USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_____
No. 91-2220
RAUL F. RODRIGUEZ, ET AL.,
Plaintiffs, Appellants,
v.
BANCO CENTRAL CORPORATION, ET AL.,
Defendants, Appellees.
___________
ERRATA SHEET
The opinion of
amended as follows:

this

On page 4, line 1:

Court issued

on

March 30,

"finansite" should be "site".

1993

is

March 30, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 91-2220
RAUL F. RODRIGUEZ, ET AL.,
Plaintiffs, Appellants,
v.
BANCO CENTRAL CORPORATION, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________

____________________
Before
Breyer, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Harry E. Woods with whom Fernando L. Gallardo was on brief

______________
_____________________
appellant.
James G. McLaughlin Torres with whom Luis Sanchez-Betanc
_____________________________
____________________
Ivonne Cruz-Serrano, and Luis A. Melendez-Albizu were on brief
___________________
________________________
appellee.
____________________
March 30, 1993
____________________

BOUDIN,
buyers

Circuit Judge.
______________

In

the

district court,

152

of lots of undeveloped real estate in Florida charged

the real estate company, the

bank that financed the company,

and certain individuals with

U.S.C.

1962(c).1

"securities," the
induced by

Describing their land

buyers claimed

to

sale contracts as

that their

false representations that the

for home sites and that

into

securities fraud under RICO, 18

purchases were

land was suitable

the surrounding areas would

a thriving community.
be worthless swamp land

develop

In fact, the property turned out

unfit for development.

After a

lengthy jury trial, the district court directed a verdict for

the defendants, ruling that the
securities.

The buyers

land sale contracts were not

appeal.

We

affirm

the district

court.
I.

BACKGROUND

The underlying facts, viewing

most favorable to

the buyers,

buyers, most of whom

their lots in
being

can be briefly

representatives.

stated.

are residents of Puerto Rico,

Florida beginning

approached

the evidence in the light

by

the

During

real

in the

The

acquired

early 1970's

after

company's

sales

estate

these meetings,

the

prospective

____________________
1RICO is
the Racketeering Influenced
and Corrupt
Organizations chapter of the Organized Crime Control Act of
1970, 18 U.S.C.
1961-68. The real estate company was J.C.
Investments, Inc.
The original financing was by Banco
Economias and a group of investors. Banco Central succeeded
Banco Economias.
-2-2-

buyers were offered

lots

the opportunity

to purchase

subdivided

in an undeveloped site that would eventually, they were

told, include roads, schools, churches, stores and

recreational

facilities.

The

project was

elaborate

touted

as

an

excellent investment due not only to prospective development,

but also to its close proximity to
assurances

Disney World.

These oral

were bolstered by promotional brochures depicting

sporting activities at nearby locations

and other literature

informing buyers of the development's progress.

A cautionary statement, written in small print in one of
the promotional brochures,
"not

a homesite

advised that the

offering."

"[i]mprovements such as roads

on

the property

warning,
Sales

this one

and

are not

prominently

Board Offering

Another

development was

pamphlet warned

that

and drainage are not presently

contemplated."

Yet

featured in

a Florida

Statement and

included as

another

well

Land
in a

brochure, advised buyers that the property was not usable for
building purposes,

that

the

seller

contemplated any improvements, and

neither

promised

that 35% of the

nor

land was

"marshy or swampy" and subject to flooding.

Most buyers
did

were

often

did not read

told

that

these warnings and

the

warnings

were

those who
standard

boilerplate

required for

response was that the

water

diverted

to

all Florida

land sales.

Another

swampy sites would be drained

form

ponds

and

lakes.

The

and the
buyers,

-3-3-

according to
could be
Several

their testimony,

used as
chose

development

home site

their

lots

for any

from a

map

their land

other

which

purpose.

divided

and "commercial"

the

sections.

of buyers, many of whom hoped to retire to

Florida, purchased their lots

home.

or

into "residential"

The vast majority

were assured that

According

with the intention of building

to their

testimony,

only a

few

were

concerned solely with the re-sale value of their property and

had

no

intention

of residing

on

or

developing

the lots

themselves.
The projected

improvements were

not made.

