints from RCGA customers asserting that the coins sold          by RCGA  were  of  substantially lower  quality  and  value  than          represented.  After a preliminary investigation in July 1986, the          United  States  Postal  Service   applied  for  and  was  granted          authority  by the late Chief Judge Andrew Caffrey of the District          of Massachusetts to intercept RCGA's mail.                                         -4-                    At the same time,  the Federal Trade Commission ("FTC")          was conducting  a parallel  nationwide investigation of  the rare          coin  investment market.   The  investigation quickly  focused on          RCGA,  among others.  On September 16, 1986, the FTC instituted a          civil  action  alleging  that  RCGA  was  engaged in  unfair  and          deceptive  business practices under 15 U.S.C.   45(a).  This case          was  also  assigned to  Judge  Caffrey, who  forthwith  entered a          temporary restraining order "freezing"  not only the business but          the  personal assets  owned by Kayne  and Kalp.   On  October 14,          RCGA filed  a Chapter 11 petition  for bankruptcy reorganization,          which was removed to the district court and consolidated with the          Postal Service  and  FTC  actions.   The  following  week,  Judge          Caffrey granted preliminary  injunctions requested by  the Postal          Service and  the  FTC, and  appointed a  Bankruptcy Trustee,  who          initiated adverse proceedings against Kayne and Kalp.                    The  conclusion  of  the   civil  litigation  came  the          following  spring, when  the FTC,  the  Trustee, Kayne,  and Kalp          entered into a  settlement agreement requiring Kayne  and Kalp to          surrender $2.2  million in  personal  assets to  the Trustee  and          never to market coins to the public again.  Also pursuant to this          agreement,  the  FTC's  claim   for  $11.9  million  in  consumer          restitution was given priority status for payment of the Trustee.                    On January  11, 1991,  an indictment charging  Kalp and          Kayne  with  29 counts  of mail  fraud  was filed,  based  on the          correspondence intercepted the summer of 1986.  The prosecution's          evidence  consisted  of  testimony  from  former  RCGA employees,                                         -5-          financial  planners, suppliers,  and customers,  as well  as coin          dealers  and  numismatic experts.     After  almost six  weeks of          testimony,  the jury  convicted Kayne  and Kalp  of 15  counts of          fraud.   The  prosecution  dropped nine  counts  prior  to  their          submission  to the jury, the  jury acquitted on  four counts, and          the  district judge acquitted on one count.  Defendants have been          sentenced to 36 months' imprisonment and  ordered to pay $339,466          in  restitution.  The sentence has been stayed pending resolution          of this appeal.                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________                                 A.  Double Jeopardy                                 A.  Double Jeopardy                    Both defendants have asserted that jeopardy attached to          the  1986 civil litigation and should bar this prosecution.  This          defense has surfaced for the  first time on appeal.  Even  though          the fundamental  constitutional issue of double  jeopardy was not          raised  at trial, we will  entertain the appeal,  but review only          for  plain error.1  See, e.g.,  United States v. Rivera, 872 F.2d                              ___  ____   _____________    ______          507, 509 (1st Cir.), cert. denied, 493 U.S. 818 (1989).                               ____________                    The Double Jeopardy  clause protects against  "multiple          punishments for the same offense," even if one of the proceedings          is  civil and one criminal,  regardless of the  sequence.  United                                                                     ______                                        ____________________          1  The government argues  that the defendants' appendix  consists          almost  entirely of documents which  were not part  of the record          below  and which the district  court declined to  certify to this          court, and therefore  they should be stricken  from the appendix.          See Massachusetts v. United States Veterans Admin., 541 F.2d 119,          ___ _____________    _____________________________          123 n.5  (striking portions of an appendix  that were not part of          the record in the district court).  Even assuming these documents          are properly before us, defendants cannot prevail.                                         -6-          States  v.  Halper, 490  U.S. 435,  439  (1989).   In determining          ______      ______          whether  the  protections  of  the  Double  Jeopardy  Clause  are          implicated, our  first  line  of  inquiry is  whether  the  civil          sanction constituted "punishment," see United States  v. Stoller,                                             ___ _____________     _______          78 F.3d  710, 720-21 (1st Cir.  1996); our second is  whether the          purported punishments  are for the same offense, Halper, 490 U.S.                                                           ______          at 439.  