United States v. Ciocca

• Court: Court of Appeals for the First Circuit
• Decided: February 24, 1997
• Docket: 96-1372
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1372



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                     JACK CIOCCA,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                     Coffin and Campbell, Senior Circuit Judges.
                                          _____________________



                                _____________________



               John C. McBride, with whom McBride  & Keefe was on brief for
               _______________            ________________

          appellant.

               F. Mark Terison, Assistant United States Attorney, with whom
               _______________

          Jay  P.  McCloskey,  United  States  Attorney,  and  Jonathan  R.
          __________________                                   ____________

          Chapman,  Assistant United  States  Attorney, were  on brief  for
          _______

          appellee.


____________________



                                  February 24, 1997

                                 ____________________



TORRUELLA, Chief  Judge.  On June 8,  1995, a complaint
                    TORRUELLA, Chief  Judge.
                               ____________



          was filed against Defendant-Appellant  Jack Ciocca ("Ciocca") and



          Harold  Nelson ("Nelson"),  who is  not a  party to  this appeal,



          charging both with  conspiracy to distribute, and to possess with



          intent  to distribute, cocaine in  violation of 18  U.S.C.   846,



          and  distribution and  possession  with intent  to distribute  in



          violation of 18 U.S.C.    841(a)(1) and (b)(1)(A).  After  a jury



          found  Ciocca guilty on both counts, the district court sentenced



          him  to imprisonment for a term of 188 months, supervised release



          for  a term of eight  years, and a  fine of $70,000.   Ciocca now



          appeals his conviction on three grounds.   He claims that (1) the



          district court erred in refusing to admit the psychiatric records



          of prosecution  witness  Kevin  Caporino  ("Caporino");  (2)  the



          evidence was insufficient to support a conspiracy conviction; and



          (3) the  district court erred in admitting tapes of conversations



          involving Ciocca and Caporino.



                                      BACKGROUND
                                      BACKGROUND



                    We  present the  facts the  jury reasonably  could have



          found, in the light most favorable to the verdict.  United States
                                                              _____________



          v.  Josleyn,  99 F.3d  1182,  1185 n.1  (1st  Cir. 1996).   Kevin
              _______



          Caporino  met  Ciocca  in  1981  when  Ciocca  entered the  Maine



          restaurant in which Caporino was working.  At that first meeting,



          Caporino gave Ciocca some cocaine for personal use.  Ciocca later



          stopped  back at  the restaurant  and told  Caporino that  he was



          involved  in a cocaine trafficking  business.  Within  a month of



          that initial  meeting, Caporino  then met Ciocca  in Connecticut.


-2-



At the Connecticut meeting,  Ciocca gave Caporino an eighth  of a



          kilogram  of cocaine,  which  Caporino tried  to  sell in  Maine.



          Caporino continued  to sell cocaine  for Ciocca until  1983, when



          Caporino  was involved in an  automobile accident.  This accident



          caused  Caporino to suffer  amnesia and led  to extensive therapy



          intended to recover his memory.



                    In  the spring  of  1994, Ciocca  and Nelson  contacted



          Caporino  and requested that he serve as a courier between Ciocca



          in Connecticut and Nelson in Maine.  Caporino agreed.  During the



          1980s,  Caporino  had  served   Ciocca  in  a  similar  capacity,



          transporting  cocaine between  Connecticut  and Maine  up to  ten



          times.   Caporino's role was to retrieve money from Nelson, drive



          the money to Ciocca  in Connecticut, wait for Ciocca to count the



          money,  then  transport  a  kilogram  of  cocaine  from  Ciocca's



          residence back to Nelson.  For his role, Caporino was paid $2,000



          by Nelson for  each delivery,  although sometimes he  was paid  a



          pound of marijuana in lieu of the $2,000.  Caporino made six such



          trips prior to his arrest in May 1995.



                    In late April  or early May  1995, Caporino received  a



          kilogram of  cocaine from Ciocca and delivered  it to Nelson.  At



          this point, Nelson  gave him an ounce of cocaine for repayment of



          money owed to  Caporino.   Caporino in  turn gave  this ounce  to



          undercover  Agent  Scott Durst,  of  the  Maine Drug  Enforcement



          Agency.   Upon this transaction, Caporino was arrested and agreed



          to cooperate with law enforcement personnel.  On May 11, Caporino



          was paid $250 for further debts owed him by Nelson.


