UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SE CON D CIR CUIT

__________________________ August Term, 2001 (Argued: December 14, 2001 Decided: April 2, 2003) Docket Nos. 00-1516(L), 00- 1558

__________________________ UNITED STATES OF AMERICA, Appellee ,

- v. - WIL LI AM HENRY; BETTY HENRY, als o known as Sealed D eft. #6; DENNIS J. DATTOL O, also known as Sealed Deft. #5; ANTHONY SANTAMARIA, also known as Sealed De ft. #3; RAYMOND A. NEWKIRK, also know

n as Seale d Deft. #

4; MIC HAEL

GONZA LSKI , also know

n as Sealed Deft. #5, Defend ants , EDMUND L . PANEK, a

lso known a s Sealed D eft. #4, a lso known a s Sealed Deft. #2, and ALEX ANDER PANEK, also known as Phil Panek, also known as Sealed Deft. #1, Defend ants-App ellants

.

__________________________ Before: FEI

NBERG, POOLER, SOTOMAYOR, Circuit Judges

. Appeal from judgment of the United States District Court for the Norther n District of New York (Frederick J. Scullin, Jr., Judge ) after a trial jury convicted both Alexander Panek and Edmund Panek of con spiracy to possess

with inten

t to distrib

ute and to distribute

marijuana in violation of 21 U.S.C. § 846, and Alexander Panek of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). AFFI RMED2 JOHN W. MITCHELL , New York, New York, for Defendant-Appellant Edmund L . Panek

. DAVID G. SECUL

AR, Assistant Federal Public Defender (Alexander Bunin, Federal Public Defende r, on the brief), Syracuse, N ew York, for Defendant-Appellant Alexander Panek

. BRENDA K. SANNES, Assistant United States Attorney (Joseph A. Pavone, United States Attorney for the Northern District of New York, on the brief), Sy

racuse, New York, for Appellee

. Pooler, Circuit Judge : Alexander Panek and Edmund Panek appeal from the judgme nt of the United States District Court for the Northern District of New York (Fr ederick J. Scullin, Jr., Judge ) after a jury convicte d both Ale xander Panek and Ed mund Pane

k of consp iracy

to possess

with inten

t to distribute and to distribute marijuana in violation of 21 U.S.C. § 846 and Alexander Panek of conspiracy

to launder monetary

instruments in violation of 18 U.S.C. § 1956(h). The district court sentenced Alexander Panek and Edmund Panek to 151 months and 78 months imprisonment, respectively. On a ppeal, defendants-appellants arg ue that: 1) their sentences are unconstitutional pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000); 2) there was insufficient evidence to support Alexander Panek’s conviction for conspira cy to launder monetary instruments; 3) the district cour t erred by failing to disclose the entire contents of a jury note; 4) the district court erred in giving an Allencharg e when th ree of t he juror s were me

rely “undecided;” 5) the district court erred by denying defense counsel the right to review the Allen charge before g

iving it to the jury; 6) the Allencharge was impermissibly coercive; 7) the district court erred in holding that the defendants we re not entitled to pro tanto credit for monies the government collects from their co-conspira tors; and 8) the district court erred in deny ing Edmund3

Panek’s motion for a mistrial based upon the government’s inclusion of the money laundering charge, which was dismissed after its ca se-in-chief. We find defendants-appellants’ c ontentions to be without merit, and we affirm their convictions and sentences.

BACKGROUND In 1997 and 1998, the United States Attorney ’s Office for the Northern District of Ne w York charged Alexander Panek, Edmund Pane k, Anthony Santamaria, Ray mond Newkirk, Michael Gonzalski, William Hen ry , Betty Henry, and Den

nis Dattol o with var

ious crimi

nal acts arising out of an a

lleged conspira cy to distribu

te mariju ana. As r elevant to this app eal, Santamaria, Newkirk, William and Betty Henry, a nd Dattolo all pleaded guilty prior to trial and

were se ntenced to variou s terms of

imprisonme

nt. As par

t of their respec tive plea

agree ments, the pleading defendants ag reed that the “gross procee ds” of the marijuana conspiracy amounted to $2,000,000 and that each would be jointly a nd severally liable

for this amount. Alexande r Panek a nd Edmund Pa

nek went to trial June

22, 1999, a

nd stipula ted to chemists’ reports verify

ing the authenticity

of the marijuana that the police seized in connection with this case. Alexander Panek was charge d with one count of conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846; two counts of conspiracy to lau nder m oneta ry instru ments in vi olati on of 1 8 U.S .C. § 1956( h); an d one c ount of bei ng a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Edmund Panek wa s charg ed with on e count of conspira cy to possess

with inten

t to distrib

ute and to distribute marijuana in violation of 21 U.S.C. § 846 and one count of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h).4

At the clo se of its c ase-in- chief, t he distric t court g ranted t he gove rnment’s motion to dismiss Coun

t Two of th e indictme

nt, the sol e money

launder ing con spiracy

charg e aga

inst Edmund Panek. Edmund Panek moved for a mistrial, arguing that the government’s references in its opening statement to his involvement in the money launder ing conspiracy

prejudiced the jury ag ainst him with respect to the remaining marijuana conspiracy charge. The court denied Edmund Panek’s motion. The jury beg an deliberating July 7, 1999, a nd, at the end of the next day, se nt the district

court a note stati ng: We are not able to reach a unanimous vote on Count 1 on Edmund Panek. Do we continue to deliberate? There are no requests for additional explanations on issues. Does 3 undecid ed, 9 gu ilty indicate an “auto matic” no t guilty ? An automatic

any thing? All other counts have been decided. The district court met with the parties in chambers and read a n edited version of the note. The court omitted the portion of the note referring to the numer ical division. The court also did not inform the

parties t hat it had redact ed the not e. The di strict co

urt then informed the partie s that it intended to give the jury

a “modified Allencharg e” the ne xt morning . The distr

ict cour t told Edmund Panek’s defense counsel that he could review the charge if he reporte d to chambers shortly before

