
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1326                                    UNITED STATES,                                      Appellee,                                          v.                                   JAMES K. SMITH,                                Defendant, Appellant.                                _____________________        No. 94-1327                                    UNITED STATES,                                      Appellee,                                          v.                                    ROBERT COHEN,                                Defendant, Appellant.                                 ____________________        No. 94-1328                                    UNITED STATES,                                      Appellee,                                          v.                                   AMBROSE DEVANEY,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                          _____________                                 ____________________            Charles W. Rankin, with whom Rankin  & Sultan, Sheldon Krantz, and            _________________            ________________  ______________        Piper &  Marbury, were on brief for  appellant Robert Cohen; Joseph J.        ________________                                             _________        Balliro,  with whom Balliro, Mondano & Balliro, P.C., was on brief for        _______             ________________________________        appellant James K. Smith; and Emmanual N. Papanickolas, for  appellant                                      ________________________        Ambrose Devaney.            Paul  G. Levenson,  Assistant United  States Attorney,  with  whom            _________________        Donald K. Stern, United States Attorney, and Victor A. Wild, Assistant        _______________                              ______________        United States Attorney, were on brief for appellee.                                  ____________________                                  February 10, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.  After a joint trial,                      BOWNES, Senior Circuit Judge.                                ____________________            defendants James  Smith,  Robert Cohen,  and Ambrose  Devaney            were convicted  of defrauding  two federal credit  unions and            other related  offenses.  Although some aspects  of the trial            give us pause, we affirm the convictions and sentences.                                      I.  FACTS                                      I.  FACTS                                          _____                      We review the  facts in the light most favorable to            the government.  United States v. Ford, 22 F.3d 374, 382 (1st                             _____________    ____            Cir.), cert. denied, 115 S. Ct. 257 (1994).  Between December                   _____ ______            1985  and March  1991, James  Smith, Richard  Mangone, Robert            Cohen,  and  Ambrose Devaney  fraudulently  obtained tens  of            millions of dollars in real  estate loans from the Barnstable            Community  Federal  Credit  Union   (BCCU)  and  the  Digital            Employees  Federal Credit  Union  (Digital).   Smith, a  real            estate developer, and Mangone, President of Digital, were co-            founders of BCCU.   Robert Cohen was general counsel  to both            credit unions.  Smith and  Mangone controlled much of  BCCU's            lending through  Lynn  Vasapolle,  a  coconspirator  who  was            BCCU's manager.   Devaney was  a real  estate developer,  the            only defendant who was an outsider to the credit unions.                      The loans were used in part to finance the purchase            of commercial real  estate on  Cape Cod.   To circumvent  the            credit  unions'  policies  restricting  "insider"   loans  or            limiting maximum borrowing by an individual, Smith,  Mangone,            and Devaney formed more than a dozen nominee trusts to create                                         -3-                                          3            the impression that  the loans were  going to many  different            borrowers.   Cohen, who  served as closing  attorney for  the            credit  unions, prepared  the  trust instruments  and closing            binders.   He  also  instructed Vasapolle  what documents  to            include in her BCCU files.                      The  conspirators concealed  their interest  in the            trusts  by representing the trustees  as putative owners.  At            Mangone's direction, Vasapolle prepared false certificates of            beneficial interest  on a blank form that Cohen had provided.            There  was  evidence  that   in  some  cases  Cohen  directly            submitted  false  certificates  to  BCCU,  while  maintaining            parallel sets of genuine and false certificates in his files.            In  one case  where  he served  as  trustee, Cohen  signed  a            certificate  misrepresenting  himself  and his  wife  as  the            beneficiaries of the trust.                      For their part, Smith and Vasapolle  prepared false            financial  statements  for  BCCU  showing  that  the trustees            qualified for the loans.  Smith altered the purchase and sale            agreements,  sometimes  inflating   the  purchase  price   by            millions  of dollars, in order  to obtain larger  loans.  The            excess loan proceeds were usually deposited in Cohen's client            account,  transferred to  one of  Smith's accounts,  and then            distributed to Smith, Mangone, and Devaney.                      In the late 1980's, the real estate market  on Cape            Cod  collapsed.  Unable to sell the properties and faced with                                         -4-                                          4            mounting  debts, Smith,  Mangone, and  Devaney resorted  to a            pyramid scheme.   Cohen created new trusts that  purported to            buy subdivisions from  the old trusts; the  sham "sales" were            in turn financed  by new loans  from the credit  unions.   By            March  1991, when  BCCU  was seized  by  regulators from  the            National Credit Union  Administration (NCUA), the outstanding            balance on the Smith-Mangone-Devaney  loans had reached forty            to sixty million dollars.                      On  September 12, 1992,  Smith, Mangone, Cohen, and            Devaney were indicted  for conspiracy  (18 U.S.C.    371)  to            commit bank  fraud (18  U.S.C.   1344);  unlawful receipt  of            monies  by a  credit union  officer (18  U.S.C.    1006); and            unlawful  monetary transactions (money laundering) (18 U.S.C.               1957).   Each  defendant  was  also charged  with  various            offenses  underlying the conspiracy.  The case was tried on a            redacted  indictment that included  a conspiracy count, seven            bank  fraud counts,  seven  parallel unlawful  receipt counts            (which concerned  Mangone alone),  and  the money  laundering            charges.   Vasapolle  testified  under a  plea agreement  and            explained the workings of the conspiracy.                      Smith  and Mangone  were convicted  on all  counts.            Cohen  was  convicted on  all  counts except  for  four money            laundering counts.    Devaney was  convicted  of  conspiracy,            three counts of bank fraud and one count of money laundering.            Mangone  fled  before sentencing.    Smith  was sentenced  to                                         -5-                                          5            fifteen  years  imprisonment   and  three  years   supervised            release, and ordered to  pay up to twenty million  dollars in            restitution.  Cohen was  sentenced to ten years imprisonment.            Devaney was sentenced to thirty-seven months imprisonment and            three  years supervised release, and was ordered to pay up to            ten million dollars in restitution.                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________                      These  appeals   turn   largely  on   whether   the            defendants should have been severed for separate trials under            Fed.  R. Crim.  P.  14.    Cohen  also  argues  that  certain            evidentiary rulings  and jury instructions deprived  him of a            fair  trial.   Devaney  argues  that  various counts  of  the            indictment  were multiplicitous,  and that  the evidence  was            insufficient  to support  his  convictions.   Each  defendant            challenges his sentence on various grounds.                         A.  Bruton error                      A.  Bruton error                          ______                      We begin  with Smith's claim of  error under Bruton                                                                   ______            v.  United States, 391  U.S. 123 (1968)  -- the heart  of his                _____________            argument for severance.   Bruton  held that,  because of  the                                      ______            substantial risk that a  jury, despite contrary instructions,            will  look  to  a codefendant's  incriminating  extrajudicial            statement in determining  a defendant's  guilt, admission  of            the  codefendant's statement  in a  joint trial  violates the            defendant's    right    of   cross-examination    under   the            Confrontation Clause of the Sixth Amendment.  Id. at 126.  As                                                          ___                                         -6-                                          6            the Court emphasized  in Richardson v.  Marsh, 481 U.S.  200,                                     __________     _____            208  (1987),  Bruton  error  occurs  where the  codefendant's                          ______            statement "'expressly implicate[s]'"  the defendant,  leaving            no doubt  that it  would  prove "'powerfully  incriminating'"            (quoting  Bruton, 391  U.S. at  124 n.1,  135).  There  is no                      ______            Bruton  error if  the statement  becomes incriminating  "only            ______            when  linked  with evidence  introduced  .  .  .  at  trial."            Richardson,  481  U.S.  at  208.     See  United  States   v.            __________                           ___  ______________            Limberopoulos,  26  F.3d 245,  253  (1st  Cir. 1994)  (Bruton            _____________                                          ______            protects against  the "powerfully incriminating  effect of [a            nontestifying] accomplice  pointing  the finger  directly  at            another"; by  contrast, "inferential incrimination .  . . can            be cured by limiting instructions").                      Against  this  backdrop,  we turn  to  the  claimed            Bruton error.   The trial began on May 17,  1993.  During the            ______            government's  case,  Vasapolle  testified  that  she,  Cohen,            Smith, and  Mangone  met twice  after  the BCCU  takeover  to            discuss  the  possibility  of  removing  or  destroying  loan            documents from the BCCU's and Cohen's files.  