-3-



On May 3, 1995, Ciocca participated in a controlled buy



          with  Agent   Durst,  using  Caporino   as  a  conduit   for  the



          transactions.    The  buy  was  arranged  by  means   of  several



          electronically monitored telephone  conversations between  Ciocca



          and  Caporino, during which  Ciocca told  Caporino that  he would



          bring three  and a half ounces  of cocaine to a  meeting place in



          Boston.   Prior to the  controlled buy, Caporino  was searched by



          agents  of the  U.S.  Drug  Enforcement  Agency.    The  buy  was



          monitored  by  means  of  an electronic  wire  and  a  micro-tape



          recorder placed on Caporino.  Caporino, accompanied by Durst, met



          Ciocca outside the Boston Gardens.  Ciocca and Caporino entered a



          nearby restaurant  and proceeded to  the restroom.   Caporino and



          Ciocca were in  the restroom  for three to  four minutes,  during



          which  time Caporino gave  Ciocca $3,000,  which he  had received



          from  Durst and  which Ciocca  counted out in  the restroom.   In



          exchange,  Ciocca  gave  Caporino  three  and a  half  ounces  of



          cocaine.    After the  buy, Caporino  gave  the cocaine  to Agent



          Durst.   Caporino and Durst then returned to a nearby DEA office,



          where Caporino was searched again.



                    Between  May  11  and   June  7,  Caporino  engaged  in



          telephone  and in-person  conversations with  Ciocca  and Nelson,



          trying  to determine when the next delivery between the two would



          occur.  On June 7, Nelson informed Caporino that he had the money



          for the  buy and had  spoken with Ciocca,  who had a  kilogram of



          cocaine ready for purchase.   That day, Nelson met  with Caporino



          in  Maine and transferred  to him an  envelope containing $5,500.


-4-



The  two made  arrangements for  the transfer  of the  cocaine to



          Nelson upon  Caporino's return from  Connecticut.  Both  prior to



          and after this meeting, Caporino and his car were searched.



                    Caporino then travelled with Agent Durst to Connecticut



          to pick up  the kilogram of cocaine from Ciocca.   Caporino's car



          broke down along the way and the DEA supplied a truck to complete



          the trip.   Approximately ten minutes  away from Ciocca's  house,



          the agents  transferred Caporino to  the truck.   At the  time of



          this transfer,  Caporino was  searched.  Agent  Durst accompanied



          Caporino  in the  truck until  they were  near Ciocca's  home, at



          which point Durst joined the other law enforcement agents.



                    After being ushered into  the house by Ciocca, Caporino



          waited   while  Ciocca   finished  cooking  with   his  daughter.



          Thereafter, Ciocca and Caporino went  to the master bathroom  and



          closed the  door.  Ciocca put  on thin black gloves  and began to



          count  the  money  Caporino  had  brought from  Nelson.    Ciocca



          retrieved a kilogram of cocaine from a closet in the bathroom and



          gave it  to Caporino.  The  two proceeded down the  stairs to the



          cellar,  from which Caporino left  the house.   During this time,



          law enforcement agents were stationed on the street near Ciocca's



          mailbox, monitoring the wire transmissions from inside the house.



          Upon  meeting up  with the  drug enforcement  agents in  a nearby



          parking lot, Caporino turned over to the agents a brown paper bag



          containing a rectangular package  of cocaine.  Both Caporino  and



          the truck were again searched.


-5-



During  the  early  morning  of June  8,  Nelson  paged



          Caporino to  transfer the cocaine.  The two arranged to meet at a



          restaurant  in Portland, Maine.   From there,  the two  went to a



          commuter  parking lot, where Caporino  claimed his car had broken



          down.  Nelson retrieved the kilogram of cocaine from the trunk of



          Caporino's car, after which drug enforcement agents arrested him.