8:30 the next morning. When counsel arrived at chambers the morning of July 9, 1999, however, the district court told him that the charge wa s “still being edited and reviewed” and was not available for inspection. Almost immediately thereafter, at 8:37 a.m., the district

court deliv ered th e foll owing Allench ar ge to th e j ur y: As I’ve instructed y

ou in my charg e, in order to return a verdict in this case, eac h juror must agree as to each count with respe ct to each defendant. I n other words, your

verdict must be una

nimous. Yo

u should, th erefor

e, consid er all the evidenc e in the c ase and f ully deliberate upon that evidence in a conscientious manner . Remember at all times that the Government has the burden of proof bey ond a reasonable doubt. Also remember y our5

oath, that when you we

re sworn in as jurors, and this panel was picked, y our oath was that you would try

this case and attempt to render a true verdict a ccording to the evidence and the law, keep that in mind. Furthermore, although each jur or must decide the case for him or herself, this should be done aft er an imp artial c onsidera

tion of all the evide nce with y

our fellow jurors. Now, in the course of y

our deliberations as a juror, y ou must examine everybody ’s point of view. You should not hesitate to reexamine y our own views and to change y our opinion if you are c onvinced that it is erroneous. Each juror who finds him or herself in a minority should consider his or her view in lig ht of the opinion of the jurors in the majority; conversely

, each juror finding him or herself in the majority should give equal co ns id er at io n t o t he vi ew of th e m in or it y. Now no juror should surrender his or her honest conviction as to the weig ht or the effect of the evidence to his fellow or her fellow jurors or f or the purpose of returning a verdic t. But reme mber also that afte r full del iberation and con siderati on of all the eviden ce, it is your duty to try to agr

ee upon a verdict if y

ou can do so without violating your individual judgment and conscience. Now this ha s been a f

airly long tri al, about

three we eks, and

at some c onsidera

ble expense and money and huma n effort, so if your

deliberations do not end in agreement on a verdict, the ca se is nec essarily left ope n and unde cided, a

nd in all lik

elihood it w

ould have to be tried again before another jury, a

jury which would have

to be selected in the same manner y

ou were. There’s no reason to believe that this case would be better tried or would reveal any

more or different evidence than y ou have heard. Nor is there any reason to believe that 12 different people would be more impartial or pay more

attention to the evi dence o r make a great er eff ort to res olve the i ssues. Now these considerations that I just laid out for y ou are but a reminder that y our task, although not an easy

one, is one of making a conscientious decision, which I feel you a

re fully equipped to make. And I hope that what I’ve said will help y ou deal with the differe nces tha t are pr eventing you from rea ching a n agre ement. B ut you are f ree to disreg ard eve

ry thing I ’ve said , except th e law as I ’ve giv en it to y ou, and y ou must app ly the law to the facts as y

ou find them to be. I would like to sugge st at this time that you return to the jury room and reflect upon what I’ve said and re sume your delibera tions for such time as you, in y our judgment, feel to be reasona ble with th e help tha

t yo u can co nscientio

usly reach a n agre ement. Now ag ain, it’s u

p to y ou, y ou’re th e jurors , yo

u are the judges o f the fa

cts, but th ese comments are just to give y ou some guidance as to, again, re mind you what y

our responsibilities are and hopefully maybe y ou can resolve the issues that are keeping you separate and keeping y

ou from [a] unanimous verdict. But if that isn’t the case, then y ou6

let me kno w, all rig

ht. After th e jury

was dismis sed, def

ense cou nsel obje cted to th e distric t court’s failure to affor d him the oppor tunity to revie w the cha rge be fore it w as give

n to the jur

y. D efense

counsel a

lso objected to the “minority/majority ” language in the cha

rge, as well as the district court’s failure to instruct the jury that it was permitted to return a partial verdict. On July 9, 1999 at 1:57 p.m., approximately five hours after the court administered the Allencharg e, the jur

y c onvicted

Alexande

r Panek a nd Edmund Pa

nek of co nspiracy to

possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846. The jury also convicte d Alexande

r Panek o n one cou

nt of cons piracy to launde r moneta ry instrumen

ts in violation of 18 U.S.C. § 1956(h). Using a special verdict form, the jury concluded that the Paneks a nd their c o-conspi

rators o btained $ 400,000 in

gross pr oceeds f rom their particip ation in the marijuana conspiracy

. Following the verdict, Edmund Panek moved for a new trial pursuant to Federa l Rule of Criminal Procedure 33 based upon: 1) the district court’s failure to reve al the entire contents of the jury note; 2) the district cour t’s failure to afford counsel the opportunity to review the Allen charge; 3) the district court’s decision to administer the Allencharge when three juror s were merely “unde cided” rather than deadlocked with the other jurors; and 4) the district court’s inclusion of alleg edly

coerci ve lang uage in the char ge. The district c ourt reje cted the se arguments. The court held that it “exercis[ed] its discretion[] [and] determined that it would be improper to reveal such split to Defendants and their counsel, espe cially in light of the f act that one of the jurors resided in the same gene ral neighborhood as Defendants.” T he district court also held that the Allencharg e was “a lmost stra ight fr om the pat

tern jury instructi ons” and , thus,7

no prejudice resulted from the failure to allow for r eview. Finally , the court concluded that the charge was appropria

te and within its discretion because “[w]hile the jury mig ht not have used the word ‘deadlo cked,’ t

he Court b elieves

that it wa s clear

from the n

ote that th ey

were unable to come to a unanimous decision, and all counsel [were] aware of this.” At sentencing, the district court made its own findings of fa ct, based upon a preponderance of the evidence , and determined that Edmund Panek was responsible for the distribution of between 400 and 700 kilograms of marijuana and that Alexander Panek was responsible for the distribution of between 700 and 1,000 kilograms of mar ijuana. The government also documented that Alexander Panek has a prior conviction for a felony drug offense. Accordingly

, the district court sentenced Edmund Panek to 78 months imprisonment and Alexander Panek to 151 months imprisonment. The district court sentenced Alexander Panek to serve a concurrent term of 151 months imprisonment on the money laundering conspira cy convicti on. The di strict co urt also is sued a forfeitur e order holding d

efendantsappellants jointly and severa lly liable for $400,000. The court also held that the government need not credit any

assets collected from defendants-appellants’ c o-conspirators until the government collects $1,600,000. Defendants-appellants appeal the convictions, sentenc es, and forfeiture order. Defendants-appellants argue that: 1) their sentences are unconstitutional pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000); 2) there was insufficient evidence to support Alexander Panek’s conviction for conspiracy to launder monetary

instruments; 3) the district court erred by failing to disclose the entire contents of a jury note; 4) the district court erred in giving an Allen charge when three of

the jurors were merely

“undecided;” 5) the district court erred by denying8

defense counsel the right to review the Allencharge before g iving it to the jury; 6) the Allen charge was impermissibly coercive; 7) the district court erred in holding tha t the defendants were not entitled to pro tanto credit for monies the government collects fr om their co-conspirators; and 8) the district court erred in deny ing Edmund Panek’s motion for a mistrial based upon the government’s inclusion of the money laundering charge , which was dismissed after its case-inchief. We

find def endants- appella

nts’ cont entions to be withou

t merit, a nd we af firm thei r convictions and sentences.

