United States v. Owens

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1838



                          UNITED STATES,



                            Appellee,



                                v.



                          DWAYNE OWENS,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. William G. Young, U.S. District Judge]


Before



                     Torruella, Chief Judge,

               Boudin and Stahl, Circuit Judges.


Miriam Conrad, Federal Public Defender, for appellant.

     Deborah Watson, Attorney, with whom Donald K. Stern, United

States Attorney, Theodore B. Heinrich, Assistant United States

Attorney, and Allison D. Burroughs, Assistant United States

Attorney, were on brief for appellee.


March 2, 1999


STAHL, Circuit Judge.   Following a twenty-one day trial,

a jury convicted defendant-appellant Dwayne Owens on a number of

serious charges including murder, racketeering, cocaine

distribution,  being a fugitive in possession of a firearm, and

money laundering.  In this appeal, Owens challenges his convictions

on various grounds.  After a careful review of the record and

Owens's arguments, we affirm.

           I.  Prior Proceedings and Appellate Issues

  On May 14, 1996, a grand jury returned a twenty-seven

count indictment against Owens and others.  Underlying this

indictment was the government's allegation that, from 1988 to 1995,

Owens ran a large-scale drug enterprise that obtained cocaine from

suppliers in New York and Florida for distribution in

Massachusetts.  The government also accused Owens of possessing

numerous handguns, resorting to violence and threats of violence to

protect his drug interests, and of the murder of one Rodney Belle,

who had double-crossed him in a drug deal.

  Prior to trial, Owens moved to suppress the fruits of a

search of his home at 26 Parsons Avenue in East Providence, Rhode

Island and a search of an automobile in which he was a passenger,

conducted on an interstate highway in Memphis, Tennessee.  In

addition, he requested a hearing pursuant to Franks v. Delaware,

438 U.S. 154 (1978) (holding that the Fourth Amendment entitles a

defendant to a hearing if he establishes a prima facie case that a

search warrant affidavit included knowingly or recklessly false

statements).  Although the district court denied Owens's request

for a Franks hearing, it did conduct a six-day evidentiary hearing

on the motions to suppress, concluding that most of the objected to

evidence was properly seized.

  When the case was submitted to the jury, Owens was the

sole remaining defendant.  He was convicted on all charges

pertaining to the murder of Rodney Belle, conspiracy to murder

Rodney Belle, violations of the Racketeering Influenced Corrupt

Organization ("RICO") Act, RICO conspiracy, interstate travel in

aid of RICO, conspiracy to possess and distribute cocaine, using

and carrying a firearm during a crime of violence, being a fugitive

from justice in possession of a firearm, and money laundering.  The

jury acquitted him on a number of other charges.  The district

court sentenced Owens to life imprisonment.  

  On appeal, Owens makes a number of arguments which fall

into three main categories.  First, he challenges the district

court's denial of his motions to suppress.  Second, he argues that

there was insufficient evidence to support his RICO convictions. 

Finally, he contends that the court delivered a number of flawed

jury instructions. 

  We discuss each issue in turn after setting forth in

context the relevant underlying facts.

                  II.  The Suppression Motions

  A.  Standard of Review

  We review a district court's factual findings for clear

error.  See United States v. McCarthy, 77 F.3d 522, 525 (1st Cir.),

cert. denied, 117 S. Ct. 771 (1996).  Where specific findings are

lacking, we view the record in the light most favorable to the

ruling, drawing all reasonable inferences in support of the

challenged ruling.  See id. at 529.  We review a district court's

legal conclusions de novo.  See United States v. Carty, 993 F.2d

1005, 1008 (1st Cir. 1993).  In the end, we defer to a district

court's denial of a suppression motion, so long as it is supported

by any reasonable view of the evidence.  See id.

  B.  26 Parsons Avenue Search

    1.  Background

  In May 1995, Boston police notified East Providence

police that a man known as Don Miley, alias Dwayne Owens, was

wanted for homicide in Boston, and that an accomplice of this man

was cooperating with the police.  This accomplice gave Boston

police information about the suspect's drug trafficking activities

and described his residence in East Providence.  On May 18, 1995,

East Providence Police Captain Joseph Broadmeadow submitted an

affidavit in support of an application for a warrant to search

Owens's home at 26 Parsons Avenue.  The warrant was granted and

authorized police to search for "a black male, age 32, known as Don

Miley, alias Dwayne Owens, alias [sic] with a date of birth of 6-9-

63, also firearms, ammunition."  The police executed the warrant on

May 19, during Owens's absence from the residence, and seized

extensive evidence including not only guns, ammunition, illegal

drugs, and drug paraphernalia, but also personal documents, some of

which were found in manila folders and envelopes.

     Owens's motion to suppress the fruits of this search

argued (1) that the warrant application failed to establish

probable cause and the good-faith exception to the exclusionary

rule did not apply; and (2) that the police exceeded the scope of

their search.  As an adjunct to his suppression motion, he also

moved for a Franks hearing.  

     The district court granted in part and denied in part

Owens's suppression motion, ruling that the warrant application

established probable cause to search for firearms and ammunition,

and that even if probable cause to search did not support the

warrant, most of the items seized were admissible under the "good-

faith exception" recognized in United States v. Leon, 468 U.S. 897,

922 (1984) (holding that evidence seized in reasonable good-faith

reliance on a search warrant, which is later found defective, may

be admitted at trial).  As to the scope of the search, the court

determined that certain evidence was properly seized because it was

in plain view and immediately apparent as evidence of a crime or as

evidence that would help lead to the apprehension of Owens, whom

the officers reasonably believed was a fugitive.  Although the

court granted Owens's motion with respect to some items seized

during the search, ruling that these documents were not immediately

apparent as relevant evidence, in the end, it admitted most of the

seized items, including the drugs, drug paraphernalia, and certain

personal documents.  The court denied Owens's request for a Frankshearing, finding that Owens failed to make a substantial

preliminary showing that Officer Broadmeadow's affidavit contained

any deliberately false or recklessly false statements.