Cohen allegedly            agreed to  remove  some of  his  documents, but  advised  his            coconspirators that  it would be  impossible to purge  all of            the  files.  He also refused to destroy any documents because            to do so would be an obstruction of justice.                      On June 28, 1993, the last day of  testimony, Cohen            called  Professor Richard Huber, an authority on professional                                         -7-                                          7            responsibility.    Huber  testified  subject  to  a  limiting            instruction that  his testimony "has nothing to do with . . .            Mr.  Smith [and]  Mr. Devaney."   According  to Huber,  Cohen            called him in late March of 1991 and "indicated that he had a            serious problem  with  professional responsibility  that  was            facing  him and  he  would like  to  have an  opportunity  to            discuss  it."  Cohen met with Huber  on April 4, 1991.  Huber            testified:                      Mr.  Cohen  explained  that he  had  been                      involved  as  a  lawyer  for   a  banking                      institution  . .  .  . [O]n  the 23rd  of                      March  [1991], a  former  officer of  the                      bank,  a former director of the bank, and                      a bank manager came in and spoke to him .                      . . concerning  activities that  involved                      them and their work at the bank.                                          ***                      [E]ssentially  it  amounted to  the issue                      that certain documents had  been changed,                      the information had been changed, figures                      had been changed,  data had been changed,                      that this had been done after preparation                      by Mr.  Cohen  and after  they  had  been                      presumptively completed, as far as he was                      concerned,  and were  in  file --  in his                      files, the bank files.  He indicated that                      it  was a  possibility, though  he wasn't                      certain, as I can recall this, that there                      may have been also forgeries, in terms of                      signatures including possibly his own.                      But  the  main  thrust  . .  .  was  that                      documentation which he  had prepared  and                      which  was complete and on file, had been                      changed  by these  three people  in their                      indication to him when they met with him.                      Cohen asked  "whether he  could reveal any  of this            information, which  had been  received from these  persons as                                         -8-                                          8            clients."  Huber advised him that "there was no  way in which            he  could reveal confidences at that point in time," but that            he could do so "if it  was necessary to protect himself, that            is, where he would be charged with crime or where he would be            sued civilly."                      After Huber testified,  Cohen's codefendants  moved            for a mistrial, citing Bruton.  The court deferred its ruling                                   ______            until  Cohen's  next  witness  had testified.    Just  before            Cohen's closing argument, the court instructed  counsel "[not            to] argue what  Cohen said to  Huber," because that  evidence            would be stricken.   The court then stated, "[Y]ou  may argue            what  Huber  said  to  Cohen."    The  next  day,  the  court            instructed  the jury  that  Huber's testimony  of what  Cohen            "said  to him  about  other  persons [is]  .  .  .   stricken            entirely."  Left  in evidence  was "the fact  that Mr.  Cohen            went to Huber, the fact that he made disclosures to Mr. Huber            .  . . and the  testimony of Mr. Huber about  what he said to            Mr. Cohen .  . . ."   As it  explained at sidebar, the  court            submitted the case to  the jury because the Bruton  error (if                                                        ______            any) occurred during the  last day of testimony in  a lengthy            trial, and might be mooted by an acquittal.  In addition, the            harmfulness of the error  would be more apparent in  light of            the verdicts.                      All  of the  defendants  were convicted,  and Smith            moved for a new trial.   The district court opined that there                                         -9-                                          9            had been an "egregious  error" under Bruton.  In  the court's                                                 ______            view, however, the Bruton evidence was "merely cumulative" of                               ______            the  government's  case  and  therefore  harmless  beyond   a            reasonable doubt.                      In the  classic Bruton  scenario, Cohen would  have                                      ______            made  a detailed confession of bank fraud, naming Smith as an            accomplice.    The government  could  not  introduce such  an            incriminating statement at a  joint trial, even against Cohen            alone.  In fact, Cohen  -- not the government -- offered  his            own  statement  that three  unnamed clients  came to  him and            essentially  confessed  to   bank  fraud.     The  government            emphasizes the  self-serving nature  of this evidence,  while            Smith  dwells on the power  of a confession  offered to one's            own attorney at a time of  presumed confidence.  To us, these            factors seem more  or less a  wash.  We shall  assume without            deciding that the district  court correctly found that Bruton                                                                   ______            error  had occurred.1  Cohen's statement could be found to be                                            ____________________            1.  The government  asks us to hold that the Bruton statement                                                         ______            must actually name the defendant.  We regard this as  an open            question  that  we  need  not  answer  at  this  time.    See                                                                      ___            Richardson,  481 U.S. at 211  n.5 ("We express  no opinion on            __________            the admissibility  of a  confession in which  the defendant's            name  has been replaced with  a symbol or neutral pronoun.");            United States v.  Cleveland, 590  F.2d 24, 28  n.4 (1st  Cir.            _____________     _________            1978)  ("A  Bruton problem  is,  of  course, not  necessarily                        ______            avoided merely by  deleting names.").   Cf. United States  v.                                                    ___ _____________            Limberopoulos,   26   F.3d   245,   253   (1st   Cir.   1994)            _____________            (codefendant's   statements   "neither   name    nor   impugn                                                             ____________            [defendant] directly")  (emphasis  added).   But  see  United                                                         ___  ___  ______            States v. DiGregorio, 605 F.2d 1184, 1190 (1st  Cir.) ("where            ______    __________            the confession  does  not  name  a  codefendant,  it  may  be                                  ___            admitted  under Cleveland  solely  against  the  confessor"),                            _________                                         -10-                                          10            "powerfully   incriminat[ing]"  on  its  face,  even  without            "inferential incrimination" from other evidence in  the case.            Richardson, 481 U.S. at 208.            __________                      We are  nonetheless convinced  that  any error  was            harmless  beyond  a  reasonable  doubt.   See  Harrington  v.                                                      ___  __________            California, 395 U.S. 250 (1969) (Bruton errors are subject to            __________                       ______            harmless-error analysis under Chapman v. California, 386 U.S.                                          _______    __________            18 (1967)).   The jury  convicted all the  defendants on  the            conspiracy  count,  and  Cohen  on most  of  the  substantive            counts.   Even if the jury threw the curative instructions to            the wind2  and considered the stricken  testimony as evidence            against Smith, the scenario which implicates Bruton, it could                                                         ______            not  have believed  Cohen's  claim that  the unnamed  clients            confessed to  him at  the close  of the  conspiracy.   No one            _________            confesses to a partner in crime.  Cf. DiGregorio, 605 F.2d at                                              ___ __________            1190 (finding any error in admitting  codefendant's statement            harmless;  noting that  the  defendant was  acquitted of  the            substantive act of participating in the shooting).                      Admittedly,   Cohen's   statement  might   tend  to            incriminate  Smith  and  Devaney  by  showing  that  the  co-            conspirators met to  discuss damage control.   In this sense,                                            ____________________            cert. denied, 444 U.S. 937 (1979).            _____ ______            2.  We recognize,  of  course, the  strong  presumption  that            jurors will  follow the trial court's  limiting instructions.            See, e.g.,  United States  v. Sepulveda, 15  F.3d 1161,  1185            ___  ____   _____________     _________            (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).                             _____ ______                                         -11-                                          11            however,  the  statement falls  far outside  the pale  of the            "powerfully  incriminating"  evidence  that  produces  Bruton                                                                   ______            errors.   Vasapolle had  already testified  in detail  to the            coconspirators' meetings  in the  wake of the  BCCU takeover.            Thus, once Cohen's statement is considered as something other            than an account of  the codefendants' confessions, it becomes            merely cumulative of the government's case and could not have            produced Bruton  error.   See  DiGregorio, 605  F.2d at  1190                     ______           ___  __________            (fact  that a codefendant's  admission tended  to corroborate            government's  case against  the  defendant  is  insufficient,            standing alone, to trigger  Bruton); United States v. Rawwad,                                        ______   _____________    ______            807  F.2d 294,  296  (1st Cir.  1986)  ("[t]he mere  fact  of            corroboration  is  not enough  to  warrant  finding a  Bruton                                                                   ______            violation"), cert. denied, 482 U.S. 909 (1987).                         _____ ______                      The right of confrontation ensures  that a criminal            defendant  can cross-examine his or  her accusers.  Had Cohen            testified  to   the   confession  himself,   Smith's   cross-            examination  of  Cohen  would have  sought  to  show  that no            confession  ever occurred.    The verdicts  suggest that  the            jury, if it considered  this evidence, found just that.   The            jury,  even  if  it disregarded  the  limiting  instructions,            plainly did  not believe Cohen's claim  that his codefendants            had  confessed  to him.   It  is  clear, therefore,  that any            Bruton error was harmless beyond a reasonable doubt.            ______                      B.  Severance                      B.  Severance                                         -12-                                          12                      We now consider  whether the district court  should            have  granted  a severance  based  on  the alleged  prejudice            created by a joint trial.      "[A]  district   court  should            grant a severance  under Rule 14  only if there is  a serious            risk that  a joint  trial would  compromise a  specific trial            right  of one  of the  defendants, or  prevent the  jury from            making a reliable judgment about guilt or innocence."  Zafiro                                                                   ______            v. United  States, 113 S. Ct. 933, 938 (1993).  The denial of               ______________            a motion  for severance  "'will be  overturned  only if  [the            district court's] wide discretion is plainly abused,'" United                                                                   ______            States  v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993) (quoting            ______     ________            United  States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991),            ______________    _______            cert. denied, 112 S. Ct. 986 (1992)), "'depriv[ing] defendant            _____ ______            of  a  fair  trial  [and]   resulting  in  a  miscarriage  of            justice.'"  United States  v. Tejeda, 974 F.2d 210,  219 (1st                        _____________     ______            Cir. 1992) (quoting United States v. McLaughlin, 957 F.2d 12,                                _____________    __________            18 (1st Cir. 1992)).                      1.  Antagonistic defenses                      1.  Antagonistic defenses                      Smith and  Devaney argue  that their defenses  were            antagonistic to  Cohen's.  In his  opening statement, counsel            for  Cohen  characterized his  client  as  an innocent  third            party,  forced by  the  government to  play  the role  of  an            assistant prosecutor.   "Mr. Cohen's theory of  defense is if                                                                       __            this [the  bank fraud] happened, then he was not part of it."            (Emphasis added.)  Counsel  also stated that the codefendants                                         -13-                                          13            had  falsified  loan documents;  that  Smith  asked Cohen  to            destroy  certain  files; and  that  Cohen,  stunned by  these            revelations, sought  the advice of a  law professor regarding            his professional responsibility.                      Opening  statements, of  course, are  not evidence.            The true level of antagonism between the defenses is measured            by the  evidence actually  introduced at  trial.  See  United                                                              ___  ______            States v.  Torres-Maldonado, 14  F.3d 95, 104-05  (1st Cir.),            ______     ________________            cert.  denied, 115  S.  Ct.  193  (1994).    Moreover,  "mere            _____  ______            antagonism of  defenses does not require  severance."  United                                                                   ______            States v.  Yefsky, 994 F.2d  885, 896  (1st Cir. 1993).   See            ______     ______                                         ___            United  States v.  Angiulo, 897  F.2d 1169,  1195 (1st  Cir.)            ______________     _______            (collecting cases  in which we have  denied severance despite            "sharply  antagonistic defense theories"),  cert. denied, 498                                                        _____ ______            U.S.  845 (1990).  "[T]he tension between defenses must be so            great that a  jury would have to believe one defendant at the            expense  of  the other."   Yefsky,  994  F.2d at  897 (citing                                       ______            United States v. Arruda, 715 F.2d 671, 679 (1st Cir. 1983)).            _____________    ______                      We  recognize  that  this is  not  a  case of  mere            tattling  or  "finger-pointing"  between  defendants.   Cohen            offered   testimony  suggesting   that  Smith   (among  other            codefendants)  had actually  confessed to  him.   For several            reasons, however, Smith  has not made the  "strong showing of            prejudice," McLaughlin, 957 F.2d at 18, required to  obtain a                        __________            severance.                                         -14-                                          14                      We emphasize that the key testimony antagonistic to            Smith --  what Cohen allegedly told  Huber -- is  not part of            this case.   That testimony  was originally admitted  only in            Cohen's  case,  and only  for the  fact  that Cohen  had made            certain assertions to  Huber --  not for the  truth of  those            assertions.  We have found the testimony harmless, even if it            may have been wrongly admitted initially.  See supra, section                                                       ___ _____            II.A.    Finally, the  district  court  struck the  testimony            altogether.    Assuming  that  some  prejudice  remained  for            purposes of severance, see Zafiro, 113 S. Ct. at 938 (Bruton-                                   ___ ______                     ______            related   problems  "might  present  a  risk  of  prejudice")                                 _____              ____            (emphasis added), Rule 14 "does not require severance even if            prejudice is shown;  rather, it leaves  the tailoring of  the            relief to be granted,  if any, to the district  court's sound            discretion."  Id.                            ___                       As   our   Bruton  discussion   shows,   the  jury                                  ______            demonstrated by its verdicts that it did  not believe Cohen's            "confession" defense, assuming  that it improperly considered            it  at  all.    Cf.  Zafiro,  113  S.  Ct.  at  939  (finding                            ___  ______            convictions  supported by  the evidence  and rejecting  claim            that the jury  found at  least one of  the defendants  guilty            without  regard to  whether  the government  proved its  case            beyond a reasonable doubt)  and 940 (Stevens, J., concurring)            ("in  any  event, the  jury in  this  case obviously  did not            believe Soto  and  Zafiro,  as it  convicted  both  of  them.                                         -15-                                          15            Accordingly, there is no basis . . . for  concluding that the            the[ir] testimony . . . prejudiced their codefendants.").                      Moreover, if the jury in fact followed the limiting            instructions, there was  simply no significant  evidence that            was antagonistic  to Smith.   It in  no way appears  that the            jury   "unjustifiably  infer[red]"   --   from  the   alleged            antagonism alone --  that both Smith  and Cohen were  guilty.            United States  v.  Talavera, 668  F.2d 625,  630 (1st  Cir.),            _____________      ________            cert. denied, 456 U.S. 978 (1982).            _____ ______                      In   sum,  Smith,   the  only   appellant  arguably            incriminated by  Huber's testimony  about what Cohen  said to            him, failed  to demonstrate  strong prejudice from  the joint            trial on  the basis of Bruton and  the antagonistic defenses.                                   ______            His  and  Devaney's  parallel arguments  for  severance  must            therefore be rejected.                      2.  Codefendant testimony                       2.  Codefendant testimony                       Cohen argues  that the joint trial  deprived him of            Smith's   exculpatory  testimony.    In  support  of  Cohen's            pretrial motion for severance, Smith furnished two affidavits            representing that, if  he were tried first, he  would testify            on Cohen's behalf at a later trial.                      To   obtain  a   severance  on   the  basis   of  a            codefendant's testimony, the defendant must demonstrate:  (1)            a bona  fide need for the testimony; (2) the substance of the            testimony;  (3) its  exculpatory nature  and effect;  and (4)                                         -16-                                          16            that  the codefendant will in  fact testify if  the cases are            severed.   United States v. Drougas, 748 F.2d 8, 19 (1st Cir.                       _____________    _______            1984).  We shall  refer to these as the  "first-tier" Drougas                                                                  _______            factors.   Upon such a showing, the district court should (1)            examine the significance of the  testimony in relation to the            defendant's  theory  of  defense; (2)  consider  whether  the            testimony   would   be  subject   to   substantial,  damaging            impeachment;  (3)  assess the  counter arguments  of judicial            economy; and (4) give weight to the timeliness of the motion.            Id.  These are "second-tier" Drougas factors.            ___                          _______                      The district court  found that Cohen  had satisfied            the first tier  of criteria  under Drougas.3   It denied  the                                               _______            motion  for severance,  however,  because  Smith's  proffered            testimony   was   "more   circumstantially   than   directly"            exculpatory.   The court also  weighed two  other factors  --                                            ____________________            3.  If  the offer to testify  is conditioned on  the order of            the separate  trials, there is  an open question  whether the            codefendant's   availability    meets   Drougas'   first-tier                                                    _______            requirements.   We note, however, that several  of our sister            circuits have  ruled that an offer to testify, conditioned on            one defendant being tried before  the other, fails to satisfy            the elements of a prima facie case for severance.  