
USCA1 Opinion

	




          August 25, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1511        No. 93-2206        No. 94-1508                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   VINCENT HURLEY,                                Defendant, Appellant.                                 ____________________        No. 93-1560                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    CARLO DeMARCO,                                Defendant, Appellant.                                 ____________________        No. 93-1561                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JAMES SACCOCCIO,                                Defendant, Appellant.                                 ____________________        No. 93-1562                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   STANLEY CIRELLA,                                Defendant, Appellant.                                 ____________________        No. 93-1563                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  KENNETH SACCOCCIO,                                Defendant, Appellant.                                 ____________________        No. 93-1616                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    STEPHEN PIZZO,                                 Defendant, Appellant                                 ____________________        No. 93-1617        No. 93-2207        No. 94-1507                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DONNA SACCOCCIA,                                Defendant, Appellant.                                 ____________________        No. 94-1388                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ANTHONY DeMARCO,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of the Court, issued on July 24, 1995, is amended as        follows.            On cover  sheet,  change  government's  counsel listing  to  read:        "Kathleen A. Felton, Criminal Division, Appellate Section,  Department         __________________        of Justice and Michael P. Iannotti, Assistant  United States Attorney,                       ___________________        with whom Sheldon Whitehouse, United States Attorney, James H.  Leavey                  __________________                          ________________        and  Michael E. Davitt, Assistant United States Attorneys, and John P.             _________________                                         _______        Elwood, Criminal Division, Department of  Justice, were on joint brief        ______        for the United States."                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1511        No. 93-2206        No. 94-1508                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   VINCENT HURLEY,                                Defendant, Appellant.                                 ____________________        No. 93-1560                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    CARLO DeMARCO,                                Defendant, Appellant.                                 ____________________        No. 93-1561                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JAMES SACCOCCIO,                                Defendant, Appellant.                                 ____________________        No. 93-1562                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   STANLEY CIRELLA,                                Defendant, Appellant.                                 ____________________        No. 93-1563                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  KENNETH SACCOCCIO,                                Defendant, Appellant.                                 ____________________        No. 93-1616                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    STEPHEN PIZZO,                                 Defendant, Appellant                                 ____________________        No. 93-1617        No. 93-2207        No. 94-1507                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DONNA SACCOCCIA,                                Defendant, Appellant.                                 ____________________        No. 94-1388                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ANTHONY DeMARCO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Terrance Reed and Edward  C. Roy with whom  Reed & Hostage,  Roy &            _____________     ______________            ______________   _____        Cook,  James T. McCormick,  McKenna &  McCormick, Michael  C. Andrews,        ____   __________________   ____________________  ___________________        Mary June  Ciresi, Vincent  Indeglia, Indeglia  &  Associates, Richard        _________________  _________________  _______________________  _______        Inglis,  and Garguilo,  Rudnick &  Garguilo were  on joint  briefs for        ______       ______________________________        appellants   Donna  Saccoccia,  Stanley  Cirella,  Kenneth  Saccoccio,        Vincent Hurley, James Saccoccio, Carlo DeMarco and Stephen Pizzo.            Robert D. Watt, Jr. for appellant Anthony DeMarco.             ___________________            Kathleen  A.   Felton,  Criminal   Division,  Appellate   Section,            _____________________        Department of Justice and Michael P. Iannotti, Assistant United States                                  ___________________        Attorney, with whom Sheldon Whitehouse, United States Attorney,  James                            __________________                           _____        H. Leavey and  Michael E. Davitt,  Assistant United States  Attorneys,        _________      _________________        and  John P. Elwood, Criminal Division, Department of Justice, were on             ______________        joint brief for the United States.                                 ____________________                                    July 24, 1995                                 ____________________                 BOUDIN, Circuit Judge.   The eight appellants  challenge                         _____________            their  convictions,  sentences  and  forfeitures   for  their            participation  in  an  extensive money  laundering  operation            organized by Stephen Saccoccia.   His conviction and sentence            were  affirmed in  United States  v. Saccoccia,  No. 93-1618,                               _____________     _________            slip. op. (1st Cir. June 28,  1995).  In this case, we affirm            the  convictions of  the  eight appellants  before us,  their            sentences, and the forfeiture orders entered against them.                                    I. BACKGROUND                                    I. BACKGROUND                 The  eight  appellants  are  Donna  Saccoccia  (wife  of            Stephen), her brother Vincent Hurley, James Saccoccio and his            brother  Kenneth  Saccoccio,  Carlo DeMarco  and  his brother            Anthony DeMarco,  Stanley Cirella  and Stephen Pizzo.   Along            with Stephen  Saccoccia and others, appellants  were indicted            on November  18, 1991, and  were charged  with conspiracy  to            violate  the Racketeer  Influenced and  Corrupt Organizations            Act ("RICO"), 18 U.S.C.   1962(d).  Certain of them were also            charged with  substantive  counts  of  money  laundering,  18            U.S.C.     1956-57, currency reporting offenses,  31 U.S.C.              5324, and interstate travel in aid of racketeering, 18 U.S.C.              1952.                 One  conspirator  originally charged,  David  Izzi, pled            guilty  before  trial  and  testified  for   the  government.            Stephen Saccoccia was severed and tried separately due to the            illness  of  his  counsel.    Alfred  Gabriele,  added  as  a                                         -4-                                         -4-            conspirator  in  a  superseding  indictment, was  also  tried            separately, and his  appeal is still pending.   United States                                                            _____________            v. Gabriele, No. 94-1215 (1st Cir.).  The end result was that               ________            the  eight appellants in this case were tried together in the            district court in Rhode  Island.  Trial began on  November 6,            1992, and ended in a jury verdict on December 18, 1992.                 At  trial, the government's evidence consisted primarily            of  the   testimony  of  other  participants   in  the  money            laundering activities, of Colombian nationals involved in the            international  drug  trade,  and  of  bank  employees.    The            government   also   offered   bank   records   of   financial            transactions and numerous  court-ordered wiretap  recordings.            Viewed in the  light most favorable  to the verdicts,  United                                                                   ______            States  v. Valerio,  48  F.3d 58,  63  (1st Cir.  1995),  the            ______     _______            evidence permitted a reasonable jury to find the following.                 Stephen  Saccoccia  owned  and  controlled  a number  of            precious metals businesses, including Saccoccia  Coin Company            in  Cranston, Rhode Island ("Saccoccia Coin"); Trend Precious            Metals in Cranston and  in New York, New York  ("Trend"); and            International  Metal  Marketing  ("International Metal")  and            Clinton  Import/Export in  Los Angeles,  California ("Clinton            Import/Export").   In  the  late 1980s,  after some  indirect            dealings,  Stephen Saccoccia began  laundering drug money for            Duvan Arboleda, a Colombian narcotics dealer.  The laundering            operation, ultimately expanded to serve a second drug ring as                                         -5-                                         -5-            well,  took  several  forms   but  each  began  with  Stephen            Saccoccia  receiving  large  amounts  of cash  in  New  York,            generated from the  sale of cocaine.   Often, Saccoccia would            send  one of his employees, usually unindicted co-conspirator            Richard  Gizzarelli, to  a  prearranged location,  such as  a            street  corner, to  meet  a customer's  courier.   Gizzarelli            would bring  the cash to the  Trend office in New  York or to            Saccoccia's apartment in New York to count it.                 The money then followed  two different routes.  Some  of            the  cash would be used to purchase money orders or gold; the            gold and some of the remaining  cash would then be shipped to            International Metal in Los Angeles.  Much of the  rest of the            cash--up to  $200,000 per  day--would  be sent  to Trend  and            Saccoccia Coin  in Rhode  Island, either through  armored car            service or in the car of a Saccoccia employee.                 Once the cash  reached Rhode Island,  it was counted  by            Saccoccia employees and divided into  a number of packets  in            amounts  either greater than or  less than $10,000.   Most of            the cash went  to the  Trend office in  Cranston.   Saccoccia            employees,  directed by Izzi, then drove to local banks where            they purchased cashier's checks  in amounts less than $10,000            payable to Trend, or cashier's checks in amounts greater than            $10,000 payable to companies nominally  owned by Hurley.  The            purpose   of  these   maneuvers--called  "smurfing"   in  law            enforcement parlance--was to avoid  or minimize the filing of                                         -6-                                         -6-            accurate currency transaction reports, which  are required by            federal law for cash deposits in amounts of $10,000 or more.                 Ultimately  the  local  Rhode  Island  checks  would  be            deposited in, and  money from the  Hurley accounts wired  to,            the  Trend account  at  Citizens Bank  in  Rhode Island.    A            smaller  portion of  the cash  sent to  Rhode Island  went to            Saccoccia  Coin.   That  cash was  used  to buy  gold without            documentation;  the  gold  was  then   resold  to  legitimate            companies  in exchange  for checks  recorded as  payments for            gold  sales.  Some of the cash  was also used in the ordinary            operations of  the Saccoccia Coin Shop,  a heavily cash-based            enterprise.                 At the  Los Angeles end, the gold  sent to International            Metal was sold, and the proceeds were wired back to the Trend            account  at Citizens  Bank.   Cash received  by International            Metal was used to  purchase gold covertly, the gold  was then            sold,  and the proceeds were also wired to the Trend account.            Thus,  the bulk of  the cash that  Saccoccia sent out  of New            York eventually ended  up in the  Trend account at  Citizens.            Citizens  Bank  closed  the  Trend  account  in  April  1991.            Thereafter,  cash was  still  transported from  New York  and            "smurf" employees in  Rhode Island  still obtained  cashier's            checks  from  various banks,  but  the  checks were  sent  to            International Metal and Clinton Import/Export in Los Angeles.                                         -7-                                         -7-                 Donna Saccoccia assisted her  husband in most aspects of            the  operation, relayed  his instructions  to the  others and            wired funds  abroad to Colombian  banks.  Hurley  and Anthony            DeMarco  picked  up  cash  from  couriers  in  New  York  and            transported it  to Rhode Island.   Hurley, Anthony  and Carlo            DeMarco,  Kenneth  and  James Saccoccio,  Cirella  and  Pizzo            received  the cash  deliveries in  Rhode Island,  counted the            money, and separated it into  packets of smaller amounts  for            transport to  local banks.   Anthony  DeMarco  and James  and            Kenneth Saccoccio bought the bulk of the cashier's checks.                 A  staggering  amount   of  money  moved   through  this            laundering operation.  Between March  1, 1990, and August 22,            1991, Stephen  or Donna Saccoccia wired over  $136 million to            foreign bank  accounts primarily  in Colombia; more  than $97            million  of this amount was  wired from the  Trend account in            Citizens Bank jointly controlled by Donna and Stephen.  Apart            from the $136 million, substantial sums were  retained by the            Saccoccias and their employees as compensation.                 All eight  appellants were convicted of RICO conspiracy.            All but Carlo DeMarco and Pizzo were convicted of substantive            offenses.     