DISCUSSION I. The Apprendi

Issue Defend ants-ap pellants a rgue that their s entence s on the charge o f conspir acy to possess with intent to distribute and to distribute marijuana are unconstitutional under Apprendi v. New Jersey , 530 U.S. 466 (2000) because the government did not cha rge in the indictment and the jury did not find bey

ond a reasonable doubt the quantity of marijuana involved in the conspiracy

. In United States v. Thomas , 274 F.3d 655, 660 ( 2d Cir. 200 1) (en ba nc), this Court held

that “if the type and qua

ntity of drugs involved in a c harged crime may

be used to impose a sentence above the statutory maximum for

an indete rminate q uantity of drug s, then the

typ e and qua

ntity of drugs is an element of the offense tha t must be charged in the indictment and submitted to the jury.” B ecause defendants-appellants did not raise a ny valid Apprendi -related objections below, we review their claims only for plain error. United States v. Outen , 286 F.3d 622, 634 (2d Cir.2 Although the district court considered whether the we ight of the drugs must be

su bm it te d t o t he ju ry, th e g ov er nm en t, no t d ef en da nt s- ap pe ll an ts , r ai se d t he is su e. Sp ec if ic al ly, the distri ct court

stated: We’ve just been discussing the application or the lack of applica tion of Jones v. United States , [a] Supreme Court decision that came down this past March as to whether or not the weight of the drugs conspired to be posse ssed and distributed is a factor that must be submitted to the jury based upon this case. And I ’ve looked at the case, and I decided no, it is not. I think the weight of [the] drugs . . . [is] not an element of the crime charg ed. Furthermore, it wasn’t even charg ed in the indictment. It would have to be char ged in the indictment as an element for this Court to submit [the issue] to a jury. Even though it’s not been requested by

the defense, the Government has broug ht it to my attention for consider ation, an d I fo und it is not a

pplicabl e. I

do not inte

nd to char

ge the j ury

as to weight

. Moreover, defendants-appellants failed to objec t to the district court’s decision not to charge the jury to determine the w eight of the marijuana.

3 The charge of conspirac y to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846 carries with it the same penalties as those prescribed for the underlying

offenses under 21 U.S.C. § 841. See 21 U.S.C. § 846. 9 2002) (citi ng Thomas , 274 F.3d at 666). 2 Accordingly , this Court must determine whether there was: 1) a n error ; 2) that w as plain; 3 ) that af fected defenda nts-appe llants’ “ substantia l rights; ” and 4) that “seriously

affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 732 (1993) (internal quotation marks omitted). It is clear that defe

ndants-appellants’ sentences on their marijuana conspira cy convictions were in error. This Court recently held that the statutory maximum sentence for of fenses under 21 U.S.C. § 8 41 involvin g an ind etermina te amount of mariju ana is 60 m

onths, as prescribed by

21 U.S.C. § 841(b)(1)(D). Outen , 286 F.3d at 636-39. 3 The statutory maximum sentence with respect to Alexander Panek’s marijuana c onviction was 120 months, as he has “a prior conviction for a felony drug offense.” 21 U.S.C. § 841(b)(1)(D ). Howeve r, defe ndants-4 Defendants-appellants were convicte d July 9, 1999, and Apprendi was decided June 26,

2000.

5 In Outen , this Court assumed w

ithout dec iding tha

t the modif

ied plain -error

rule remains good law in light of Johnson v. United States , 520 U.S. 461 (1997). See Outen , 286 F.3d at 639 n.18. We do the same, as the government does not ra ise the issue. Nevertheless, the outcome would remain the same under a traditional plain error analysis. See Thomas , 274 F.3d at 668-69 & n.15. 10 appellants’ sentences exceeded this statutory maximum sentence, as Alexander Panek and Edmund Panek were

sentenc ed to 151 months and 78 months impr isonment, respec tively . This error is also “plain” in light of Apprendi and Thomas . We must the refore decide w hether t his error affected defe

ndants-appellants’ substantial rights. “Under our ‘modified plain-e rror rule,’ applied where, as here, ‘the sourc e of plain error is a supervening de cision,’ 4 the government, not the defendant, bears the burden to demonstrate tha t the error . . . was harmless.” Outen , 286 F.3d at 639 (quot ing United States v. Monteleone , 257 F.3d 210, 223 (2d Cir. 2001), cert. denied sub

nom. Russo v. United States , 122 S. Ct. 1808 (2002)). 5 We find that the sentencing error was not prejudicia l with respect to Alexander Panek. This Court has held that an erroneous sentence on one count of a multiple-count conviction does not affect a defendant’s substantial rig hts where the total term of imprisonment remains unaffected. Outen , 286 F .3d at 640 (c itin g United States v. Rivera , 282 F.3d 74, 77-78 (2d Cir. 2000), cert. denied sub nom. Cook v. United States , 123 S. Ct. 332 (2002)). In the instant case, the district court sentenced Alexander Panek to serve conc urrent terms of 151 months imprisonment on each of his convictions. Alexander Panek does not maintain that his sentence on the money launder

ing conviction was unconstitutional, as the statutory maximum sentence on this charge is 240 months imprisonment. See 18 U.S.C. § 1 956(a)( 1) & (h) . Moreove r, this Court declines to reverse Alexander Panek’s conviction for c onspiracy to launde r monetary11

instruments, as will be discussed at Point II below. However, Alexander Panek argue s that the money launder ing conspiracy

conviction cannot independently

justify the imposition of a 151 month sentence. The district cour t conclude d that the

total off ense lev el was 33 , based u pon a bas e offen se level

of 30, re ferabl e to the amount of marijuana the district court found attributable to this defendant, and a 3- point upward adjustment for his role in the offense. The district court also c oncluded that Criminal History Categ ory I