Because we conclude that the civil sanction in this case          did not constitute punishment, we discern no plain error.                    Defendants  argue that  the  civil proceedings  against          them  were the  equivalent  of civil  forfeiture proceedings  and          imposed punishment for the  same offense in two or  more separate          proceedings.    In  characterizing  their  settlement  with   the          Bankruptcy Trustee  and the  FTC as  a punitive forfeiture,  they          cite two  expansive double jeopardy opinions  from other circuits          which,  since oral  argument, have  been reversed by  the Supreme          Court.  See United States v. Ursery, 59 F.3d 568 (6th Cir. 1995),                  ___ _____________    ______          rev'd  ___  U.S. ___,  1996 WL  340815  (1996); United  States v.          _____                                           ______________          $405,089.23 U.S.  Currency, 33 F.3d  1210 (9th Cir.  1994), rev'd          __________________________                                  _____          sub nom. Ursery, ___ U.S. ___, 1996 WL 340815.          ________ ______                    Assuming,  arguendo, that the  civil proceeding against                               ________          defendants is  the equivalent  of a civil  forfeiture proceeding,          the Supreme Court's  opinion in  Ursery makes it  clear that  the                                           ______          1986 civil  proceeding was  not "punishment" for  double jeopardy          purposes.  Ursery, ___ U.S. at ___, 1996 WL 340815, *9.  In  that                     ______          case, the Supreme Court reaffirmed its "traditional understanding                                         -7-          that  civil forfeiture  does  not constitute  punishment for  the          purpose of the Double Jeopardy Clause."  Id.                                                   ___                    Furthermore, even to  the extent that defendants'  1986          civil proceeding was not a civil forfeiture proceeding, it was by          nature  remedial.    The  monetary  sanction  was  exacted  in  a          bankruptcy case, and  the $2.5  million paid to  the trustee  was          used  to pay a portion of claims against the defendants totalling          $11.8 million resulting  from their  sale of coins.   A  monetary          sanction which  has no  punitive function,  i.e., has  no purpose                                                      ____          other than restitution or compensation for the loss engendered by          the defendants' conduct is not punishment within the ambit of the          double jeopardy clause.   Halper, 490 U.S. at 446-49.   This is a                                    ______          near-perfect  exemplar of  compensation  for loss,  and does  not          constitute   punishment   for   purposes   of   double  jeopardy,          notwithstanding its financial impact on the defendants.                    In view of our conclusion that there was no duplication          of punishment, it is  unnecessary to consider the second  part of          the double jeopardy analysis:   whether the purported punishments          were  for  the same  offense.   In  any  case, we  note  that the          offenses charged in this indictment contain crucial elements that          by no stretch  of the imagination could be part of the resolution          of  the bankruptcy  case  or of  the  underlying FTC  and  Postal          Service  cases; e.g., criminal  intent to defraud  and devising a          scheme to  defraud.   Hence there  was no  double jeopardy.   See                                                                        ___          Blockburger v. United States, 284 U.S. 299 (1932).          ___________    _____________                                         -8-                              B.  Evidentiary Challenges                              B.  Evidentiary Challenges          1.   Appraisals and valuations by dealers of "raw" coins supplied          1.   Appraisals and valuations by dealers of "raw" coins supplied          by      RCGA           by      RCGA                     The  defendants argue that evidence of the value of the          coins  sold by  the  defendants was  erroneously  admitted.   The          government offered, and the district court admitted, testimony of          eight  coin dealers that the  coins bought by  the RCGA customers          were of substantially lower quality and value than represented in          the accompanying documentation.   On appeal, the defendants argue          that  this  testimony  was  not properly  the  subject  of expert          testimony  and  was irrelevant,  neither  of  which grounds  were          argued  to  the district  judge.   As  neither ground  was argued          below, we  review only for plain error.  See, e.g., United States                                                   ___  ____  _____________          v. Montas, 41 F.3d 775 (1st Cir. 1994), cert. denied,  115 S. Ct.             ______                               ____________          1986 (1995).                    The value  of the coins  involved in a  prosecution for          their fraudulent  sale is indisputably  relevant.  The  fact that          the subject matter is not "scientific" is no bar to admissibility          of expert testimony.  Federal Rule of Evidence 702 specifies that          expert  testimony  covering   "scientific,  technical,  or  other          specialized knowledge [which]  will assist the  trier of fact  to          understand  the  evidence or  to determine  a  fact in  issue" is          admissible.   