After   post-trial  motions,   appellants  were            sentenced in May 1993,  and forfeiture judgments against each            appellant  were  entered  pursuant  to  the  RICO  forfeiture            statute, 18  U.S.C.   1963, and in some cases under the money            laundering forfeiture statute.  18 U.S.C.   982.  Appellants'                                         -8-                                         -8-            substantive  convictions  (in addition  to  RICO conspiracy),            their sentences,and their forfeiture amountsare listed below:             Name        Substantive         Sentence    Forfeiture                         conviction                      amount             Donna       13 counts of money  14 yrs., 2  $136,344,231.86             Saccoccia   laundering (18      yrs.                         U.S.C.   1956),     supervised                         and 47 counts of    release                         unlawful                         transactions (                          1957).             Vincent     1 count             18 yrs., 3  $136,344,231.86             Hurley      structuring (31     yrs.                         U.S.C.   5324(3)),  supervised                         and 1 count of      release                         interstate travel                         in aid of                         racketeering (18                         U.S.C.   1952).             James       15 counts of        10 yrs., 3  $37,456,100.79             Saccoccio   structuring.        yrs.                                             supervised                                             release             Kenneth     14 counts of        12 yrs., 3  $37,456,100.79             Saccoccio   structuring.        yrs.                                             supervised                                             release             Stanley     1 count of          9 yrs., 2   $37,456,100.79             Cirella     structuring.        yrs.                                             supervised                                             release             Anthony     5 counts of filing  7 yrs., 3   $136,344,231.86             DeMarco     false currency      yrs.                         transaction         supervised                         reports (31 U.S.C.  release                           5324(2)); 2                         counts of                         structuring.             Carlo       No substantive      6.5 yrs.,   $3,927,357.55             DeMarco     conviction.         2 yrs.                                             supervised                                             release                                         -9-                                         -9-             Stephen     No substantive      8.5 yrs.,   $37,456,100.79             Pizzo       conviction.         3 yrs.                                             supervised                                             release                 These appeals followed.                                 II.  THE RICO ISSUES                                 II.  THE RICO ISSUES                 The   RICO  conspiracy  offense  charged  in  this  case            required the  government to prove an  agreement by appellants            "to conduct  or participate  .  . .  in the  conduct of  [an]            enterprise's  affairs  through  a  pattern   of  racketeering            activity";  and the  pattern  alleged in  this case  required            proof of  two or  more criminal acts  by an  appellant (e.g.,                                                                    ____            money laundering or structuring).  See 18  U.S.C.    1961(1),                                               ___            1962(c), (d).  Appellants  here challenge the indictment, the            instructions and the evidence relating to RICO.                                A. The RICO Indictment                                A. The RICO Indictment                                   ___________________                 The RICO conspiracy count  alleged the formal requisites            of the  offense including  the assertion that  each appellant            agreed to commit  at least two racketeering acts;  but it did            not specify which predicate  acts each appellant committed or            agreed  to commit.  Hurley,  Cirella, Pizzo and Carlo DeMarco            argue  that  this  lack  of  specificity  is   fatal  to  the            indictment  because  a  sufficient  indictment  must  "fairly            inform[ ]  a defendant  of the charge  against which  he must            defend . . . ."   Hamling v. United States, 418 U.S. 87,  117                              _______    _____________            (1974).                                         -10-                                         -10-                 In count I,  the indictment  identified the  enterprise,            its  precise method  of operation,  the  role played  by each            appellant,  and the nature of the predicate acts charged.  In            appended  lists  specifically  referenced  in  count  I,  the            indictment  also  set  forth  thousands  of  individual  bank            transactions and  wire transfers.   What was lacking  was any            identification of  the particular  transactions in  which the            four complaining appellants  were involved, since they  acted            mainly  as counters  and subdividers  of money  deposited and            transferred by others.                 But  if  a defendant  were  charged  with conspiring  to            distribute drugs, it would  surely be enough to show  that he            had acted as a packer in the drug-making "factory" during the            period in which  a series of identified  shipments were made.            The government might  never know  which particular  shipments            had been  packed  by  the defendant;  but  his  agreement  to            participate  in distributing multiple  shipments could fairly            be inferred.  The same principle applies in this case.  There            is, we note,  no indication  that appellants  were misled  or            left  in  ignorance about  what  the  government intended  to            prove.                 United States v. Winter, 663 F.2d 1120 (1st Cir.  1981),                 _____________    ______            cert. denied, 460 U.S. 1011  (1983), relied on by appellants,            _____ ______            is not in point.  In that case we held that the indictment of            two defendants  failed because "a RICO  conspiracy count must                                         -11-                                         -11-            charge  as a minimum that each defendant agreed to commit two            or more specified predicate crimes."  Id. at 1136.  In Winter                                                  ___              ______            the  indictment did not charge even in the most general terms            that certain  defendants had  agreed to commit  two predicate            acts.  Here,  the indictment did so charge, and Winter is not                                                            ______            in point.                                           -12-                                         -12-                  B. The RICO Instructions: "Conduct or Participate"                  B. The RICO Instructions: "Conduct or Participate"                     ______________________________________________                 The gravamen of the underlying offense is "to conduct or            participate, directly  or indirectly, in the  conduct of [an]            enterprise's  affairs"  through  a  pattern  of  racketeering            activity.  18 U.S.C.    1962(c).  In Reves v. Ernst  & Young,                                                 _____    ______________            113  S. Ct. 1163, 1172 (1993),  the Supreme Court interpreted            the words "conduct or participate" and held that they require            the   defendant's  "participat[ion]   in  the   operation  or            management of the enterprise itself."  Reves involved a civil                                                   _____            RICO suit against an  outside accounting firm hired  to audit            the  books of  an allegedly  corrupt enterprise.   Construing            Reves, we  held in United  States v. Oreto, 37  F.3d 739, 750            _____              ______________    _____            (1st Cir. 1994), cert.  denied, 115 S. Ct. 1161  (1995), that                             _____  ______            insider employees who are  "plainly integral to carrying out"            the racketeering activities fit within section 1962(c).                 Here,  appellants  claim   that  the  district   court's            instruction on  the meaning  of "conduct or  participate" was            erroneous in light of Reves.  No objection to the instruction                                  _____            was made at trial,  so we review only for "plain error," Fed.            R.  Crim. P. 52(b), which requires appellants to show that an            error was made, the error was clear or obvious, and the error            resulted in prejudice--that  is, it affected the  defendant's            substantial rights.  United States v. Olano, 113 S. Ct. 1770,                                 _____________    _____            1777-78  (1993).  Even then, an appeals court need not notice            the  error unless  it caused  "a miscarriage  of  justice" or                                         -13-                                         -13-            undermined "the fairness,  integrity or public reputation  of            judicial proceedings."  Id. at 1778-79.                                    ___                 The instruction in this  case was similar to the  one we            upheld  in Oreto.   37  F.3d at  750.   The difference--which                       _____            appellants  deem  crucial--is  that  the   Oreto  instruction                                                       _____            encompassed  defendants who  perform  acts  "necessary to  or            helpful  in the  operation  of the  enterprise," whereas  the            instruction in this  case encompassed defendants who  perform            acts  "related   to   the  operation   of  the   enterprise."            Appellants argue that the court's language embraced precisely            the view that Reves rejected: "that almost any involvement in                          _____            the  affairs of  an  enterprise [satisfies]  the 'conduct  or            participate' requirement."  Reves, 113 S. Ct. at 1169.                                        _____                 In the abstract, the  relatedness reference might pose a            problem if a defendant were arguably an outsider, such as the            independent  auditor  in   Reves.    But  in  this  case  the                                       _____            government's  version  of  the  evidence   placed  appellants            squarely in the  role of  employees of the  enterprise.   The            jury's verdict shows that  the jury accepted that  version of            events,  making the  alleged  ambiguity  in the  instructions            harmless.   To  the  extent that  appellants are  challenging            Oreto's reading of Reves,  Oreto is the law of  this circuit.            _____              _____   _____            See United  States v. De Jongh, 937 F.2d 1, 6 (1st Cir. 1991)            ___ ______________    ________            (newly constituted  panels bound by prior  panel decisions in            point).                                           -14-                                         -14-                                         -15-                                         -15-                        C.  The RICO Instructions:  Knowledge                        C.  The RICO Instructions:  Knowledge                            _________________________________                 Appellants  complain about two  aspects of  the district            court's instructions on knowledge.  First, they challenge the            use  of a  general  "willful blindness"  instruction and  the            court's refusal  to instruct the jury  that willful blindness            did not apply  to the RICO conspiracy  count.  They say  that            one cannot simultaneously be  willfully blind to a conspiracy            and also intend and agree to join the conspiracy.                 The  district judge  first  instructed the  jury on  the            substantive counts.  He  then gave a detailed  explanation of            the RICO conspiracy count, including the requirement that the            government  prove both "an intent to agree" and "an intent to            commit the  substantive offenses that are the  objects of the            conspiracy."  The  judge told  the jury that  they could  not            infer knowledge of  the conspiracy from negligence,  mistake,            or  ignorance; instead, the  defendant must  act "voluntarily            and intentionally."   After lengthy instructions  on the RICO            count, the judge moved on to more general propositions.  Only            then did he give the "willful blindness" instruction:                 In  deciding whether  a Defendant  acted knowingly,                 you may infer that the Defendant had knowledge of a                 fact if  you find  that the  Defendant deliberately                 closed his  eyes  to a  fact that  would have  been                 obvious to him.                 The  willful blindness instruction  appears to have been            aimed at  the "knowing" requirements  of substantive  counts.            E.g.,  18 U.S.C.   1956  (money laundering).  Appellants have            ____                                         -16-                                         -16-            given  us  no reason  to think  that  it diluted  the express            "intent"  requirement for  the  conspiracy count.   Here  the            trial  judge  adequately  guarded  against  that  risk   with            cautionary  instructions stressing  that the  defendants must            have joined the conspiracy  intentionally, see United  States                                                       ___ ______________            v. Brandon, 17 F.3d 409, 451-54 (1st Cir.), cert. denied, 115               _______                                  _____ ______            S. Ct. 80 (1994), and  we see no way that the jury could have            convicted without finding deliberate agreement.                 Second,  appellants  object   to  the  district  court's            refusal  of  their  request  for  an  instruction  that  each            appellant  had to know of the existence and general nature of            the enterprise.  When this request was made after the charge,            it was  entangled with other requests and  the district court            may not  have focused on the  request or may have  thought it            had in substance been given.  