          2.  Discussion

     On appeal, Owens renews the two arguments made in his

motion to suppress.  He also contends that the district court

improperly denied his request for a Franks hearing.  We disagree.

               a.   Probable Cause and Leon's Good-Faith

                    Exception

               

     Assuming arguendo that the warrant for 26 Parsons Avenue

was not supported by probable cause, we agree with the district

court that the executing officers reasonably relied in good faith

on a facially valid warrant.  We therefore need not assess the

constitutionality of the warrant and simply hold that the district

court committed no error in denying the motion to suppress.  SeeLeon, 468 U.S. at 925 (courts have discretion to consider the issue

of officers' good faith without first addressing Fourth Amendment

issue).

     There are four exclusions to the Leon good-faith

exception: (1) "when the magistrate . . . was misled by information

in an affidavit that the affiant knew was false or would have known

was false except for his reckless disregard for the truth;" (2)

"where the issuing magistrate wholly abandoned his [detached and

neutral] judicial role;" (3) where the affidavit is "so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable;" and (4) where a warrant is "so

facially deficient -- i.e. in failing to particularize the place to

be searched or the things to be seized -- that the executing

officers cannot reasonably presume it to be valid."  Id. at 923. 

Owens contends that the 26 Parsons Avenue search implicates the

first and fourth exclusions.

                    i.   False Information in Affidavit

     According to Owens, the affidavit improperly misled the

magistrate in three respects.  First, it claimed that the Boston

police had a murder warrant for Don Miley when in fact the murder

warrant identified the suspect only as Dwayne Owens.  Second, it

misstated that business records indicated Be Be's Barbecue was

"owned and incorporated by Don Miley" when Don Miley was only

listed in corporate documents as Vice President.  And third, its

statement that phone number 436-6658 was located at 26 Parsons

Avenue improperly omitted that the number listed was in the name of

Johnny Stephens, not Don Miley.    

     Owens's claims fail because he cannot establish that

these misstatements were either knowingly false or reckless.  At

most, Broadmeadow's errors resulted from negligence, and

"[a]llegations of negligence or innocent mistake are insufficient." 

Franks, 438 U.S. at 171.

     Moreover, even if any of the misstatements were knowingly

false or reckless, we do not see how they were material.  SeeUnited States v. Vanness, 85 F.3d 661, 662-63 (D.C. Cir. 1996)

(warrant valid under Leon because false statement not material). 

The affidavit's statement that a warrant existed for "Miley,"

rather than "Owens," was immaterial because the affidavit also

indicated that the subject known as "Miley" used the alias "Owens." 

Nor can the statement that Miley was named in business records as

owner rather than Vice President be characterized as material

because, in either event, the suspect was linked to Be Be's

Barbecue.  Cf. State v. Groff, 323 N.W.2d 204, 210 (Iowa 1982)

(stating that defendant "owns" land on which marijuana is growing,

rather than that "he farms the land," is not materially false). 

Finally, the affidavit's failure to recite that telephone number

436-6658 was listed in the name of Johnny Stephens was not material

under the circumstances.  Police questioning of the landlord of 26

Parsons Avenue had already established that a man known as Miley

was living at that address.  It was immaterial whether Miley was

living there alone or with others.  

                    ii.  Facially Deficient Warrant

     According to Owens, it was unreasonable for the executing

officers to rely on a warrant that he characterizes as so facially

deficient as to be "bare bones."  In particular, Owens complains

that the affidavit demonstrated neither the recency of the

information relied upon nor a nexus between the firearms and 26

Parsons Avenue.  We disagree.

     Despite Owens's complaints, the affidavit was

sufficiently current because it stated that an "active warrant"

existed for Owens, that an informant "is cooperating" (emphasis

added) with Boston police, and that the informant described a Cole

Street address as "being used" (emphasis added) by Owens in his

drug business.  From this, the executing officers could reasonably

have inferred that the informant's data were recent and described

an ongoing drug operation and access to firearms.  Cf. United

States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996) (affidavit

not stale because references by informant were in the present tense

and therefore implied regular ongoing transactions); United Statesv. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996) ("[I]t is common

ground that drug conspiracies tend to be ongoing operations,

rendering timely information that might, in other contexts, be

regarded as stale."). 

     Owens's complaint that the affidavit failed to establish

any nexus between the firearms and 26 Parsons Avenue similarly

fails.  The affidavit recited that Owens was wanted for murder, had

"numerous firearms," and rented a house at 26 Parsons Avenue. 

Based on this information, it was reasonable for the executing

officers to believe that firearms would be found at 26 Parsons

Avenue.  Cf. United States v. Procopio, 88 F.3d 21, 28 (1st Cir.)

(nexus between evidence of crime and address to be searched

sufficiently established where affidavit recited that suspect lived

at that address), cert. denied, 117 S. Ct. 620 (1996).

               b.   The Scope of the Search

     Owens concedes that if the police were lawfully present

at 26 Parsons Avenue, as we have just concluded, then the firearms

and ammunition were properly seized within the scope of the search

warrant, and the drugs and paraphernalia were properly seized

pursuant to the plain view doctrine.  He contends, however, that

the police officers exceeded the proper scope of the search when

they seized various personal documents which were not in plain

view.

     A plain view seizure is lawful if (1) the seizing officer

has a prior justification for being in a position to see the item

in plain view and (2) the evidentiary value of the item is

immediately apparent.  See Horton v. California, 496 U.S. 128, 136

(1990).  According to Owens, the officers improperly seized various

personal documents because the evidentiary value of these documents

was not "immediately apparent."  In particular, Owens contests the

seizure of the following documents, which were introduced as

evidence at trial: address books, telephone bills, papers

containing names and numbers, money order receipts, documents

regarding gun purchases by Andrea Frith Jones, a photograph of

himself with a pile of money, and a birth certificate for Donald

Miley.  Together, these documents helped the government establish

that Owens had engaged in years of drug trafficking; had access to

and used guns in connection with his drug enterprise; had access to

large amounts of money; and used an alias.  