See, e.g.,                                                               ___  ____            United  States v. Washington, 969 F.2d  1073, 1080 (D.C. Cir.            ______________    __________            1992), cert. denied, 113 S. Ct. 1287 (1993); United States v.                   _____ ______                          _____________            Blanco, 844 F.2d  344, 352-53 (6th  Cir.), cert. denied,  486            ______                                     _____ ______            U.S. 1046  (1988); United  States v. Haro-Espinosa,  619 F.2d                               ______________    _____________            789, 793 (9th Cir.  1979); United States v. Becker,  585 F.2d                                       _____________    ______            703, 706 (4th Cir. 1978), cert. denied, 439 U.S. 1080 (1979).                                      _____ ______            Here, the  district court found that Cohen had satisfied this            requirement,  notwithstanding  Smith's  conditional  proffer.            Because the court correctly denied severance  on the basis of            second-tier Drougas factors, see  infra, we need not consider                        _______          ___  _____            whether  such a  conditional  proffer necessarily  fails  the            Drougas test.            _______                                         -17-                                          17            concerns for judicial economy  in a lengthy conspiracy trial,            and the  fact that Cohen himself could testify to some of the            issues  raised  by Smith.    It  decided that  these  factors            militated against severance.                      The  district court  relied primarily  upon factors            specifically  authorized by  Drougas.    Judicial economy  is                                         _______            obviously  not dispositive, but it  is important in a lengthy            conspiracy trial.   Most tellingly, the  district court found            that  under  the  second  tier of  Drougas  factors,  Smith's                                               _______            artfully-worded   affidavits   were   not  significant   when            considered in relation  to Cohen's theory of defense.   Smith            averred  that there  was "no  agreement .  . .  wherein Cohen            agreed to  provide documentation" to the  credit unions "that            he knew was prepared in such a way so as to conceal . . . the            true recipients" of the  loans.  This adds little  to Cohen's            plea of not  guilty.  To be "significan[t] in relation to the            defendant's theory of defense," Drougas, 748 F.2d  at 19, the                                            _______            codefendant's  proffer has  to do  more than  assert ultimate            facts.  Cf. United  States v. Ford, 870  F.2d 729, 732  (D.C.                    ___ ______________    ____            Cir.  1989) (conclusory  statements  did not  meet burden  of            establishing  the  exculpatory  "nature and  effect"  of  the            codefendant's testimony).  It should furnish facts that could            significantly advance the theory of defense.  With its first-            _____________________            hand  exposure to  the case, the  trial court is  in the best                                         -18-                                          18            position  to make this assessment.  See O'Bryant, 998 F.2d at                                                ___ ________            25.                      Cohen argues that it was an abuse of discretion for            the  district court to consider his ability to testify to the            issues  raised  by the  Smith  affidavits.   First,  his  own            testimony  would  necessarily  seem self-serving;  second,  a            defendant's right not  to testify might  be infringed if  his            ability  to testify is  given significant  weight by  a court            performing  a   Drougas  analysis.     We  assume   that  the                            _______            defendant's ability  to testify  is an improper  factor under            Drougas.    The   district  court,  however,   was  primarily            _______            dissatisfied  with  Smith's proffer.    See  infra.   Because                                                    ___  _____            severance could have been  denied on that basis alone,  we do            not  think  the court  accorded  "significant  weight" to  an            improper factor.  United States v. Gallo, 20 F.3d 7,  14 (1st                              _____________    _____            Cir. 1994) (quoting United States v. Roberts, 978 F.2d 17, 21                                _____________    _______            (1st Cir. 1992)).                      Smith's  affidavits  were  admittedly  not  without            exculpatory value.  The  second affidavit stated that "Robert            Cohen sent closing  packages to  Lynn Vasapolle .  . .  which            included copies of the  Certificate of Beneficial Interest in            which the  names of some of the  co-defendants were included"                                ____            (emphasis added).   Vasapolle allegedly informed  Cohen in or            about   1989  that   BCCU  would   no  longer   require  such            certificates  to  be   included  in  the   closing  packages.                                         -19-                                          19            Finally, Smith averred  that "despite  the instructions  from            Cohen[,] Vasapolle  would alter and remove  files from BCCU."            As  the  following colloquy  shows,  however,  even the  most            promising  portions  of Smith's  affidavits  offer less  than            meets the eye:                      Court:    I   understand  that  that's  a                      _____                      significant part of [Cohen's] defense.                      Counsel:  Yes, it is, your Honor.                      _______                      Court:   That  the closing  packages were                      _____                      all sent in an appropriate form.                      Counsel:  Exactly.                      _______                      Court:  And  after they left  Mr. Cohen's                      _____                      hands,    this    witness    and    other                      conspirators altered  them.  I  have been                      looking in these  affidavits for  support                      for that proposition.  And while there is                      some  circumstantial   evidence  that  is                      consistent with that proposition, nowhere                                                        _______                      does Mr. Smith say that.  Paragraph 3 [of                      _______________________                      the  second  affidavit]  doesn't say  it,                      especially if we're  talking [about]  the                      period once the  investigation [of  BCCU]                      started.              (Emphasis added.)                      We  think  that  the  district  court's on-the-spot            assessment of severability was beyond reproach.  We recognize            that  there were "very real arguments" in favor of severance,            such  that in the exercise of its discretion, the court could                                                                    _____            have ordered  separate trials.   The  very  closeness of  the            question, however, convinces  us that there  was no abuse  of            discretion.                                         -20-                                          20                      Finally,  Devaney argues that severance should have            been granted  because he wished to call Cohen as a witness to            show that he relied in good faith upon the advice of counsel.            This  argument  was  not  made  to  the  district  court and,            therefore, has  been waived.   United States v.  Zannino, 895                                           _____________     _______            F.2d  1, 17 (1st Cir.),  cert. denied, 494  U.S. 1082 (1990).                                     _____ ______            We note  that Devaney's  initial motion for  severance argued            that Cohen's anticipated testimony would be antagonistic, not                                                        ____________            exculpatory.                      C.  Reputation evidence                      C.  Reputation evidence                      Cohen  challenges the district  court's ruling that            he  could   not  elicit   evidence  of  his   reputation  for            truthfulness  and  veracity until  he  had  taken the  stand.            Irene Petri, a paralegal and  secretary for Cohen's law firm,            was called as  a witness  by both the  government and  Cohen.            Cross-examining Petri during  the government's case,  counsel            for Cohen  asked  whether she  had  formed an  opinion  about            Cohen's  reputation  for  truthfulness  and  veracity.    The            district  court  sustained  the  government's  objection  and            instructed counsel  to "[m]ove  on."  At  sidebar, the  court            explained:                      Mr. Zalkind, first,  I don't take  kindly                      to your trying to get reputation evidence                      from  this  witness before  your fellow's                      testified.  His reputation's not at issue                      here, he has to take the stand before his                      reputation  for truth and  veracity is at                      issue.                                         -21-                                          21            Cohen never  took the stand.   He made no  attempt to revisit            the issue when he called  Petri as a defense witness,  and he            called none of the character witnesses on his trial list.  In            fact, he  failed to  raise  the issue  in several  post-trial            motions  for new trial and acquittal.  Seven months after the            trial and on the  eve of sentencing, Cohen moved  for release            pending appeal and raised the issue for the first time.                      The  government  concedes that  even if  a criminal            defendant does not testify,  evidence of his truthfulness and            veracity  may be  admitted  where such  character traits  are            "pertinent" to the case.  See Fed. R. Evid. 404(a)(1); United                                      ___                          ______            States v. Lilly, 983 F.2d 300,  306 (1st Cir. 1992).  But the            ______    _____            erroneous ruling did not, as Cohen claims, "place[] an entire            facet of the defense off-limits."  Even before the government            rested,  the court  openly questioned  its prior  ruling that            Cohen should take the stand before recalling Petri to testify            to  statements he  had made  in her  presence.   "Suppose Mr.            Cohen doesn't  testify .  . . .   I'm  hesitant to  condition            things on his testifying.   He has an  absolute right not  to            testify."     True,   the  district   court  did   not  refer            specifically  to   reputation  testimony;  but   under  these            circumstances,  the  challenged  ruling  must  be  considered            provisional, not final.                      