Although nothing in the statute            explicitly requires such knowledge, there is  some precedent,            including  a  comment  from  this  court,  suggesting  it  is            appropriate.  See, e.g., Brandon, 17 F.3d at 428; 2 L.  Sand,                          ___  ____  _______            J.  Siffert,  W. Loughlin  &  S. Reiss,  Modern  Federal Jury                                                     ____________________            Instructions   52.04 at 52-39 & comment (1995).            ____________                 We think that  in substance the jury  was told, although            somewhat indirectly,  that appellants had to be  aware of the            enterprise and  its general character  in order to  be guilty            under the RICO conspiracy charge.  The court  instructed that            the  first element  that  the jury  had to  find  was that  a                                         -17-                                         -17-            conspiracy existed "to conduct  or participate in the affairs            of an enterprise through a pattern of racketeering activity."            The court subsequently told the jury that the government must            also prove  "that the  defendant knew the  conspiracy existed            and knew of its unlawful purpose."                 Perhaps in theory one might imagine a defendant who knew            of  and joined in a  conspiracy to conduct  an enterprise but            did not know  the nature  of the enterprise.   In this  case,            however,  the government's  evidence  showed that  appellants            knowingly engaged  in structuring transactions  on an ongoing            basis  within the  framework of Stephen  Saccoccia's business            venture.  Given the  evidence accepted by the jury,  there is            no doubt that appellants  knew what they were doing  and knew            they  were doing  it within  the framework  of the  Saccoccia            organization.  If  the instruction deviated from  perfection,            the deviation was assuredly harmless.              D.  The RICO Instructions: Single or Multiple Conspiracies              D.  The RICO Instructions: Single or Multiple Conspiracies                  ______________________________________________________                 At trial,  the government  offered  evidence of  out-of-            court statements by several  persons whom it characterized as            unindicted  co-conspirators.   The  most  important were  two            regional  managers  of  rival  drug  cartels  each  of  which            supplied  money  to  be  laundered   by  Stephen  Saccoccia's            organization.  The district  court admitted the hearsay under            the  co-conspirator exception,  Fed.  R. Evid.  801(d)(2)(E),            pursuant  to United States v.  Petrozziello, 548 F.2d 20 (1st                         _____________     ____________                                         -18-                                         -18-            Cir. 1977).  The court found that the regional managers were,            more probably  than not, members of  the Saccoccia conspiracy            and  rendered a  final Petrozziello  ruling at  the close  of                                   ____________            evidence.                 Appellants  say first  that the  two drug  ring managers            could not conceivably be members of the same  conspiracy with            each other  because the  rings were  rivals.  The  government            responds that the hearsay exception does not require that the            conspiracy used to support  the hearsay evidence be the  same            as that charged, see  United States v. Dworken, 855  F.2d 12,                             ___  _____________    _______            24 (1st Cir. 1988), and that at the very least that each drug            dealer  necessarily  conspired  with   the  members  of   the            Saccoccia organization.  Whether  the government's premise of            separate  conspiracies  is sound  or  squares  with what  the            district court found is not evident from its brief.                   Nevertheless,  appellants--who bear the burden on appeal            of showing error in the Petrozziello finding--make no serious                                    ____________            effort to show that the two drug dealers could not have  been            part of the same conspiracy; their  alleged rivalry is hardly            conclusive  because   it  is  not  necessary   that  all  co-            conspirators know of each other's existence, Brandon, 17 F.3d                                                         _______            at 428.  Whether a conspiracy's customers are also members of            the conspiracy is a fact-based question, see United States v.                                                     ___ _____________            Moran,  984 F.2d 1299, 1303  (1st Cir. 1993),  and once again            _____                                         -19-                                         -19-            appellants  make  no effort  to muster  the evidence  on this            issue, or even to argue it.                 Alternatively, appellants argue that the court should at            least  have  given  a  multiple  conspiracy  instruction,  an            argument reinforced--although  perhaps only superficially--by            the government's  defense of  the hearsay declarations.   The            government  says that this issue  was not raised  in a timely            fashion  and that there was  no factual basis  for a multiple            conspiracy instruction.   In declining to give such a charge,            the trial judge rested on both of these grounds and found, in            addition,  that the proposed  multiple conspiracy instruction            was itself deficient.                 The district  court could  be  sustained on  any one  of            these  three  grounds  but  we  think  that  untimeliness  is            sufficient, United  States v. Akers,  987 F.2d 507,  513 (8th                        ______________    _____            Cir.  1993); Yoffe v. United  States, 153 F.2d  570, 576 (1st                         _____    ______________            Cir. 1946), and add  two further points.  First,  the request            for such an instruction  was not made until after  government            counsel  had   completed  his  closing  argument,  making  it            impossible for  him  to  address  the  jury  on  this  point.            Second, the core of  the government's case tended to  show an            overarching conspiracy; and appellants make  little effort in            their brief to show that multiple conspiracies were a serious            possibility.                           E.  Sufficiency of the Evidence                           E.  Sufficiency of the Evidence                               ___________________________                                         -20-                                         -20-                 In  reviewing sufficiency  claims, we  normally consider            the evidence "in the light most favorable to the prosecution"            and then  ask whether  the evidence  "would allow  a rational            jury  to  determine  beyond   a  reasonable  doubt  that  the            defendants were  guilty as charged."   United States  v. Mena                                                   _____________     ____            Robles,  4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114            ______                                      _____ ______            S. Ct. 1550  (1994).   Although appellants deny  that any  of            them  "directed"  the  enterprise,  we  rejected  this  legal            premise in Oreto, holding  that an employee can "conduct"  or                       _____            "participate" in the conduct  of an enterprise by  playing an            integral role  in its operation.  37 F.3d at 750.  By Oreto's                                                                  _____            test, a rational jury could convict each appellant.                 Donna  Saccoccia relayed  her husband's  instructions to            other appellants  on numerous occasions, helped  count money,            and personally authorized the wire transfer of more  than $38            million  from the  Trend  account to  foreign bank  accounts.            Hurley  and Anthony  DeMarco received  and counted  the large            cash  deliveries in New York and helped transport the cash to            Rhode  Island.    James  and Kenneth  Saccoccio  and  Anthony            DeMarco did most of the legwork involved in money laundering,            exchanging millions  of dollars in cash  for cashier's checks            at  various banks.  Carlo  DeMarco travelled to  New York and            Connecticut to transport the  cash; Cirella and Stephen Pizzo            received and counted money at the coin shop.                                         -21-                                         -21-                 Four appellants  argue that apart from  their low levels            of responsibility,  the  evidence was  insufficient  to  show            knowledge on  their part that the  Saccoccia organization was            engaged in money laundering or that the money being laundered            was  derived  from  narcotics.   These  claims  are  made  by            Cirella, Pizzo  and James and  Kenneth Saccoccio in  order to            defeat the showing of predicate acts available to the jury to            underpin  their RICO convictions.   Each of the  four says or            implies that he was  unaware of money laundering but  working            for what he understood to be a legitimate business.                 The jury was entitled to find that these four appellants            knew  that they  were engaged  in unlawful  money laundering.            Stephen  Saccoccia discussed  with Cirella  and Pizzo,  among            others, how to avoid police  detection; and Pizzo and Cirella            discussed "washing .  . .  the money" and  means of  avoiding            jail.  James and  Kenneth Saccoccio were involved in  so many            deposits   and  manipulative   subdividings  of   funds  that            laundering was  the only plausible explanation.   Further, in            one  instance (July  10,  1990), discussing  the division  of            $54,000  into  packages  of  $9,000 for  deposit,  James  and            Kenneth   Saccoccio   conducted   the  following   (recorded)            conversation with Izzi:                      James:    54, I can't do  that.  He wants me  to do                                $9,000 at every bank, that's stupid!                                (voices fade out)                      James:    KENNY, you want me to do 9 at every bank?                                         -22-                                         -22-                      Kenneth:  (unintelligible) $54,000 that's the way I                                been  doing  it.   Use  VOGUE,  do VOGUE,                                (unintelligible).                      Izzi:     Not all of  it, do a couple  of TRENDS if                                you could.                 As for the  drug-based origins of  the cash, the  direct            evidence of  knowledge among  the underlings is  much thinner            since none  of the  conspirators were directly  involved with            the narcotics sales.  Kenneth Saccoccio is an exception since            he was recorded,  while counting cash at  Trend, referring to            it  as "drug  money";  and in  one  conversation with  Pizzo,            Cirella  said something  that the  jury might  have  taken as            referring to the  drug origins of the proceeds.   In the case            of  James Saccoccio,  the  imputation of  knowledge of  drugs            rests  on the vast sums involved in the laundering and James'            close association with Kenneth.                 There are plenty of cash-generating businesses but among            those that require the illicit laundering of funds, the  drug            business  is notorious  and preeminent.   In  this case,  the            evidence showed  that narcotics were  the source of  the cash            and  that this fact was  well known to  Stephen Saccoccia and            Kenneth  Saccoccio, among others.   We think  that a rational            jury  could  conclude  that James  too  knew  of  the money's            origins, either from  the size and  continuing nature of  the            deliveries, or  from  being told  that  the money  came  from            drugs; and Cirella and Pizzo are a fortiori cases.                                                 _ ________                                         -23-                                         -23-                       III.  CURRENCY TRANSACTION REPORT ISSUES                       III.  CURRENCY TRANSACTION REPORT ISSUES                 The Bank  Secrecy Act requires domestic  banks to report            any  transactions involving  more  than $10,000  in cash,  31            U.S.C.    5313; 31 C.F.R.   103.   The statute also prohibits            customers  from providing  false  information  for  a  bank's            report.    31 U.S.C.    5324(2).1    Further, under  the 1986            amendments, "[n]o person shall for the purpose of evading the            reporting  requirements of [the Act or its regulations] . . .            (3)  structure or assist in structuring . . . any transaction            with one or  more domestic  financial institutions."   Id.                                                                      ___            5324.  The most  common method of "structuring" is  to divide            sums of cash into  amounts that are either under  the $10,000            reporting threshold or into amounts that are larger but still            less likely to attract attention.                 Structuring is a criminal act, 31 U.S.C.    5322(a), and            a violator is subject to double  the fine and sentence if  he            or she structures while violating  another federal law or  as            part  of a  pattern of  crime.   Id.    5322(b).   Appellants                                             ___            Hurley,  James   and  Kenneth  Saccoccio,  and  Cirella  were            convicted  of  structuring under  31  U.S.C.     5324(3)  and                                            ____________________                 1In late 1992,  Congress recodified sections 5324(1)-(3)            as  sections 5324(a)(1)-(3) without  substantive change, Pub.            L. 102-550,   525(a),  106 Stat. 3672, 4064 (Oct.  28, 1992).            For simplicity,  we refer to the  earlier codification, under            which   appellants  were   indicted  and   convicted,  unless            otherwise noted.                                         -24-                                         -24-            5322(b),  and  now  challenge  their convictions  on  several            grounds.                        A.  Due Process and Self-Incrimination                        A.  