The buyers

eventually learned, some through a local newspaper, that they

were

the

owners

purchase price.

of swamp
At trial,

land

worth

fraction of

the buyers produced

the

experts who

testified that, as a result of zoning restrictions applicable

to

flood-prone

legally.

areas, few

The

restrictions,

of the

experts

the

said

area was

lots

could be

that,

even

physically

built on

absent

the

unsuitable for

any

broad-scale development.
On

August

2, 1982,

the

making

claims

district

court,

company,

the financing

buyers

brought

against

bank, and

the

a number

suit in
real

the

estate

of individuals.

The complaint asserted claims under the Interstate Land Sales

Full

Disclosure

Act,

Securities Exchange

15

U.S.C.

1701

Act, section 10(b), 15

et
seq.,
________
U.S.C.

the

78j(b),

-4-4-

and RICO, 18
income).
discovery,
attempts to

U.S.C.

1962(a)

(use of racketeering

derived

Much time was consumed with class action disputes,

statute
amend the

of

limitations
complaint.

issues,

Eventually,

and

various

the district

court in November 1989 dismissed all these claims but allowed

the buyers to amend in order to

allege a RICO claim charging

securities

acts.2

fraud as

predicate

Rodriquez v.

Banco

_________
Central,
_______

727 F. Supp. 759

_____

(D.P.R. 1989), aff'd in part and

__________________

vacated in part, 917 F.2d 664 (1st Cir. 1990).

_______________
On

January

dismiss the

based

allege mail fraud under RICO.

to

predicate

to

At

court declined

on

court refused

securities fraud introduced by the new amended complaint.

time the

claim

district

of

same

RICO

the

acts

the

new

25, 1990,

allow the

The distinction, the district

court explained, was that securities fraud had been

in some form
view,

had

from the
not

been

buyers to

outset;3 mail fraud,

alleged

until

in the

after seven

an issue
court's
years

of

and concluded

on

litigation, including extensive discovery.

Trial
September

commenced on
24, 1991.

August

5, 1991,

The evidence submitted has already been

____________________
2The Land Sales Act and Securities Exchange Act claims
were dismissed on statute of limitations grounds. The RICO
claim under
1962(a), charging use of racketeering derived
income, was dismissed for lack of standing.
3In addition to the claim of securities fraud under the
Securities Act of 1934, the original complaint had also
mentioned securities fraud as part of the improvident RICO
claim under 18 U.S.C.
1962(a).
-5-5-

described briefly and

conclusion

is discussed

of the evidence,

the court on

granted a motion for judgment as

judgment for all defendants,
F.

Supp. 1043

appeal.

In

(D.P.R.
its

further below.

under

the

October 10, 1991,

Rodriguez v. Banco Central, 777

_________
_____________

lengthy opinion,

alia that the land

____

the

a matter of law and ordered

1991), giving

inter
_____

At

rise

to the

the district

present

court held

sale contracts were not securities

federal securities

laws.

In consequence,

the

buyers' RICO claim failed for lack of the necessary predicate

acts.
II. THE RICO CLAIMS
RICO

makes

enterprise
pattern

it unlawful

in or

affecting

of "racketeering

"Racketeering activity"
sale of securities."
there must

be

for

sale of

person to

interstate

activity."

Id.
__

at least

18 U.S.C.

1961(1)(D).
two acts

securities.

In this

conduct

commerce through

is defined to include

within ten years of each other, id.

__
the

an
a

1962(c).

"fraud in the

For a

"pattern,"

of racketeering

activity

1961(5), here, fraud in

case, the

sufficient case of fraud to put before a

buyers

jury.

had a

The question

is whether it was fraud in the sale of "securities."

The

district

court concluded

that no

reasonable jury

could

find

the

land sale

"securities," a term that

contracts

in

this

case to

be

the federal securities laws define

-6-6-

to include "investment contracts."4

at 1060-61.
parsing

Our analysis

the terms

distinguishing

in

them

prior

appeal therefore

"securities" and
from

contractual arrangements.
plowed

on

Rodriquez, 777 F. Supp.