I accura tely repre sented Alexander Panek’s past criminal conduct. Based upon these ca lculation s, the distr

ict cour t determi ned that t he Senten cing Gu idelines r ange w as 151 to 188 months imprisonment, and it sentenced Alexander Panek to two concurrent terms of 151 months imprisonment. Alexander Panek challenges the district court’s ca lculations. Given the marijuana conspiracy

conviction’s statutory maximum, Alexander Panek maintains that the money laundering conviction carries with it the highe st offense level and governs the sentenc e. He thus concludes that the base offense level should not have be en more than 26, yie lding a range of 70 to 87 months. However, the district court correctly determined that the marijuana conspiracy conviction is the controlling offense, because a statutory maximum sentence is not implicated until after the sentencing guideline ra nge has been determined. United Sta tes v. Fe ola , 275 F.3d 216, 219 (2d Cir. 2001) (holding that conviction for willfully failing to file federal income tax return was controlling offense, eve n though the prescribed sentencing range of 24-30 months exceeded the statutory

maximum 12-month sentence). In sentencing a defendant convicted on multiple counts, counts “involving substantially the same har m” are “grouped” tog ether. Id. at 219 (quoting U.S.S.G. § 3D1.2). “Next, an offense level for ea ch group is determined . . . by

. . .12

using the offense level for the ag gregate quantity

of drugs or money , enhanced by relevant conduct. Next, a combined offense level is determined by using the offense level for the g roup with the highest level and then adjusting upward depe nding on the offense levels of the other groups. Next, a total punishment is selected, using the sentencing r ange prescribed for the combined offense level and the appropriate c riminal history categ ory.” Id. (citations omitted). Finally, and most important, “sentenc es are imposed by sentencing the defendant to the prescribed total punishment on each count, up to the statutory maximum for that count. . . .” Id. (interna l citation s omitted) . Thus, the mere fa ct that the marijuana conspir

acy convicti on is subject to a statutor y ma ximum would no t chang e the initi al calc ulation of the appli cable guideline range. See id. Rather, a district court would sentence a defenda nt pursuant to the guideli ne rang e, to the e

xtent that th e senten

ce on ea ch count d

oes not exc eed the a

pplicabl e statutory maximum. Therefore, the correct sentence is 151 months on the money launde ring ch ar ge an d 1 20 mo nt hs on th e m ar ij ua na ch ar ge . A cc or di ng ly, an y Apprendi error with respect to Alexander Panek’s sentence on the marijuana conspirac y charg e will not affect his total term of imprisonment, re

ndering any such err or harmle ss. We also fin

d that Edmu

nd Panek’ s sentenc e does no t undermine the fa irness a nd integ rity of the proceedings. I

n Thomas , we held that where a defendant “ squarely plac ed drug quantity at issue,” a plain Apprendi error “seriously affect[ed] the fairness of the proceeding s.” 274 F.3d at 671 (internal quotation marks omitted). However, in rare ca ses, where the evidence of drug quantity is both “overwhelming ” and “essentially uncontroverted,” the failure to submit the issue of quanti ty to the jury does not un

dermine the fair ness and i ntegri ty o f the judic ial proc eeding s, and we will not exercise our discretion to correct a sentenc e. United States v. Doe , 297 F.3d 76,13

91-92 (2d Ci r. 200 2) (qu otin g United States v. Cotton , 535 U.S. 625, 122 S. Ct. 1781, 1786-87 (2002)) ; see also United States v. Guevara , 298 F.3d 124, 126-27 (2d Cir. 2002). In Cotton , the Supreme Court held that “[s]urely the gr and jury, having

found that the conspiracy existed, would hav e also fo

und that th e conspir

acy involved a

t least 50 g

rams of c ocaine b ase,” w

here it was essentially uncontr

overted that the conspiracy involved approximately 1,680 gra ms of cocaine base. Cotton , 122 S.Ct. at 1786. Similarly , in the ins tant cas e, there is overwhelming e

vidence that it wa s forese eable to Edmund Panek that the conspiracy would distribute at least 50 kilograms of marijuana, which triggers the statutory

maximum sentence of 20 years imprisonment. See 21 U.S.C. § 841(b)(1)(C) & (D). William Henry testified that he purcha sed between 225 and 400 pounds of marijuana from Ed

mund Pane

k. William Mc Kerchie

testifie d that Edmu

nd Panek p aid him to transpor t 197 pound s of marij uana fr om Tucson , Arizona t

o Syr acuse, N ew York. Blair Pr iest testified that Edmund Panek paid him on five occasions to transport two to three duffle bag s of marijuana from Tucson to Syr acuse. David Coburn testified that he and Duane Hudson transported approximately 300 pounds of mar ijuana to Syracuse . According to Hudson, Edmund Panek gave Alexander Panek a pape r bag containing cash for

the marijuana, which Alexander Panek then gave to Hudson. Finally , Gregory Roach testified that on five to six occasions, he paid Edmun

d Panek f or mariju ana that he rece ived fro m another source. Given this overwhe lming evidence a nd the fa ct that Ed mund Pane

k was, in f

act, con victed of conspiri ng to distribute marijuana, the jury c learly would have found that Edmund Panek’s offense involved at least 50 kilograms of marijuana. As such a finding would have subjected him to the 20-y ear statutory maximum sentence, the district court’s sentenc e of 78 months imprisonment does not6 The government also argue s that defendants-appellants stipulated that the quantity of marijuana seized exceeded fifty kilograms when they

stipulated to chemists’ reports verify ing the authenti city

of at lea st 246 kilog

rams of ma

rijuana . Howeve

r, it is cle ar that d

efendantsappellants stipulated only that the substance tested was marijuana. 14 undermine the fairness and integrity of the proceedings. Having ascert ained tha t the evid ence of drug qu antity was “ove rwhelmin g,” we must consider whether it was “essentially uncontroverted.” Guevara , 298 F.3d at 127-28. Specifically, we

must consider “(a) whether there wa s sufficient evidence to permit a jury to find in favor of [Edmund Pa

nek] on the

omitted el ement, a

nd, if the re was, (b) whether the

jury would nonetheless have returned the same verdict of guilty.” Id. at 128 (“Having searched the record, we see insufficient evidence to support a jury finding that the conspiracy did not involve more than one kilogram of heroin; the jury , having found that the conspiracy existed, would have returned a verdict that it involved more than one kilogra m of heroin.”). As in Guevara , the fact of conviction necessarily

means that the jury would ha ve concluded that Edmund Panek’s offense involved a

t least 50 k

ilogra ms of mari

juana. I ndeed, E dmund Pane

k contend ed in his sentencing memorandum that, pursuant to the conviction, he could only be held responsible for McKerchie’s failed delivery , which involved 197 pounds, or approximately 89 kilogr ams, of marijuana. Accordingly, we decline to vacate Edmund Panek’s sentence