                    Later that  day, a search warrant  executed at Ciocca's



          home turned  up several  firearms, including one  located in  the



          master bathroom closet and  three firearms in an attache  case in



          the  bottom of that closet.  Finally, another firearm was located



          in a  bureau in the master  bedroom.  The agents  also seized the



          $5,500  that Nelson had transferred to  Caporino the previous day



          from the medicine cabinet of Ciocca's master bathroom.



                                      DISCUSSION
                                      DISCUSSION



                    I.   Denial  of  defendant's  request   for  Caporino's
                    I.   Denial  of  defendant's  request   for  Caporino's

                         medical and psychiatric records
                         medical and psychiatric records



                    Ciocca first argues that  the district court erred when



          it denied his request for discovery of, and failed to admit  into



          evidence, Caporino's  medical and psychiatric records  related to



          his  1983  accident.    Ciocca  contends  that  the  records  are



          exculpatory  evidence  to which  he  is entitled  under  Brady v.
                                                                   _____



          Maryland, 373 U.S. 83  (1963).  Such evidence is  discoverable by
          ________



          the  defendant  where  it "is  material  either  to  guilt or  to



          punishment."  Brady, 373 U.S. at 87.
                        _____



                    In order to succeed on a Brady claim, "a defendant must
                                             _____



          show that the withheld 'evidence was exculpatory, as  measured by



          its materiality.'"   United States v. Watson,  76 F.3d 4,  7 (1st
                               _____________    ______



                                         -6-



Cir.)  (quoting United  States v.  Hemmer, 729  F.2d 10,  14 (1st
                          ______________     ______



          Cir.), cert.  denied, 467  U.S. 1218  (1984)), cert.  denied, ___
                 _____________                           _____________



          U.S. ___, 116 S. Ct. 1889 (1996).  "Information is 'material' 'if



          there is  a reasonable  probability that,  had the evidence  been



          disclosed to the defense, the result of the proceeding would have



          been different.'"  United States v. Blais, 98 F.3d  647, 651 (1st
                             _____________    _____



          Cir.  1996)  (quoting  United  States  v. Bagley,  473  U.S.  667
                                 ______________     ______



          (1985)).   "Where,  as here,  the defendant  has made  a pretrial



          request  for   specific  exculpatory  information,   reversal  is



          required if nondisclosure 'might have affected the outcome of the



          trial.'"  United  States v. Devin,  918 F.2d  280, 289 (1st  Cir.
                    ______________    _____



          1990).



                    After carefully reviewing  each of the  sealed records,



          we find that non-disclosure could  not have affected the  outcome



          of the trial.   Disclosure of these medical records,  in light of



          defense   counsel's   unhindered  cross-examination   of  several



          government witnesses on this issue, could not have altered either



          the jury's  conviction or the sentencing  court's disposition and



          is therefore not  material.   Nothing in the  records could  have



          bolstered  defense counsel's  cross-examination of Caporino.   We



          thus find no  error in  the district court's  denial of  Ciocca's



          motion for access to Caporino's psychiatric records.



                    Ciocca emphasizes  that the district court's  denial of



          his disclosure request prejudiced his ability to impeach Caporino



          on   cross-examination,   and   thus   violated   his  right   to



          confrontation  guaranteed by  the  Sixth Amendment.   "The  Sixth


-7-



Amendment  guarantees criminal defendants an adequate opportunity



          to cross-examine adverse witnesses."   United States v. Butt, 955
                                                 _____________    ____



          F.2d  77,  86 (1st  Cir. 1992).    While a  witness's psychiatric



          records  may  sometimes  be  an appropriate  subject  for  cross-



          examination, the right to cross-examination is not absolute.  Id.
                                                                        ___



          "Once the defendant has been afforded a reasonable opportunity to



          question  a witness'  veracity  and motivation,  the trial  judge



          enjoys  broad discretion in  determining the scope  and extent of



          cross-examination."  Id. (internal quotations omitted).
                               ___