_________

other
This

opinions, but

begins

by

"investment contracts,"
forms

of

property

legal furrow has

imaginative

or

been well

promoters

are

constantly devising new lures and promises to tempt investors

and perplex the courts.
The

definition

bracketed by a
they

"investment

set of Supreme

involve facts quite

path.
in

of

contract"

has

Court decisions which,

different than ours,

been
while

mark out our

SEC v. W.J. Howey Co., 328 U.S. 293 (1946) (interest

___
______________

citrus

enterprise

security);

and

United Housing
_______________

Foundation, Inc. v. Forman, 421

_______________
______
apartment
been

told

U.S. 837 (1975) (interest in

cooperative not a security).

by

these

substance governs

cases

form, and

that

in

In essence, we have
defining

the substance of

securities,
an investment

contract is a security-like interest in a "common enterprise"

that,

through

the efforts

expected to generate profits

of

the promoter

or

others, is

for the security holder, either

____________________
4The courts have construed the term "securities" in
light of the definitions of the term provided by the
Securities Act of 1933, 15 U.S.C.
77a et seq., and the
______
Securities Exchange Act of 1934, 15 U.S.C.
78a et seq. See
______
___
Landreth Timber Co. v. Landreth, 471 U.S. 681 (1985). The
___________________
________
definitions appear respectively in the 1933 Act, section
2(1),
15 U.S.C.
77b(1), and the 1934 Act, section
3(a)(10), 15 U.S.C.
78c(a)(10).
-7-7-

for direct distribution or as an increase in the value of the

investment.
852-53.

Howey, 328
_____

U.S. at 298-99; Forman, 421

______

U.S. at

Each component

in the concept matters.

investments obtained
are not an
858.

by contract,

such as one's

interest in an enterprise.

One

may

have

an

interest

profits or

increased

value.

home, that

Forman, 421 U.S. at

______
in

employment contract, for example--that is

to

There are many

an

enterprise--an

not an entitlement

Conversely,

in

sole

proprietorship the owner could have a claim on all profits of

the enterprise
involved.

but there

Further, the

might be no
Supreme

concept, not a precise definition.

_______
are

told,

arrangements
they may

must

be

comprising the

be named.

U.S. 344, 351

flexibly

SEC v.
___

(1943).

contract or

Court

security

cases mark

out

The term "securities," we

applied

essence of

to

capture

new

securities, however

C.M. Joiner Leasing Corp., 320

_________________________

But not

all property is a

security,

and fuzzy edges do not mean that the concept is unbounded.

In this case, apart from the generality of the statutory
language, a further, two-fold

problem exists in applying the

concept to the land sale contracts at issue.

contracts say

is not all

salespersons; the

evidence

that the

First, what the

buyers were told

reveals that

many

buyers

by the
were

shown materials and given oral assurances that went beyond or

even contradicted

the formal legal documents.

-8-8-

Second, what

the

buyers

were

understandings and
buyer.

shown

or

told,

intentions

and

what

were, varied

their

from

own

buyer

to

We start with some legal rules of thumb.

A simple sale of land, whether for investment or use, is

not a "security."

E.g., Hocking v. Dubois, 839 F.2d 560, 564

___
_______
______

(9th Cir. 1988),

modified on reh'g en banc,

__________________________

(9th Cir.

(en

1989)

(1990).
not

banc), cert. denied,

_____________

interests

in

Thus, one

who buys raw

property,

is

purchasing a
627

not

or the
under

"security."
F.2d

1036,

Conventional incidentals,
a road or

elevate an

enterprise, and

an enterprise.

profit from rents

install

494

1449

U.S.

1078

Even if bought for investment, the land itself does

constitute a business

Inc.,
___

885 F.2d

land or

Howey, 328
_____

"securities" are
U.S.

even a building,

natural increase in
normal

such

n.

as the

electricity, is

hoping to

the value

of

treated

as

circumstances

Aldrich v.
_______
1039

at 298-99.

McCulloch Properties,
_____________________
(10th

Cir.

1980).

seller's promise

similarly not

to

enough to

ordinary real estate transaction to the status of

a security.
At

Id. at 1040.
__

some point,

however, the

commitments and

promises

incident to a land transfer, and the network of relationships

related to the project, can cross

over the line and make the

interest acquired one in an ongoing business enterprise.

Howey, 328
_____

U.S. at 299-300.

be treated as

See
___

At that point, the interest may

a security, even

if not so

labeled.

Id.
__

at

-9-9-

300.