. 6
II. Sufficiency of the Evidence of a Conspiracy to Laund er Monetary Instruments Alexander Panek challenges the sufficienc y of the evidenc e to support his conviction of conspiracy

to launder monetary

instruments in violation of 18 U.S.C. § 1956(h). A defendant bears a heavy

burden in challenging the sufficie ncy of the e

vidence. United States v. Diaz , 176 F.3d 52, 89 (2d Cir. 1999). Although the sufficiency of the evidence is reviewed de novo , the Court views the evidence in the light most favorable to the g overnment and draws all inferences7 This Court has never addressed whether proof of an overt act is a necessary element of 18 U.S.C. § 1956(h). See United States v. LaSpina , 299 F .3d 16 5, 173 n.2 ( 2d Cir . 2002 ). We need not address this issue, as there is sufficient proof of an ove rt act in this case. 15 in favor of the government. Id. ; see also United States v. Szur , 289 F.3d 200, 219-220 (2d Cir. 2002). The conviction must be affirmed if “any rational trier of fact could have found the essential elements of the crime.” United States v. Amiel , 95 F.3d 135, 141-42 (2d Cir. 1996) (quot ing Jackson v. V

irginia , 443 U.S. 307, 319 (1979)). In order to e stablish that a defendant conspired to launder monetary instruments in violation of 18 U.S.C. § 1956(h), the government must show that the defendant agreed to: 1) conduc t a financial transaction; 2) involving the proceeds of specified unlawful activity ; 3) knowing that the property involved in the transaction represented the proceeds of some f orm of unlawful activity; and 4) knowing that the financial transaction was designed in whole or in part to conc eal or disguise the nature, source, loca tion, ownership, or control of those proceeds. See United States v. Maher , 108 F.3d 1513, 1525-27 (2d Cir. 19 97) (set

ting out e lements of

substantiv e offen se); United States v. Wydermy er , 51 F.3d 319, 326-28 (2d Cir. 1995). 7 The gov ernment

present ed suffi cient ev

idence t hat Alexan

der Pane k conspir ed with William Henry to launder the proc eeds of marijuana sales. William Henry testified that Alexander Panek arranged the e xchange of $50,000 in cash from the sale of marijuana for a

cas hi er’ s ch eck , m ade paya bl e to Hen ry’s mo th er, whi ch w as u sed to pur cha se a li mo usi ne. In addition, Joseph Pfohl, an unindicted co-conspirator, testified that in June 1995, Alexander Panek asked him to assist in the purchase of a limousine. Panek told Pfohl that he and another individual had cash and wished to buy a limousine, but that they could not purchase it with cash. Panek offered to pay

Pfohl $50,000 in cash in return for a cashier’s chec k in the amount of16

$45,000, made out to William Henry’s mother. Panek a nd Henry subseque

ntly visited Pfohl’s business to retrieve the check. Henry handed Panek a brown paper bag containing between $45,000 and $50,000 in cash, the proceeds of marijuana sale s, and Panek, in turn, handed the bag of cash t o Pfohl. Pfohl then g ave the p air the c ashier’ s check. Henry gave the check

to his mother to d

eposit into

their join t accoun t, and he u sed the mo ney

to purcha se a limous ine in his mother’s name. Henry testified tha t “we” obtained the cashier’s chec k from Pfohl because he was “a legitimate big businessman and he c ould show where the money came from [and] we couldn’t.” Henry

also testified that the money for the limousine was the proceeds of narcotics sales. In March 1996, Alexander Pane k helped William Henry purcha se another limousine in a similar ma

nner. Al exander Pa

nek obtai ned a ca shier’s c

heck in th e amount o f $20,000 from his credit u nion. Pane

k then del ivered t

he check, made pa

ya ble to Willia

m Henry ’s busine ss, to Henry, who use d it to purchase another limousine. In exchange f or the cashier’s check, Henry gave Alexander Panek cash and two or thr ee checks. Based upon this evidence, the jury reasonably

could have concluded that Alexander Panek conspired with William Henry to launder the proceeds of marijuana sales by exchanging illicit cash for cashier’s checks, which wer e then used to purchase two limousines. Both the exchang e of cash for ca shier’s c hecks an d the purc hase of a vehicle with “mone

tary instrumen

ts” are financial transactions within the meaning of 18 U.S.C. § 1956. See United Sta tes v. Gri ffin , 84 F.3d 91 2, 926-27 (7th Cir. 1 996) (conversion of cash i nto checks); United States v. Blackman , 904 F.2d 1250, 1257 (8th Cir. 1990) (purchase of a truck). There is also sufficient evidence to establish that Alexander Panek kne w that the funds at17

issue wer e “the pr oceeds o f some fo rm of unla wful act ivity .” 18 U.S. C. § 1956(a )(1); see also Maher , 108 F.3d at 1525-27 (holding that a defendant nee d only believe that the money was from “some fo rm of unla

wful act ivity ” and ne ed not kno w precis ely what that activity was). I t is undisputed that Alexander Panek knew that “Henry was also substantially involved in purchasing and distr ibuting m arijuan a” and w illingly particip ated in th e elabor ate tran sactions

giving rise to the limousi

ne purchases. Ale

xander Panek told Pfohl that he and Henr y c ould not use

the cash they wished to exchang e for a cashier’s check. The fact that William Henry ha nded Alexander Panek a brown paper bag c ontaining such a large sum of ca sh supports the jury’s conclusion that Alexander Panek knew the money came from unlawful activity . Moreover, the jury found bey ond a rea sonable d

