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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1684 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                      RAMIRO L. COLON-MUNOZ, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                       Lynch, Circuit Judge, <br>                Bownes, Senior Circuit Judge, and <br>                           Lipez, Circuit Judge. <br> <br> <br> <br> <br>     Jorge E. Vega-Pacheco, Assistant United States Attorney, with <br>whom Guillermo Gil, United States Attorney and Nelson Prez-Sosa, <br>Assistant United States Attorney, were on brief for appellee. <br>     Peter Goldberger, with whom Jan Armon, Ellen C. Brotman, and <br>Pamela A. Wilk were on brief for appellant Coln. <br>     G. Richard Strafer and Barbara Bergman on brief for National <br>Association of Criminal Defense Lawyers, amicus curiae. <br> <br> <br> <br> <br>October 1, 1999 <br> <br> <br> <br>                                 <br>  LIPEZ, Circuit Judge.  We consider in this appeal <br>criminal convictions relating to a real estate transaction in <br>Puerto Rico in the 1980s.  The defendant, Ramiro L. Coln-Muoz,  <br>formerly President of Ponce Federal Bank, was convicted of <br>misapplication of bank funds (five counts), bank fraud, making a <br>false entry on a loan document, making a false statement on a loan <br>application, fraudulently benefitting from a bank loan, and <br>conspiracy.  The real estate at issue, a farm called La Esmeralda <br>("the farm" or "La Esmeralda") was also forfeited.   Coln now <br>raises a variety of objections to the convictions and forfeiture, <br>beginning with the claim that his indictment was invalid because of <br>interim United States Attorney Guillermo Gil's participation before <br>the grand jury pursuant to an unconstitutional judicial <br>appointment.  Coln also challenges the sufficiency of the evidence <br>to support his convictions and claims that the forfeiture of La <br>Esmeralda violated the Ex Post Facto Clause of the United States <br>Constitution.   <br>  Although we conclude that Coln waived his challenge to <br>the validity of the indictment, we agree that there was <br>insufficient evidence to support his convictions on four of the <br>five misapplication counts and the false statement count, and that <br>the forfeiture of the real estate violates the Ex Post Facto Clause <br>of the Constitution.   We affirm the convictions on one count of <br>misapplication, and on the counts of bank fraud, false entry, <br>fraudulently benefitting from a bank loan, and conspiracy. <br>I. Background    <br>  We have already considered many of the issues at hand in <br>the appeal of Coln's co-defendant, Jos Blasini-Lluberas.  As the <br>scheme at issue was set forth in great detail in our opinion in <br>that case, United States v. Blasini-Lluberas, 169 F.3d 57, 60-62 <br>(1st Cir. 1999), we offer here a limited statement of the facts <br>which the jury could have found from its review of the evidence, <br>supplemented by the specifics of Coln's involvement where <br>necessary. <br>  On July 15, 1987, Coln and his wife purchased La <br>Esmeralda from thirteen members of the Usera family who had <br>inherited the farm.  Coln paid $83,340 at the closing and the <br>balance of $472,260 was due nine months later on April 14, 1988.  <br>As security for the balance of the purchase price, Coln granted <br>the Usera family a mortgage on the property. <br>  Following Coln's purchase of the farm, but prior to the <br>due date of Coln's outstanding $472,260 obligation, four members <br>of the Usera family approached Coln requesting money. Each family <br>member had a specific reason for requesting a loan but, generally <br>speaking, the family members were seeking funds to satisfy <br>obligations unrelated to the sale of the farm.   Coln agreed to <br>help them, sending the family members to see Blasini, then an <br>executive vice-president of Ponce Federal Bank ("the bank"), and <br>instructing him to assist each of them in securing a loan from the <br>bank.  As vice-president of the bank, Blasini was authorized to <br>approve unsecured loans up to $50,000 and secured loans up to <br>$100,000.  Blasini authorized the loans, ranging from $11,000 to <br>$20,000, subject to a standard rate of interest and a due date.  <br>None of the loan applications included a financial statement or <br>credit history.  Each family member, however, executed partial <br>assignments of their mortgage interests in the farm as security for <br>the loans.  Although the partial assignments were signed by both <br>Blasini and Coln, they were not included in the loan file. The <br>stated purpose for the loans was personal; the means of repayment <br>was the sale of a farm. Because the loans did not exceed $50,000, <br>their approval did not require collateral as a matter of bank <br>policy. <br>  When Coln's debt to the Usera family came due on April <br>14, 1988, he was unable to satisfy his obligation. On April 19, <br>1988, another member of the Usera family, Consuelo Garca-Gomez, <br>went to the bank and demanded payment of her share of the purchase <br>price. Consuelo Garca-Gomez was entitled to $200,000, the largest <br>share of the inheritance.  Wendell Coln, Coln's brother, told <br>Consuelo Garca-Gomez that the money was not immediately available.  <br>She then asked for $100,000. Thereafter, Blasini brought Consuelo <br>Garca-Gomez to a loan officer and instructed the officer to <br>disburse a $100,000 loan to her. The information in her loan <br>application was provided to the loan officer by Blasini and the <br>application stated that collateral for the loan was a partial <br>assignment of Consuelo Garca-Gomez's mortgage interest in the <br>farm. The listed purpose of the loan was the purchase of an <br>apartment. On the loan application, directly above Blasini's <br>signature, Blasini wrote, "discussed and agreed to by attorney <br>R.L. Coln."  At trial Consuelo Garca-Gomez explained that, <br>although she signed loan documents to receive the $100,000, she did <br>not go to the bank for the purpose of obtaining a loan and she <br>never read the loan documents before signing them.  She maintained <br>that the $100,000 was partial payment of the money owed to her <br>rather than a loan.  <br>  On May 13, 1988, Coln paid the balance of the purchase <br>price of the farm to the Useras.  Coln wrote two sets of checks <br>from his personal account.  The first set paid off the bank loans <br>of Monserrate Usera, Ana Usera, Carmen Maduro, Vicente Usera and <br>Consuelo Garca-Gomez. He listed the appropriate amount of their <br>outstanding debts, including the interest that had accrued, and <br>named both the bank and the borrower as joint payees. The second <br>set of checks paid each family member the balance of what he or she <br>was owed.  They then signed a cancellation of the mortgage. <br>  When members of the Usera family presented the checks at <br>the bank for immediate payment, Coln's personal account had <br>insufficient funds to pay all of the checks.  