US v. Cohen
Case Date: 02/10/1995
Court: United States Court of Appeals
Docket No: 94-1326
|
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 ____________________ |