In  its order  denying  Cohen's motion  for release            pending appeal, the district court found the erroneous ruling                                         -22-                                          22            harmless  in  light of  "the  ability of  defense  counsel to            return  to the issue and  proffer such evidence  afresh."  We            agree with this assessment.  Counsel should have attempted to            offer  reputation  evidence, either  through  Petri, whom  he            recalled,  or  the other  character  witnesses.   Cf.  United                                                              ___  ______            States  v. Holmquist,  36  F.3d 154,  162-66 (1st  Cir. 1994)            ______     _________            (exclusion of  evidence pursuant  to a provisional  in limine                                                                _________            pretrial  order may be challenged on appeal only if the party            unsuccessfully attempted to offer such evidence in accordance            with  the terms specified in the order); Earle v. Benoit, 850                                                     _____    ______            F.2d 836, 847 (1st  Cir. 1988) (preliminary ruling such  as a            ruling in limine does not excuse failure to make  an offer of                   _________            proof).  In short, Cohen abandoned the issue at trial.                                         -23-                                          23                      D.  The striking of Huber's direct testimony                      D.  The striking of Huber's direct testimony                      As  counsel for Cohen was about to make his closing            argument,  the  district  court  made  the  following ruling:            "[T]hose things which Huber testified that Cohen said to  him            . . . I'm striking that out so don't argue what Cohen said to            Huber.    You may  argue what  Huber said  to Cohen."   Cohen            claims that he  would have taken the stand  had he known that            his  statements to Huber  would be stricken;  the ruling thus            deprived him of his right to testify in his own defense.                      We  are not  persuaded.   The  striking of  Huber's            testimony may have upset  his trial strategy, but it  did not            render  Cohen less  able to  testify.   Cohen never  moved to            reopen the evidence so that  he could take the stand.   Under            these circumstances,  we see no  deprivation of the  right to            testify in one's own defense.                      Before the conclusion  of closing arguments,  Cohen            filed an  affidavit  stating that  he "would  have chosen  to            testify" had  he known that  his testimony was  necessary for            the  admission  of Huber's  entire testimony.   In  his reply            brief, Cohen  argues that  his affidavit was  the "functional            equivalent" of a  motion to reopen evidence,  assuming such a            motion was required, and that the district court should  have            inquired whether  Cohen wished  to testify.   Nothing  in the            affidavit or  in counsel's  arguments to the  district court,            however, suggested that Cohen still wished to take the stand.                                         -24-                                          24                      Cohen  also  argues that  the  stricken  portion of            Huber's testimony  was admissible  for the fact  that it  was            made and for his state of mind, not for the truth of anything            asserted.  Any error in this evidentiary ruling was harmless.            The jury was instructed that it could consider "the fact that            Mr. Cohen went to Huber, the fact that he made disclosures to            Mr. Huber . . .  and the testimony of Mr. Huber about what he            said to Mr. Cohen . . . ."  The jury had heard from Vasapolle            that  the codefendants made  several disclosures during their            post-takeover meeting that apparently took Cohen by surprise.            In light of  Huber's admitted testimony that Cohen  could not            yet "reveal . .  . this information, which had  been received            from  these three  persons as clients,"  the jury  could have            reconstructed  the apparent purpose  of Cohen's consultation.            There was an adequate evidentiary basis for the jury to infer            Cohen's then-existing  state of mind, even  assuming that the            stricken part  of Huber's  testimony was admissible  for that            purpose.   Indeed, counsel for Cohen argued this point in his            closing as if the stricken testimony were still in evidence:                      This  is a case  of a lawyer  who has now                      heard  his  clients admitting  to crimes.                      What does  he do next?   What's his state                      of mind? . . . .                       [H]e then  went to  the . .  . professor.                      And after having  this long  conversation                      with  him, the  professor  told  him  you                      cannot  disclose  this information  until                      such a time comes when maybe you may have                      to.                                         -25-                                          25                      The court's ruling  striking the testimony of  what            Cohen said to Huber may  not have come at an ideal  time; but            Huber's testimony  seemed to  catch everyone --  even counsel            for  Cohen --  by surprise.4   We  conclude that  the court's            effort  to control the fallout from its Bruton ruling did not                                                    ______            unduly prejudice Cohen's right to present his defense.                      E.  Multiplicity of charges                      E.  Multiplicity of charges                      Devaney    argues    that   the    indictment   was            multiplicitous in  various ways.  His first claim, that Count            1 (conspiracy) was multiplicitous with all of the substantive            counts, ignores  the principle that "conspiracy  to commit an            offense and the subsequent  commission of that crime normally            do  not merge  into a  single punishable  act."   Iannelli v.                                                              ________            United States, 420 U.S. 770, 777 (1975).            _____________                      We  think  the  other  claims of  multiplicity  are            similarly unfounded.  The bank fraud counts (Counts 2-6) were            not multiplicitous  with each other, even  though they relate            to  a  single scheme  to  defraud,  because separate  trusts,            trustees, properties, and sums of money  were involved.  Each            loan transaction  was a separate execution  of the fraudulent            scheme.   United States v. Brandon, 17 F.3d 409, 421 n.8 (1st                      _____________    _______            Cir.), cert. denied, 115 S. Ct. 80 (1994).                   _____ ______                                            ____________________            4.  Counsel  for  Cohen:    "Frankly, I  never  prepared  the            professor.   I just said let's have  your best memory.  I saw            him out  here for about ten minutes and that was it.  What he            remembered was,  quite frankly, pretty astonishing  to me, he            has an excellent memory."                                         -26-                                          26                      The money laundering counts were not multiplicitous            with  the bank fraud counts.  Bank fraud and money laundering            do  not constitute a single offense within the meaning of the            test  of Blockburger  v. United States, 284 U.S.  299 (1932).                     ___________     _____________            Money   laundering   (technically,   an  unlawful   "monetary            transaction") is defined as knowingly engaging "in a monetary            transaction  in  criminally derived  property .  .  . ."   18            U.S.C.    1957.  There  is no requirement  that the defendant            must  have committed  the crime  (here, the bank  fraud) from            which  the  property  was   "derived."    In  fact,  Congress            "intended money  laundering to  be a separate  crime distinct            from the underlying offense that generated the money." United                                                                   ______            States v. LeBlanc, 24 F.3d 340, 346 (1st Cir.), cert. denied,            ______    _______                               _____ ______            115 S. Ct. 250 (1994).                      Finally, the four money laundering  counts were not            multiplicitous of each  other merely because they flow from a            single transaction that took place in a single day.  The time            period  is of  no  moment.   Each  count charges  a  discrete            "transfer  . . . of funds" to  a distinct payee "by, through,            or  to a  financial institution"  within  the meaning  of the            statute.  18 U.S.C.   1957(f)(1).                      F.  The sufficiency of evidence                      F.  The sufficiency of evidence                      Devaney  argues that the  district court  in effect            acquitted  him  on  Count  1  (conspiracy)  when  it made  an            evidentiary  finding  under Fed.  R.  Evid. 801(d)(2)(E)  and                                         -27-                                          27            United States v. Petrozziello,  548 F.2d 20 (1st  Cir. 1977),            _____________    ____________            that  certain  alleged  coconspirator  statements   were  not            admissible against Devaney because the court did not "find by            a  fair preponderance of the  evidence that Mr.  Devaney is a            co-conspirator  in  the  overarching  or  big  or  continuing            conspiracy . . . ."  Petrozziello rulings are not findings on                                 ____________            whether the evidence  is sufficient for a count  to go to the            jury.   See United States  v. Pitocchelli, 830  F.2d 401, 403                    ___ _____________     ___________            (1st   Cir.   1987)   (district   court   properly   excluded            coconspirator's  hearsay  statements  while  refraining  from            disturbing jury  finding of conspiracy).   The district court            plainly  held  that there  was  sufficient  evidence for  the            conspiracy charge against Devaney to go to the jury.5                      Devaney argues that there was insufficient evidence            to support his conviction on Count 1 (conspiracy), Counts 5-7            (bank fraud),  and Count  19 (money  laundering).  In  making            this argument,  he bears  "the heavy burden  of demonstrating            that no  reasonable jury could have found [him] guilty beyond            a reasonable doubt."   United States v. Innamorati,  996 F.2d                                   _____________    __________            456, 469 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993).  