     Owens's argument that the seizure of these items exceeded

the scope of the authorized search is not without force.  But,

assuming arguendo that the seizure of various documents was

unlawful, the admission of such evidence at trial was harmless

error beyond a reasonable doubt.  See Milton v. Wainwright, 407

U.S. 371, 372-73 (1972) (stating that where the jury, in addition

to hearing erroneously admitted testimony, is "presented with

overwhelming evidence of petitioner's guilt," error is harmless

beyond a reasonable doubt).  The seized documents merely

corroborated the damaging and voluminous testimony which the

government introduced at trial.  Four participants in the

enterprise testified that Owens and his colleagues engaged in years

of drug trafficking.  Eight witnesses variously testified that they

had purchased weapons for Owens; Owens carried a weapon with him

almost all the time; Owens was seen with weapons on various

occasions; and Owens kept numerous weapons in his apartment.  Five

witnesses testified that they had seen Owens with large amounts of

cash on a number of occasions.  And finally, the testimony of three

witnesses amply established that Owens used the alias Don Miley. 

In admitting the documents, the district court's error, if any, was

harmless beyond a reasonable doubt.

               c.   Franks Hearing

     Owens also contends that the court improperly denied his

motion for a Franks hearing.  As we have stated, under Franks, a

defendant may overcome the presumption that a warrant affidavit is 

valid by making a "substantial preliminary showing that a false

statement knowingly and intentionally or with reckless disregard

for the truth, was included by the affiant in the warrant

affidavit."  438 U.S. at 155-56.  For the reasons discussed supraat Part II-B-2-a-i, we see no clear error in the district court's

determination that Owens failed to make a substantial preliminary

showing that the affidavit contained knowingly false or reckless

statements.  See United States v. Parcels of Land, 903 F.2d 36, 46

(1st Cir. 1990) (a district court's determination that the

requisite showing for a Franks hearing is reviewed for clear

error).  Thus, we affirm the district court's denial of Owens's

motion for a Franks hearing.

     C.  Tennessee Automobile Stop

          1.  Background

     On November 13, 1995, Patrolman Andy Boyd of the Shelby

County Sheriff's Office stopped a Black Ford Thunderbird for

speeding on a highway in Memphis, Tennessee.  Owens was a passenger

in that car.  Boyd asked the driver, Devone Robinson, for his

driver's license, and Robinson responded that he did not have his

license with him.  Boyd then asked Robinson to step out of the

Thunderbird and into the patrol car so that he could do a license

check.  Robinson complied.

     Next, Boyd separately questioned Robinson and Owens, and

received conflicting responses from both men.  For instance, when

Boyd asked Robinson where he was from, Robinson responded that he

lived in North Carolina, even though he had earlier stated that he

was from Massachusetts and Virginia.  In response to Boyd's request

for Owens's name, Owens responded "Robert."  Robinson, however,

stated that his passenger was named "Jay."  The two also gave

conflicting accounts of who owned the car.  Robinson first stated

that it belonged to Jay, then later stated that it belonged to

Jay's friend.  Owens, meanwhile, provided police with a vehicle

registration showing the owner to be Kenneth Allen, whom Owens

identified as his brother-in-law.

     These contradicting statements having raised his

suspicions, Boyd requested assistance, and Sergeant Mark Kellerhall

arrived shortly on the scene.  The officers then called for a drug

dog, which had to be transported from the airport at the other side

of the city.  They also initiated a vehicle registration check,

criminal history checks, and a National Crime Information Center

("NCIC") check to determine whether the car was stolen.  

     About fourteen minutes into the stop, Robinson admitted

that his Virginia driver's license had been suspended, a fact that

the police radio channel confirmed five minutes later.  Boyd then

arrested Robinson for driving without a license.  Normal procedure

for the Shelby County Sheriff's Office dictates that when the

driver-owner of a car is arrested, he is asked to sign a form

authorizing the car's release to a passenger.  In this case,

however, the registered owner was not present, and the police

continued to receive conflicting responses from the driver and the

passenger regarding ownership of the car.  After his arrest,

Robinson changed his earlier position and stated, while pointing to

Owens, that the car belonged to "Kenny."  Under these

circumstances, the officers elected to await the results of the

vehicle registration check and other inquiries to determine whether

Owens had actual authority to drive the car.  They did so even

after a computer check revealed that the license provided by Owens,

alias Davis, was valid.

     About 29 minutes into the stop, the officers received the

results of the criminal history checks, which indicated that

Robinson had a cocaine possession charge, and that the registered

owner, Kenneth Allen, had two cocaine trafficking charges and an

armed robbery charge.  The officers also received the results of

the NCIC check, indicating that the vehicle had not been reported

stolen.  Boyd nonetheless waited for the results of the vehicle

registration check rather than permit Owens to drive away because

he believed that stolen cars did not always appear on the NCIC

database.

     About 49-50 minutes into the stop, while the officers

were still waiting for the results of the vehicle registration

check, the canine unit arrived.  The police had the drug dog,

Torque, conduct a sniff test on the outside of the vehicle.  Torque

alerted to the car, indicating the presence of drugs.  The officers

thereupon searched the car and found, in a secret compartment, a

loaded .40 caliber Ruger, a .380 Cobray Uzi, ammunition for the

Uzi, over $16,000 in cash, and several address and ledger books. 

The police seized all the objects in the compartment.  The

government introduced this evidence at trial.  Subsequent clinical

tests on the car revealed no drugs and no drug residue.