Due Process and Self-Incrimination                            __________________________________                 Appellants  first contend that the reporting requirement            violates  the Fifth  Amendment by  requiring them  to provide            incriminating information to the government about themselves.            The Supreme Court has  not directly decided this issue  as to            bank customers,  see California Bankers Ass'n  v. Shultz, 416                             ___ ___________________________________            U.S. 21, 73 (1974),  but every circuit to consider  the claim            has rejected it on one of several alternative grounds.  E.g.,                                                                    ____            United States v. Camarena, 973 F.2d 427, 428 (5th Cir. 1992);            _____________    ________            United States v. Mickens, 926 F.2d 1323, 1331 (2d Cir. 1991),            _____________    _______            cert. denied, 502 U.S. 1060 (1992); United States v. Hoyland,            _____ ______                        _____________    _______            914 F.2d 1125, 1130 (9th Cir. 1990).                 In our  complex society, individuals are  called upon to            provide information to the government on  countless occasions            and under a great variety  of circumstances.  Where  Congress            has framed  a disclosure  requirement  narrowly focused  upon            criminal conduct,  the Supreme  Court has on  occasion struck            down such statutes.   Haynes  v. United States,  390 U.S.  85                                  ______     _____________            (1968);  Marchetti  v. United  States,  390  U.S. 39  (1968);                     _________     ______________            Albertson v.  Subversive Activities Control Bd.,  382 U.S. 70            _________     _________________________________            (1965).   But where the  conduct is not  inherently criminal,            the Court  has upheld the  statutes even where  the reporting            could  in due course lead  the government to uncover criminal                                         -25-                                         -25-            conduct.  California  v. Byers, 402  U.S. 424 (1971);  United                      __________     _____                         ______            States v. Sullivan, 274 U.S. 259 (1927).            ______    ________                 Byers, the most recent  of the cases on point,  upheld a                 _____            California hit  and run law that  required motorists involved            in  an accident to halt and provide their names and addresses            to authorities.   Needless to  say, a fair  portion of  those            involved in  such accidents may be  identifying themselves in            situations that could result in  criminal jeopardy.  But  the            Court  found that  the  report  required  was  not  itself  a            confession of criminal conduct, and that the law was directed            to all auto  drivers in the state rather than  a more limited            group "inherently  suspect of  criminal activities."   Byers,                                                                   _____            402 U.S. at 430 (quoting Albertson, 382 U.S. at 79).                                     _________                 Of  course, a  witness  may invoke  the Fifth  Amendment            based on  fairly remote risks, see In  re Kave, 760 F.2d 343,                                           ___ ___________            354 (1st Cir.  1985), but reporting  statutes play a  central            role in  the administration of government  (e.g., taxes), and                                                        ____            the jurisprudence that governs  them has followed a different            course.   And although  the 1986 structuring  amendments were            aimed  at money laundering, see Ratzlaf v. United States, 114                                        ___ _______    _____________            S. Ct.  655, 660-61 n.11  (1994), they reinforce  a reporting            statute--the Bank Secrecy Act--that has larger aims including            tax and regulatory concerns.   Many of the reports  are filed            by legitimate cash-oriented businesses and the report  itself                                         -26-                                         -26-            is not inherently more incriminating than the accident report            upheld in Byers.                      _____                 Anthony DeMarco makes  a different constitutional attack            on the statute.  He was convicted of five counts of willfully            "caus[ing] or attempt[ing] to  cause" a bank to file  a false            report.  31  U.S.C.    5324(2).   The bank  report, based  on            information that  the teller secures from  the customer, asks            "on  whose  behalf"  the  transaction   is  being  conducted.            Anthony DeMarco told bank  tellers that the transactions were            being conducted on  his own  behalf but  the evidence  showed            that   they  were  being  conducted  for  Stephen  Saccoccia.            Anthony DeMarco claims that the "on whose behalf" language is            unconstitutionally vague.                 Due  process  requires  that  criminal  statutes  define            offenses with sufficient clarity  that an ordinary person can            understand what  conduct is prohibited.   Kolender v. Lawson,                                                      ________    ______            461 U.S. 352, 357 (1983).  The  "on whose behalf" language is            reasonably clear  and, on the present  facts, plainly pointed            to Stephen Saccoccia.   The cases  DeMarco cites all  involve            prior versions  of the  reporting form, which  used different            language.  E.g., United States v. Murphy, 809 F.2d 1427, 1430                       ____  _____________    ______            (9th Cir.  1987) ("for whose account").   The current version            of the form was promulgated to remedy this ambiguity.  United                                                                   ______            States v. Belcher, 927 F.2d 1182, 1186-88 (11th  Cir.), cert.            ______    _______                                       _____            denied, 502 U.S. 856 (1991).            ______                                         -27-                                         -27-                            B.  Instructions: Willfulness                            B.  Instructions: Willfulness                                _________________________                 Appellants next  argue that the district  court erred in            instructing  the  jury on  willfulness  as  an element  in  a            structuring violation.  Last year, the Supreme Court rejected            the  majority  view  of the  circuits  and  held  that for  a            structuring conviction a defendant must know that what  he is            doing  is  illegal.   Ratzlaf,  114  S.  Ct. at  658.2    The                                  _______            district court's instruction, given before  Ratzlaf, told the                                                        _______            jury that, in addition to knowledge, willfulness was required            and continued:                 An  act is done willfully if its done knowingly and                 with an intent to do something the law forbids.  It                 requires  something more  than  mere negligence  or                 mistake.  It requires  proof that a Defendant acted                 with   the  purpose   of   either   disobeying   or                 disregarding the law.                 No objection was made to this  instruction, so we review            for plain error.  This case does not present the conundrum of            a failure to object followed by a wholly unexpected change of            law;  one month before the trial  in our case, this court had            an en banc  argument to consider the  scienter requirement in               _______            the structuring  statute.  See  United States v.  Aversa, 984                                       ___  ______ ______     ______            F.2d 493  (1st Cir.  1993) (en banc)  (anticipating Ratzlaf's                                        _______                 _______                                            ____________________                 2Following  the Supreme  Court's decision in  Ratzlaf v.                                                               _______            United  States, Congress  deleted  the statutory  willfulness            ______________            requirement for structuring offenses.   31 U.S.C.    5322(a),            (b),  5324(c); Pub. L. 103-325,    411, 108  Stat. 2160, 2253            (Sept.  23, 1994); see H.R.  Conf. Rep. No.  652, 103d Cong.,                               ___            1st Sess. 147  (1994).   This recent change  does not  affect            appellants' appeals.                                          -28-                                         -28-            result), vacated, 114 S. Ct. 873 (1994).  In United States v.                     _______                             _____________            Marder, we  recently applied  the plain error  standard to  a            ______            pre-Ratzlaf instruction, 48  F.3d 564, 572 &  n.5 (1st Cir.),                _______            cert. denied, 115  S. Ct. 1441  (1995), as have  a number  of            _____ ______            circuits.   E.g., United States v. Retos, 25 F.3d 1220, 1228-                        ____  _____________    _____            32 (3d Cir. 1994).                 It  is not certain that the district court erred at all.            Aversa held  that "reckless  disregard" of the  law satisfied            ______            the willfulness requirement of  the structuring statute.  984            F.2d at 502.  The Supreme Court in Ratzlaf referred to Aversa                                               _______             ______            as a  case requiring knowledge, 114 S. Ct. at 657 n.1; and it            cited with approval,  id. at 659, another  First Circuit case                                  ___            in which  we agreed that a  jury could "infer  knowledge if a            defendant  consciously avoided  learning about  the reporting            requirements."   United States v. Bank  of New England, N.A.,                             _____________    __________________________            821  F.2d 844,  855 (1st  Cir.), cert.  denied, 484  U.S. 943                                             _____  ______            (1987).                 Ratzlaf  did  not  formulate  any  precise  instruction.                 _______            Should the Supreme  Court address the  issue again, it  might            insist on actual knowledge and nothing less.  But "disobey or            disregard" is part of  a standard instruction on willfulness.            See  1 L.  Sand, supra,    3A.01 at  3A-18.   See also United            ___              _____                        ___ ____ ______            States  v. Oreira, 29 F.3d 185, 188 (5th Cir. 1994) ("disobey            ______     ______            or disregard" accords with Ratzlaf).  Further we  are dealing                                       _______            at this point with nuances in  language, and state of mind is                                         -29-                                         -29-            usually based  on inference  rather than on  direct evidence.            The instruction in  this case,  if error at  all, is  neither            plain nor the cause of a miscarriage of justice.                                      C.  Count 67                                     C.  Count 67                                         ________                 Hurley and Cirella were  convicted of structuring  while            violating  another federal  law or  as part  of a  pattern of            illegal activity  involving more  than $100,000 within  a 12-            month period.  31 U.S.C.    5322(b), 5324(3).  The indictment            charged that they, together with James and Kenneth Saccoccio,            structured a set  of six  bank deposits of  $8,000 to  $9,000            each in several  different bank accounts on October  2, 1990.            The indictment said:                 [T]he    defendants    structured,   assisted    in                 structuring and  attempted to structure  and assist                 in  structuring  the  transaction  by   dividing  a                 quantity of currency in  excess of $10,000 into two                 or more portions  and using those smaller  portions                 to purchase cashiers checks or other instruments in                 amounts under  $10,000  at two  or  more  financial                 institutions on the same day . . . .                 The evidence at  trial showed that  on October 2,  1990,            Izzi told Hurley and Cirella to give him $35,000 in $10 bills            and later in the day to give Kenneth Saccoccio $30,000 in $20            bills.   Bank records showed  that after the conversation and            later  that   day   Kenneth   Saccoccio   made   two   $9,000            transactions.  The jury convicted Hurley and Cirella on count            67, and on appeal they raise a bevy of arguments.                 The first argument is  based on the fact that  the trial            judge,   without   objection,   instructed  the   jury   that                                         -30-                                         -30-            structuring can occur either  by dividing a sum  over $10,000            into deposits under  that figure or by dividing  the original            sum  into  amounts  that  are over  $10,000  but  reduce  the            reportable amount.   Appellants read the  indictment language            as limiting  the offense  to the  "under $10,000"  theory and            argue that  the "over $10,000"  theory permitted the  jury to            convict on  a different theory of  the offense, impermissibly            causing  a constructive  amendment of  the indictment.   See,                                                                     ___            e.g.,  United States v. Atisha,  804 F.2d 920,  927 (6th Cir.            ____   _____________    ______            1986), cert. denied, 479 U.S. 1067 (1987).                   _____ ______                 The  apparent strength of the argument is that the taped            evidence showed  these two appellants being  told to assemble            amounts  over  $10,000  and the  "over  $10,000"  instruction            appears  to  dovetail with  this  evidence.   But  the  "over            $10,000" instruction was a general one, describing one method            of  structuring, and  had nothing  in particular  to  do with            count 67.    Further, the  "over  $10,000" theory  fit  those            instances  (involving DeMarco,  Kenneth and  James Saccoccio)            where  a deposit occurred that was over $10,000 but less than            the  original  sum.   