We                                 _____ ______            review  the  evidence in  the  light  most favorable  to  the                                            ____________________            5.  Because Devaney was never, as  he claims, "functional[ly]            . .  . acquitt[ed]"  of  the conspiracy  count,  we need  not            address   his  claims  of   double  jeopardy  and  collateral            estoppel,  or his  contention  that  the Petrozziello  ruling                                                     ____________            compelled a directed verdict  of acquittal on the substantive            counts of bank fraud.                                         -28-                                          28            government, "drawing all  plausible inferences  in its  favor            and resolving all credibility determinations in line with the            jury's verdict."  Id.                              ___                      1.  The overarching conspiracy                      1.  The overarching conspiracy                      The  evidence against  Devaney tended  to  show the            following.   Devaney  owned a  one-third interest  along with            Smith and Mangone in  eleven of the trusts that  had received            "participation" loans.6   He also owned  a one-third interest            in some of the  trusts that were involved in  sham "rollover"            sales.  In all,  Devaney received nearly one  million dollars            in excess proceeds from the fraudulent loans.                      Devaney, the  only outsider  to the credit  unions,            was valuable to  the conspiracy precisely  because he was  an            outsider.  Devaney's role in the conspiracy can be summarized            as  follows:  he (1)  identified  the  target properties  and            negotiated for their purchase by Mangone, Smith, and himself;            (2)  falsely represented that he  and his wife  were the sole            owners  of trusts  that  were  jointly  owned  by  Smith  and            Mangone;  (3)   signed  purchase  and  sale  agreements  with            inflated  purchase prices  that were  submitted to  BCCU; (4)            recruited  putative  borrowers,  and  signed  indemnification            agreements assuring them  that they would  not be liable  for            loans;  (5) concealed  from Digital's  loan officer  the fact                                            ____________________            6.  Participation loans  were loans administered by  BCCU and            largely  funded by Digital,  the "participating" institution.            These loans ranged from $1,200,000 to over $4,000,000.                                         -29-                                          29            that Mangone, president of Digital, was  a beneficiary of one            of the trusts; and  (6) signed a purchase and  sale agreement            as the purported  buyer in a rollover sale from  one trust to            another.  From this evidence, the jury reasonably found  that            Devaney provided the "front" for the grand conspiracy.                      2.  Bank fraud                      2.  Bank fraud                      In  light  of  the  district  court's  Petrozziello                                                             ____________            finding, Devaney argues that certain (unspecified) statements            and  acts  of his  alleged  coconspirators  should have  been            excluded  from the  case  against him,  leaving  insufficient            evidence to  support  his conviction  of  bank fraud.    This            argument  is made in so perfunctory  a manner that it must be            deemed abandoned.  Zannino, 895 F.2d at 17.  Devaney makes no                               _______            effort to  isolate any evidence erroneously  admitted against            him,  or   to  show   that  the  district   court's  limiting            instructions were somehow inadequate.                      Devaney   argues   that   he   made   no   material            misrepresentation under 18  U.S.C.   1344(2)  because neither            credit union had a written policy requiring the disclosure of            trust beneficiaries.7   We  agree that    1344(2) requires  a                                            ____________________            7.  18 U.S.C.   1344  provides:  "Whoever knowingly executes,            or attempts to execute, a scheme or artifice --                      (1) to defraud a financial institution; or                      (2) to obtain . . . moneys . . . [from] a financial            institution,  by  means  of false  or  fraudulent  pretenses,            representations, or promises; [shall  be guilty of an offense            against  the United States]."   Although we have  held that                                           -30-                                          30            material  misrepresentation.   See,  e.g.,  United  States v.                                           ___   ____   ______________            Davis,  989 F.2d 244, 247  (7th Cir. 1993);  United States v.            _____                                        _____________            Sayan,  968  F.2d  55, 61  n.7  (D.C.  Cir.  1992).   Devaney            _____            nonetheless  misses  the  forest  for  the  trees.    It   is            inconceivable that the inflated  loans would have been issued            had the credit  unions known,  not only the  identity of  the            true owners of the trusts (the only misrepresentation Devaney            addresses),  but   also  the  true  purchase   price  of  the            properties,  and the  fact that  one of  the loans  for which            Devaney was convicted was  used to finance a  sham "rollover"            sale between  two  of  his  trusts.    There  was  sufficient            evidence  to  show that  Devaney  "made  false statements  or            misrepresentations to  obtain money" from the  credit unions.            Brandon, 17 F.3d at 424 (explaining 18 U.S.C.   1344(2)).            _______                      3.  Money laundering                      3.  Money laundering                      Devaney argues that the  evidence did not show that            he  knowingly engaged  in  a monetary  transaction  involving            criminally   derived  funds,  i.e.,  the  proceeds  from  the                                          ____            fraudulent  loan to the Curtis  Village Realty Trust  II.  He            claims  that the loan proceeds at issue came from an earlier,            legitimate loan to the  Curtis Village trust -- not  from the            fraudulent BCCU loan.                                            ____________________            1344(1) does not require a material misrepresentation, United                                                                   ______            States v. Fontana,  948 F.2d  796, 802 (1st  Cir. 1991),  the            ______    _______            district  court did not so  instruct the jury,  and we do not            rely upon   1344(1) here.                                         -31-                                          31                      We have already upheld Devaney's  conviction on the            parallel  count of bank fraud,  see supra, and  we now reject                                            ___ _____            Devaney's argument  of mistaken identity.   The  government's            financial auditor traced the proceeds from the BCCU loan to a            $100,000 check payable to Devaney.  Thus, the jury reasonably            found that  Devaney had received funds  that were "criminally            derived."  18  U.S.C.    1957(a).  The  jury also  reasonably            inferred that  Devaney "knowingly" received his  share of the            fraudulent loan.  Id.                              ___                      G.  Waiver of motion for mistrial                      G.  Waiver of motion for mistrial                      Devaney  asserts  that he  was  denied due  process            because the district court held two conferences on his motion            for  mistrial in  his  absence  and  accepted his  waiver  of            possible mistrial despite telltale  signs that the waiver was            not intelligent, voluntary, and knowing.                      As  a  threshold  matter,  we doubt  that  the  Due            Process  Clause  prohibits  counsel  from  waiving  a pending                                                                  _______            motion  for  mistrial  on  behalf  of  an  absent  defendant.            Devaney waived, not a mistrial ruling in hand, but one in the            bush.  Moreover, the record does not show whether Devaney was            in fact  absent from the  courtroom when counsel  entered the            waiver, or whether  he made an  informed decision after  full            consultation   with   counsel.       Devaney's   extra-record            allegations  are more properly made to  the district court as            part of a claim of ineffective assistance of counsel.  We see                                         -32-                                          32            no due  process violation in the  district court's acceptance            of the waiver.                                         -33-                                          33                      H.  Ineffective assistance of counsel                       H.  Ineffective assistance of counsel                      Lacking  a  sufficiently   developed  record   with            respect to the waiver of mistrial, as well as trial counsel's            alleged conflict  of interest, we think  that Devaney's claim            of  ineffective  assistance should  first  be  raised in  the            district court.  See United States v. Daniels, 3 F.3d 25, 26-                             ___ _____________    _______            27 (1st Cir. 1993).                      I.  Jury instructions                      I.  Jury instructions                      Cohen challenges  the jury instructions  on various            grounds.                      1.  Duty to disclose                      1.  Duty to disclose                      Cohen  argues that  the  district  court  erred  in            instructing  the jury  that "failure  to disclose  a material            fact   may  .   .  .   constitute  a   false  or   fraudulent            misrepresentation" under  18 U.S.C.    1344 if  the defendant            was under  "a  general professional  or specific  contractual            duty to make the disclosure," knew that the disclosure had to            be  made, and failed to make the disclosure with the specific            intent to defraud.                      In United States v.  Cassiere, 4 F.3d 1006, 1022-23                         _____________     ________            (1st   Cir.  1993),   we  approved   a  virtually   identical            instruction regarding  duty to  disclose.  Cohen  argues that            the instruction was erroneous in  this case because there was            no evidence  regarding an attorney's duty  of disclosure, and            because the jury may have confused Cohen's efforts to protect                                         -34-                                          34            the  confidence  of  his  clients  with  acts  of  fraudulent            misrepresentation.                      These  objections,  which  are  unique  to  Cohen's            defense, were  not preserved below.  We  therefore review the            instruction only for  plain error.  See  Fed. R. Crim.  