     Owens moved to suppress the evidence seized in this

search, arguing: (1) the length of the investigative stop made the

stop an unlawful detention; (2) the drug dog was unreliable, so the

officers lacked probable cause to search the car for contraband;

and (3) even if the search was, at bottom, lawful, the officers

exceeded its scope in seizing the address books and ledgers.  

     The district court denied Owens's motion.  The court

found that Officer Boyd had properly stopped the Thunderbird for

speeding and arrested Robinson for driving without a license.  The

court also ruled that the officers were justified in detaining the

Thunderbird during the time they investigated whether Owens had

actual authority to drive the car.  In evaluating the propriety of

the dog sniff, the court reasoned that exposing the outside of the

car to a dog sniff did not implicate the Fourth Amendment, and once

the dog alerted to the car, the officers had probable cause to

search the interior.  Rejecting Owens's argument that the officers

exceeded the lawful scope of their search, the court held that the

search was appropriate as to all items seized from the secret

compartment. 

          2.  Discussion

     Owens contends that the district court erred in denying

his motion, and renews on appeal the arguments presented in his

motion to suppress.  Again, we disagree with Owens's contentions.

               a.  The Length of the Stop

     In evaluating the propriety of the Tennessee stop, we

apply a two-prong test.  First, we must determine whether the

"officer[s'] actions were justified at [their] inception," and if

so, "whether the actions undertaken by the officer[s] following the

stop were reasonably responsive to the circumstances justifying the

stop in the first place as augmented by information gleaned by the

officer[s] during the stop."  United States v. Sowers, 136 F.3d 24,

27 (1st Cir.), cert. denied, 119 S. Ct. 105 (1998).

     Owens does not challenge the initial automobile stop for

speeding as invalid under Terry v. Ohio, 392 U.S. 1 (1968). 

See Berkemer v. McCarty, 468 U.S. 420, 439 (1984) ("[T]he usual

traffic stop is more analogous to a so called 'Terry stop' . . .

than to a formal arrest.").  Rather, he contends that the fifty-

minute detention was too long in duration to be justified as an

investigative stop.  Thus, his argument hinges on whether the

length of the detention converted the otherwise valid investigative

stop into a de facto arrest for which probable cause was lacking. 

     The reasonableness inquiry is almost always fact

specific.  See United States v. Zapata, 18 F.3d 971, 975 (1st Cir.

1994) (noting that "[t]here is no scientifically precise formula

that enables courts to distinguish between valid investigatory

stops and de facto arrests").  The Supreme Court has directed

courts making this inquiry to examine

     whether the police diligently pursued a means

     of investigation that was likely to confirm or

     dispel their suspicions quickly, during which

     time it was necessary to detain the defendant. 

     A court making this assessment should take

     care to consider whether the police are acting

     in a swiftly developing situation, and in such

     cases the court should not indulge in

     unrealistic second-guessing.



United States v. Sharpe, 470 U.S. 675, 686 (1985) (citations

omitted).

     The fifty-minute detention was indeed a lengthy one, and

in other circumstances would perhaps weigh in favor of finding a defacto arrest.  A long duration, however, does not by itself

transform an otherwise valid stop into an arrest.  See McCarthy, 77

F.3d at 530 (stating that "there is no talismanic time beyond which

any stop initially justified on the basis of Terry becomes an

unreasonable seizure under the [F]ourth [A]mendment") (citation

omitted).  Here, the period of detention was justified.  The

officers necessarily spent the first twenty minutes trying to

ascertain whether Robinson had a valid driver's license, which he

did not.  It was only after arresting Robinson that the officers

faced the problem of whether to permit Owens to drive a car that he

did not own.  Moreover, events unfolded in such a manner as to

raise the officers' suspicions regarding Owens's authority to drive

the car: Robinson and Owens gave conflicting stories about who

owned the car and Owens was evasive and avoided eye-contact during

police questioning.

     In responding to the circumstances, the officers

diligently pursued a means of investigation that would dispel their

suspicions.  They initiated a number of computer checks on the car

and its occupants and reasonably awaited the results.  Cf. United

States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990)

(holding that detention of defendants' vehicles was reasonable

during time that officers completed inspections of defendants'

documents); United States v. Walker, 933 F.2d 812, 816 n.2 (10th

Cir. 1991) (suggesting in dicta that length of detention would have

been reasonable if police were waiting for results of an NCIC,

license, or registration inquiry).  

     Under these particular facts, the detention was not a defacto arrest and the district court's finding that the officers

responded reasonably to the circumstances as they developed is

supported by the evidence.

               b.  Reliability of Drug Dog

     The existence of probable cause based on an alert by a

drug dog depends upon the dog's reliability.  See United States v.

Race, 529 F.2d 12, 14 (1st Cir. 1976).  During the suppression

hearing, Owens and the government introduced conflicting evidence

regarding Torque's reliability.  Owens offered the testimony of Dr.

Dan Craig, an expert on animal behavior, who, after reviewing

records of Torque's failure to pass two certification tests as well

as his training and performance, concluded that Torque was not

reliable in vehicle searches.

     The government introduced the testimony of Mark

Robertson, the training supervisor for the Shelby County Sheriff's

drug interdiction team, who offered explanations for Torque's

failure in the certification tests.  Robertson claimed

responsibility for Torque's first failure, stating that he had

prematurely entered the then newly trained dog in a national test

against top dogs.  He attributed Torque's second failure to handler

error.  He also emphasized that Torque was certified at the time of

the Tennessee stop.  In the end, Robertson testified that Torque

was an extremely reliable dog, and that Torque and his handler were

among the best.  Torque's handler, Carrole Owen, also testified for

the government, and opined that Torque's reliability was excellent. 

     The district court ultimately credited the government's

testimony and determined that Torque was sufficiently reliable to

support a finding of probable cause.  With due deference to the

district court's greater ability to gauge the demeanor and

credibility of the witnesses, we cannot say that the court's

finding was clearly erroneous. 

               c.  Seizure of Address Books

     Finally, Owens asserts that even if the police officers

had probable cause to search the car, they wrongly seized address

books and notebooks, which were outside the scope of the plain view

doctrine because their incriminating nature was not immediately

apparent.  