Blasini authorized  <br>a bank officer to substitute official bank checks for Coln's <br>personal checks.  The official bank checks were debited against <br>Coln's personal checking account.  At the close of business on May <br>13th, Coln's personal account was overdrawn by $122,930.   <br>  The following business day, May 16, Coln deposited <br>$492,394 in his personal account from the proceeds of a $500,000 <br>loan he obtained from the Royal Bank of Puerto Rico ("Royal Bank").  <br>A month before, in April, Coln had applied for the loan, initially <br>contacting the Vice President of Royal Bank by phone to discuss the <br>possibility of such a loan.   Notwithstanding the fact that in <br>April the Useras still had a mortgage on the farm, Coln and his <br>wife prepared a mortgage deed which stated that Royal Bank was <br>granted a first mortgage on La Esmeralda. The mortgage deed was <br>filed at the registry of deeds on April 19, 1988.  However, in the <br>financial documents submitted to Royal Bank, the Usera family's <br>pre-existing first mortgage on the property was fully disclosed.   <br>The loan was approved on May 4th but was not actually disbursed <br>until May 16th, three days after the Useras released their mortgage <br>on the farm. <br>  Two years later, in August of 1990, Coln received a <br>severance package from Ponce Federal Bank in the amount of <br>$615,500.  With those monies, he paid off the balance of his loan <br>from Royal Bank. <br>  In 1995, Coln was indicted on multiple counts relating <br>to these transactions.  Following a trial, Coln was convicted on <br>five counts of misapplication of bank funds under 18 U.S.C.  657, <br>one count of bank fraud under 18 U.S.C.  1344, one count of false <br>entry under 18 U.S.C.  1006, one count of benefitting, directly or <br>indirectly, from the loan transactions in question under 18 U.S.C. <br> 1006, one count of false statement under 18 U.S.C.  1014, and <br>one count of conspiracy under 18 U.S.C.  371.  The jury also <br>returned a verdict of forfeiture as to Coln's interest in La <br>Esmeralda under 18 U.S.C.  982(a)(2). <br>  Coln filed a post-trial motion for a judgment of <br>acquittal under Fed. R. Crim. P. 29(c), challenging the sufficiency <br>of the evidence and, for the first time, the validity of the <br>indictment because of interim United States Attorney Guillermo <br>Gil's participation before the grand jury.  He argued that Gil's <br>judicial appointment was unconstitutional and sought discovery on <br>the circumstances of the appointment.  The motion for discovery and <br>the motion for a judgment of acquittal were denied. <br>  Coln was sentenced to twenty-one months imprisonment <br>followed by two years of supervised release.  He was also fined <br>$20,000 and his interest in La Esmeralda was forfeited.   <br>II. The Appointment of the Interim United States Attorney <br>  As noted, Coln raised for the first time in his motion <br>for a judgment of acquittal a claim that Guillermo Gil's judicial <br>appointment as the interim United States Attorney for the District <br>of Puerto Rico was constitutionally invalid.  Specifically, he <br>maintained that 28 U.S.C.  546(d), which allows the district court <br>to appoint an interim United States Attorney, violates both the <br>Appointments Clause of the United States Constitution, art. II, <br> 2, cl. 2, and the principles of separation of powers.  On the <br>basis of this alleged constitutional violation, Coln argued that <br>Gil's participation in the grand jury proceedings that led to <br>Coln's indictment violated Fed. R. Crim. P. 6(d), which provides <br>that only attorneys for the government may be present while the <br>grand jury is in session. Because Gil was improperly appointed, <br>Coln argued that Gil was not an attorney for the government who <br>was authorized to be present before the grand jury.  On appeal, <br>Coln reasserts this argument and seeks the dismissal of the <br>indictment. <br>  We do not reach the merits of Coln's claim.  The rules <br>unmistakably require that "objections based on defects in the <br>institution of the prosecution" or "defects in the <br>indictment . . . must be raised prior to trial."  Fed. R. Crim. P. <br>12(b).  Coln first raised his constitutional objection to Gil's <br>participation before the grand jury in his post-trial motion for a <br>judgment of acquittal.  Although the rules permit a defendant to <br>show "cause" for his failure to raise his objections pre-trial, see <br>Fed. R. Crim. P. 12(f) ("the court for cause shown may grant relief <br>from the waiver"), Coln's showing is unpersuasive.  <br>  Coln protests that he only learned of Gil's involvement <br>in the grand jury proceedings through the Jencks Act materials he <br>received during the trial.  Nonetheless, he failed to file any <br>objections at the time he received the Jencks material, waiting <br>instead for a jury verdict and the filing of his motion for a <br>judgment of acquittal.   Moreover, Coln was well aware of Gil's  <br>personal involvement in this case pre-trial.  Defense counsel met <br>personally with Gil on one occasion and phone calls and letters <br>were exchanged relating to trial preparation and discovery issues. <br>Gil's name appeared on the indictment.  Despite these facts, Coln <br>did not seek any pre-trial discovery to investigate the nature of <br>Gil's participation in the grand jury proceedings pursuant to the <br>procedures set forth in Fed. R. Crim. P. 6(e)(3)(C)(i),(ii).  <br>Under these circumstances, we conclude that Coln has not <br>demonstrated cause for his failure to raise his objection pre-trial <br>and we will not grant relief from his waiver.  <br>  In an effort to escape the consequences of waiver, Coln <br>argues that his challenge to the appointment of the interim United <br>States Attorney on the basis of the Appointments Clause of the <br>United States Constitution and separation of powers principles is <br>jurisdictional and cannot be waived. See Fed. R. Crim. P. 12(b)(2) <br>(objections "that [the indictment] fails to show jurisdiction in <br>the court . . . shall be noticed by the court at any time during <br>the pendency of the proceedings").   We disagree with Coln's <br>characterization of his claim. <br>  In Freytag v. Commissioner of Internal Revenue, 501 U.S. <br>868, 878 (1991), the Supreme Court recognized that a challenge <br>under the Appointments Clause to the propriety of a statute which <br>permitted the judicial appointment of special trial judges in the <br>Tax Court raised both "structural" and "political" concerns. <br>Notwithstanding the structural and political implications of the <br>underlying claim, the Court characterized it as nonjurisdictional.  <br>See id. at 878-79; see also Glidden Co. v. Zdanok, 370 U.S. 530, <br>535-36 (1962)(including Appointments Clause objections to judicial <br>officers in the category of nonjurisdictional structural <br>constitutional objections).  