                    As Caporino was the government's primary witness, we do



          not doubt that challenging  Caporino's credibility was crucial to



          Ciocca's defense.   We find,  however, that  Ciocca's ability  to



          impeach Caporino did not  suffer because of, and that  Ciocca was



          not prejudiced by, the district court's denial of access to these



          records.   Defense  counsel  engaged in  a  thorough and  probing



          cross-examination of Caporino, as  well as of Agent Durst  of the



          Maine Drug  Enforcement Agency  and Agent John  Bryfonski of  the



          U.S. Drug Enforcement Agency,  regarding the extent of Caporino's



          memory loss after  his accident.   Ciocca brought out  Caporino's



          statements  that  he  was a  "walking  zombie,"  that  he had  to



          "reconstruct  his brain" after the accident,  that just after the



          accident, and  perhaps for  years thereafter, Caporino  could not



          remember  anything  that occurred  prior  to  the accident,  that



          Caporino was hospitalized for amnesia after the accident, that he



          "forgot my whole life," that Caporino had to "build a new brain,"



          and  that Caporino's brain had  "gone the wrong  way."  The above


-8-



testimony demonstrates  that Ciocca was able to  place before the



          jury ample evidence regarding  Caporino's ability to remember the



          events that transpired prior to and after his accident.  That the



          jury chose  to credit  Caporino's testimony, even  after Ciocca's



          thorough cross-examination, is within its province as factfinder.



          United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996).  On
          _____________    _______



          review,  we defer to all jury determinations of credibility.  See
                                                                        ___



          United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996).
          _____________    _____



                    Thus,  having found  that the  sealed records  were not



          material  to Ciocca's guilt or punishment and that Ciocca was not



          prejudiced  by  this lack  of access  to  the sealed  records, we



          conclude that  the district court  properly denied access  to the



          records as Brady material.
                     _____



                    II.  Sufficiency of the evidence
                    II.  Sufficiency of the evidence



                    Ciocca  next claims  that the  district court  erred in



          denying his motion for  judgment of acquittal.  He  contends that



          no  credible evidence established a conspiracy from the spring of



          1994 to May 1995.1  He argues that there was no evidence, outside



          that  provided  by Caporino,  linking  him to  a  conspiracy with



          Nelson  prior to  May  1995.   He  acknowledges that  there  were



          conversations between  Caporino and  Nelson and between  Caporino



          and Ciocca, but nothing linking the three in a conspiracy.



                    Ciocca is,  in essence, challenging the  sufficiency of



          the evidence.

                              
          ____________________



          1   He  appears to concede  that the  evidence was  sufficient to

          establish  a  conspiracy  during  the  time  following Caporino's

          decision to cooperate with the government.



                                         -9-



In assessing a  challenge to the  sufficiency

                    of  the evidence,  we  "review the  record to

                    determine whether the evidence and reasonable

                    inferences therefrom, taken as a whole and in

                    the light most  favorable to the prosecution,

                    would  allow  a  rational  jury  to determine

                    beyond a reasonable doubt that the defendants

                    were guilty as charged."



          United  States  v. Sullivan,  85 F.3d  743,  747 (1st  Cir. 1996)
          ______________     ________



          (quoting United  States v.  Mena-Robles, 4  F.3d 1026,  1031 (1st
                   ______________     ___________



          Cir. 1993), cert. denied,  ___ U.S. ___, 114 S. Ct. 1550 (1994)).
                      ____________



          "To  uphold  a conviction,  the court  need  not believe  that no



          verdict  other than a  guilty verdict could  sensibly be reached,



          but  must  only  satisfy itself  that  the  guilty  verdict finds



          support in 'a plausible rendition of the record.'"  United States
                                                              _____________



          v. Echeverri, 982 F.2d  675, 677 (1st Cir. 1993)  (quoting United
             _________                                               ______



          States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
          ______    _____                                     ____________



          506 U.S. 1063 (1993)).



                    In  order  to  prove  conspiracy,  the  government  was



          required to prove beyond a reasonable doubt that  Ciocca "entered



          an agreement to commit the substantive offense, and that [he] was



          a  voluntary participant in  the conspiracy."   United  States v.
                                                          ______________



          And jar, 49  F.3d  16, 20  (1st  Cir. 1995).   In  addition,  the
          _______



          government  must prove both an  intent to agree  and an intent to



          commit  the  substantive  offense.    Id.    In  considering  the
                                                ___



          evidence,  "a 'common  purpose and  plan may  be inferred  from a



          development  and  collocation  of  circumstance.'"    Id.  at  21
                                                                ___