On the  other  hand, the  only deposits            alleged in relationship to count 67 were under $10,000.                  Thus, reading the instructions in  relation to evidence,            we  think   that  the  jury   had  to  understand   that  the            government's case  on count 67  amounted to this:  Hurley and            Cirella, to facilitate specified unreported deposits of under                                         -31-                                         -31-            $10,000 on October 2,  provided larger sums (as  directed) in            aid of and with the expectation that they would be subdivided            into  amounts  under  $10,000   to  avoid  reports  and  then            deposited,  as in  fact they  were.   The practice  of giving            general instructions in multiple count cases, and letting the            jury sort  out their application  according to the  facts, is            common and permissible.       Given  this  interpretation  of            what  happened, we have  no reason to  consider whether there            would  have  been  a  constructive amendment  rather  than  a            variance if the jury  had been instructed to apply  the "over            $10,000"  theory to  count 67.   See  generally 3  C. Wright,                                             ______________            Federal Practice and  Procedure    516, at 26  (2d ed.  1982)            _______________________________            (describing distinction  as "shadowy").  We  do consider, but            reject, appellants' claim that the evidence was inadequate to            connect their  delivery of $30,000 to  Kenneth Saccoccio with            his  later deposits of amounts  under $10,000 that  day.  The            timing made the connection a permissible inference.                 In a  different attack,  appellants argue that  count 67            was  facially defective  because  it alleged,  but failed  to            specify, the  other federal law concurrently  violated or the            pattern of illegal activity involving over $100,000 within 12            months.   This additional allegation was not  needed to prove            the violation but was needed  to trigger the enhanced penalty            provided  by  section 5322(b).    Appellants  rely on  United                                                                   ______            States v.  Hajecate, 683  F.2d 894,  901-02 (5th Cir.  1982),            ______     ________                                         -32-                                         -32-            cert. denied, 461  U.S. 927 (1983),  where the Fifth  Circuit            _____ ______            overturned  a structuring conviction  because the structuring            count did not specify the other illegal act or pattern.                 Here, count 67 did incorporate by cross reference the 22            introductory  paragraphs of  count  1  where  the  government            described the  smurfing operation  in detail,  identified the            role  of each appellant, and noted that large volumes of cash            were  involved.   Hurley  and Cirella  had  to know  that the            pattern of illegal activity alleged by the government was the            vast smurfing enterprise of  which count 67 was but  a single            example.   Cross  references are permissible  in indictments.            United States v. Yefsky,  994 F.2d 885, 894 (1st  Cir. 1993).            _____________    ______            There is  no showing that either  appellant was prejudicially            misled.                                   D. Counts 54-68                                   D. Counts 54-68                                      ____________                 Kenneth and James Saccoccio make a more promising attack            on their  own  convictions for  structuring.   They say  that            there is insufficient evidence  that they knew structuring to            be  illegal,  as Ratzlaf  required, and  that they  were thus                             _______            entitled to judgments  of acquittal.  In Ratzlaf  itself, the                                                     _______            dissent contended  that the majority's  knowledge requirement            would  frustrate  the   statute;  the   majority  said   that            reasonable  inferences could  be drawn.   114  S. Ct.  at 663            n.19, 669-70.  Our case presents just this issue.                                         -33-                                         -33-                 There is  no direct evidence that  either appellant knew            that structuring was a crime.  At the same time, the evidence            permitted the jury to conclude that both knew that drug money            was involved; that both knew that the break-downs of the cash            were designed to  disguise proceeds; and that  both were paid            in proportion  to  the  deposits  they made.    In  addition,            Kenneth Saccoccio  made a recorded statement  indicating that            he knew that his  own activity was criminal; and  given their            common  role and  association a  jury could  reasonably infer            that James had the same level of apprehension.3                 We   think  that  the  thrust  of  Ratzlaf's  wilfulness                                                    _______            requirement is  met if  persons engaged in  depositing broken            down amounts  are generally  conscious that  their laundering            operation  is illegal, even if  they do not  know the precise            requirements of the law.  This circuit in Aversa was the only                                                      ______            one  to anticipate Ratzlaf and  we are fully sympathetic with                               _______            its aims.   But those  aims were  to screen  out persons  who            structured  transactions to  disguise  amounts in  situations            where the actor might reasonably have no idea that the course            of conduct was unlawful.  See Ratzlaf, 114  S. Ct. at 660-61;                                      ___ _______            Aversa, 984 F.2d at 499-500.             ______                                            ____________________                 3After hearing  that  Hurley had  encountered  a  police            roadblock,  Kenneth Saccoccio  said, "Imagine  if we  went by            yesterday," referring to a day (July 2, 1990) on which he had            engaged in various structuring transactions.                                         -34-                                         -34-                 Here, there is ample evidence as  to Kenneth, and enough            as to James, to persuade us that a reasonable jury could find            that both knew that their own activities were unlawful.  This            is not countered, as  their brief suggests, by the  fact that            they generally gave their  names and identifying  information            when  requested by  banks: couriers  in their  position could            reasonably think  that an  individual deposit  standing alone            would not appear irregular, while remaining aware that anyone            with a full knowledge of their activities would condemn them.                 Ratzlaf dealt  with an abstract jury  instruction in yes                 _______            or no terms; and in  its wake, courts and juries must  try to            answer  more concrete questions of how much is enough.  Where            a defendant's  structuring is genuinely innocent  of criminal            intent, we think  that under Ratzlaf a  judgment of acquittal                                         _______            is proper  no  matter  how  unattractive the  context.    Cf.                                                                      ___            Aversa, 984 F.2d at 499-500.  But where the context is itself            ______            saturated with  consciousness of illegality, we  do not think            that  Ratzlaf requires the jury to ignore it in assessing the                  _______            defendant's state of mind.                           IV.  MISCELLANEOUS TRIAL ISSUES                           IV.  MISCELLANEOUS TRIAL ISSUES                      A.  Donna Saccoccia's Continuance Request                      A.  Donna Saccoccia's Continuance Request                          _____________________________________                 After  contesting  extradition,   Donna  Saccoccia   was            returned  by Switzerland  to the  United States,  arriving on            July  15,  1992,  and  was  arraigned  on  that  date.    The            government  turned over  the bulk  of its  discovery  in late                                         -35-                                         -35-            July.     In  September,  her  counsel   requested  a  60-day            continuance,  he was instead  granted 30 days,  and trial was            set to begin on November 2.                 Ten days before  trial Donna Saccoccia's  attorney asked            for  another continuance, which was denied.  As a result, her            team of lawyers had  just over 100 days after  arraignment to            prepare  for  her  trial.   Pointing  to  the  length of  the            government  investigation,  the  number  of charges  and  the            quantity of  evidence (over  1600 hours of  surveillance tape            and  10,000 pages  of  financial documents),  Donna Saccoccia            claims  that  the  denial   of  the  second  continuance  was            prejudicial error.                 Although the government  asserts that Donna  Saccoccia's            counsel  were   able  to   prepare  during   the  extradition            proceedings, this is at  least open to dispute.   Still, many            of the issues were common to  all of the defendants, so  that            Donna Saccoccia benefited from the work of her co-defendants'            counsel,  who  had  eight  months  to  prepare,  examine  the            government's  tapes and  documents,  search  for  exculpatory            evidence and  do  research.    Although  a  few  issues  were            peculiar to Donna Saccoccia, the common issues bulked large.                 Given the broad discretion  enjoyed by trial judges, see                                                                      ___            United States v. Lussier,  929 F.2d 25, 27 (1st  Cir. 1991)--            _____________    _______            especially  in  the  complex  task  of  organizing  a  multi-            defendant  trial--we  have  no  hesitance  in  upholding  the                                         -36-                                         -36-            district court's denial  of a second  continuance.  Her  lead            counsel  appears  to have  performed  ably  and  there is  no            indication  of prejudice.    The time  allowed was  generally            adequate see United States v. Waldman, 579 F.2d 649 (1st Cir.                     ___ _____________    _______            1978),  and the  cases  overturning convictions  for lack  of            preparation time  involve more  severe circumstances.   E.g.,                                                                    ____            United States v. Gallo,  763 F.2d 1504 (6th Cir.  1985) (RICO            _____________    _____            count added eleven days before trial), cert. denied, 475 U.S.                                                   _____ ______            1017 (1986).                                         -37-                                         -37-                        B.  Carlo DeMarco's Severance Request                        B.  Carlo DeMarco's Severance Request                            _________________________________                 Carlo DeMarco, an employee of Stephen Saccoccia for only            about three months, was convicted  of RICO conspiracy but not            charged  with any  substantive offense.   Midway  through the            trial he moved  for a  severance on the  ground that  Anthony            DeMarco, his  brother and co-defendant, would  testify on his            behalf in a separate  trial.  Carlo offered the  affidavit of            his counsel that Anthony would testify (along with a few less            important facts)  that Carlo  "was not  to  be told  anything            except that he was  working for a gold dealer."  The district            court held that the motion was untimely and without merit.                 In  United States v. Drougas,  748 F.2d 8,  19 (1st Cir.                     _____________    _______            1984), we held that to  show an abuse of discretion  in these            circumstances,  a  defendant  must show  that  the  proffered            testimony is genuinely  necessary, exculpatory,  and will  in            fact be forthcoming  in a severed trial.  It is doubtful that            the affidavit  from counsel satisfied this  requirement.  See                                                                      ___            United States  v. Perkins, 926  F.2d 1271, 1280-81  (1st Cir.            _____________     _______            1991).   In all events,  Fed. R. Crim.  P. 12(b)(5) specifies            that  motions to  sever must  be  made where  feasible before            trial.   Defense counsel's claim  that he had  not previously            had  a  chance  to  consult adequately  with  his  co-defense            counsel is manifestly lame.                                         -38-                                         -38-                     C.  Minimization of Electronic Surveillance                     C.  Minimization of Electronic Surveillance                         _______________________________________                 Cirella, Hurley  and Anthony  DeMarco moved at  trial to            suppress the  government's recordings made  by telephone taps            and listening devices installed  in Trend and Saccoccia Coin.            They charged the government failed to comply with 18 U.S.C.              2518(5), which requires that  surveillance shall be conducted            "in  such  a   way  as  to   minimize  the  interception   of            communications  not otherwise  subject to  interception under            this chapter . . . ."  We uphold the trial judge's  denial of            the  suppression  motion  without  reaching  the  question of            whether the remedy for a violation would be suppression.  See                                                                      ___            Scott  v. United  States, 436  U.S. 128,  135-36 n.10  (1978)            _____     ______________            (raising but not deciding the issue).                 Scott  made  clear  that  the statute  does  not  forbid                 _____            interception  of non-pertinent  conversations but  requires a            reasonable effort  to minimize such interceptions.   