See Daubert  v. Merrell Dow  Pharmaceuticals, Inc.,                        ___ _______     ___________________________________          509  U.S.  579, 589  (1993) (emphasis  omitted).   A  trial judge          "enjoys  broad  discretion  in determining  the  admissibility of          expert testimony."   Montas, 41 F.3d  at 783.  Opinions  of value                               ______          are a traditional  subject of  expert testimony, and  it is  well                                         -9-          within the discretion  of the district judge to  admit them.  One          could hardly expect a  lay jury to form conclusions about such an          esoteric subject as the value  of rare coins without the help  of          experts.   The  defendants complain,  however, that  the opinions          were not  based  on consistent  standards,  and were  subject  to          factors  of  taste and  assessment of  the  market, and  that the          experts  often disagreed  among themselves.  This is not unusual.          These  matters  are  properly  the subject  of  searching  cross-          examination.  See Daubert, 113 S. Ct. at 2798.   Defendants argue                        ___ _______          further that this testimony should have been excluded under  Fed.          R.  Evid.  403, because  its  prejudicial  effect outweighed  its          probative value.   This determination  is committed to  the sound          discretion of the  trial court,  and will be  overturned only  in          "extraordinarily compelling circumstances,"   Montas, 41 F.3d  at                                                        ______          783,  which we do not detect in this case.  Review of  the record          reveals that the experts were experienced,  the chains of custody          of  the coins  were carefully  established, the  experts' methods          were  explained,  and  the  appraisals  were reasonably  current.          Thorough cross-examination  was permitted  on all of  the issues,          such as  subjective judgments  and variable markets,  which might          impeach the expert  testimony.  We perceive  no error,   plain or          otherwise.          2.  Purchasers' evidence of resale          2.  Purchasers' evidence of resale                    Defendants  complain   further  that  several   of  the          purchasers from RCGA  were permitted to  testify about the  price          they realized  on resale  of the  coins.   See  United States  v.                                                     ___  _____________                                         -10-          DiMarzo, 80 F.3d  656, 659-60  (1st Cir. 1996).   Their  argument          _______          that this testimony  was outside the competence  of lay witnesses          under Fed. R. Evid. 701 is far off the mark.   This testimony was          not  opinion  testimony at  all, but  a  simple recitation  of an          observed  phenomenon:   the price  paid for  the coins.   A  more          cogent argument  is that  these may  have  been distress  prices,          rather than  fair market prices.   This might have  been a ground          for exclusion  in a clear  case of  a distress sale,  but whether          they were  distress sales or not, in  the context of the evidence          in  this case,  was a  question of  fact properly left  to cross-          examination and ultimately to the jury.    This was the procedure          correctly permitted by the district judge.          3.  ANACS' evaluations of RCGA raw coins          3.  ANACS' evaluations of RCGA raw coins                    Defendants   challenge   the  admission   of  testimony          concerning  the   grades  the  American   Numismatic  Association          Certification Service  (ANACS) assigned to certain  coins sold by          RCGA.  Throughout the trial the government attempted to introduce          ANACS certificates  of value obtained after  RCGA's bankruptcy by          two dissatisfied customers, Dr. Anthony Scapicchio ("Scapicchio")          and Caleb Morgan ("Morgan").   While Morgan's coins were  not the          subject of  any count of  the indictment,  Scapicchio's were  the          subject  of Count  VIII.   The ANACS  graders who  prepared these          certificates  were  not  available  for  cross-examination,  and,          indeed, were not even identified.                    On  the  fourth  day   of  trial,  the  district  judge          conditionally admitted  the certificates, based  on the testimony                                         -11-          of  Richard  Montgomery, director  of  ANACS from  1980  to 1987,          concerning ANACS' valuation  procedure.  The next  day, the judge          allowed  Morgan to read  his certificates to  the jury.   The day          after that, the  judge excluded a  similar reading by  Scapicchio          and struck the Morgan  testimony.  Finally, on the  sixteenth day          of trial, the court ruled that "the jury is fully informed and is          in  a  position  to  make  a discriminating  judgment  about  how          reliable, if at all, the ANACS determinations are," and permitted          a postal inspector to read the Morgan and Scapicchio certificates          to  the  jury at  the  close  of the  government's  case.   Since          specific  objections   were  made  to  the   admission  of  these          certificates,  we review  for  abuse of  discretion.   