     Owens's arguments are misplaced: officers who have

probable cause to search a car for contraband are not limited in

the scope of their search by the plain view doctrine.  See United

States v. Ross, 456 U.S. 798, 800 (1982).  Rather, "[i]f probable

cause justifies the search of a lawfully stopped vehicle, it

justifies the search of every part of the vehicle and its contents

that may conceal the object of the search."  Id. at 825.

     Here, the officers had probable cause to believe that the

automobile contained drugs and evidence of drug trafficking.  The

address books and notebooks were concealed in a secret compartment,

together with a large amount of cash, two guns, and ostensibly a

residue of drugs.  Under these circumstances, the police had

probable cause to believe that the address books and notebooks were

evidence of drug trafficking and thus properly seized them.  

               III.  Sufficiency of the Evidence

     A.  Standard of Review

     Owens argues that his RICO convictions must be set aside

because the government offered insufficient proof of the

"enterprise" charged in the indictment and of Owens's participation

in that enterprise.  In considering Owens's sufficiency claims, we

must "view the evidence, together with all reasonable inferences

that may be drawn therefrom, in the light most favorable to the

government, . . . [and consider] whether a rational trier of fact

could have found guilt beyond a reasonable doubt."  United Statesv. Loder, 23 F.3d 586, 589 (1st Cir. 1994) (citations and internal

quotation marks omitted).  After examining the evidence under this

standard, we reject Owens's arguments.

     B.  Background Facts

     The indictment charged Owens and one Keillen Smith with

being leaders of an enterprise, consisting of individuals

"associated in fact," which operated from 1988 to 1995 and engaged

in drug trafficking and acts of violence, including murder.  The

alleged purpose of the enterprise included "enriching members

through drug trafficking and drug distribution;" "preserving,

protecting and expanding the power and control of the enterprise

through the use of murder, violence, threats of violence, and

intimidation;" and "promoting and enhancing the enterprise and its

members' drug trafficking and related activities."  

     During trial, the government introduced evidence that

Owens and Smith were the major players in an organization, made up

of two sub-groups, that supplied cocaine to the Boston area. 

Owens, assisted by Johnny Stephens, Robert Owens, and Coleman

Essex, was in charge of supplying the organization with cocaine. 

Smith, assisted by Kenneth Allen, Anthony Lewis, Charles Brown,

Wayne Meadows, and Gordon Lowe, was responsible for packaging and

distributing the cocaine in the Boston area.

     Owens first began selling cocaine to Smith in ounce

quantities in 1987.  By 1990, Smith had become a large-scale

distributor for Owens, purchasing and reselling cocaine by the

kilogram.  Owens continued to sell cocaine to Smith even after

Owens left Boston and began to move from state to state in order to

avoid arrest.  In early 1991, Owens relocated to Providence, Rhode

Island, where he continued his drug trafficking activities until

his arrest in 1995.  While in Providence, Owens sold cocaine to

Smith on a near weekly basis for $20,000 to $25,000 a kilogram. 

Although Smith sometimes personally collected the drugs from Owens,

he usually had Lewis, Brown, or Meadows travel to Rhode Island from

Massachusetts to pick up kilogram quantities.  The men would return

with the drugs in Owens's Thunderbird, which Owens had outfitted

with hidden compartments.  In Boston, Smith and his group "cooked"

the cocaine, packaged it, and distributed it to customers, making

a profit of $2,500 to $5,000 for every kilogram sold.  Smith's

group therefore relied on Owens's group for a steady supply of

cocaine, and Owens's group correspondingly depended on Smith's

group for cash.  The two groups collaborated on drug deals in other

meaningful ways.  Owens was often accompanied by members of both

groups as he traveled to Florida and New York to purchase cocaine;

and on at least one occasion, Smith and Owens jointly contributed

$100,000 to finance a drug buying trip to Florida, which was made

by Owens and Lewis.

     Owens's and Smith's groups also relied on one another as

they resorted to violence to protect their drug interests.  On two

occasions, when Owens's New York source provided cocaine that Owens

deemed unacceptable, Owens and Smith, accompanied by other gang

members, drove to New York to obtain redress.  On one of these

trips, the men were armed with guns provided by Owens.  The first

trip was a success as Owens and Smith, at gunpoint, extracted a

refund from the source.  The second "refund" trip was unsuccessful. 

On yet another occasion, when Rodney Belle's cohorts stole cocaine

from Owens during a drug deal, Owens turned to Smith and Lewis for

help, directing Smith to determine who was responsible for the

theft.  When Smith and Allen learned that Belle was responsible,

Smith told Lewis to set up a meeting with Belle, purportedly to

purchase guns.  During the meeting, Owens, assisted by Lewis,

Stephens, and Lowe, killed Belle.

     C.  Discussion

     Owens contends that the evidence suggested two separate

and autonomous enterprises, one directed by Owens and the other

directed by Smith.  He points to testimony that Smith received less

than half of his cocaine from Owens and did not know all of Owens's

buyers.  According to Owens, the government therefore failed to

establish the existence of the enterprise charged in the

indictment.  We disagree.     

     The term "enterprise" in the RICO statute includes "any

individual, partnership, corporation, association, or other legal

entity, and any union or group of individuals associated in fact

although not a legal entity."  18 U.S.C.  1961(c).  An

"association in fact" type of enterprise can consist of two illegal

entities.  Cf. United States v. London, 66 F.3d 1227, 1243 (1st

Cir. 1995) (holding that "two or more legal entities can form or be

part of an association-in-fact RICO enterprise") (emphasis in

original); United States v. Turkette, 452 U.S. 576, 585 (1981)

(holding that RICO applies to wholly illegal enterprises).  To

prove an enterprise, the government must introduce "evidence of an

ongoing organization, formal or informal, and . . . evidence that

the various associates function as a continuing unit."  Id. at 583. 