436 U.S.            at  137-40.    Here,  the government  described  the  agents'            directives  to turn  off monitoring equipment  for irrelevant            conversations;  it supplied  statistics  showing  that  about            three-quarters of  the time  that the agents  turned off  the            monitoring device,  they did so because  the conversation was            deemed non-pertinent; and it  pointed to regular reports made            to the  district court, and  to ongoing contacts  between the            agents and  the prosecutors sometimes  involving guidance  on                                         -39-                                         -39-            monitoring.   See United States v. Angiulo, 847 F.2d 956, 979                          ___ _____________    _______            (1st Cir.), cert. denied, 488 U.S. 928 (1988).                        ____________                 The   Saccoccia   enterprise   was  a   widespread   and            complicated  operation  in  which  the  illegal  conduct  was            deliberately   disguised   by   the    company's   legitimate            activities.   The  conspirators  employed  code phrases  that            mimicked industry  terminology and  used code names  for each            other, banks  and  clients.   Many of  the participants  were            related by  blood  or marriage,  and incriminating  exchanges            were often  interspersed with  personal conversation.   It is            hard to see how the  agents could have done more than  make a            good-faith determination to turn off recording devices when a            conversation   was  seemingly  unrelated  to  the  laundering            operation.                 Here,  as in United States  v. Uribe, 890  F.2d 554, 558                              _____________     _____            (1st Cir.  1989),  "[d]efendants [have]  offered no  evidence            tending to show, or  even to suggest, a pattern  of listening            to  calls  after  it   became  clear  that  the  calls   were            innocuous."    A so-called  survey  conducted by  the  son of            Hurley's lawyer  purported to show that  a substantial number            of non-pertinent conversations were  recorded; but the survey            was  flawed by  his  subjective criteria  of pertinence  (for            example,  the son classified  conversation regarding  gold as            non-pertinent even  though the Saccoccia  employees regularly            employed  gold  industry  words  as code  phrases  for  money                                         -40-                                         -40-            laundering   transactions).    The  district  court  properly            disregarded the study.                                    D.  Count 143                                        _________                 Count 143 charged Hurley with a Travel Act violation for            transporting $248,000  on a specified  date from New  York to            Rhode Island, to promote specified unlawful activity, namely,            structuring  and money  laundering.   Hurley admits  that the            indictment  charged  the  first   two  requisites--interstate            travel and intent to promote an unlawful activity.  18 U.S.C.              1952.   But, he says,  there is no allegation  that (in the            statutory phrase) he  "thereafter" performed or  attempted an            act to further the unlawful activity.  Id.                                                   ___                 This  is a legitimate argument.   But we  think that the            quoted statutory phrase must be read in light of its apparent            purpose: to screen out interstate travel by a  racketeer who,            however  malign  his  purpose,  ultimately  does  nothing  to            advance the illegal activity.  Here, Hurley's  transportation            of the money from New York to Rhode Island was a central part            of the ongoing laundering operation.  The particular trip was            not only interstate travel but also comprised--"thereafter"--            the delivery of  funds for laundering.   Accord United States                ________                             ______ _____________            v.  Brown, 770  F.2d  768,  772  (9th Cir.)  (importation  of                _____            heroin), cert. denied, 474 U.S. 1036 (1985).                     _____ ______                 Given our reading of the "thereafter" language, there is            thus  no  need   to  consider  whether  (as  claimed  by  the                                         -41-                                         -41-            government) the general  descriptions of Hurley's  activities            (incorporated in  count 143  by reference to  count 1)  could            independently  supply a  subsequent act.   We  also think  it            unnecessary  to discuss  Hurley's argument that  the evidence            was  insufficient  to  show   that  he  participated  in  the            particular  trip   which  unquestionably  occurred.     While            Hurley's  involvement depended  on inferences  from different            pieces of  evidence,  the jury  was  entitled to  draw  those            inferences.                       E.  Donna Saccoccia's Mental Competence                       E.  Donna Saccoccia's Mental Competence                           ___________________________________                 At Donna Saccoccia's rearraignment on July 23, 1992, her            trial counsel made  and then abandoned a  suggestion that she            be examined professionally in  relation to her current mental            condition.  The  trial proceeded with no  further request for            such an examination  or suggestion  of incompetency,  until--            about six  months  after the  trial--the  presentence  report            alluded  to  a  possible  sentence  reduction  for diminished            mental  capacity.    The  defense then  retained  a  clinical            psychologist who  examined Donna Saccoccia and concluded that            she  was mentally  incompetent  and had  been throughout  the            trial.                   Two days before sentencing, trial counsel filed a motion            seeking a  competency hearing, which is  required where there            is  "reasonable  cause"  to   believe  that  a  defendant  is            "mentally  incompetent to  the extent  that he  is  unable to                                         -42-                                         -42-            understand  the  nature and  consequences of  the proceedings            against him or to assist properly in his defense."  18 U.S.C.               4241(a).    In   a  two-day  preliminary  proceeding,  the            psychologist testified  that  Donna  Saccoccia  was  able  to            understand the proceedings  but opined that she  did not have            the ability to assist  counsel because of depression, anxiety            and passivity.   The district court  found that a  full-scale            competency hearing  was not required and  Donna Saccoccia now            appeals that decision.                   This is a close issue.  The fact that a reputable expert            gives  his opinion does not resolve the matter, even if there            is  no countervailing expert evidence on the other side.  See                                                                      ___            Figueroa-Vazquez  v. United  States, 718  F.2d 511,  512 (1st            ________________     ______________            Cir.  1983).   But here  the expert  appears to  have made  a            substantial  examination and  his concerns--although  not his            specific  conclusions--have  a  degree  of  support in  trial            counsel's  comment  at  the  arraignment  and  the   concerns            expressed in  the presentence  report.  For  obvious reasons,            competency  claims  are  not   subject  to  ordinary   waiver            doctrine.  Pate v. Robinson, 383 U.S. 375, 384 (1966).                       ____    ________                 On the other  hand, the focus of  the incompetency claim            in this  case is upon Donna Saccoccia's  ability or inability            to assist in her defense.  The trial judge had some basis for            doubting whether  the psychologist understood  the issues  in            the  case  well  enough to  make  a  judgment,  but far  more                                         -43-                                         -43-            important is the  silence of  defense counsel  on this  point            during  the trial.  An  experienced trial lawyer  ought to be            the  first  to notice  a lack  of  cooperation or  ability to            assist so severe as to raise competency questions.  There was            no complaint  from trial counsel  until after trial  when the            presentence  report  reawakened  counsel's  interest  in  the            matter.                 Neither  at  the preliminary  competency hearing  nor on            appeal  has counsel  been  able  to  point  to  any  specific            problems  with Donna  Saccoccia's  assistance  during  trial.            This  is not  a conclusive  objection  since (in  theory) the            impairment  might  prevent  counsel  from  ever  learning  of            information  helpful  to  the defense;  but  the  generalized            character  of the  claim  weakens its  force.   The  district            judge,  who  presided  over  the trial  and  the  preliminary            hearing,  is entitled to some  latitude in making judgment on            the need for a full-scale competency hearing.   United States                                                            _____________            v. Garrett, 903 F.2d 1105, 1116 (7th Cir.), cert. denied, 498               _______                                  _____ ______            U.S.  905  (1990).   Having reviewed  the transcript  of that            hearing, we sustain the district court's ruling.                                V.  SENTENCING ISSUES                                V.  SENTENCING ISSUES                               A.  Ex Post Facto Claim                               A.  Ex Post Facto Claim                                   ___________________                 Under the RICO sentencing guidelines, the district judge            properly   employed  the   money   laundering  guideline   in            sentencing appellants on the RICO conspiracy count.  U.S.S.G.                                         -44-                                         -44-              2E1.1.   The money  laundering guideline in  effect at  the            time of sentencing increased a defendant's base offense level            for money laundering  by three levels if  the defendant "knew            or  believed" that  the laundered money  was the  proceeds of            narcotics sales.   Id.   2S1.1(b)(1).   That provision became                               ___            effective  on  November  1, 1991;  previously,  the  increase            applied only if the defendant "knew" that the money came from            narcotics.                   In  a claim  not  raised at  sentencing, appellants  now            argue that the district  court erred by applying the  new and            broader guideline,  because (they say) the  last actual money            laundering  offense occurred  in  April 1991  before the  new            guideline  took effect.   See United  States v.  Cousens, 942                                      ___ ______________     _______            F.2d 800, 801 n.1  (1st Cir. 1991).  The  government responds            that  the RICO  conspiracy  itself continued  at least  until            November 1991, asserting that no ex post facto problem exists                                             __ ____ _____            where the crime continues  after the effective date of  a new            guideline sentence.  E.g.,  United States v. David, 940  F.2d                                 ____   _____________    _____            722,  739  (1st Cir.),  cert.  denied, 502  U.S.  989 (1991).                                    _____  ______            David can arguably  be distinguished, but the issue  need not            _____            be decided here.                   The  new guideline  language was  intended to  apply the            enhancement to  cases in which  a defendant "knew"  that drug            trafficking was involved, but the knowledge turned out  to be            mistaken because (for example) the operation was a government                                         -45-                                         -45-            sting and no real narcotics were involved.  See U.S.S.G. app.                                                        ___            C, amend.  378 (1994).    Here, the  money  was in  fact  the            proceeds  of narcotics  trafficking  so belief  and knowledge            were the same  thing.   A defendant who  merely believed  the            drug proceeds were involved would (because of the correctness            of that belief) also know that drug proceeds were involved.                   Appellants    contend    that    the   district    court            misinterpreted  the phrase  "knew  or believed"  to allow  an            increase based on a  showing that appellants merely suspected            or should have known  that drug money was involved.   We have            examined  the transcript  of the  sentencing and  reject this            conjecture.   In some cases,  an appellant was  shown to have            direct knowledge, and in  others, knowledge was inferred from            circumstances; but in each  case a fair reading of  the trial            court's  remarks  show that  the  judge  determined that  the            appellant knew the source of the laundered funds.                   Pizzo and James Saccoccio assert that even  if the court            did  not  misunderstand   the  standard,  the   evidence  was            inadequate to show  that they knew  that the laundered  money            was  the proceeds of narcotic sales.  As explained earlier in            the opinion, the evidence on this point was sufficient.  Even            apart  from Pizzo's  disputed  reference to  "the coke,"  the            volume of funds, the duration, the geographic source, the use            of  small  bills and  other  circumstances  made it  entirely                                         -46-                                         -46-            reasonable  to  infer   that  direct   participants  in   the            enterprise knew that the funds were derived from drugs.                               B.  Other Sentencing Errors                             B.  Other Sentencing Errors                                 _______________________                 The offense level for money laundering offenses is keyed            to the value of the laundered funds.  U.S.S.G.   2S1.1(b)(2).            