U.S. v. Saccoccia

• Decision Date: 07 February 1995
• Docket Number: 93-2208,Nos. 93-1618,s. 93-1618
• Parties: 42 Fed. R. Evid. Serv. 355 UNITED STATES of America, Appellee, v. Stephen A. SACCOCCIA, Defendant, Appellant. , and 94-1506. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 754

58 F.3d 754

42 Fed. R. Evid. Serv. 355

UNITED STATES of America, Appellee, v. Stephen A. SACCOCCIA, Defendant, Appellant.

Nos. 93-1618, 93-2208, and 94-1506.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 1995.

Decided June 28, 1995.

Samuel Rosenthal, with whom Curtis, Mallet-Prevost, Colt & Mosle, Robert D. Luskin, and Comey Boyd & Luskin, Washington, DC, were on brief, for appellant.

Nina Goodman, Atty., Dep't of Justice, Washington, DC, and Michael P. Iannotti, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S. Atty., James H. Leavey, and Michael E. Davitt, Asst. U.S. Attys., Providence, RI, were on brief, for U.S.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

A jury convicted defendant-appellant Stephen A. Saccoccia on racketeering, money laundering, and related charges arising from his leadership of an organization that laundered well over $100,000,000 in drug money during the years 1986 through 1991. On appeal, Saccoccia challenges his extradition, the timing of his trial, his conviction, the forfeiture of certain assets, and the 660-year sentence that the district court imposed. Finding that his arguments do not wash, we affirm.

I. BACKGROUND

We sketch the bareboned facts in the light most amiable to the government, see United States v. Ortiz, 966 F.2d 707, 710-11 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993), leaving much of the flesh and sinew for fuller articulation in connection with our discussion of particular issues.

Appellant formerly controlled a network of precious metals businesses located in Rhode Island, New York, and California. He became enmeshed in money laundering through his involvement with a fellow metalman, Barry Slomovits. At a point in the mid-1980s, Slomovits was accepting millions of dollars in cash each week from Duvan Arboleda, who represented a group of Colombian drug lords (the Cali cartel). Slomovits used some of this cash to purchase gold from appellant. By special arrangement, the transactions were accomplished without documentation.

In 1987, Arboleda and appellant agreed that they would deal directly with each other. From that juncture forward, appellant used his various businesses to cleanse money funnelled to him by the Cali cartel and its emissaries (including Arboleda, Fernando Duenas, and Raoul Escobar). Typically, Arboleda would make large quantities of cash available to appellant; appellant would send some of it to Slomovits in New York; Slomovits would buy gold with the funds, resell the gold, and wire the proceeds to accounts that appellant controlled. Slomovits received apocryphal invoices from appellant's companies purporting to show sales of gold for sums corresponding to the amounts of the wire transfers.

Ahron Sharir, a manufacturer of gold chain, also washed money for appellant. Appellant used Sharir's New York factory as a drop-off point for incoming shipments of currency, and Sharir laundered the cash by methods similar to those employed by Slomovits. The shipments to Sharir's factory continued until 1988. From then on, the two men forsook the New York factory, but continued to deal with each other. Appellant delivered cash totalling over $35,000,000 to Sharir at other locations between 1988 and 1990.

By 1990, appellant's operations had expanded and had become largely independent of Slomovits. Appellant would bid for opportunities to launder money on behalf of the Cali cartel. When the cartel accepted a bid, he or his couriers would receive sacks of currency at prearranged delivery points. These shipments ordinarily ranged between $50,000 and $500,000 (although one delivery totalled $3,000,000). The bills were usually in small denominations. They would be counted, transported to one of appellant's offices in California or Rhode Island, then counted again, smurfed, ¹ and used to buy cashier's checks payable to one of appellant's companies. These purchases were made at various banks by underlings (e.g., David Izzi, Anthony DeMarco, James Saccoccio, Kenneth Saccoccio) in accordance with instructions received from appellant or his wife, Donna Saccoccia. After the checks had been deposited in a company account, the money would then be wired to a foreign bank designated by Arboleda or Duenas. Along the way, appellant would deduct a commission that usually approximated ten percent of the laundered cash. This completed "la vuelta," the term used by the Cali cartel to describe a complete cycle of drug smuggling activities.