Although the challenge in Freytag <br>concerned the judicial appointment of other judges, and the <br>challenge in this case concerns the judicial appointment of an <br>interim United States Attorney, we see no basis for characterizing <br>this claim differently.  The Freytag Court accepted the proposition <br>that "[t]he alleged defect in the appointment . . . goes to the <br>validity of the [court] proceeding." Id. at 879.  Coln made a <br>similar claim here.  His challenge to the constitutionality of <br>Gil's appointment as interim United States Attorney was a <br>nonjurisdictional claim and it was waived. Cf. United States v. <br>Gantt, 179 F.3d 782, 786-87 (9th Cir. 1999) ("An infirmity in the <br>United States Attorney's appointment would not generally affect the <br>jurisdiction of this court so long as a proper representative of <br>the government participated in the action. . . . [T]he <br>constitutionality of  546(d) would not affect the validity of <br>indictments . . . as indictments need only be signed by an attorney <br>for the government.").   <br>  We have used the term "waiver" in evaluating the <br>timeliness of Coln's challenge to Gil's participation before the <br>grand jury because Rule 12(f) uses that term.  Pointing to the use <br>of that term in Rule 12, the government, relying on United States <br>v. Olano, 507 U.S. 725, 733 (1993) notes that "waiver" is different <br>from "forfeiture."  Since waiver extinguishes plain error review, <br>the government argues, and since Rule 12(f) refers to waiver, the <br>government contends that the rule itself precludes plain error <br>review here.  <br>  We need not resolve this issue given the Supreme Court's <br>decision in United States v. Mechanik, 475 U.S. 66 (1986), <br>concluding that alleged violations of Rule 6(d), not raised pre- <br>trial, are rendered harmless as a matter of law by a subsequent <br>guilty verdict at trial.   Coln's constitutional objections to <br>Gil's appointment are the predicate for his claim that Gil's <br>presence before the grand jury violated Rule 6(d).  As a remedy <br>for this error, Coln asks for dismissal of the indictment.  <br>Mechanik precludes any such relief. <br>  In Mechanik, two government witnesses testified in tandem <br>before the grand jury, which ultimately indicted both defendants on <br>various drug related offenses. See id. at 67.  At trial, once the <br>defendants learned of the alleged violation, the defendants <br>objected to the joint presence of the two witnesses and moved for <br>a dismissal of the indictment on the basis that the "simultaneous <br>presence of the two agents had violated Federal Rule of Criminal <br>Procedure 6(d)."  Id. at 68.  The district court took the motion <br>under advisement.  Following a guilty verdict, the district court <br>denied the motion on the basis that, notwithstanding any violation <br>of Rule 6(d), there had been no harm to the defendants given the <br>subsequent guilty verdict.  The Supreme Court agreed with the <br>district court's reasoning, concluding that "however diligent the <br>defendants may have been in seeking to discover the basis for the <br>claimed violation of Rule 6(d), the petit jury's verdict render[s] <br>harmless any conceivable error in the charging decision that might <br>have flowed from the violation." Id. at 73.  The Supreme Court <br>explained its reasoning: <br>    The rule protects against the danger that a <br>  defendant will be required to defend against a <br>  charge for which there is no probable cause to <br>  believe him guilty.  The error involving rule <br>  6(d) in these cases had the theoretical <br>  potential to affect the grand jury's <br>  determination whether to indict these <br>  particular defendants for the offenses with <br>  which they are charged. But the petit jury's <br>  subsequent guilty verdict means not only that <br>  there was probable cause to believe that the <br>  defendants were guilty as charged, but also <br>  that they are in fact guilty as charged beyond <br>  a reasonable doubt.  Measured by the petit <br>  jury's verdict, then, any error in the grand <br>  jury proceeding connected with the charging <br>  decision was harmless beyond a reasonable <br>  doubt. <br>Id. at 70 (citation omitted). <br>  Mechanik's reasoning applies to this case.  As a matter <br>of law, any error in the charging decision of the grand jury was <br>rendered harmless by the verdict and Coln cannot claim that Gil's <br>presence before the grand jury entitles him to a dismissal of the <br>indictment.  We caution, however, that this conclusion implies no <br>judgment about the importance of the issues raised by Coln or the <br>Association in their challenge to the constitutionality of the <br>lengthy interim judicial appointment of the United States Attorney.  <br>Aided by the long and thoughtful brief of the Association, they <br>claim, as already noted, that 28 U.S.C.  546(d) is <br>unconstitutional on Appointments Clause and separation of powers <br>grounds, and claim further that  546(d) is unconstitutional as <br>applied because the district court's interim appointment of Gil has <br>become de facto permanent.  These are serious issues.  Timely <br>raised, they would merit careful attention.   <br>III. Sufficiency of the Evidence <br>  We turn to a discussion of the challenges to the <br>sufficiency of the evidence.  In evaluating such claims, we review <br>the evidence as a whole, together with all reasonable inferences <br>therefrom, in a light most favorable to the government. See United <br>States v. Mangual-Corchado, 139 F.3d 34, 44 (1st Cir. 1998).  <br>Viewing the evidence in this light, "[w]e review de novo the <br>district court's determination that the jury reasonably found 'each <br>element of the crime to have been proven beyond a reasonable <br>doubt.'"  Id. (quoting United States v. Houlihan, 92 F.3d 1271, <br>1295 (1st Cir. 1996)).  Where "an equal or nearly equal theory of <br>guilt and a theory of innocence is supported by the evidence" we <br>must reverse a conviction. Blasini, 169 F.3d at 62 (alteration <br>omitted). <br>A. Misapplication of bank funds (Counts Two through Six) <br>  We conclude, as we did in Blasini, see id., that there <br>was insufficient evidence from which a reasonable jury could <br>conclude that the loans to Ana Usera, Monserrate Usera, Carmen <br>Maduro Usera and Vicente Usera Tous constituted a criminal <br>misapplication of bank funds.  See id. at 62-64. Given our <br>conclusion in Blasini that there was sufficient evidence to convict <br>Blasini on the count of misapplication relating to Consuelo Garca- <br>Gomez, we must consider whether there was also sufficient evidence <br>to convict Coln of that offense. <br>  As discussed in detail in Blasini, when Consuelo Garca- <br>Gomez went to Ponce Bank in April 1988 and demanded payment, <br>Coln's $200,000 debt to her was past due.  She did not request a <br>loan.  