Appellants contend  that in  various respects  the sentencing            court  erred in  determining the  value of  the funds  and in            determining the varying amounts that it found each individual            appellant    reasonably   had    foreseen.       U.S.S.G.                1B1.3(a)(1)(B).  These are largely factual issues, reviewable            only for clear error.  United States v. LaCroix, 28 F.3d 223,                                   _____________    _______            231  (1st Cir. 1994).  We  have examined each of these claims            of  error and  think that the  district court's  findings are            supportable,  and  that  none   involves  any  issue  of  law            requiring discussion.                 Something  closer to an issue of law is presented by the            district   court's  determination  that   Carlo  DeMarco  was            entitled  to a  two-level  reduction as  a minor  participant            rather  than   to  the  four-level  decrease   as  a  minimal            participant.  See U.S.S.G.   3B1.2.  The issue arises because                          ___            DeMarco  participated  for only  a  few  months in  the  RICO            conspiracy and was held responsible for only $3.9 million  of            the  $136 million conspiracy.  But  as to that segment of the            conspiracy,  the  court found  that  the  range of  DeMarco's                                         -47-                                         -47-            activities   made  him   a  minor   rather  than   a  minimal            participant.                 On appeal  DeMarco argues that  he was entitled  to have            his role determined in  light of the entire conspiracy.   The            government  argues  that his  role  should  be measured  only            against the  foreseeable conduct for  which he has  been held            responsible.   No  case law  discussing this  issue  has been            cited.  But we think that common sense permitted the district            judge  to  determine  that  DeMarco--who  participated  quite            actively in several roles  over a significant period  and was            involved with a substantial  amount of laundered funds--was a            minor and not a minimal participant.                                VI.  FORFEITURE ISSUES                                VI.  FORFEITURE ISSUES                 Between January  1990 and April 1991,  Stephen and Donna            Saccoccia  wired  $136,344,231.86  to foreign  bank  accounts            apparently controlled  by Colombian  drug suppliers.   In the            indictment,  the  government  took  the  position  that  each            appellant was  jointly and  severally liable for  this amount            under one of RICO's  several forfeiture provisions, 18 U.S.C.              1963(a)(3).    This  subsection  requires  a  defendant  to            forfeit  "any property  constituting,  or  derived from,  any            proceeds which the  person obtained, directly or  indirectly,            from racketeering activity . . . ."  Id.  By special verdict,                                                 ___            the  jury imposed such a forfeiture in this amount on Hurley,                                         -48-                                         -48-            the other appellants having waived a jury trial on forfeiture            issues.4                   The district  court imposed separate  forfeitures on the            other appellants.   United States v.  Saccoccia, 823 F.  Supp                                _____________     _________            994  (D.R.I.  1993).   The  court  held that  proceeds  under            section 1963(a)(3)  included laundered  funds obtained  by an            appellant even  though later passed along  to the Colombians,            and that each appellant was responsible for funds foreseeably            obtained  by other  co-conspirators.   The  court found  that            Hurley, Stephen and Donna Saccoccia, and Anthony DeMarco were            aware of most or all aspects of the conspiracy and liable for            the  full amount;  that the  Saccoccio brothers,  Cirella and            Pizzo  were aware  mainly of the  Rhode Island  operation and            therefore  liable  only  for  the   $37,456,100.79  laundered            through  Trend and  Saccoccia Coin;  and that  Carlo DeMarco,            active  only   from   August  through   November  1991,   was            responsible  for  $3,927,357.55  that  he  had  deposited  or            otherwise known about.                 After appellants filed notices of appeal, the government            filed a  motion seeking  forfeiture of substitute  assets, 18            U.S.C.    982(b), 1963(m); following various proceedings, the                                            ____________________                 4The jury  also imposed a separate  forfeiture on Hurley            of $52,800  under the money laundering provision, 18 U.S.C.              982, in connection with a  reporting violation.  Neither this            nor  other section  982  forfeitures imposed  on three  other            appellants  by the  district  judge have  been challenged  on            appeal except  on grounds identical to  those discussed below            in connection with the RICO forfeitures.                                         -49-                                         -49-            district court ultimately  determined that  because the  $136            million had  been transferred  out of the  jurisdiction, each            appellant  was liable to pay  the amounts in  question out of            any  other assets  of  that  appellant.   Both  the  original            forfeiture orders  and their  extension to substitute  assets            are the subject of a number of attacks in this case.                            A.  "Proceeds . . . Obtained"                            A.  "Proceeds . . . Obtained"                 The opening  question is whether the  $136 million wired            to the  Colombians constituted, at least as to the appellants            who handled or controlled these funds before they were wired,            "any property  constituting, or  derived  from, any  proceeds            which  the person  obtained,  directly  or  indirectly,  from            racketeering activity .  . . in  violation of section  1962."            18  U.S.C.    1963(a)(3).   Appellants argue  that "proceeds"            means net  profits, see United  States v.  Masters, 924  F.2d                                ___ ______________     _______            1362, 1369-70 (7th Cir.) (semble), cert. denied, 500 U.S. 919                                               _____ ______            (1991), in which case $136 million vastly overstates the 5 to            15 percent commission  apparently retained by  the Saccoccias            and the  (presumably smaller)  amounts passed along  to other            appellants.   Alternatively, appellants contend that  none of            the $137  million could fairly  be regarded as  "obtained" by            them  since  it   represents  amounts   transmitted  by   the            Saccoccias to the drug owners themselves.                 Section 1963(a)(3)  was added by Congress  to other RICO            forfeiture  provisions in  1984, and its  legislative history                                         -50-                                         -50-            explains without qualification that "the  term `proceeds' has            been used in lieu of the term `profits' in order to alleviate            the  unreasonable burden  on  the government  of proving  net            profits."  S. Rep. No. 225, 98th Cong., 2d Sess.  199 (1984).            In Russello v. United States, 464 U.S. 16 (1983), the Supreme               ________    _____________            Court made clear its desire for generous construction  of the            RICO forfeiture  provisions, in  line with  Congress' unusual            command that  RICO (although  a criminal statute)  be broadly            interpreted.  See id.  at 27.  Given the  legislative history                          ___ ___            and Russello,  the broader definition of  "proceeds" seems to                ________            us a rather easy call.                 The  point  is  borne  out  by  imagining  that  Stephen            Saccoccia  had been caught with  the $136 million  in cash or            gold just before delivering  it to the Colombians.   The cash            or gold  could surely  be described as  property representing            "proceeds"   which  Stephen  Saccoccia  had  "obtained"  from            racketeering activity  in violation of  section 1962, namely,            through  money laundering.  As  a matter of  policy, there is            every  reason why  the booty  in that  situation ought  to be            forfeit, and that Congress  would desire such a result.   See                                                                      ___            United States v. Lizza Indus., Inc., 775 F.2d 492, 497-99 (2d            _____________    __________________            Cir. 1985), cert. denied, 475 U.S. 1082 (1986).                        _____ ______                 The  more difficult question  is whether property should            be  regarded as "obtained" by the money launderer when it has            merely been held in  custody by that individual and  has been                                         -51-                                         -51-            passed along to its true owner.  To read  "obtained" to cover            property  once held by a  defendant on behalf  of another has            the   effect--when  combined   with  the   substitute  assets            provision--of converting  the forfeiture into a  fine.  Thus,            at  first, the  temptation  is to  read  the word  "obtained"            narrowly, having  in mind the  low level  courier who  merely            transports the money and could face death if any of the funds            were diverted.                 Yet,  on  reflection,  it is  only  in  degree  that the            courier who gets a very small cut differs from intermediaries            who get  a larger one, and  from the leader of  the drug ring            who is effectively paying much of the money back to suppliers            and  servitors  of  various   kinds.    Looking  at  criminal            forfeiture under RICO  as a kind of shadow fine,  the size of            the amount transported is some measure of the  potential harm            from  the  transaction.    And  since  temporary  custody  is            certainly  enough for a possession charge in a drug case, see                                                                      ___            United States v. Zavala Maldanado, 23 F.3d 4, 6-8 (1st Cir.),            _____________    ________________            cert. denied,  115 S. Ct. 451  (1994), it is hard  to see why            _____ ______            "obtained" should be read more narrowly.                 Finally, it is  very hard to escape  the implications of            18 U.S.C.   982(b)(2).  There, Congress has expressly  carved            out a narrow safe harbor, which protects against forfeiture a            defendant who  "acted merely  as an intermediary  who handled            but  did  not  retain  the  property"  unless  the  defendant                                         -52-                                         -52-            conducted  three  or more  separate transactions  involving a            total of $100,000  or more  in a twelve-month  period.   This            provision  indicates  that  Congress  itself  thought  that a            separate statute  was necessary  for a "passing  on" defense.            There is no counterpart safe harbor provision in RICO nor, in            view of the amounts involved, could such a provision help any            appellants in this case.                               B.  Vicarious Liability                               B.  Vicarious Liability                                   ___________________                 The question remains whether a defendant's forfeiture is            limited  to the  laundered funds  that the  defendant himself            obtained or  whether it  extends to funds  obtained by  other            members  of the  conspiracy.   The  district  court took  the            latter position with one  important qualification:  laundered            funds obtained  by other members  of the conspiracy  would be            attributed  only  to the  extent  that  they were  reasonably            foreseeable to  the particular defendant.   Saccoccia, 823 F.                                                        _________            Supp. at 1004.  This is a sensible resolution of a very close            issue, and we follow the district court's lead.                   The arguments  for limiting  forfeiture solely to  funds            personally obtained  by an individual defendant  are several.            The  statutory  language  speaks  of  a  violator  forfeiting            "proceeds  which  the person  obtained" by  violating section                              ___ ______            1962.  18 U.S.C.   1963(a)(3) (emphasis added).  In addition,            the  plight  of  a  defendant  who  was  merely  a  temporary            custodian of cash and passed it  on is even starker than that                                         -53-                                         -53-            of a person who never possessed the cash at all.  Thus, there            is a  respectable basis for holding  that vicarious liability            for  co-conspirator behavior  does  not exist  under  section            1963.                   The  arguments  pointing  the   other  way  seem  to  us            stronger.     Under  established  case  law,   members  of  a            conspiracy  are  substantively  liable  for  the  foreseeable            criminal  conduct of  the  other members  of the  conspiracy.            Pinkerton v. United States,  328 U.S. 640 (1946).   Using the            _________    _____________            same  concept,  the  Sentencing  Guidelines  attribute  to  a            defendant  at  sentencing  the  foreseeable  conduct  of  co-            conspirators.  U.S.S.G.    1B1.3(a)(1)(B).  It  would be odd,            although  not impossible,  to depart  from this  principle of            attributed  conduct when  it  comes to  apply the  forfeiture            rules, which  have aspects both of  substantive liability and            of penalty.                   It  is  largely  fortuitous  whether  an  individual co-            conspirator  happened to  possess  the laundered  funds at  a            particular point.   If conclusive  weight were  given to  who            physically handled  the money,  a low-level courier  or money            counter could  be liable  for vast  sums, while  other higher            level conspirators could  easily escape  responsibility.   