Where two sub-groups are at issue, "what is necessary is evidence

of systemic linkage, such as overlapping leadership, structural or

financial ties, or continuing coordination."  Libertad v. Welch, 53

F.3d 428, 443 (1st Cir. 1995).

     Here, the government introduced sufficient evidence of

systemic linkages between Owens's and Smith's organizations. 

Members of the two groups depended on one another both financially

and structurally.  They regularly exchanged money for cocaine,

coordinated in the transporting of cocaine to Boston, accompanied

one another on cocaine buying trips, and assisted one another in

acts of violence to protect their drug interests.  Based on this

evidence, a reasonable jury could have found, beyond a reasonable

doubt, the existence of the enterprise charged in the indictment. 

Compare Libertad, 53 F.3d at 443-44 (two organizations constituted

one RICO enterprise when one organization issued a press release

referring to second organization as "affiliated group;" leaders of

second organization "shared information" with first organization on

a regular basis; and both organizations participated in one protest

together); with United States v. Bledsoe, 674 F.2d 647, 667 (8th

Cir. 1982) (no enterprise where evidence showed two separate

associations of individuals, with no common personnel, except one

defendant who was a member of both organizations at different

times).

     That Smith received less than half of his cocaine from

Owens and did not know all of Owens's buyers does not detract from

the existence of the enterprise because RICO does not "demand total

fusion or that all defendants participate in all racketeering

activities, know of the entire conspiratorial sweep, or be

acquainted with all other defendants."  Libertad, 53 F.3d at 445

(citation omitted) (discussing RICO conspiracy count). 

Accordingly, the government sufficiently proved the existence of an

enterprise.

     Owens's related argument, that the evidence was

insufficient to show that he conducted or participated in the

affairs of the enterprise, also fails because, as discussed supra,

the evidence more than sufficiently established that Owens

conducted and participated in the affairs of the enterprise.

             IV.  Adequacy of the Jury Instructions

     Owens challenges the adequacy of the district court's

jury instructions in three respects.  He claims that the court

erred by: (1) failing to honor a promise to defense counsel

regarding jury instructions on the elements of a violation under 18

U.S.C.  1962(c) (conduct and participation in RICO enterprise),

and disregarding Supreme Court precedent on the proper

interpretation of the statute; (2) giving an improper instruction

on the proof necessary to show a pattern of racketeering activity;

and (3) incorrectly instructing the jury on the elements of proof

for 18 U.S.C.  1956(a) (money laundering).  We discuss each

argument in turn.

     A.  Conduct and Participation in Enterprise

     

     Owens's first argument stems from his interpretation of

18 U.S.C.  1962(c) and Reves v. Ernst & Young, 507 U.S. 170, 183

(1993).  Section 1962(c) provides that it shall be unlawful for a

person "to conduct or participate, directly or indirectly, in the

conduct" of an enterprise's affairs through a pattern of

racketeering activity.  18 U.S.C.  1962(c) (emphasis added).  The

indictment against Owens charged him with, inter alia, controlling,

heading, and directing a RICO enterprise, rather than simply

conducting or participating in the enterprise.  Defense counsel

highlighted this fact during the charge conference and,

accordingly, requested the district court to instruct the jury that

a conviction under 18 U.S.C.  1962(c) must be premised on a

finding that Owens "directed" the enterprise and not on a finding

that he merely "conducted or participated" in the affairs of such

enterprise.  The government objected, arguing that directing the

enterprise is not an element of the offense.  The district court

offered a compromise to which both parties assented:

     I think I can tie the government to the

     indictment but nevertheless properly frame the

     elements if I add in the concept lower down in

     the paragraph: A person may be found to

     participate in the conduct of the enterprise

     even though he has no part in the management

     or control of the enterprise.  But here, the

     government has charged, and it must prove,

     whatever language I find there in the

     indictment.



     When the court instructed the jury with respect to this

issue, it began by stating that

     [w]hen you come to evaluate the evidence with

     respect to those things that I tell you must

     be proved beyond a reasonable doubt, you can

     check against the indictment to see what [the

     government] ha[s] specifically charged.  The

     case has to be proved in the manner that it

     was indicted.  That's the charge that they

     have made.

     

But then, after giving additional instructions covering fourteen

pages of the transcript, the court advised the jury that

     [t]he third [RICO] element is the requirement

     that the evidence demonstrate beyond a

     reasonable doubt that [Owens] conducted or

     participated in the conduct of the

     enterprise's affairs by engaging in a pattern

     of racketeering activity.  The term conduct

     and participate in the conduct of an

     enterprise includes the performance of acts,

     functions or duties which are related to the

     [operation] of the enterprise.  A person may

     be found to participate in the conduct of the

     enterprise even though he has no part in the

     management or control of the enterprise.

(emphasis added).  Owens objected to this instruction and requested

that the district court instruct the jury in accordance with what

it said at the charge conference, i.e., that the government must

prove Owens had some role in directing the affairs of the

enterprise.  The district court declined to alter its instruction. 

     Owens argues that the court's failure to instruct as he

requested constitutes reversible error under Fed. R. Crim. P. 30. 

In relevant part, Rule 30 provides:

     At the close of the evidence or at such

     earlier time during the trial as the court

     reasonably directs, any party may file written

     requests that the court instruct the jury on

     the law as set forth in the requests . . . .

     The court shall inform counsel of its proposed

     action upon the requests prior to their

     arguments to the jury.

When a court fails to honor the dictates of Rule 30, reversal is

warranted if defense counsel's closing argument was prejudicially

affected.  See United States v. Porter, 764 F.2d 1, 11 (1st Cir.

1985). 

     It is a close question whether the district court

violated Rule 30.  The court did, after all, tell the jury that the

case must be "proved in the manner that it was indicted." 