P. 30                                                ___            (grounds for objection to  charge must be stated distinctly);            United  States v.  O'Connor, 28  F.3d 218,  220-21  (1st Cir.            ______________     ________            1994).                      The instruction regarding duty to disclose  was not            plainly  erroneous,  if  it  was  erroneous at  all.    Cohen            surmises   that  the  jury  "punished"  him  for  withholding            privileged  client information  from federal  regulators.   A            more plausible explanation of the verdict, one that does  not            presume jury  confusion, is that  Cohen was convicted  on the            evidence of his affirmative misrepresentations.                      2.  Fraudulent intent                      2.  Fraudulent intent                      In  United States v.  Gens, 493 F.2d  216, 222 (1st                          _____________     ____            Cir. 1974), which involved willful misapplication of funds by            a bank officer under 18 U.S.C.   656, we held that "where the            named   debtor  is   both  financially   capable  and   fully            understands that it is his responsibility to repay, a loan to            him  cannot  -- absent  other  circumstances  -- properly  be                            ____________________________            characterized as  [illegal], even  if bank officials  know he            will  turn over  the  proceeds to  a  third party"  (emphasis            added).    Invoking Gens  in  the bank  fraud  context, Cohen                                ____                                         -35-                                          35            argues that the district court erred in not giving a proposed            instruction that would have required proof that --                      the trustee who  made the  representation                      and  who  signed   individually  as   the                      borrower or guarantor on the loan did not                      believe that the  credit union could look                      to him for payment  of any deficiency  on                      the  loan,  and the  particular defendant                      you are considering  was responsible  for                      giving the trustee that belief.            The trustee's belief, and  the defendant's assurances of non-            liability, would certainly constitute evidence of bank fraud;            such evidence,  however, is  not an  element of  the offense.            See United States  v. Brennan,  994 F.2d 918,  924 n.14  (1st            ___ _____________     _______            Cir.  1993)  (explaining   Gens;  absence   of  evidence   of                                       ____            assurances  to the  named debtor  would not  mandate reversal            under misapplication  statute).   The district court  did not            err in refusing to give the requested instruction.  Moreover,            "other   circumstances,"   including   the   dual   sets   of            certificates of  beneficial interest found in  Cohen's files,            support  the jury  finding of fraudulent  intent.   Gens, 493                                                                ____            F.2d at 222.                      3.  Willful blindness                      3.  Willful blindness                      Cohen argues  that the district  court should  have            corrected the  prosecutor's  closing argument  regarding  his            willful blindness.   During  the March  23,  1991 meeting  at            Cohen's  office, Vasapolle  asked how  she could  explain the            fake trustee  financial statements  in BCCU's files.   Cohen,            who was unaware  of these statements, became  upset and said,                                         -36-                                          36            "I don't think I want to hear this."  Cohen  then "got up and            left and took a walk."  In his closing, the prosecutor argued            that  Cohen's  conduct  illustrated  his  willful  blindness.            Cohen made an  objection, but only  after the prosecutor  had            moved on to a more general illustration.                      Even  if the  objection  was preserved,  we see  no            error  in  permitting  the  argument  of  willful  blindness.            Vasapolle  testified  that  during  the same  meeting,  Cohen            explained  that  "the  only thing  he  [Cohen]  could  do" to            protect the conspirators "would be to take the certificate of            beneficial interests  out of  the file .  . . .   And  he did            agree  to take them out."   The jury could have inferred from            this  evidence that Cohen pledged  to do his  part to conceal            the  conspiracy, and  then deliberately  walked out  to avoid            hearing the plans of his coconspirators.                      4.  Trust provisions                      4.  Trust provisions                      The district  court instructed the  jury that under            Massachusetts law,  there  is  nothing  inherently  wrong  or            improper  about  using nominee  trusts to  buy and  sell real            estate:                      A trust is a legal instrument.  Its terms                      are intended to govern the conduct of the                      participants.    To  violate these  terms                      isn't  a  crime.    Civil  liability  may                      attach, but  it's not  a crime.   But you                      may consider any evidence of violating or                      ignoring the terms of a trust as  bearing                      on  the  intent  of  the   person  you're                      considering  with  respect to  the crimes                      charged.                                         -37-                                          37                      Cohen  argues  that  the  district court  erred  by            refusing  to instruct the jury that "a written contract could            be changed any  time by  the parties orally."   The  district            court  also  rejected  a  requested  instruction  that  "oral            changes in [trust] membership are permissible."                      We see  no error in  this decision.   Even assuming            that beneficial interests  in a real estate nominee trust can            be orally  conveyed, the district court's  instruction is not            contrary:  a legitimate  oral modification of a trust  is not            evidence  that the  defendants  "violat[ed] or  ignor[ed] the            terms of a trust."  At any rate, there was no evidence of any            oral modification, and the district court was not required to            give a proposed instruction merely because it would have been            more favorable to the defendant.                      5.  Reasonable doubt and presumption of innocence                      5.  Reasonable doubt and presumption of innocence                      Invoking  the  Supreme Court's  recent  decision in            Victor v. Nebraska, 114 S. Ct. 1239 (1994), Cohen argues that            ______    ________            the  district  court should  have  explained  the concept  of            reasonable  doubt to the jury.  Victor is consistent with our                                            ______            holding  in United States v. Olmstead, 832 F.2d 642, 646 (1st                        _____________    ________            Cir. 1987), cert. denied, 486 U.S. 1009 (1988), that district                        _____ ______            courts  need not  define the concept  of reasonable  doubt so            long  as the phrase  is not buried  as an aside.   See United                                                               ___ ______            States  v.  Neal,  36  F.3d  1190,  1202-04  (1st Cir.  1994)            ______      ____            (reviewing recent Supreme Court decisions).  The Constitution                                         -38-                                          38            "neither  prohibits trial  courts  from  defining  reasonable            doubt nor  requires them  to do  so as a  matter of  course."            Victor, 114 S. Ct. at 1243 (citations omitted).            ______                      Cohen also argues that  the district court erred by            refusing  to  reinstruct  the  jury  on  the  presumption  of            innocence  at  the end  of the  case.   Although  the closing            instruction  on  presumed  innocence  could  have  been  more            explicit, the  totality of  the instructions assures  us that            the jury  did not  "retire[] to  deliberate  less than  fully            aware of the presumption of innocence."  United States v. Van                                                     _____________    ___            Helden,  920 F.2d  99, 102  (1st  Cir. 1990)  (quoting United            ______                                                 ______            States  v. Ruppel,  666 F.2d  261, 274-75  (5th Cir.),  cert.            ______     ______                                       _____            denied, 458 U.S. 1107 (1982)).  The district court repeatedly            ______            stated that  the government  bore the  burden of  proving its            case  beyond  a reasonable  doubt;  gave  a forceful  opening            instruction on  the  presumption of  innocence; reminded  the            jury  at  the end  of the  case that  each of  the defendants            "started the  trial presumed  innocent";  and admonished  the            jury that to  treat the  indictment as  evidence against  the            accused would be to "violate your oath as jurors."                       J.  Cumulative error                      J.  Cumulative error                      Cohen  argues  that the  cumulative  impact  of his            assigned errors  requires  reversal, even  if the  individual            errors do  not.  Because we have found no abuse of discretion            in  the denial of Cohen's  motion for severance, and harmless                                         -39-                                          39            error,  if  error at  all, only  in  the striking  of Huber's            direct testimony,  the  argument of  cumulative error  fails.            See Brandon, 17 F.3d at 456 (rejecting similar argument where            ___ _______            review of trial proceedings as a whole revealed no "pervasive            unfairness  or  any  error  or  combination  of  errors  that            deprived defendants of due process").                      K.  Sentences                      K.  Sentences                      1.  Aggravating role                      1.  Aggravating role                      Cohen argues that the district court  clearly erred            in finding that he  was a supervisor or manager  of extensive            criminal activity.    See U.S.S.G.     3B1.1(b).   In  United                                  ___                              ______            States v. Ovalle-Marquez,  36 F.3d 212, 225  (1st Cir. 1994),            ______    ______________            cert. denied,  1995 WL 21668, we noted that a defendant "is a            _____ ______            manager  or supervisor  where  he 'exercised  some degree  of            control  over others involved in the  commission of the crime            or he [was] responsible for organizing others for the purpose            of carrying out the crime'" (quoting United States v. Fuller,                                                 _____________    ______            897 F.2d 1217, 1220 (1st Cir. 1990)).  