See, e.g.,                                                                 ___  ____          Cameron  v. Otto Bock Orthopedic  Industry, Inc., 43  F.3d 14, 16          _______     ____________________________________          (1st Cir. 1994).                    We find no such abuse here.  The     foundation     for          admission  of  a  business  record  under Fed.  R.  Evid.  803(6)          requires  both the testimony of a qualified custodial witness and          a showing that the  declarant was a person with  knowledge acting          in the course of  a regularly conducted business activity.   See,                                                                       ___          e.g.,  Petrocelli v. Gallison, 679 F.2d 286, 290 (1st Cir. 1982).          ____   __________    ________          Montgomery's evaluation adequately established the genesis of the          records  and their subsequent custody.   See, e.g., Wallace Motor                                                   ___  ____  _____________          Sales  v. American Motors Sales  Corp., 780 F.2d  1049, 1061 (1st          _____     ____________________________          Cir. 1985)  (noting that  the qualifying  witness  need not  have          actually  prepared the record, but "is simply one who can explain                                         -12-          and be cross-examined concerning the manner in which the  records          are made and kept").                      Further, we do not find that the "source of information          of the method  or circumstances of  preparation indicate lack  of          trustworthiness"  in  the certificates.    Fed.  R. Evid.  803(6)          (excluding business  records on that basis);  see Petrocelli, 679                                                        ___ __________          F.2d  at  291  (excluding  business record  testimony  where  the          records  were "so  cryptic  that pure  guesswork and  speculation          [was] required to  divine the source of  the cited information").          It  was not  for the  trial  judge, but  the  jury, to  determine          whether the opinions in the certificates reliably assigned values          to the coins.  Indeed, the district court allowed the defense  to          conduct liberal (if not excessive) inquiry into the unreliability          of the ANACS certificates.                      Defendants  also challenge  the  admissibility of  this          evidence  on  constitutional  grounds, claiming  that  they  were          denied  their Sixth Amendment  right of confrontation.2   We find          Manocchio v. Moran, 919  F.2d 770 (1st Cir. 1990),  cert. denied,          _________    _____                                  ____________          500  U.S. 910  (1991),  controls  our  analysis in  this  matter.          There,  the government sought to enter an autopsy report about an          autopsy  performed by a forensic pathologist  who had since moved          to Israel.  The testimony of another signatory to the report, the          keeper of the records, was offered in order to lay the foundation          for admission.   Id. at 772.  Relying on  United States v. Inadi,                           ___                      _____________    _____                                        ____________________          2  The Government  argues that defendants have waived  this issue          by  failing to  object  on Confrontration  Clause grounds  below.          Regardless of whether the issue was waived, the argument fails.                                         -13-          475 U.S. 387, 394  (1986), we found  that the government was  not          required    to    demonstrate    the   examining    pathologist's          unavailability in  order to enter  the report.   We  specifically          stated  that  the  reasoning  in  Inadi  which  led  us  to  that                                            _____          conclusion  would  apply  equally   to  other  types  of  hearsay          exceptions  -- including business records.  Id. at 774; see White                                                      ___         ___ _____          v. Illinois, 502 U.S. 346, 354 (1992) ("[U]navailability analysis             ________          is a necessary part of the Confrontation Clause inquiry only when          the challenged out-of-court statements were made in the course of          a  prior judicial  proceeding.").   Having  determined that,  our          decision  in  Manocchio  noted that  it  was  "left  .  . .  with                        _________          reliability as  the determining  factor for the  admissibility of          the autopsy  report under the Confrontation  Clause."  Manocchio,                                                                 _________          919 F.2d at 776.  However, we specifically noted that reliability          could  be  shown by  "showing that  the  evidence falls  within a          firmly  rooted hearsay exception."   Id.; see White,  502 U.S. at                                               ___  ___ _____          356,  n.8  (noting   that  "'firmly  rooted'"  exceptions   carry          sufficient indicia  of  reliability to  satisfy  the  reliability          requirement posed  by the Confrontation Clause");   United States                                                              _____________          v. Trenkler, 61  F.3d 45,  64 (1st Cir.  1995) (Torruella,  C.J.,             ________          dissenting on other grounds).   