oubt that Alexander

Panek wa s involved

in a consp iracy

to distribu

te marijuana, also suggesting that he knew the source of his co-conspirator’s ca sh. There is also sufficient evidence to establish that Alexander Panek kne w that the transactions at issue were intended to disguise the source of the cash. Alexander Panek knew that Henry c ould not spend the cash without first exchanging it for cashier’ s checks, evident by his commen

t to Pfohl. Also, the e laborat e nature of the tra nsaction s should ha

ve sugg ested to Alexander Panek that they w ere intended to make it more difficult to trace Henr y’s cash. Finally, there

is sufficient evidence to establish that Alexander Panek and William Henry had an agreement to launder the illicit cash. Alexander Panek told Pfohl that he and Henry wanted to buy a limousine

but could n

ot use ca sh, sugg esting t

hat Panek was an e qual par

tner in the consp iracy . A “cons

piratori al agr

eement it self may

be estab lished by

proof of a tacit understanding among the participants, ra ther than by proof

of an explicit agreement.” United States v. Desimone , 119 F.3d 217, 223 ( 2d Cir. 199 7); see also Iannelli v. United States , 42018

U.S. 770, 7 77 n.10 (1 975); United States v. Martino , 759 F.2d 998, 1004 (2d Cir. 1985). The mere fact that Panek participated with Henry in the suspicious transactions at issue suggests an agreement. Alexander Panek argues that the gove rnment never proved that he had an interest in the

transactions or pr

ofited fr om them. However, this Court h as held th at “[i]t is not necessa ry to charge the jury

that each conspirator must be found to have a ‘stake in the suc cess’ of the conspiracy .” United States v. Torres , 901 F.2d 205, 245 ( 2d Cir. 199 0) (cita tions omitte d); see also United States v. Isabel , 945 F.2d 1193, 1203 (1st Cir. 1991) (citations omitted) (“[E]vidence of a fina ncial sta ke in the v enture i s not esse ntial to show that the

defenda nt intende d to faci litate the unlawful objective of the conspiracy .”). The government need only show “purposeful behavior aimed at furthering the g oals of the conspiracy .” Desimone , 119 F.3d at 223; see also Torres , 901 F.2d at 245 (“It is sufficie nt that the defendant was not indifferent to the outcome of the ventu re.”). Rather, t

he gove rnment may

establish this element by showing tha t the defendant had a financial stake in the outcome of a conspirac y. See Desimone , 119 F.3d at 224 (holding that the d efenda nt’s “financial s take in th e outcome of the ne gotiations constitu ted proof of his interest in furthering the goals of the c onspiracy” ). Therefore, we conclude that ther e is sufficient evidence to support Alexander Panek’s conviction for conspiracy to launder monetary

instruments in violation of 18 U.S.C. § 1956(h). III. The Jury’s Note and the Allen Charge Edmund Panek argues that the district court erre d by: 1) failing to disclose the portion of the jury’s note deta

iling the numerical division of the jury and by reda

cting the note without informing defense counsel; 2) administering a n Allencharg e to the ju

ry ; 3) deny

ing def ense8 This argument does not apply to Alexander Panek, as the note indicated that the jury had reached verdicts on all counts except Count One of the indictment ag ainst Edmund Panek. 19 counsel the right to review the Allencharge before r eading it to the jury ; and 4) selecting an Allencharge that was impermissibly coercive. 8 In gener

al, district courts should reveal the existence and the contents of any and all jury notes to both sides and allow c ounsel to suggest an appropriate response. See United States v. Robinson , 560 F.2d 507, 516 (2d Cir. 1977) (en banc) (“The Sixth Amendment and Rule 43 of the Federal Rules of Criminal Procedure re quire that ordinarily a messa

ge from the jury

be answered in open court and that counsel be g iven the opportuni ty to be hear d before the trial judge r esponds to

the jury 's ques tions.”) ; see also United States v. Ronder , 639 F.2d 931, 934 (2d Cir. 1981) (“It is settled law tha t messages from a jury should be disclosed to counsel and that counsel should be afforded an opportunity to be heard before the trial judge responds.”). Spec ifically, (1) the ju ry ’s inquiry

should be s

ubmitted in

writing ; (2) bef

ore the j ury

is recalled, the note should be read into the recor d in the presence of counsel and defenda nt; (3) co unsel shou

ld be aff orded an opportuni

ty to sugge st appropriate response s; and (4)

after th e jury

is reca lled, the request should ag ain be re ad in their pre sence to

assure t hat it acc urately reflects their in

quiry and that t hey all appreciate the question being asked. United States v. Leung , 40 F. 3d 577 , 584 ( 2d Ci r. 199 4) (ci ting Ronder , 639 F.2d at 934). Although the district court did not follow these procedures, the failure to disclose the existence and nature of a jury split does not necessarily constitute an a buse of discretion. See,
e.g. , Robinson , 560 F.2d

at 511-12 (affir

ming whe re cour t revea led existen

ce of not e and its
gener al conte nts but did not revea

l the pre cise divis ion indica ted); id. at 524 (Oakes, J., concurring) (“The trial c ourt here should have revealed to counsel the substanc e of the juror’s note, without disc losing . . . t he jury v ote .” (emphasis added)). In this case, the district court rea d20

the remainder of the note in its entirety and redacted only

the portion that would have revealed the jury split to counsel and defe ndants. While the district court should have avoided the appearance of impropriety by informing c ounsel that it was redacting the note, the district court’s failure to inform c ounsel of

the jury split unde

r these c ircumsta

nces doe s not const

itute an a buse of discretion. Nor has E dmund Pane

k demonstr

ated pre judice a s a resul

t of the dis trict cou

rt’s fai lure to reveal the redacted information. See United Sta tes v. Ade

niji , 31 F.3d 58, 65 (2d Cir. 1994) (holding that non-compliance with the procedure outlined in Ronder “does not mandate reversal unless prejudice is shown”). Edmund Panek argues that he would not have agreed to the Allen charg e had he

known the

nature o f the jury

split, bec ause it wa s inappro priate f or the co urt to administer the charge under these c ircumstances. However, trial courts ge nerally have