And in making this appraisal, the promoter properly is

held to his representations as to what he is selling, Joiner,

______
320 U.S. at 353, even where those promises go well beyond the
legal

terms of

the

contracts and

the

fine print

of

the

disclaimers.
In this case the promoters offered the land primarily as
an

"investment."

the

salespeople

A number of buyers testified at trial that

emphasized

the

investment

value

of

the

project, a

contention supported

by a company

sales' manual

introduced into evidence, stressing capital appreciation as a

prime selling point.
Inc., 922
___

Compare Rice v. Branigar Organization,

_______ ____
______________________

F.2d 788, (11th Cir.

emphasized personal use over

now introduced:

purchased

consumption, it
contract.
the

investment).

buyers intended to live on

primarily for
is

said, is

Forman, 421 U.S. at

______

problem of

A complication is

while the lots were offered as an investment

by the seller, most

and

1991) (promotional materials

opposing

the property

use.

not a

security or

852-53.

buyer and

purchase for

use or

investment

We need not sort out

seller viewpoints,

nor

search out buyers who had investment in mind, because another

aspect of the matter decides the case.
In our

view even if every buyer

bought for investment,

what was purchased in this case was not a share of a business

enterprise and so not
favorably to the

a security.

buyers, they were

-10-10-

Taking the

evidence most

sold land in

individual

parcels

with

surrounding

strong

and

repeated

area would develop

community.

But apart

country club, the

promoter

or

other

promising the buyers

scraps of

into a

to build

evidence, usually

the

existing lodge

evidence did not

obligated

that

thriving residential

from the promise of an

or a new

any

suggestions

show that

person

or

entity

or provide anything.
ambiguous, may point

the
was
few

the other

way but we do not think that a reasonable jury could conclude

on

this

record

that

the

defendants

were

promising

to

construct a community.
A security
along

with

might exist if the

_____

the

themselves.

land

sales,

defendants had promised,

to

develop

Then each buyer might be

not only in land but in

together, could comprise

a business

still

value, unlike

of the

development of the
U.S. at 348-49
of

their

"common

Howey,
_____

the typical

a whole.

all of

enterprise"

328 U.S. at 299.

their

lure").

share of

depend on

the

Cf. Joiner,
__ ______

320

(promised oil well gave mineral

value and

the

Each parcel of land would

potential gain might

community as

commitment to build the

the

acquiring an interest

venture harnessing

promoter.

stock, but most

community

a package of commitments that, taken

entrepreneurship of the
have a different

the

leases "most
The promoter's

community, in turn, could constitute

financed

jointly

Several decisions

by the

buyers.

have taken this

view, and we

think they may be correct in

principle.

E.g.,
___

-11-11-

McCown v. Heidler, 527

______
_______
Woodmoor,
________

F.2d 204 (10th Cir. 1975);

CCH Fed. Secur. L. Rep.

Miller v.
______

96,109, 91,998-999 (D.C.

Colo. 1976); Aldrich, 627 F.2d at 1038-1040.

_______
In this case, however, the most that can be said is that
the

promoter

impression

left

that a

the

distinct,

community

was going

natural forces.

Many buyers were

presence

nearby

would

pictures

of specific sports

specific

distances.

club, there was little

made

spur

But

and

false,

to develop

through

told that Disney

World's

growth.

Others

facilities already
aside from

the lodge

were

shown

existing at
or country

testimony that specific promises were

by anyone to do specific things.5

have is

sales of property based on

to

prospects, but

its

distinctly

there is

enterprise" managed by the

Accordingly, what we

false representations as
no

pretence of

a "common

promoter and hence no "security."

See, e.g., Woodward

___ ___
________
Cir. 1978);

v. Terracor, 574
________

Happy Investment Group

______________________

F.2d 1023, 1025

(10th

v. Lakewood Properties,
_____________________

Inc., 396 F. Supp. 175, 180-81 (N.D. Cal. 1975).