          (quoting  United States v. S nchez,  917 F.2d 607,  610 (1st Cir.
                    _____________    _______



          1990) (citations and internal  quotations omitted), cert. denied,
                                                              ____________



          499 U.S. 977 (1991)).



                                         -10-



In  the  Background  section,  supra,  we  recited  the
                             __________            _____



          evidence  in the light most favorable to  the jury verdict.  That



          evidence indicates that, in the spring of 1994,  Ciocca initiated



          an  understanding  with Caporino  that  Caporino  would serve  as



          courier  in a drug trade between Ciocca in Connecticut and Nelson



          in Maine.  The jury could  have found that Caporino engaged in at



          least  six  transactions   prior  to  May   1995    During   each



          transaction, Nelson contacted  Caporino to let him know  that the



          money  was ready  to be  transported to  Ciocca.   After Caporino



          retrieved the money from Nelson, he drove it to Ciocca's house in



          Connecticut, where  Ciocca counted  it.   Ciocca would  then turn



          over a kilogram of  cocaine to Caporino, who would  transport the



          kilogram of cocaine back to Nelson in Maine.  We believe that the



          jury  could infer from  the evidence as  a whole  that Nelson and



          Ciocca  entered  into  an agreement  in  the  spring  of 1994  to



          transport cocaine between Connecticut and Maine, that they had an



          intent to agree and an intent to distribute cocaine, and that the



          agreement continued up to and including the point at which Ciocca



          was arrested.  See, e.g., And jar, 49 F.3d at 21  (noting that an
                         ___  ____  _______



          appellate court draws all  credibility determinations in favor of



          the verdict, even in instances where the conviction relies solely



          on the uncorroborated testimony  of a confidential informant, "so



          long as the testimony  is not incredible or insubstantial  on its



          face" (internal quotations  omitted)); United  States v.  Cresta,
                                                 ______________     ______



          825 F.2d 538, 546 (1st  Cir. 1987) (recognizing that there is  no



          federal requirement of corroboration of an informant's  testimony


-11-



provided the testimony is not "incredible or insubstantial on its



          face" (internal quotations omitted)), cert. denied, 486 U.S. 1042
                                                ____________



          (1988); United States v. Davis, 623 F.2d 188, 195 (1st Cir. 1980)
                  _____________    _____



          (finding it "clear that a [conspiracy] conviction can rest on the



          uncorroborated   testimony  of  a   co-defendant  or  accomplice"



          (internal  quotations omitted)).  Because Caporino's testimony is



          far from being incredible  or insubstantial on its face,  we find



          no  error in the district  court's denial of  Ciocca's motion for



          judgment of acquittal.



                    III. Admission  of  the  taped   conversations  between
                    III. Admission  of  the  taped   conversations  between

                         Ciocca and Caporino
                         Ciocca and Caporino



                    During the  trial, the  government sought  to introduce



          into  evidence  approximately  27  audiotape  recordings procured



          through   consensual  recording.      The  audiotapes   contained



          conversations  between Caporino and  Ciocca and  between Caporino



          and  Ciocca's   co-conspirator  Nelson.     The  district   court



          conditionally admitted the audiotapes,  subject to a later ruling



          under United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).
                _____________    ____________



          At the close of all the evidence, Ciocca renewed his objection to



          "all  the  evidence that  relates  to  the conspirator  hearsay."



          Trial Transcript, vol. 2, at 378.  The following colloquy ensued:



                      THE COURT:  Let me see.  You say strike all

                    the  evidence.  What evidence particularly do

                    you wish to have stricken?



                      MR. McBRIDE:  Any statements made by Nelson

                    on the  one hand  that were intercepted  on a

                    consensual monitoring device between Caporino

                    and  Nelson, and  any statement  that existed

                    between Caporino and  the defendant who [sic]

                    in any way reflected a continuing--


-12-



THE  COURT:    The   defendant's  statement

                    intercepted by the wire would be an admission

                    to [sic] the party.



                      MR. McBRIDE:  I'm sorry, you are absolutely

                    correct, I'm wrong.