At the bank she initially met with Coln's brother who <br>informed her that the money was unavailable.  She suggested payment <br>of $100,000.  Thereafter, Blasini took Consuelo Garca-Gomez to <br>meet with Marisel Marrero, the assistant bank manager, and <br>instructed her on the details of the loan application.  See id.  A <br>$100,000 loan was then disbursed to Consuelo Garca-Gomez that day.  <br>The notation on the loan application admitted in evidence read <br>"discussed and agreed to by attorney R.L. Coln." <br>  Although the loans to the four other Usera family members <br>were not misapplication of bank funds, Coln was "playing it close <br>to the line" in his dealings with them. Id., 169 F.3d at 64.  When <br>Consuelo Garca-Gomez arrived at the bank demanding payment of the <br>already-matured debt, the jury could have reasonably concluded that <br>Coln crossed the line by deceptively using Ponce Bank funds to <br>satisfy his private debt under the guise of a bank loan to a woman <br>who did not want a loan.  The notation Blasini included on Consuelo <br>Garca-Gomez's loan application, "discussed and agreed to by <br>attorney R.L. Coln," provided ample evidence from which the jury <br>could infer that Coln was personally involved in the illegal <br>transaction with Consuelo Garca-Gomez, just as he had been <br>personally involved in arranging the loans to other members of the <br>Usera family with the help of Blasini.  This wrongful use of bank <br>money to satisfy a private debt, carried out with an intent to <br>deceive the bank about the true nature of the transaction, involved <br>all of the essential elements of the crime of misapplication.    <br>  On appeal, Coln argues that Blasini's notation on <br>Consuelo Garca-Gomez's loan document did not appear until a month <br>after the loan was processed, and hence there was insufficient <br>evidence of his involvement in the loan.  We disagree.  The jury <br>could have reasonably concluded that Blasini accurately recorded <br>Coln's contemporaneous involvement in the loan even if Blasini's <br>notation was subsequent in time.  Considering the totality of the <br>circumstances, there was sufficient evidence to convict Coln for <br>the misapplication of bank funds on Count Six. <br>B. Bank fraud (Count Seven) <br>  To establish bank fraud pursuant to 18 U.S.C.  1344, <br>the government must establish that the defendant (1) engaged in a <br>scheme or artifice to defraud or made false representations to <br>obtain money from (2) a financial institution and (3) did so <br>knowingly.  A scheme or artifice to defraud is defined to include <br>"any plan, pattern or [course] of action . . . intended to deceive <br>others in order to obtain something of value."  United States v. <br>Brandon, 17 F.3d 409, 424 (1st Cir. 1994) (quoting United States v. <br>Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987)).  The evidence was <br>sufficient for the jury to conclude that Coln, with the assistance <br>of Blasini, knowingly engaged in a scheme to obtain bank funds, <br>deceitfully characterized as a loan, to satisfy $100,000 of his <br>outstanding obligation to Consuelo Garca-Gomez.  The structuring <br>of the transaction as a loan was the scheme to defraud.  Further, <br>as with the misapplication count, the notation on the back of the <br>loan documents sufficiently demonstrates Coln's specific <br>involvement in the sham loan transaction.  <br>  After Coln was sentenced and his appeal submitted to us, <br>the Supreme Court determined that materiality is an element of the <br>fraud perpetrated by "a scheme or artifice" under 18 U.S.C.  1344.  <br>See Neder v. United States, 119 S. Ct. 1827, 1839 (1999).  Not <br>having had the benefit of Neder, the district court did not <br>instruct the jury that in order to convict it had to find that the <br>"scheme or artifice to defraud" involved material falsehoods.  <br>Because this rule was announced while Coln's conviction was on <br>direct appeal, the newly-announced rule applies to his appeal.  See <br>Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that "a new <br>rule for the conduct of criminal prosecutions is to be applied <br>retroactively to all cases, state or federal, pending on direct <br>review or not yet final, with no exception for cases in which the <br>rule constitutes a 'clear break' with the past").  We review the <br>district court's omission of the materiality element for plain <br>error because Coln did not claim that materiality was an element <br>before the district court.  See Johnson v. United States, 520 U.S. <br>461, 465-66 (1997).  We apply this standard even though there has <br>been a change in the law since trial and defense counsel's failure <br>to object was appropriate at the time.  See id.; see also United <br>States v. Collins, 60 F.3d 4, 7 (1st Cir. 1995) (applying plain <br>error review to claim raised for the first time on appeal even when <br>failure to object "most likely was based on counsel's correct <br>understanding of the law at the time"). <br>  Before we can correct an error pursuant to the plain <br>error standard, we must conclude that there was error, that the <br>error was plain and that the error affected substantial rights. <br>Johnson, 520 U.S. at 466-67 (citing United States v. Olano, 507 <br>U.S. 725, 732 (1993)).  If these three conditions are met, we "may <br>then exercise [our] discretion to notice a forfeited error, but <br>only if the error . . . seriously affect[s] the fairness, <br>integrity, or public reputation of judicial proceedings." Id. at <br>467 (internal quotation marks omitted).  <br>  In light of Neder, there is no doubt that the court's <br>instruction on bank fraud, omitting any reference to materiality, <br>was an error and that such error was plain.  In Johnson, the <br>Supreme Court held that where the law at the time of trial is <br>contrary to the law at the time of the appeal, "it is enough that <br>an error be 'plain' at the time of appellate consideration." Id. at <br>468. <br>  The requirement under Rule 52(b) that the plain error <br>"affect substantial rights" has been interpreted to mean that "the <br>error must have been prejudicial: It must have affected the outcome <br>of the district court proceedings."  Olano, 507 U.S. at 734.  This <br>standard is substantially the same as the standard applied in a <br>harmless error analysis under Rule 52(a), except that "[i]t is the <br>defendant rather than the Government who bears the burden of <br>persuasion with respect to prejudice."  Id.  Coln's deception <br>about the sham loan to Consuelo Garca-Gomez was material in the <br>relevant sense, i.e., a "reasonable man would attach importance to <br>[it] in determining his choice of action in the transaction in <br>question." Neder, 119 S. Ct. at 1840 n.5 (quoting Restatement <br>(Second) of Torts  538 (1976)).  Officials at the bank reviewing <br>this transaction would undoubtedly be influenced in their view of <br>its appropriateness by Coln's deception about Consuelo Garca- <br>Gomez's demand for payment of his overdue debt.  