“broad discretion to determine under what circumstances and how the [jury] charge

should be given.” Smalls v. B atista , 191 F.3d 272, 277 (2d Cir. 1999). “It has long been established that when a trial cou rt rece ives notic e that the jury is deadlo cked it ma

y give a cha

rge, c ommonly

refer red to as an ‘ Allen ’ charge, that urge s the jurors to continue deliberations in order to reach a ver dict.” Id. at 278. The district court has discretion to give such a cha rge in order to encourag e a deadlocked jury

to reach a unanimous verdict, Lowenfield v. Phelps , 484 U.S. 231, 237-38 (1988), provided that it does not “coerce undecided jur ors into reaching a verdict by abandoning without reason conscientiously he ld doubts.” United States v. Ruggiero , 928 F.2d 1289, 1299 (2d Cir. 19 91) (cita

tions omitte d). I

t is clear from the n

ote that th e jury

was dea dlocked, as it stated “[w]e are not able to reach a unanimous verdict on Count 1 on Edmund Panek.” The jury also inquired whether it should continue to deliberate. According ly, the district court’s dec ision21

to administer the Allencharge was not an abuse of discretion. Edmund Panek arg

ues that the distric t court e rred by failing to allow de fense c ounsel to review the Allencharge before it was g iven to the jury, which re sulted in prejudice because the charg e was impe

rmissibly coerci ve. This Co

urt has r epeate dly held that defense counsel should be afforded the opportunity to review a proposed jury instruction. See , e.g. , id. at 1300 (holding that district court’s refusal to allow defense counsel to revie w and comment upon Allencharge was “inappropriate”) (citations omitted). Rega rdless, Edmund Panek cannot demonstrate that he was prejudiced, as the district court’s charg e was not impermissibly coerc ive. The district court properly re

minded the jury that “at a ll times[,] . . . the Government has the burden of proof bey ond a rea sonable d

oubt.” Th e distric t court a lso instruc

ted the ju ry that “no j uror shou

ld surrender his or her honest conviction as to the weig ht or the effect of the evidence to his fellow or her fellow jurors or for the purpose of re turning a verdict.” This Court has held that such language is a nece ssary par t of an Allencharge and neg ates coercion. See , e.g. , Smalls , 191 F.3d at 279-80 . The distr

ict cour t informe d the jury

that the c ourt’s instructions were int ended on ly to provide g uidance to help re solve the

differe nces tha t preven ted the ju rors from reach

ing a ve rdict. At the same time, the district court informed the jurors that they were free to disrega

rd the Allen charg e and tha

t they need de liberate

only so long a s they

reasona bly believe d they

could “conscientiously re ach an agreement.” T he district court also instructed the jurors to inform the court when they

believed that further deliberations would not be beneficia l. The mere fact that the distri ct court

reminde d the juro rs of the ir oaths a nd respon sibility

to delibe rate an d attempt t

o render a true verdict does not rende r the charge coerc ive. See People v. Pagan , 45 N.Y.2d 725, 727 (1978) (“[A] trial court may pr operly dischar

ge its responsibility to avoid mistrials by22

encouraging jurors to adhe re to their oaths . . . .”). Edmund Panek argues that the Allencharge was impermissibly coercive because the district c ourt state d that: Each juror who finds him or herself in a minority should consider his or her view in light of the opi nion of the

jurors in t

he major ity; convers ely , each ju

ror find ing him or

herself in th e m aj or it y sh ou ld gi ve eq ua l c on si de ra ti on of th e v ie w o f t he mi no ri ty. However, this Court has approved languag e directing jurors to consider the views of other jur ors without abandoning their own conscientious opinions. United States v. Melendez , 60 F.3d 41, 52 (2d Cir. 1995), vacated on other grounds by Colon v. United States , 516 U.S. 1105 (1996). Moreover, other circuits have sanctioned this g eneral language

. Unite d States v. Hernande zAlbino , 177 F.3d

33, 38 (1s t Cir. 1999)

(holding that Allencharges should direct both the majority and the mi

nority to re-e xamine thei

r positions

so that the

burden o f recon siderati on is not entire ly o n the minor

ity) ; United Sta

tes v. Fr ost , 125 F.3d 346, 374-75 (6th Cir. 1997) (holding that lang uage d irecting both major

ity a nd minority

jurors to r

econside r their po sitions is “c ri ti ca l t o a ny Allencharge”). Edmund Panek also a

rgues t hat the di strict co

urt improp erly

instructe d the juro rs that: this has been a fairly

long trial, about three weeks, and at some consider able expense and money and human

effort, so if y

our delib eration s do not end in agre ement on a

verdict , the case is necessarily

left open and undecided, and in all likelihood it would have to be tried ag ain before anoth er jury , a jury which wou

ld have to be selected in the

same manner you we

re. There’s no reason to believe that this case would be better tried or would reveal any

more or different evidence than y ou have heard. Nor is there any reason to believe that 12 different people would be more impartial or pa y more attention to the evidenc e or make

a grea ter eff ort to res olve the i ssues. Because we have held that virtually identical language is not coerc ive, United States v. Corcione , 592 F.2d 1 11, 117 &

n.5 (2d Cir . 1979); see also United Sta tes v. Va lencia , 645 F.2d 1158, 1167 (2d Cir. 1980), we reject this argument.23

In sum, the district court should have affor ded defense counsel the opportunity to review the Allencharge before a dministering it to the jury. Howeve r, we decline to reverse Edmund Panek’s conviction, as he fails to demonstrate that he was prejudice d by the district court’s er ror. IV. Pro Tanto Credit Defendants-appellants argue that the district court erred by denying their request for pro
tanto credit a

gainst a ll funds the

gover nment has

alread y c ollected

from thei r jointly and seve rally liable co -conspir

ators. Pr ior to the t

rial, de fendant s-appel lants’ co -conspir ators ple aded g

uilty to Count One o f the indic

tment, co nspiracy to

possess with intent t

o distribut

e and to di stribute marijuana in violation of 21 U.S.C. § 846. Pursuant to their respective plea agre ements, the coconspirators stipulated that the “gross proceeds” of the conspiracy

amounted to $2,000,000 and that they would be jointly and severally

liable for this amount. However, the jury concluded that the “gr oss proce eds [that] th e defen dants and their co -defen

dants and co-cons pirators , collectively, obtained a s a result of their narcotics violations [was] $400,000.” Defendantsappellants sought an agreeme nt from the government that any proceeds already

collected from their co-conspirators would be credited, pro tanto , against their forfeiture liability . The government maintained that it would not begin to credit the proce eds collected towards defendants-appellants’ $400,000 liabilityuntil it had collected $1,600,000 from their coconspirators. The district court held that “the Government is under no oblig ation to credit any monies received thus far from co-conspira tors – presuming those monies total less than $1.6 million – toward the forfeiture amount owed by the Paneks.” We find tha