          Id. at 378-79.
          ___



                    On appeal, Ciocca argues that



                    "certain tapes of  conversations were  played

                    for the jury.  Defense counsel had a standing

                    objection   to   the    admission   of    the

                    conversations   as   hearsay.     The   Court

                    overruled the objection,  allowing the  tapes

                    to come in under the co-conspirator statement

                    exception to  the  hearsay rule  as  provided

                    under  Federal  Rule of  Evidence  801(d) (2)

                    (E).   The  Court  erred  because  there  was

                    insufficient    evidence   of    a   criminal

                    conspiracy   between    the   defendant   and

                    Caporino."



          Appellant's  Brief at  19.   We first  note that  Ciocca  has not



          appealed the district court's admission of the tape recordings of



          conversations  between  Caporino  and   Ciocca's  co-conspirator,



          Nelson.  Because  Ciocca has  failed to appeal  that ruling,  the



          admissibility of those recordings is not before us.



                    We next find  that Ciocca has waived  the argument that



          the   taped  conversations   between   Caporino  and   him   were



          inadmissible.    "A  party  waives  a  right  when  it  makes  an



          intentional relinquishment or abandonment  of it."  United States
                                                              _____________



          v.  Mitchell,  85   F.3d  800,  807  (1st  Cir.  1996)  (internal
              ________



          quotations  omitted).   Forfeiture, of  course, is  different, in



          that it occurs only "if a defendant merely fails to make a timely



          assertion of  that right."  Id.   "The distinction is  a key one,
                                      ___



          for '[m]ere forfeiture, as opposed to waiver, does not extinguish


-13-



an "error" under Rule 52(b). . . .'  In short, where there  was a



          forfeiture,  we apply  a plain  error analysis;  where there  was



          waiver,  we do not."   Id. (quoting  United States  v. Olano, 507
                                 ___           _____________     _____



          U.S.  725, 733-37 (1993)).   Thus, Ciocca's acknowledgment at the



          Petrozziello hearing  of the correctness of  the district court's
          ____________



          ruling with  regard to the taped conversations between Ciocca and



          Caporino  constitutes  waiver,  which extinguishes  any  error on



          appeal.  United States v.  Olano, 507 U.S. 725, 733 (1993).   Our
                   _____________     _____



          analysis ends here.2

                              
          ____________________



          2    We  point out  that  defense  counsel's  agreement with  the

          district  court's  ruling  on  these conversations  was  in  fact

          warranted and correct as a matter of law.  Ciocca's statements in

          these  conversations constitute  admissions against  interest and

          were properly  admissible pursuant  to Federal Rules  of Evidence

          801(d)(2)(A)  and  804(b)(3).   Additionally,  the statements  by

          Caporino, in response, were properly admissible because a



                    "defendant, having  made admissions, [cannot]

                    keep  from the  jury  other  segments of  the

                    discussion reasonably required to place those

                    admissions in context.  In this instance, the

                    other parts of the conversation were properly

                    admitted   as   'reciprocal  and   integrated

                    utterances,'   .  .   .  to   put  [Ciocca's]

                    statements  into  perspective  and make  them

                    'intelligible to the jury and recognizable as

                    admissions.'"



          United  States v. McDowell, 918  F.2d 1004, 1007  (1st Cir. 1990)
          ______________    ________

          (citations omitted).



             Moreover, while some of Ciocca's statements made in the course

          of  the  conversations  may  not  have  been  admissions  against

          interest, his failure to object to such statements below forfeits

          any argument he may have for the inadmissibility of non-admission

          statements.   Forfeiture  of this  argument triggers  plain error

          review.  Mitchell, 85 F.3d at  807.  Ciocca's brief does not even
                   ________

          indicate which statements may give rise to a plain error finding.

          Thus, Ciocca has not  carried his burden of showing  plain error,

          see  United States  v.  Winter,  70  F.3d  655  (1st  Cir.  1995)
          ___  _____________      ______

          (appellant bears  the burden of establishing  plain error), cert.
                                                                      _____

          denied, ___ U.S. ___, 116 S. Ct. 1366 (1996), and we find no such
          ______



                                         -14-



CONCLUSION
                                      CONCLUSION



                    Based on  the foregoing  considerations, we  affirm the
                                                                 affirm



          district court's rulings.



                    So ordered.
                    __________


____________________



          error here.



                                         -15-