___
One
matter.

might
The

ask why

the

absence of

security should

property was made attractive by

the promoter's

____________________
5The promoter proposed to convey an existing house to
the community for use as a lodge by buyers visiting their
land and offered memberships in a to-be-constructed country
club.
The latter offer was accepted by none of the 152
buyers who are plaintiffs in this case.
In any case,
scattered references to these limited amenities would not
transform the purchase of a lot into a share in a development
venture. See Rice, 922 F.2d at 790-91.
___ ____
-12-12-

claims that a

community would arise,

blatantly false, or so a jury could

simple "fraud"

case:

have apparently
RICO

claim based

and those claims

find.

But this is not a

the buyers, seemingly

lost their fraud remedies,

on supposed

were

through delay,
except for their

predicate acts

of securities

fraud.

Without securities, this RICO

claim evaporates.

is disagreeable for

a court

been wronged.

we cannot disregard

Court

But

decisions or

to turn away

distort

victims who

It
have

controlling Supreme

the securities

laws to

rescue

plaintiffs who have themselves cast their legitimate remedies

away.
Puerto Rico
buyers of land.
Land

law provides
See 31 L.P.R.A.
___

Sales Full Disclosure Act,

offers

15 U.S.C.

The Interstate
1701 et seq.,
______

Indeed, RICO itself makes mail fraud

predicate act, 18 U.S.C.

delayed

3408-3409.

defrauded

a broad gauged federal remedy, modeled in part on the

Securities Act of 1933.

a

ample remedies for

too

long in

1961(1)(A), but the buyers here

asserting this

possible claims, federal and

claim.

All

of these

local, could have been asserted

in a timely filed complaint in this case.

Sometimes the law

itself is at fault; this time the fault is with the lawyers.

III.

MISCELLANY

Ignoring their own defaults, the buyers' lawyers instead

assail

the district

pages of argument in

judge.

They

devote the

their brief (no reply brief

-13-13-

first thirty
was filed)

not to the difficult legal issues of RICO and securities law,

but

to

claims

that

the

district

judge

barred

leading

questions, helped certain defendants with their answers,

and

otherwise misconducted the trial.

There is some reason to believe that the district judge,
far

from tilting against the buyers,

took steps to preserve

what

claims he could for the buyers.

One effort he made to

expedite the case through certified

in

questions was frustrated

part by the buyers' neglect to follow a simple procedural

rule. See Rodriguez v. Banco Central, 917 F.2d at 668-69.

___ _________
_____________
also

permitted the buyers to

RICO

security

claim,

"securities"

allowing

allegation

representations; many

go to trial
them

through

to

on their marginal
flesh

out

evidence

other judges, we are

He

of

their
actual

confident, would

have dismissed the securities claims before trial in light of

the Supreme Court decisions already discussed.
In all events, the instances
partiality
are close to

trivial.

witness

management.

and

by the district judge in his conduct of the trial

judgments about
clarify

offered to show error

In

Trial judges

the use
answers,

of leading questions,
and

this realm the

given to the judge on the

are constantly

scene.

similar

making

the need

matters

of

trial

widest possible latitude

Borges v. Our Lady

to

is

of the

______
Sea Corp.,
________
examined

935 F.2d

436,

442 (1st

________________

Cir.

1991).

We

have

the many examples and transcript citations provided

-14-14-

in the buyers' brief.

district judge, who

Almost all are routine

"calls" by the

must make hundreds of snap

judgments in

the course of a long trial, and are well within the bounds of
propriety.
The

only legal

complaint

that the

point worth
trial judge

mentioning is
limited or

the buyers'

forbade leading

questions when the buyers as part of their direct case called

certain

defendants as witnesses.

judge erred

by refusing

The buyers

to declare the

urge that the

witnesses "hostile"

and to allow the use of leading questions on direct.

On this

point they

in

themselves

err.

"hostile" witness,

the

jargon of evidence law, is not an adverse party but a witness

who

shows

questions,

himself
whatever

or
the

herself

so

adverse

source

of

the

to

answering

antagonism,

that

leading questions
See
___

may be used

to press the

questions home.

United States v. Brown, 603 F.2d 1022, 1025-26 (1st Cir.

_____________
_____

1979).
The buyers

are on stronger

rules generally
an opposing
because
sense

permit leading questions to

party.