Since we have already  shown that          to be true in the present case, we need not address this argument          further.3                                        ____________________          3  Defendants seek  to rely on the Confrontation  Clause analysis          in  United States v. McClintock,  748 F.2d 1278  (9th Cir. 1984),              _____________    __________          cert. denied, 474  U.S. 822  (1985).  However,  that opinion  was          ____________          written  before Inadi or White were decided.  Rather than look to                          _____    _____          McClintock for guidance, therefore, we will apply the case law of          ___________                                         -14-                           C.  Sufficiency of the Evidence                           C.  Sufficiency of the Evidence                    Appellants  next  challenge  the  sufficiency   of  the          evidence  marshalled against them.  We  review such challenges to          "determine  whether a  rational jury  could find  guilt  beyond a          reasonable doubt,"  United States v. Flores-Rivera,  56 F.3d 319,                              _____________    _____________          232  (1st  Cir. 1995),  viewing the  evidence  in the  light most          favorable to  the verdict,  id.   Our review of  the record  here                                      ___          persuades  us  that  the   evidence  was  sufficient  to  warrant          conviction beyond a reasonable doubt.                       First, the government  presented extensive evidence  of          systematic overgrading.   Ten customers testified  that they sold          their portfolios for a small fraction of the purchase price.  Two          experts indicated that the  coin market did not account  for this          precipitous drop.  Two suppliers  of RCGA's coins indicated  that          Kalp  only purchased  MS63 coins.   An expert  witness correlated          RCGA's records with  pricing data and  determined that RCGA  only          paid MS63  prices for the  coins it sold  to consumers.   Several          former  RCGA  employees  testified  inter  alia that  coins  were                                              ___________          routinely upgraded.   One  employee testified that  Kayne ordered          her to alter an ANACS certificate.                    As  for the  ANACS  certificates, as  noted above,  the          district  court allowed  the defense  liberal inquiry  into their          unreliability.  Indeed, defense counsel was repeatedly allowed to          cross-examine coin dealers on  subjects well beyond the scope  of                                        ____________________          this  circuit, which has been informed by the later Supreme Court          decisions.                                         -15-          direct examination.   Although the court  invited the defense  to          propose a limiting instruction, this offer was not accepted.  The          testimony about the certificates  came into evidence after eleven          separate  appraisals were  presented to  the jury.    Neither the          ANACS documents  nor  the appraisals  were allowed  to come  into          evidence,  and the  district  judge required  the prosecution  to          structure the  presentation of  the certificates to  be virtually          identical to the appraisals.                     Third, systematic  overgrading was  only a part  of the          government's demonstration of fraud.  Several employees indicated          that statements in RCGA's promotional literature  were misleading          by  stating that RCGA  had achieved $90  million in sales,  had a          multi-million dollar inventory,  and had a Paris affiliate.  Five          customers whom  RCGA  cited as  making substantial  profits on  a          "liquidation" report sent to prospective investors testified that          they never received payment, or were  paid only after instituting          civil litigation.  There was evidence of a $1 million discrepancy          in  RCGA's books,  that  Kayne encouraged  financial planners  to          conduct transactions  in cash, and that Kayne  and Kalp routinely          skimmed cash from office accounts.                          D.  Ineffective Assistance of Counsel                         D.  Ineffective Assistance of Counsel                    We  trumpet the  message  for the  umpteenth time  that          allegations of  ineffective assistance of counsel  must be raised          initially before  the district court, typically by a motion under          28  U.S.C.   2255.   See, e.g., United States  v. Costa, 890 F.2d                               ___  ____  _____________     _____          480, 482-83  (1st Cir. 1989) (discussing  rationale behind rule).                                         -16-          Moreover,   the  asserted   ineffective  assistance   of  counsel          consisted  of counsel's  failure  to raise  the  issue of  Double          Jeopardy; in view  of our ruling on that claim,  it may simply be          that trial counsel was quite perceptive.                                         -17-                                   III.  CONCLUSION                                   III.  CONCLUSION                                         __________                    For the foregoing reasons,  the opinion of the district          court is affirmed.                   affirmed                   ________                                         -18-