At the very least, <br>Consuelo Garca-Gomez's anger about Coln's ploy, described by <br>witnesses at the trial, created the risk that she would refuse to <br>treat the loan transaction contrived by Coln as a loan.  Coln's <br>deception about the purpose of the loan to Consuelo Garca-Gomez <br>was inescapably material, and hence, like the Supreme Court in <br>Neder, we conclude beyond a reasonable doubt that the jury verdict <br>on the bank fraud count would have been the same even if the court <br>had given an instruction on materiality. <br>C. False entry (Count Eight) <br>  Coln was charged with making a false entry with the <br>intent to defraud a banking institution in violation of  1006.  <br>The statute provides that any employee of an insured bank who makes <br>a false entry in any statement to such institution with the intent <br>to defraud such institution commits a violation. See 18 U.S.C. <br> 1006.  In Blasini, we assumed arguendo that materiality is an <br>element of the crime of false entry and concluded that there was <br>sufficient evidence for a reasonable jury to decide that Blasini <br>had made a material false entry on Consuelo Garca-Gomez's loan <br>application by stating to Marisel Marrero, the bank officer who <br>prepared the documentation for Consuelo Garca-Gomez's loan, that <br>the purpose of her loan was the purchase of an apartment.  See <br>Blasini, 169 F.3d at 66. <br>  Coln did not fill out Consuelo Garca-Gomez's loan <br>application, nor was he present when the notation was made on the <br>document.   This absence of direct participation by Coln does not <br>end the analysis, however.  Coln and Blasini were charged with <br>aiding and abetting each other in making a false entry on a loan <br>document. A defendant is guilty of aiding and abetting where the <br>government can show that (1) "the principal committed the <br>underlying substantive crime" and (2) "the defendant associated <br>himself with the venture, participated in it as something he wished <br>to bring about, and sought by his actions to make it succeed." <br>United States v. Loder, 23 F.3d 586, 590-91 (1st Cir. 1994).  "It <br>is well settled that a culpable aider and abetter need not perform <br>the substantive offense, be present when it is performed, or be <br>aware of the details of its execution."  United States v. Garca- <br>Rosa, 876 F.2d 209, 217 (1st Cir. 1989), vacated on other grounds <br>sub nom. Rivera-Feliciano v. United States, 498 U.S. 954 (1990).  <br>Moreover, the government "need not preclude every reasonable <br>hypothesis in order to sustain a conviction," and may prove its <br>case through circumstantial evidence. Loder, 23 F.3d at 591.  <br>  Accordingly, even though Blasini actually caused the <br>making of the false entry on the loan application about the <br>apartment, Coln too may be punished for false entry if he is <br>guilty of aiding and abetting Blasini in that effort.  The <br>transaction with Consuelo Garca-Gomez on April 19, 1988, was <br>unusual.  Marisel Marrero, the assistant bank manager, testified <br>that she could not recall a $100,000 loan that was disbursed the <br>same day the loan application was received.  That application <br>process began with a handwritten loan application for which Blasini <br>provided the information.  That information included the statement <br>that the purpose of the loan was the purchase of an apartment.  <br>This handwritten copy was then typed up.  Apparently there was a <br>problem with the review of the loan documentation within the bank, <br>and the loan department sent the file back on May 9 for further <br>documentation, including an indication of Blasini's approval of the <br>loan.  On May 11, an unidentified bank official responded with a <br>written memorandum indicating that the loan had been approved by  <br>Blasini on April 19, orally and by signature, and that the original <br>documents were being sent to him to sign.  According to Coln, the <br>document with the comment by Blasini asserting that the loan with <br>Consuelo Garca-Gomez had been "discussed and agreed to by attorney <br>R. L. Coln" was not received back at the loan department until <br>May 17. <br>  Although there is uncertainty in the record about <br>precisely when Blasini added the notation about the discussion with <br>and agreement of Coln, we have already noted that a jury could <br>have reasonably concluded that Blasini accurately recorded Coln's <br>contemporaneous involvement in the loan with Consuelo Garca-Gomez <br>even if Blasini's notation was subsequent in time.  A jury could <br>further infer that the false entry had been specifically discussed <br>with Coln for three reasons.  The bank form for the loan required <br>that a statement of purpose be given for a loan of this size.  It <br>is a fair inference that Coln, as president of the bank, was aware <br>of that requirement.  Secondly, this purported loan to Consuelo <br>Garca-Gomez was in fact a sham transaction, designed to pay off a <br>portion of Coln's debt to Garca-Gomez.  That purpose obviously <br>could not be stated.  Coln and Blasini would have anticipated the <br>need to contrive some other statement of purpose.  Third, the <br>notation is on the second page of a document containing the false <br>entry and it is reasonable to conclude that Blasini and Coln <br>discussed that same document.  Under these circumstances, a <br>reasonable jury could conclude beyond a reasonable doubt that Coln <br>associated himself with Blasini in the venture to make a false <br>entry on Consuelo Garca-Gomez's loan application and that he <br>sought by his actions to make this illegal act succeed.  See United <br>States v. Loder, 23 F.3d 586, 590-91 (1st Cir. 1994). <br>D. Fraudulently benefitting from a loan (Count Nine) <br>  Coln claims that there was insufficient evidence from <br>which a jury could convict him of improper participation in the <br>loan to Consuelo Garca-Gomez in violation of  1006.  To convict <br>on this crime, the government must demonstrate "(1) the defendant's <br>connection with a protected institution; (2) direct or indirect <br>receipt of some benefit from a bank transaction; and (3) intent to <br>defraud." United States v. Brechtel, 997 F.2d 1108, 1115 (5th Cir. <br>1993).  In Brechtel, the court explained that "a fiduciary who <br>benefits . . . by knowingly subordinating the institution's <br>interests to his own in a transaction for which he has <br>responsibility acts with the 'intent to defraud' required by  <br>1006." Id. at 1116.  The government can demonstrate an intent to <br>defraud through circumstantial evidence.  See id.  "An inference of <br>intent to defraud arises where a responsible bank insider acts to <br>procure a transaction which he knows will benefit him, without <br>disclosing his interest therein." Id. <br>  As President of the bank, Coln was obviously connected <br>with the financial institution.  