Nonetheless, by first telling the jury that it must look to the

indictment and then, quite a bit later, instructing it on the

elements of 18 U.S.C.  1962(c), the court may well have left the

jury with the impression that Owens need not have directed the

enterprise.  But assuming that the court's actions violated Rule

30, Owens has not explained how defense counsel's closing arguments

were prejudiced.

     To show prejudice, Owens must establish that he "was

unfairly prevented from arguing [his] defense to the jury or was

substantially misled in formulating and presenting arguments." 

United States v. Foppe, 993 F.2d 1444, 1451 (9th Cir. 1993)

(quoting United States v. Gaskins, 849 F.2d 454, 458 (9th Cir.

1988)).  Here, Owens has neither specified a defense theory the

court's promise led him to forego, nor explained how his closing

arguments would have differed had the court instructed in precise

accordance with his request.  Nor is it obvious to us what Owens's

counsel otherwise might have done.  Hence, the Rule 30 violation,

if any, led to no apparent prejudice.  

     Owens's next argument, that the court's instructions on

the 18 U.S.C.  1962(c) offense were in conflict with Reves, also

fails.  Reves addressed the question whether "one must participate

in the operation or management of the enterprise itself to be

subject to liability under [18 U.S.C.  1962(c)]."  507 U.S. at

183.  The Supreme Court has answered this question by holding that

a party outside a RICO enterprise is only liable if he or she

participates in the operation or management of the enterprise.  Seeid. at 179.  Reves's analysis does not apply where a party is

determined to be inside a RICO enterprise.  See United States v.

Houlihan, 92 F.3d 1271, 1298-99 (1st Cir. 1996), cert. denied, 117

S. Ct. 963 (1997); United States v. Gabriele, 63 F.3d 61, 68 (1st

Cir. 1995); United States v. Hurley, 63 F.3d 1, 9 (1st Cir. 1995),

cert. denied, 517 U.S. 1105 (1996); United States v. Oreto, 37 F.3d

739, 751 (1st Cir. 1994).

     There is no question that Owens was an insider to the

RICO enterprise.  Owens supplied Smith with one to two kilograms of

cocaine per week, and the two groups acted in concert with one

another on several occasions to facilitate their joint interests

(e.g., murdering Rodney Belle).  Because Owens was not an outside

contractor to the RICO enterprise, Reves is inapposite.  The

court's instruction accorded with circuit precedent. 

     B.  Proof Necessary to Show a "Pattern of Racketeering

     Activity"

     Owens also argues that the district court incorrectly

instructed the jury on the proof necessary to show a "pattern of

racketeering activity" under 18 U.S.C.  1962(c).  The district

court instructed that, to establish a "pattern of racketeering

activity" under RICO, the government must prove that Owens's

racketeering acts "are related or that they amount to or pose a

threat of continued criminal activity."  Owens argues, and the

government concedes, that Supreme Court precedent requires proof

that the racketeering acts are related and that they amount to or

pose a threat of continued criminal activity.  See H.J. Inc. v.

Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989).  Owens

therefore correctly asserts that the disjunctive should have been

conjunctive.

     Owens, however, failed to object to this instruction in

the district court, and we therefore review only for plain error

under Fed. R. Crim. P. 52(b).  See Johnson v. United States, 520

U.S. 461, 466 (1997); United States v. Olano, 507 U.S. 725, 734

(1993).  For Rule 52(b) to apply, an error or defect raised for the

first time on appeal must be "plain," meaning "clear" or "obvious,"

and it must have "affect[ed] substantial rights," meaning, in most

cases, "[i]t must have affected the outcome of the district court

proceedings."  Olano, 507 U.S. at 734.  Even then, error correction

under Rule 52(b) is entirely discretionary, and should be exercised

only when an error "seriously affects the fairness, integrity or

public reputation of judicial proceedings."  Id. at 736. 

     Moreover, the Supreme Court has made it clear that where

the government sets forth essentially uncontroverted evidence that

overwhelmingly supports a conviction, the conviction should stand

unless the defendant makes a plausible argument that the

instructional error affected the verdict.  See Johnson, 520 U.S. at

466.  At trial, the government presented evidence that

overwhelmingly demonstrated Owens's involvement in large-scale drug

trafficking and with associated violence from 1988 to the time of

his arrest in 1995.  Moreover, the evidence all but compelled the

conclusion that Owens would have continued to engage in such

activities had the police not intervened by arresting him and

ending the enterprise.  Thus, there is a wealth of evidence to

support the conclusion that Owens's racketeering acts were related

and posed a threat of continued criminal activity (i.e., "pattern

of racketeering").  We therefore decline to find plain error under

Rule 52(b). 

     C.  Money Laundering

     Finally, Owens argues that the court's instructions

improperly relieved the government of proving an essential element

of the money laundering offense because it erroneously instructed

the jury that it was not necessary to find that his financial

transactions (i.e., drug sales) actually affected interstate

commerce in order to convict him under 18 U.S.C.  1956(a) (money

laundering).

     To prove the offense of money laundering, the government

must show, inter alia, that the defendant engaged in a financial

transaction that affected interstate commerce.  See 18 U.S.C.

 1956(c)(4).  A minimal effect on interstate commerce is

sufficient to support a conviction.  See United States v. Juvenile

Male, 118 F.3d 1344, 1349 (9th Cir. 1997).  If, however, there is

no effect on interstate commerce, conviction is not proper.  SeeUnited States v. Grey, 56 F.3d 1219, 1225 (10th Cir. 1995).

     The district court's instruction to the jury was, in

relevant part, as follows:

                    Now, it's not necessary for the government to

                    show that Mr. Owens actually intended or

                    anticipated an effect on interstate commerce

                    or even that interstate commerce was actually

                    affected.  What is necessary is that it be the

                    natural and probable consequence of his

                    actions to affect interstate commerce, no

                    matter how minimally.   