To warrant the  three-            level  adjustment under   3B1.1(b), "the defendant . . . must            have 'organize[d] at least one [other] criminally responsible            individual.'"  United States  v. Dietz, 950 F.2d 50,  53 (1st                           _____________     _____            Cir. 1991)  (dictum) (quoting  United States v.  DeCicco, 899                                           _____________     _______            F.2d 1531, 1537 (7th Cir. 1990) (internal citation omitted)).                      The district court found that Cohen had "organized"            Vasapolle.   Vasapolle testified  that  Cohen instructed  her                                         -40-                                          40            regarding  the mechanics  of the  participation loans  -- for            example, what  documents to  include in the  BCCU files,  and            what  checks to issue following a closing.  These acts, which            Cohen calls "ministerial," were not illegal per se, but  they                                                        ______            were performed  under Cohen's instruction by  someone who was            unquestionably  a knowing  participant  in the  crime.   Bank            fraud by nature  rests upon ministerial  acts.  The  district            court's  finding  that Cohen  "organized"  Vasapolle  was not            clearly erroneous.                      We feel  compelled to make one  clarification.  The            prosecutor   seriously  distorted   the  record   during  the            sentencing  hearing  when  he   suggested  that  Cohen   told            Vasapolle  to  "get  [the blank  certificates  of  beneficial            interest]  signed."     Vasapolle  testified  that   she  was            instructed  by Mangone to obtain a  short form certificate of            beneficial  interest from  Cohen.   Mangone --  not  Cohen --            asked her to fill out the certificates  with the names of the            trustees and their spouses.   Before the prosecutor made  his                                          ______            misrepresentation,  however, the  district court  had already            found  Cohen to be  a manager or supervisor.   The court also            properly rejected the government's  recommendation of a four-            level  adjustment  for an  "organizer  or  leader," based  on            evidence that Mangone had the greater control over Vasapolle.                      2.  Ex post facto clause                      2.  Ex post facto clause                          _____________                                         -41-                                          41                      Cohen argues that  the district court violated  the            ex  post facto clause of the Constitution by imposing a four-            ______________            level enhancement under U.S.S.G.   2F1.1(b)(6)(A) for conduct            jeopardizing  the  safety   and  soundness  of   a  financial            institution.  "Barring any ex post facto problem, a defendant                                       _____________            is  to be punished according  to the guidelines  in effect at            the time of  sentencing."  United  States v. Harotunian,  920                                       ______________    __________            F.2d 1040, 1041-42 (1st Cir. 1990).                      Section 2F1.1(b)(6)(A)  took effect on  November 1,            1990,  after all of the loans described in the indictment had            closed.    The conspiracy  to  defraud  charged  in Count  1,            however, allegedly extended into March 1991; and the district            court found  that Cohen's  "criminal conduct" --  meaning the            charged conduct of which he  was convicted -- "continued well            after the enactment of these guidelines."  See  United States                                                       ___  _____________            v. Bennett, 37  F.3d 687, 699 (1st Cir. 1994) (distinguishing               _______            charged  conduct  from relevant  conduct  for  ex post  facto                                                           ______________            purposes).   There was  evidence that  in  early 1991,  Cohen            actively  misled  BCCU  regarding   the  status  of  the  New            Adventures  Realty  Trust  loan.    Because  the  offense  of            conviction  continued after  November 1,  1990, the  district            court did not violate the ex  post facto clause by applying                                        ______________            2F1.1(b)(6)(A).  See United States v. Arboleda, 929 F.2d 858,                             ___ _____________    ________            870-71 (1st Cir. 1991).                                         -42-                                          42                      Cohen argues that the relevant question is not when            his offense  of  conviction ended,  but  whether any  of  his            criminal   acts   after   November  1,   1990   substantially            jeopardized   the  safety   and  soundness  of   a  financial            institution.   Assuming that  Cohen has correctly  framed the            question,  we  think  the four-level  enhancement  was  still            proper.  By trying  to throw BCCU and federal  regulators off            the scent, Cohen  substantially jeopardized their ability  to            detect and recoup bad loans that BCCU had already made.                      3.  Double counting                      3.  Double counting                      Cohen argues  that the  district  court engaged  in            improper "double counting" under  the guidelines when it made            upward  adjustments  for  more  than  minimal  planning  (two            levels), supervisory  role (three levels), abuse  of position            of  trust  (two  levels),  jeopardizing the  soundness  of  a            financial institution  (four levels), and the  amount of loss            (fifteen  levels).    "[I]n  the  sentencing  context  double            counting is not rare  -- and the practice is  often perfectly            proper."  United States v. Pierro, 32 F.3d 611, 622 (1st Cir.                      _____________    ______            1994), cert. denied, 63 U.S.L.W. 3539 (1995).  Cohen makes no                   _____ ______            effort to show that double counting in fact occurred, or that            either "an explicit prohibition against  double counting []or            a compelling basis for implying such a prohibition exists" in            his case.   United States v. Lilly, 13 F.3d  15, 19 (1st Cir.                        _____________    _____            1994) (noting that "several [guideline] factors may draw upon                                         -43-                                          43            the  same  nucleus  of  operative   facts  while  nonetheless            responding to discrete concerns").   Accordingly, we deem the            argument waived.  Zannino, 895 F.2d at 17.                              _______                                         -44-                                          44                      4.  Obstruction of justice                      4.  Obstruction of justice                      Smith  argues  that  the  district  court erred  in            making  a two-level  adjustment  for obstruction  of  justice            under  U.S.S.G.    3C1.1.   The court  based its  decision on            Smith's  destruction of  certain  documents.    According  to            Vasapolle,  Smith stated  that  "he was  going  to burn  [his            closing  books]  in  his  fireplace."   The  government  also            recovered  two pages from  a document  that Smith  had thrown            away,  including  the  face  page  of  a  purchase  and  sale            agreement on which the price had been changed with correction            fluid.   On these  facts, the district  court's finding  that            Smith  in fact  intentionally  destroyed  documents  was  not            clearly erroneous.                      Smith also  argues that the documents  he discarded            were merely copies of other documents already obtained by the            government,  and therefore  immaterial  to his  case.   Smith            overlooks the  purchase and sale agreement,  which is unique,            material  evidence of  his participation  in the  bank fraud.            See U.S.S.G.   3C1.1, comment. (n.5) (evidence is material if            ___            it "would  tend  to  influence  or  affect  the  issue  under            determination").                      5.  Downward departure                      5.  Downward departure                      Smith  argues that the  district court  should have            considered a downward departure based on, among other things,            the multiple  causes of  the monetary  loss ascribed to  him.                                         -45-                                          45            Smith  makes  no claim  that  the  district court  mistakenly            believed  it lacked  the authority  to  depart downward.   We            therefore have  no jurisdiction to  review its refusal  to do            so.    United States  v. Hernandez,  995  F.2d 307,  314 (1st                   _____________     _________            Cir.), cert. denied, 114 S. Ct. 407 (1993).                   _____ ______                      6.  Restitution                      6.  Restitution                      Devaney argues  that the district court  abused its            discretion  when it ordered  him to  pay restitution  "not to            exceed ten million dollars."  The district court was required            to consider the financial resources of  the defendant and his            earning  ability,  among other  factors.    See  18 U.S.C.                                                           ___            3664(a); United  States v.  Springer, 28  F.3d 236,  239 (1st                     ______________     ________            Cir. 1994).                      In  his allocution,  Devaney attested  to his  past            success as  a developer  of million-dollar properties.   This            implies  substantial (if  now  diminished)  earning  ability.            Although  the  court found  that  Devaney  "doesn't have  any            money,"  it noted  that  Devaney had  "ke[pt] his  ill-gotten            gains."   Significantly,  the  exact amount  and schedule  of            restitution were left open by the district court.  In framing            a  flexible  order that  can  respond  to Devaney's  changing            financial  status,  the  district  court did  not  abuse  its            considerable discretion.   See  United States v.  Lombardi, 5                                       ___  _____________     ________            F.3d 568, 573 (1st Cir. 1993).                                         -46-                                          46                                   III.  CONCLUSION                                   III.  CONCLUSION                                         __________                      The defendants' convictions and sentences are                      Affirmed.                      Affirmed.                      _________                                         -47-                                          47