The sham loan to Consuelo Garca- <br>Gomez was of great benefit to him.  His debt to her was outstanding <br>and he was able to use bank funds to make a partial payment to her.  <br>His prior involvement with the family and the notation on the back <br>of the loan document demonstrate his involvement in the transaction <br>even though he was not present at the time the loan was signed.  As <br>noted in Brechtel, a jury may infer Coln's attempt to defraud the <br>bank from the fact that he acted to "procure a transaction which he <br>[knew would] benefit him, without disclosing his interest therein" <br>to the bank.  Id. at 1116.  There was sufficient evidence to <br>support his conviction for fraudulently benefitting from the loan <br>to Consuelo Garca-Gomez in violation of  1006.    <br>E. False statement (Count Eleven) <br>  Coln was convicted of making a false statement in <br>violation of 18 U.S.C.  1014 relating to the $500,000 loan he <br>obtained from Royal Bank in 1988.  In order to convict for a <br>violation of 18 U.S.C.  1014 in this context, the government must <br>prove that 1) the defendant made or caused to be made a false <br>statement or report to a bank in a loan application, 2) that the <br>defendant acted knowingly and 3) that the false statement was made <br>for the purpose of influencing the bank's actions on the loan.  See <br>United States v. Concemi, 957 F.2d 942, 951 (1st Cir. 1992).  The <br>false statement need not be material, see United States v. Wells, <br>519 U.S. 482, 489-99 (1997), but the statement must be "for the <br>purpose of influencing in any way the action of the [bank]."  18 <br>U.S.C.  1014.   <br>   The government alleged that Coln made a false statement <br>on a mortgage deed to the farm that was filed at the registry of <br>deeds on April 19, 1988, one month prior to the issuance of the <br>$500,000 loan.  The mortgage deed did not mention the Usera's <br>existing mortgage on the farm, stating instead that Royal Bank was <br>granted a first mortgage on the farm.   By way of defense, Coln <br>argues that the statement on the deed was not intended to display <br>the "contents [as if they] were necessarily then already true, but <br>for use at closing."   He maintains that there was insufficient <br>evidence from which a jury could reasonably conclude that the <br>statement (even if false) was made for the purpose of influencing <br>the actions of Royal Bank.  We agree. <br>  On April 15, 1988, Juan Vicens, the vice president of <br>Royal Bank, received a phone call from Coln requesting a $500,000 <br>one-year loan.  Coln offered a mortgage note on the farm as <br>collateral for the loan.  In a follow-up letter from Coln on April <br>18, Coln confirmed that he had requested the loan, "[o]ffering you <br>as collateral a first mortgage note corresponding to a four hundred <br>sixty-three point nine eight one seven 'cuerda' property . . . . <br>Should the loan be approved as I expect, I will deliver the <br>promissory note for seven hundred thousand dollars as collateral at <br>the time of signing."   The next day, April 19, Coln registered a <br>mortgage deed on the farm granting Royal Bank a first mortgage on <br>the property.  However, in the financing statement prepared by <br>Coln's certified public accountant, and dated April 27, the Usera <br>family's pre-existing mortgage was fully disclosed.  The financing <br>statement was submitted to Royal Bank as part of Coln's loan <br>application.  On May 3, 1998, Vicens prepared a letter to the <br>Bank's credit department, recommending approval of the loan.  In <br>the letter, Vicens stated that Coln requested the loan "for the <br>purposes of paying a debt which resulted from the purchase of <br>property offered as collateral."  The loan was approved on May 4.  <br>On May 13, Coln satisfied his obligations to the Usera family and <br>the Usera family released their own first mortgage on the property.  <br>Three days later, on May 16, Coln signed the pledge contract at <br>Royal Bank and obtained a check for the net amount of the $500,000 <br>loan.   <br>   At trial, Vicens testified that he did not recall Coln <br>telling him that the Usera's had a pre-existing mortgage on the <br>property, but he specifically noted that "to me the important thing <br>was that the day the loan was to be executed, that the property <br>have the rank of a first mortgage."  Coln fully disclosed the <br>presence of the pre-existing mortgage in the financing statement.  <br>As Vicens testified on cross-examination, although he did not <br>recall Coln informing him of the pre-existing mortgage verbally, <br>"it's clear from this document that [the pre-existing mortgage] is <br>mentioned on the financial statement."  He further explained that <br>the bank relies on the financing statement to make decisions <br>regarding the disbursement of monies and that they are critical in <br>determining the creditworthiness of the individual.  Moreover, in <br>the actual letter recommending that the bank approve the loan, <br>Vicens clearly stated that Coln needed the loan to pay off debt on <br>the property that would be serving as collateral for the $500,000 <br>loan.  <br>  Under these circumstances, no reasonable jury could find <br>that the statement in the mortgage deed that Royal Bank had a first <br>mortgage on the property was made for the purpose of influencing <br>the bank to disburse a loan that the bank would not have otherwise <br>made.  To the contrary, that mortgage deed was filed in the public <br>registry in anticipation of a loan closing with Royal Bank where <br>Royal Bank would receive a first mortgage on the registry.  Coln's <br>loan application to the bank fully disclosed the presence of the <br>Usera mortgage which would have to be discharged before Royal Bank <br>obtained its first mortgage. <br>F. Conspiracy (Count One)  <br>  When charging conspiracy under 18 U.S.C.  371, the <br>government must prove that  "the particular defendant and at least <br>one other person expressly or tacitly agreed to commit a federal <br>offense."  United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir. <br>1996).  Further, the government must show that the defendant <br>voluntarily participated in the conspiracy and that an overt act <br>took place in furtherance of the conspiracy.  Blasini, 169 F.3d at <br>67.  The defendant need not be familiar with "all the details of <br>the conspiracy," Josleyn, 99 F.3d at 1190, nor must the government <br>prove the conspiratorial agreement or the defendant's participation <br>in the agreement by direct evidence.  See Blasini, 169 F.3d at 67. <br>  Coln argues on appeal that we cannot affirm his <br>conviction on the conspiracy count because the only evidence that <br>connected him to the loan to Consuelo Garca-Gomez was the <br>handwritten notation by Blasini that the loan had been "discussed <br>and agreed to by attorney R. L. Coln."  