                    

          (emphasis added).  The government contends that this instruction

did not constitute reversible error because, as a whole, the

instructions made clear that the financial transactions at issue

must have had at least a minimal effect on interstate commerce.

     We have some difficulty with the government's position. 

The express language of the instruction informed the jury that it

was not necessary to find that Owens's financial transactions

affected interstate commerce to convict him of money laundering

under 18 U.S.C.  1956(a).  Thus, the instructions were reasonably

likely to have understated the government's burden of proof.

     Again, however, Owens failed to object to the district

court's instruction.  Thus, once again we review for plain error. 

See Johnson, 520 U.S. at 466; Olano, 507 U.S. at 734.  And again,

the error does not warrant recognition under Fed. R. Crim. P.

52(b).

     Underlying the charge for money laundering was the

allegation that Owens used proceeds generated from his drug sales

to purchase Be Be's Barbecue.  The government introduced evidence

that overwhelmingly established that the money for Be Be's was

generated as members of the enterprise transported cocaine from

Providence to Boston, sold the cocaine, and returned to Providence

with the revenue.  These transactions occurred on a weekly basis. 

Thus, by finding Owens guilty of money laundering, the jury

necessarily found that Owens's activities had an effect on

interstate commerce.  Cf. Russell v. United States, 471 U.S. 858,

862 (1985) (stating that the rental of real estate is

unquestionably an activity that affects interstate commerce);

United States v. Westbrook, 119 F.3d 1176, 1192 (5th Cir. 1997)

(purchase of two cars with proceeds of a cocaine sale affects

interstate commerce), cert. denied, 118 S. Ct. 1059 (1998); United

States v. Gallo, 927 F.2d 815, 822-23 (5th Cir. 1991)

(transportation on interstate highway of drug trafficking proceeds

affects interstate commerce).  

                     V.  Additional Claims

     Owens makes a number of additional claims on appeal, none

of which merits more than brief mention.  First, Owens argues that

the district court abused its discretion in accepting co-defendant

Johnny Stephens's guilty plea after, rather than before, delivering

its preliminary instructions to the jury.  We see no such error. 

Cf. United States v. Chapdelaine, 989 F.2d 28, 32 (1st Cir. 1993)

(no error when district court accepted co-defendant's guilty plea

after government completed presentation of its case); United Statesv. Del Carmen Ramirez, 823 F.2d 1, 3 (1st Cir. 1987) (no error when

district court accepted co-defendants' guilty pleas during second

day of trial).

     Second, we also reject Owens's fall-back argument that

the district court's jury instructions with respect to Stephens's

sudden absence did more harm than good by highlighting this absence

and thereby suggesting that Stephens had pleaded guilty.  The

district court instructed:

     You will note . . . that Mr. Stephens and his

     attorneys are no longer present, and in fact,

     you are not going to be asked anything about

     those charges.  That is no longer part of this

     case.  You don't speculate about that, don't

     speculate about that in any way.  The case now

     is the case of the government, Mr. Dwayne

     Owens and only Mr. Dwayne Owens.  You're just

     not going to be asked about Mr. Stephens.  

These instructions are almost identical to jury instructions that

have been approved by this court in similar circumstances. 

See Chapdelaine, 989 F.2d at 32; Del Carmen Ramirez, 823 F.2d at 3. 

Moreover, our system of trial by jury is premised on the assumption

that jurors will scrupulously follow the court's instructions, seeRichardson v. Marsh, 481 U.S. 200, 206 (1987); United States v.

Rivera-Gomez, 67 F.3d 993, 999 (1st Cir. 1995), and we therefore 

assume that the jury, upon hearing the court's instructions,

refrained from speculating about Stephens's absence from the court.

     Third, we reject Owens's claim that the district court

abused its discretion in failing to hold a post-judgment hearing

regarding possible jury taint after a defense investigator reported

that she overheard one juror tell another: "It's a good thing you

remembered about Johnny Stephens."  Owens claims that this

statement suggested the juror had been exposed to publicity during

the trial.  We disagree.  The trial was replete with testimony

concerning Stephens's involvement in the RICO enterprise as well as

evidence concerning Owens's use of "Johnny Stephens" as an alias. 

The juror comment certainly was as likely related to these issues

as it was indicative of jury taint.  Indeed, the court asked the

jury throughout trial whether it had been exposed to publicity

about the trial, and the jury consistently denied any such

exposure.  Under these circumstances, we cannot say that the

district court's refusal to hold a post-judgment evidentiary

hearing was an abuse of discretion.

     Fourth, the district court did not, as Owens asserts, err

in refusing to excuse a juror for cause when that juror initially

expressed doubt about her ability to fairly consider the evidence,

but ultimately stated that she would try to do so.  "There are few

aspects of a jury trial where we would be less inclined to disturb

a trial judge's exercise of discretion, absent clear abuse, than in

ruling on challenges for cause in the empaneling of a jury." 

United States v. Gonzalez-Soberal, 109 F.3d 64, 69-70 (1st Cir.

1997).  We see no clear abuse in the court's refusal to dismiss the

juror.

     Finally, the district court did not, as Owens contends,

err in refusing to define reasonable doubt in its instructions to

the jury.  It is well established that courts are not required to

define the concept of reasonable doubt.  See Victor v. Nebraska,

511 U.S. 1, 5 (1994) ("[T]he Constitution neither prohibits trial

courts from defining reasonable doubt nor requires them to do so as

a matter of course."); United States v. Whiting, 28 F.3d 1296, 1303

(1st Cir. 1994) ("This circuit has repeatedly refused to require

the district courts to define 'reasonable doubt' in their

instructions to the jury.") (citing cases).  Nor did the court

impermissibly dilute the reasonable doubt standard with the

instructions it did provide the jury. 

                        VI.  Conclusion

     For the foregoing reasons, we affirm Dwayne Owens's

convictions in all respects.

     Affirmed.