t this issue

is not ripe

for review. The

ripenes s doctrin e’s “ba sic rationale is to prevent the courts, through avoidance of pr emature adjudication, from entangling the mselves9 We view with skepticism the government’s position that it need not provide pro tanto

credit to defenda nts-appe llants unti l it collects $1,600, 000 from t heir co- conspira

tors. I n this case, th e jury

conclude d that def

endants- appella

nts and the ir co-c onspirat ors colle ctively obtained $400,000 in gross proceeds from the marijuana conspiracy , and there is no indication that the government objected to the special verdic t form. Were we to adopt the government’s argument, the jury ’s determination that defendants-appellants are jointly and severally

liable for 24 in abstract disagreements.” Gary D. Pea ke Excavating Inc. v. Tow n Bd. of the Town of Hancock , 93 F. 3d 68, 72 (2d Cir. 1996) (quot ing Abbott Labs. v. Gardner , 387 U.S. 136, 148 (1967)). “In dete

rmining whether a claim is ripe for review , we consider the fitness of the issues for review and the hardship to the parties of withholding r eview.” Id. (citi ng Abbott L abs. , 387 U.S. at 149). Defendants-appellants’ claims are not fit for judicia l resolution at this time because the government has not collected more than $400,000 from de fendants-appellants and their coconspirators. See United States v. Wilson , 244 F.3d 1208, 1213-14 (10th Cir. 2001) (holding that forfeiture order is not ripe for review until government seeks to enforce it in allege d violation o f the def

endant’ s rights ). The g overnme nt repre sents tha

t it has col lected o nly $176,274.28 from William Henry. While it is unclear whether the government has seized any of defenda nts-appe llants’ a ssets in pa rtial sat isfaction of their

liability , the go vernmen

t also represents that the total forfeitures in this case do not exceed $400,000. Thus, eve n were Henry ’s forfeit ures cr edited a gainst d efenda nts-appe llants’ lia

bility of $400,0 00, the g overnme nt could still collect from defendants-appellants $223,725.72 minus the value of the assets, if any , they already have forfeited. For this reason, we also find that defendants-appe llants would suffer no hardship by w ithholding

review o f this issue

at this time . Accor

dingly , defend ants-ap pellants have no justiciable claims unless and until the government attempts to seize assets from them that would place the total forfeiture amount in this case over $400,000. 9$400,000 would become meaningless, as they alone would likely bec ome liable for this entire amount, given the probability that the government will never collect more than $1,600,000 f rom their co-conspirators. Regardless, we reserve judgment on this issue.

25 V. The Government’s Dismissal of the Money Laundering Charge Finally, Edmund Panek ar gues that he was prejudiced with respec t to Count One of the indictment, conspiracy

to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846 , because the government dismissed Count Two of the indictment, conspiracy to launder monetary

instruments in violation of 18 U.S.C. § 1956(h), after claiming in its opening

statemen t that “Ed mund Pane

k was the brains of this org anization . . . . [T]he ev idence w ill show that Edmund Panek was the money man for this organization. . . [and that] Edmund maintaine d bank ac counts in b usiness na

mes and he

helped to clean up the drug money in this organization. . . .” In dete rmining whether there was “spillover pre judice” from a dismissed count, this Court first looks at whether the evidence introduced in connection with the dismissed count was so inflammatory tha t it “would have tended to incite or arouse the jury into convicting the defendant on the remaining counts.” United States v. Wapnick , 60 F.3d 948, 953 (2d Cir. 1995) (citations omitted). The Court then considers whether the dismissed count and the remaining counts of the indictment arise from similar facts and w hether the evidence introduced on the dismissed counts would have been admissible on the remaining counts. Id. at 954. Finally, the Court makes a “general assessment of the streng th of the government’s case on the remaining counts.” Id. In short, a defenda nt is only likely

to succeed on a claim of prejudicial spillover when evidence is introduced on the invalidated count that would otherwise be inadmissible on the remaining counts, and this evide nce is pr esented in such a manner th at tends to indicate that the jury pr

obably utilized this evidence in reac hing a verdict on the remaining counts. . . .26

Id. (quot ing United States v. Rooney , 37 F.3d 847, 856 (2d Cir. 1994)). We are concerned that the gove rnment charged Edmund Panek with conspiracy to launder monetary instruments and a rgued in its opening statement that he “helped to cle an up the drug money in this orga

nization,” but then dismissed this count of the indictment against him at the close of its case-in-chief. Rega rdless, Edmund Panek cannot demonstrate that he was prejudiced by the g overnment’s opening statement, as it was not so inflammatory that it would have influenced the jury

to convict Edmund Panek on the remaining count. See Wapnick , 60 F.3d at 954 (holding that evidence of structuring tra nsactions to avoid currency transaction reporting requirements was not the ty pe of evidence likely

to arouse a jury

). Moreover, the government’s opening statemen t and evid ence ag ainst Edmu

nd Panek would have

been ad missible a

gainst h im with respect to the marijuana conspiracy charge. See Rooney , 37 F.3d at 855 (holding that there is no prejudicial spillover when the evidence would have bee n admissible on the remaining counts of the indic tment). E

vidence that Edmun

d Panek ma

intained bank ac counts in b

usiness names and laundered drug money would have been relevant to establish his knowledge of and participation in the marijuana conspiracy

. See , e.g. , United States v. Orozco-Prada , 732 F.2d 1076, 1079-81 (2d Cir. 1984). The government also would have be en entitled to introduce evidenc e of the l imousine p urchase s, as well

as their e laborat

e predic ate tran sactions , to demonstrate the existence of unexplained cash, which may be indicative of a marijuana conspiracy

. See , e.g. , United States v. Nersesian , 824 F.2d 1294, 1325 (2d Cir. 19 87); United States v. Young , 745 F.2d 733, 762-63 (2d Cir. 1984). Accordingly , the dismissed money laundering conspiracy

count did not result in spillover prejudice with respect to the marijuana conspiracy

charge aga

inst Edmund Panek.27 CONCLUSION Based upon the foregoing , the judgment of the United States District Court for the Norther n Distric t of New Y ork is AFFI RMED

.