Because this notation was <br>allegedly written at a date following the actual transaction, the <br>jury could not have concluded that he was involved in this <br>transaction.  For many of the reasons already stated, we disagree.  <br>  Contrary to Coln's contentions, the jury was not <br>required to divorce the transaction with Consuelo Garca-Gomez from <br>Coln's transactions with the other members of the Usera family.  <br>Although we concluded that there was insufficient evidence to <br>establish the criminality of those other transactions, we also <br>noted that Coln and Blasini were "playing it close to the line" in <br>those dealings.  Blasini, 169 F.3d at 67.  Coln's personal <br>involvement in those transactions adds considerable significance to <br>the notation "discussed and agreed to by attorney R.L. Coln," <br>permitting a reasonable jury to conclude that Coln and Blasini, <br>already working together on the prior transactions, had agreed to <br>use bank funds to enable Coln to satisfy his delinquent debt to <br>Consuelo Garca-Gomez in violation of federal law, and that Coln <br>and Blasini committed overt acts in furtherance of the conspiracy.  <br>Despite Coln's protests, it was for the jury to evaluate the <br>importance of the notation on the loan document, regardless of the <br>date that the notation was made, and all of the other evidence of  <br>Coln's collaboration with Blasini. We affirm the conspiracy <br>conviction. <br>IV. Forfeiture (Count Twelve) and the Ex Post Facto Clause <br>  Count Twelve of the indictment alleged that the farm was <br>subject to forfeiture pursuant to 18 U.S.C.  982(a)(2)(A).  Coln <br>argues that the Ex Post Facto Clause, U.S. Const. art. I,  9, cl. <br>3, which prohibits the application of a law in a criminal <br>proceeding where it would inflict "a greater punishment, than the <br>law annexed to the crime when committed," Calder v. Bull, 3 U.S. (3 <br>Dall.) 386, 390 (1798), barred the forfeiture of the farm because <br>at the time the alleged crimes were committed, the statute did not <br>allow for forfeiture as a penalty for the pertinent banking <br>provisions.  <br>  On August 9, 1989, 18 U.S.C.  982 was amended to add <br>certain banking offenses (or conspiracy to commit such offenses) to <br>the list of possible grounds for a criminal forfeiture. See Pub. L. <br>No. 101-73,  963(c)(1), 103 Stat. 183, 504-05 (1989). Among the <br>provisions newly included as grounds for forfeiture were  657, <br>1006, 1014, and 1344, violations of which were alleged in the <br>indictment as the object of the Count One conspiracy. See id. In <br>this case, although the indictment alleged that most of the overt <br>acts committed in furtherance of the conspiracy were committed <br>prior to August 9, 1989, it did include an allegation concerning <br>events occurring in August of 1990.  On the basis of the 1990 acts, <br>the government included a count under the criminal forfeiture <br>statute to take possession of the farm.   <br>  In order to resolve the Ex Post Facto issue we must <br>determine the scope of the conspiracy between Coln and Blasini <br>established by the evidence, "for it is that which determines both <br>the duration of the conspiracy and whether the act relied on is an <br>overt act which may be properly regarded as in furtherance of the <br>conspiracy."  Grunewald v. United States, 353 U.S. 391, 397 (1957).  <br>The government must "prove that the conspiracy, as contemplated in <br>the agreement as finally formulated, was still in existence on [the <br>relevant date] and that at least one overt act in furtherance of <br>the conspiracy was performed after that date." Id. at 396. <br>  The government described the object of the conspiracy in <br>Count I as follows: <br>    It was the object of the conspiracy that the <br>  defendants and coconspirators, and others to <br>  this Grand Jury known and unknown, would <br>  misapply or cause to be misapplied funds <br>  entrusted to or in the custody of the Ponce <br>  Federal Bank, F.S.B., by means of false <br>  statements, representations and pretenses, to <br>  Ponce Federal Bank, F.S.B. and the Royal Bank <br>  de Puerto Rico, for the purpose of permitting <br>  Ramiro L. Coln Muoz and his wife to purchase <br>  and ultimately pay, a farm known as "La <br>  Esmeralda Nmero Uno" with loans obtained from <br>  the Ponce Federal Bank, F.S.B., and the Royal <br>  Bank de Puerto Rico. <br> <br>The government cites two overt acts "whose close interrelation <br>extended the conspiracy beyond August 9, 1989, thus excepting the <br>instant case from the application of the Ex Post Facto [C]lause." <br>Those overt acts are: <br>    9. On May 16, 1988, Ramiro L. Coln-Muoz <br>  obtained a loan for Five Hundred Thousand <br>  Dollars ($500,000.00) from Royal Bank de <br>  Puerto Rico, using "La Esmeralda" as <br>  collateral, a loan which he eventually paid <br>  off with funds belonging to Ponce Federal <br>  Bank, F.S.B. <br> <br>    10. On August 10, 1990, Ramiro L. Coln-Muoz <br>  paid to the Royal Bank de Puerto Rico <br>  approximately Three Hundred Eighty-Nine <br>  Thousand Seven-Hundred [sic] Thirty Dollars <br>  and Seventy-Six Cents ($389,730.76) by means <br>  of wire transfer in order to cancel the <br>  balance due on the Five Hundred Thousand <br>  Dollars ($500,000.00) loan from Royal Bank de <br>  Puerto Rico. <br> <br>Although the May 16, 1988 loan from Royal Bank was obtained prior <br>to enactment of the forfeiture provision on August 9, 1989, the <br>government argues that repayment of that loan on August 10, 1990, <br>subsequent to enactment of the forfeiture provision, justifies the <br>application of that provision.  We disagree. <br>  The evidence on the conspiratorial agreement between <br>Coln and Blasini was largely circumstantial, involving evidence of <br>the Ponce Bank transactions with the members of the Usera family in <br>which Coln and Blasini participated together. That evidence proves <br>a conspiracy between Coln and Blasini to misapply Ponce Federal <br>Bank's funds in satisfaction of Coln's debt to Consuelo Garca- <br>Gomez for the purchase of La Esmeralda.  The goal of this <br>conspiracy was realized on May 13, 1988 when Coln paid his <br>indebtedness to the members of the Usera family, including Consuelo <br>Garca-Gomez, partly with overdrafts on his personal account at the <br>Ponce Bank, and obtained a release of their mortgage on the farm.  <br>There is no evidence that the repayment of the Royal Bank loan on <br>August 10, 1990 was an overt act in furtherance of the conspiracy <br>between Coln and Blasini. <br>  A conspiracy does not continue indefinitely simply <br>because the fruits of the conspiratorial objective continue into <br>the future. See United States v. Doherty, 867 F.2d 47, 61 (1st Cir. <br>1989) (holding that continuing salary payments for officers who <br>received promotions (the object of the conspiracy) did not extend <br>the conspiracy because salary payments, without more, are best <br>understood as the 'result' of the conspiracy).  