So            long  as the amount handled by  others is foreseeable as to a            defendant,  the  foreseeable  amount represents  the  sounder            measure of liability.                                         -54-                                         -54-                 Finally,  we have to give  some weight to  the fact that            each  court  of appeals  that  has  addressed  the topic  has            concluded that  the forfeiture provisions  involve joint  and            several  liability.   E.g.,  Masters,  924  F.2d at  1369-70;                                  ____   _______            Fleischhauer v. Feltner, 879 F.2d 1290, 1301 (6th Cir. 1989),            ____________    _______            cert.  denied,  493  U.S.   1074  (1990);  United  States  v.            _____  ______                              ______________            Benevento, 836 F.2d 129, 130 (2d Cir. 1988); United States v.            _________                                    _____________            Caporale,  806 F.2d  1487,  1506-09 (11th  Cir. 1986),  cert.            ________                                                _____            denied, 482 U.S. 917 (1987).  This is a somewhat backward way            ______            of  putting the  matter,  since "joint  and several"  roughly            describes the result without explaining the underlying theory            of liability.  Here, we think the theory is the familiar rule            that  a  member  of  a  conspiracy  is  responsible  for  the            foreseeable acts of other members  of the conspiracy taken in            furtherance  of the conspiracy.  Pinkerton,  328 U.S. at 646-                                             _________            47; U.S.S.G.   1B1.3(a)(1)(B).                 Appellants   appear  to   think  that   their  vicarious            liability for  amounts they did not physically touch rests on            the assumption  that the Colombian drug  lords who ultimately            "obtained" $136 million were  members of the same conspiracy.            On this premise, appellants advance  a number of arguments as            to  why  such  a conspiracy  cannot  be  made  out under  the            indictment or evidence  in this  case.  The  short answer  is            that  the  premise  is  mistaken;  individual  appellants are            liable  because  their  convicted   American  co-conspirators                                         -55-                                         -55-            obtained the funds, regardless of the  status assigned to the            Colombians.                 Nor  do  we  see  any  basis  for  the  claim  that  the            forfeiture violates  the  "excessive  fines"  clause  of  the            Eighth Amendment.   Although  the provision is  applicable to            forfeitures, see Alexander v. United States, 113 S.  Ct. 2766                         ___ _________    _____________            (1993), holding  a defendant  liable for  an amount of  money            foreseeably laundered by himself and  his own co-conspirators            is  quite  rational  based  on  a  proportionality  analysis.            Harmelin v. Michigan, 501 U.S. 957 (1991).  In this case none            ________    ________            of the appellants was  separately fined, so we can  leave for            another day forfeitures imposed on top of separate fines.                 We appreciate the fact that a formidable penalty can  be            inflicted  when  one  disallows  a  passing-on  defense  then            imposes vicarious  liability for the foreseeable  acts of co-            conspirators.   The government  can collect its  $136 million            only once but, subject  to that cap, it can collect  from any            appellant so much of  that amount as was foreseeable  to that            appellant.  But there  is no reason to think that this result            is  unattractive   to  Congress,  which  requested   a  broad            construction of RICO, or to the Supreme Court, which followed            this policy in Russello.                           ________                                C.  Substituted Assets                                C.  Substituted Assets                                    __________________                 The indictment  in this case  sought forfeitures against            each  of the  appellants  of approximately  $140 million  and                                         -56-                                         -56-            expressly  invoked  18 U.S.C.     1963(m).   Section  1963(m)            provides  that if property subject to forfeit cannot be found            or  has been  transferred  then "the  court  shall order  the            forfeiture of any other  property of the defendant up  to the            value  of"  the property  subject to  forfeit.   See  also 18                                                             _________            U.S.C.     982(b)  (similar  provision  in  money  laundering            statute incorporated from 21 U.S.C.   853(p)).  In this case,            the  original  jury  verdicts  contain   a  determination  of            forfeiture only as to Hurley; forfeiture findings against the            other appellants were made  thereafter by the district court,            as earlier described.                   Appellants   filed   notices   of  appeal   from   their            convictions in  May and  June 1993.   On July  16, 1993,  the            government  moved   in  the  district  court   to  amend  the            forfeiture provisions of  its judgments  to substitute  other            property of the  appellants for the $137 million in laundered            funds.  After a hearing, the court granted these motions.  On            appeal, appellants  argue  that  the  district  court  lacked            jurisdiction  to  enter  those  orders  because  appeals  had            already been taken.                 This  claim rests on the "general rule" that "entry of a            notice of  appeal divests the district  court of jurisdiction            to adjudicate  any matters  related to  the appeal."   United                                                                   ______            States v. Distasio, 820 F.2d 20, 23 (1st Cir. 1987).  But the            ______    ________            rule is not absolute, for even  after the appeal is filed the                                         -57-                                         -57-            district  court  retains  authority  to  decide  matters  not            inconsistent  with the pendency of the appeal.  See Spound v.                                                            ___ ______            Mohasco  Indus., Inc.  534  F.2d 404,  411  (1st Cir.)  cert.            _____________________                                   _____            denied,  429  U.S. 886  (1976).   A  district court  may, for            ______            example, determine  attorneys' fees after an  appeal has been            taken or act in aid of  execution of a judgment that has been            appealed but not  stayed.   See In re  Nineteen Appeals,  982                                        ___ _______________________            F.2d 603, 609 n.10 (1st  Cir. 1992); International Paper  Co.                                                 ________________________            v. Whitson, 595 F.2d 559, 561-62 (10th Cir.  1979).  We think               _______            that  the  substitution  of  assets orders  fit  within  this            general category.                 Criminal forfeiture orders are  something of a  mongrel.            The  initial  forfeiture is  sought  in  the indictment  and,            absent  a  waiver of  jury trial,  is  specified in  the jury            verdict.   See Fed.  R.  Crim. P.  7(c)(2); 31(e).   But  the                       ___            statute  says that an order substituting assets is to be made            by "the court."   18 U.S.C.    1963(m).   The implication  is            that  such an order may commonly be entered after the initial            forfeiture has been determined.  Indeed, the government might            not even know  that substitution is necessary until  it seeks            to take possession  of the property specified  in the initial            forfeiture order.                  Under  these circumstances,  we  see no  reason why  the            taking  of the  appeal  should divest  the district  court of            authority to enter  an order forfeiting  substitute property.                                         -58-                                         -58-            Appellants do not provide any reason to think that this would            interfere   with,  or  contradict,   the  court  of  appeals'            consideration of  the original  judgment of a  conviction and            sentence, including the  initial forfeiture order.   Avoiding            such  interference and  inconsistency is  the purpose  of the            general rule  barring district  court proceedings  during the            pendency of an appeal.  Venen v. Sweet, 758 F.2d 117, 121 (3d                                    _____    _____            Cir. 1985).  There  is no reason to  extend this ban  further            than its own rationale.                   Of  course,  the  substitute  assets order,  if  one  is            eventually  made, may give rise to new issues for appeal, but                                               ___            a  new  appeal  can  be   taken  directly  from  this  order.            Similarly, a decision  of the appeals  court on the  original            conviction could undermine the substitute assets order (e.g.,                                                                    ____            by  overturning  the   conviction  itself   or  the   initial            forfeiture), but a substitute assets order can then be undone            or overturned.  After all, determination of counsel fees in a            section 1983 case presents  the same problem and is  resolved            in  precisely  this  manner.   See,  e.g.,  Casa Marie  Hogar                                           ___   ____   _________________            Geriatrico,  Inc. v.  Rivera-Santos,  38 F.3d  615 (1st  Cir.            _________________     _____________            1994) (separate appeal of counsel fees subsequent to original            judgment on the merits).                 Appellants' other attack on the substitute assets orders            is that those orders  countervail the double jeopardy clause,            U.S. Const. amend. V, and principles of fundamental fairness.                                         -59-                                         -59-            Appellants'  basic  argument   is  that  the  original   RICO            forfeiture   orders  were  limited   to  forfeitures  of  the            laundered monies and that  the orders extending forfeiture to            substitute assets constituted either a second prosecution for            the same  offense or  multiple punishments for  that offense.            See North Carolina v.  Pearce, 395 U.S. 711, 717  (1969); see            ___ ______________     ______                             ___            also  Witte v. United States, 63 U.S.L.W. 4576 (U.S. June 14,            ____  _____    _____________            1995).                 We found no case law directly in point but see no reason            in principle  why the  substitute assets provision  should be            regarded either  as a  second prosecution or  as a  forbidden            multiple  punishment.   The fact  that the  substitute assets            order  may  be  entered  at  some  time  after  the  original            conviction does  not make it  a second prosecution,  any more            than  sentencing  after conviction  is a  second prosecution.            The substitution order is  entered in the original proceeding            as  one of  a number  of steps,  primarily relating  to post-            conviction sanctions,  that are  known to the  defendant from            the outset.                 As   for  the   claim   of   multiple  punishment,   the            Constitution  does not  prevent  multiple  sanctions for  one            offense  where  the sanctions  are  specified  in advance  by            Congress   and  imposed  in   reasonable  proximity   to  the            conviction:   a  fine  and imprisonment  is a  common federal                                   ___            sentence.  The situations  in which later increased penalties                                         -60-                                         -60-            have been condemned as  multiple punishments are quite remote            from  this case and involve aggravating elements that are not            even arguably present here.  Arizona v. Rumsey, 467 U.S. 203,                                         _______    ______            209-12 (1984)  (death sentence);  Pearce, 395 U.S.  at 723-26                                              ______            (penalty for appeal).                                   VII.  CONCLUSION                                   VII.  CONCLUSION                 A number  of the remaining arguments  made by appellants            have  been addressed by  the court in  the decision affirming            Stephen Saccoccia's  conviction  and need  not  be  discussed            again.  These  include attacks on  certain references to  the            Colombians,  on  the  admission  of dog  sniff  evidence,  on            testimony by  Agent Shedd,  and on  tape excerpts  claimed to            refer  to   cocaine  and   drug  money.     Similarly,  Donna            Saccoccia's claims relating to extradition, to the extent not            waived,  are in  substance covered  by the  earlier opinion's            discussion   of   Stephen  Saccoccia's   counterpart  claims.            Several  additional  arguments  (e.g.,   Kenneth  Saccoccio's                                             ____            "theory of the defense" instruction) have been considered but            deemed not to require separate treatment.                 The  charges  in this  case  involved  a  web of  multi-            paragraph statutes  with intricate  provisions that  the jury            had  to  apply to  numerous  transactions  involving multiple            defendants and occurring over  a considerable period of time.            In these  circumstances, we have  reviewed appellants' claims            not only as individually  presented, but also with an  eye to                                         -61-                                         -61-            making  certain  that no  innocent  person  has been  wrongly            enmeshed  in criminal  proceedings.   We  are satisfied  that            while several  debatable issues  have been raised  on appeal,            there was no prejudicial error and that the verdict  returned            by the jury was a just one.                 Affirmed.                 ________                                         -62-                                         -62-