The spring of 1991 marked the beginning of the end of appellant's career in high finance. During the early stages of his operation, the money received in New York was transported to Rhode Island by armored car and then deposited in an account standing in the name of a controlled corporation, Trend Precious Metals (Trend), at Citizens Bank. Between January 1, 1990 and April 2, 1991, appellant and his wife wired over $136,000,000 out of the Trend account to an assortment of foreign banks. Citizens became suspicious and closed the account. In approximately the same time frame, an employee of an armored car service warned Richard Gizarelli, an unindicted coconspirator, that appellant was under investigation. Gizarelli promptly informed appellant.

Notwithstanding these omens, appellant persisted. He did, however, alter his modus operandi. Instead of using private couriers to transport cash from New York to Rhode Island, he sent any of four men--Izzi, Carlo DeMarco, Anthony DeMarco, or Vincent Hurley, often (but not always) operating in pairs--to haul the money to Rhode Island. And, although appellant's cohorts continued to purchase bank checks from various Rhode Island financial institutions, appellant began to send the checks to his offices in California by air courier, often in canisters labeled as containing gold (to which appellant's henchmen added slag or scrap metal to increase weight). Accomplices used the money to purchase gold, which was then sold on the open market. The proceeds were eventually wired back to one of appellant's remaining Rhode Island accounts.

In August of 1991, appellant convened a meeting at his mother's home. He showed the conferees (who included Donna Saccoccia, Izzi, and the two DeMarcos) a videotape that had been discovered accidentally in a nearby building. The tape reflected an ongoing surveillance of the back entrance to appellant's Cranston coin shop. He advised his colleagues to start using the store's front entrance. Soon thereafter, appellant departed for Switzerland. In short order, the authorities indicted and extradited him.

After unsuccessfully seeking to postpone prosecution on health-related grounds, ² appellant went to trial on November 4, 1992, in the United States District Court for the District of Rhode Island, along with several other indicted coconspirators (including his wife). Appellant's attorney became ill during trial, and the court declared a mistrial as to appellant. ³ The new trial began on February 17, 1993, and resulted in his conviction. These appeals followed.

Saccoccia's appeals were consolidated for oral argument with the appeals arising out of the first trial. See supra note 3. Notwithstanding the obvious differences in the trial records and in the posture of the prosecutions--for example, appellant was the leader of the money laundering organization unlike most of the others, he was not tried for currency transaction reporting (CTR) offenses; and he was convicted in a trial separate from that of his codefendants--appellant seeks to incorporate by reference eight arguments advanced by other defendants. Because appellant's position is not substantially similar to that of the codefendants, and because he has failed to develop the idiosyncracies of his own situation, we deem five of those arguments to have been abandoned. ⁴ See United States v. David, 940 F.2d 722, 737 (1st Cir.1991) ("Adoption by reference, however, cannot occur in a vacuum; to be meaningful, the arguments adopted must be readily transferrable from the proponent's case to the adopter's case."), cert. denied, 504 U.S. 955, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992).

Nevertheless, we are left with no shortage of food for thought. Appellant has served up a bouillabaisse of other offerings. We address his meatier propositions below, including the three "incorporated" contentions that arguably have been preserved. And although we do not deem detailed discussion desirable, the record should reflect that we have masticated appellant's remaining points and found them indigestible.

II. EXTRADITION

As a threshold matter, appellant maintains that his trial and ensuing conviction violated the extradition treaty between the United States and Switzerland, and, in the bargain, transgressed the principles of dual criminality and specialty. We reject these importunings.

A. Gaining Perspective.

Further facts are needed to place appellant's extradition-related claims into a workable perspective. On November 18, 1991, a federal grand jury returned the indictment that inaugurated this prosecution. Count 1 charged appellant, his wife, and eleven associates with RICO conspiracy. See 18 U.S.C. Sec. 1962(d) (1988). A RICO conspiracy, of course, requires the government to prove, inter alia, an illicit agreement to conduct a pattern of racketeering activity. See United States v. Ruiz, 905 F.2d 499, 503 (1st Cir.1990); see also 18 U.S.C. Sec. 1962(c) (1988). Proof of a pattern demands that the prosecution show "at least two acts of racketeering activity." 18 U.S.C. Sec. 1961(5) (1988). These acts, which must themselves comprise violations of specified criminal statutes, see id. Sec. 1961(1)(B), are commonly referred to as "predicates" or "predicate acts." See, e.g., Ruiz, 905 F.2d at 503.

In the instant indictment, the alleged racketeering activity comprised, among other specified predicate acts, incidents of money laundering, see 18...