As the Supreme <br>Court has noted: <br>    Though the result of a conspiracy may be <br>  continuing, the conspiracy itself does not <br>  thereby become a continuing one.  Continuity <br>  of action to produce the unlawful result, or <br>  . . . continuous cooperation of the <br>  coconspirators to keep it up, is necessary. <br> <br>Fiswick v. United States, 329 U.S. 211, 216 (1946) (internal <br>quotation marks omitted).  Coln's repayment of his Royal Bank loan <br>is analogous to the continued receipt of increased salary as the <br>result of the fraudulently obtained promotions at issue in Doherty.  <br>Where "the payoff [of a conspiracy] merely consists of . . . <br>ordinary, typically noncriminal, unilateral actions, . . . and <br>there is no evidence that any concerted activity posing the special <br>societal dangers of conspiracy is still taking place, we do not see <br>how one can reasonably say that the conspiracy continues."  <br>Doherty, 867 F.2d at 61. <br>  Although the government alleges that payments made after <br>August 9, 1989 "were the last stages through which [Coln] <br>attempted to fulfill the object of the conspiracy to ultimately pay <br>for a farm known as 'La Esmeralda,'" this statement defines the <br>conspiracy more broadly than the evidence can sustain.  There is no <br>allegation that Coln's repayment of the Royal Bank loan was itself <br>illegal or that it involved the type of concerted activity through <br>which conspiracies pose "special societal dangers."  See id.  The <br>government's theory of the case would encompass any subsequent re- <br>financing of Coln's payment for La Esmeralda, however legitimate, <br>as furthering the conspiracy.  To the extent that Coln continued <br>in his efforts to complete payment on the loan he had received from <br>Royal Bank and did so on August 10, 1990, those were his acts alone <br>and not part of the conspiracy with Blasini to use Ponce Bank funds <br>to purchase La Esmeralda.  The application of forfeiture to the <br>farm on the basis of the conspiracy charged in Count One of the <br>indictment violates the Ex Post Facto Clause of the Constitution. <br>V. Evidentiary Objections <br>  Coln claims that two evidentiary rulings at trial denied <br>him a fair trial and warrant a reversal of the convictions and a <br>new trial.  We disagree.   <br>  At trial, the government introduced evidence that the <br>Board of Directors of Ponce Federal Bank unanimously awarded Coln <br>a $615,500 retirement package in 1990.  Bank officials further <br>testified that, seven months after he was awarded the severance <br>package, Coln agreed to return the monies to Ponce Federal Bank <br>for undisclosed reasons, and he pledged La Esmeralda as a guarantee <br>for the return of the severance package (on which interest was <br>still due at the time of trial).  That is the extent of the <br>severance pay evidence.  There was no testimony relating to the <br>legality or appropriateness vel non of the severance package, other <br>than evidence that the bank's legal counsel had approved it. <br>  Coln claims that the evidence was irrelevant and that, <br>even if relevant, it was unfairly prejudicial.  The government <br>argues that this evidence was probative of an overt act in <br>furtherance of the conspiracy   Coln's re-payment of his debt to <br>Royal Bank in August 1990.  We have rejected this theory of the <br>conspiracy, discussed supra.  Given that the conspiracy did not <br>extend to the repayment of the Royal Bank loan in August 1990, we <br>cannot accept the proposition that evidence of his severance <br>package and its return was relevant to proving the existence of the <br>conspiracy.  However, we conclude that any error in the <br>introduction of this evidence was harmless. <br>  In reviewing for harmless error, we "ask whether the <br>result would have been the same if the disputed evidence had not <br>been admitted.  We have therefore said that a conviction will be <br>upheld if it is 'highly probable' that the result would have been <br>the same." United States v. Vigneau, No. 98-1632, 1999 WL 508809, <br>at *2 (1st Cir. July 22, 1999) (quoting United States v. Cudlitz, <br>72 F.3d 992, 999-1000 (1st Cir. 1996)).  The severance package <br>evidence was remote in time from the other charges, ambiguous, and <br>briefly stated.  The Useras were paid in May 1988; Coln's <br>retirement and the severance package events did not transpire until <br>August 1990.  The testimony on the severance package did not <br>establish any wrongdoing on Coln's part.  It did not relate <br>factually to any of the convictions we affirm.  We are convinced, <br>therefore, that it is highly probable that the results in this <br>trial would have been the same without the admission of the <br>disputed evidence and we hold that its admission was harmless.  <br>  Coln's second objection concerns the introduction of <br>evidence of Blasini's apparent attempt to influence a witness prior <br>to trial.  During the government's rebuttal case, Marisel Marrero <br>testified that Blasini approached her prior to trial and suggested <br>that she might not recall the events at issue because they occurred <br>so long in the past.  The evidence was admitted as rebuttal <br>evidence to refute Blasini's character evidence.  Before the <br>evidence was put before the jury, the court told the jury that it <br>was not to consider Marrero's testimony "in any manner" as to <br>Coln. In its final instructions to the jury, the court again <br>informed the jury that it was not to consider this testimony in <br>evaluating the government's case against Coln.  Although Coln <br>argues that the introduction of this evidence was unfairly <br>prejudicial, any risk of prejudice was cured by the court's <br>limiting instruction.   "We must presume that jurors, conscious of <br>the gravity of their task, attend closely the particular language <br>of the trial court's instructions in a criminal case, and that they <br>follow those instructions." United States v. Smith, 145 F.3d 458, <br>462 (1st Cir. 1998) (internal quotation marks omitted).  The court <br>carefully instructed the jury on two occasions that it was not to <br>consider the evidence about Blasini's dealings with Marrero against <br>Coln.  The admission of this evidence did not deny Coln a fair <br>trial. <br>VI. Conclusion <br>  Although Coln challenges the court's enhancement of his <br>sentence for his "leadership role," we do not address that argument <br>because resentencing will be required in light of our disposition <br>of this appeal.  In summary, that disposition is the following: <br>  The judgment is AFFIRMED on counts One, Six, Seven, Eight <br>and Nine; VACATED on counts Two through Five, Eleven and Twelve.  <br>Upon remand, the district court shall enter a judgment of acquittal <br>on counts Two through Five, Eleven and Twelve and shall re-sentence <br>on the remaining convictions in light of this decision.</pre>

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