Fed.

that party
but because,

answer.

overriding

But

R.

is a

hostile witness

command

of Rule

is

This

in the

is

has a

question or slant

arguably subject

611(a)

not

technical

the witness

slide away from the

Rule 611(c)

that the

be used against

Evid. 611(c).

however cooperative,

built-in incentive to
the

ground in arguing

that

the court

to the
"shall

-15-15-

exercise

reasonable

control

interrogating witnesses"

to

protect against harassment.

believe,
compelled
where

for

example,

to allow

the judge

that

leading

found

over

the

mode

elicit truth,

district

questions to

that this

mode

avoid delay

Fed. R. Evid. 611(a).

a

judge

of
and

We cannot
would

an adverse
was distorting

be

party
the

testimony of a suggestible adverse-party witness.

In all events we need not decide whether the trial judge
in this case misread Rule 611(c) or precisely when and how it
may be overridden.
without

There can be no reversal on such a ground

a showing of prejudice, Fed. R. Evid. 103(a), and no

showing of prejudice without a proffer, ordinarily one in the

record.

Fed. R. Evid. 103(a)(2).

showing

of any

specific

elicited, pertinent to

In this case there is no

information that

might have

been

the dispositive securities issue,

if

the buyers' counsel

had been permitted to ask the defendants

leading

Without

questions.

question
harmless.

some notion of

might have led, any

See Ellis
___ _____

error (if error

v. City of Chicago,
_______________

where a leading
there was) is

667 F.2d 606,

613

(7th Cir. 1981).

The buyers' final
his

discretion in

their

complaint.

claim is that the

refusing
The

the buyers'

amendments would

trial judge abused

requests to

amend

have alleged

mail

fraud as predicate acts under RICO and stated

separate fraud

or

Each of

like

claims

under Puerto

Rican

-16-16-

law.

these

attempted

amendments

Neither history

has

bears out

somewhat

different

the charge that

history.

the trial

judge

erred.
The original complaint in this case was filed on
2, 1982.
On

No

RICO count asserting mail fraud

August

was included.6

May 1, 1985, the magistrate ordered that the buyers "will

move to amend the complaint"; for almost two years it appears

that

no amendments

proposed
1988,

were

by the buyers

but

asserted

no

proposed.7
on April 10,

mail fraud

in either

1987, and

predicate

instance.

seven years after the

Then amendments

On

acts

discovery, the buyers for

on June 10,

under RICO

December 18,

start of the case and

were

were

1989, over

after extensive

the first time sought to

add mail

fraud under RICO to the case.

As
was
to

for fraud claims under Puerto

Rican law, no mention

made of such claims in the original complaint.

the

buyers'

complaint,

brief

filed in

in

this

1987, did

that appears is a brief reference

court, the

first

not assert such

Contrary
amended

claims; all

to unidentified violations

____________________
6The buyers' brief says that "averments concerning the
fraudulent use of
the U.S. mails were made" in this
complaint.
In fact, the complaint refers to the use of the
mails in the securities fraud claim, interstate commerce
being an element of securities fraud, but no charge of mail
fraud appears.
7The buyers' brief asserts, without record citation,
that the magistrate asked them to delay moving until after

the class certification was settled.

says this is untrue.

The defendants' brief

-17-17-

of "the Civil
1980,"

in

the

complaint.
the

Code of Puerto
"jurisdiction

The Puerto Rican

second

amended

purportedly tendered
new

Rico and Law

caption

venue"

submitted

pursuant to a court

rejected

18,

portion

the

law claims were

complaint

to identify

understandably

and

145 of June

plaintiffs.
this

first made in

June

10,

1988,

order permitting a
The district

attempt

allegations, and the Puerto Rican

of

to

smuggle

court
in

claims were not raised

new
in

the third motion to amend filed December 18, 1989.

This corrected version of events speaks
reason is offered
local-law

claims,

possibilities
and in

in the

buyers' brief why

which

in 1982,

timely fashion.

should

were not
The

have

for itself.

No

mail fraud

and

been

evident

asserted straightforwardly

further along a case

is toward

trial, the greater the threat of prejudice and delay when new
claims are belatedly added.
its

considerable

The district court did not abuse

discretion in

denying

leave

to add

new

claims years

after the case began, after much discovery, and

without any adequate

excuse for

the delay.

See
___

generally
_________

Tiernan v. Blyth, Eastman, Dillon & Co., 719 F.2d 1, 4-5 (1st
_______
___________________________
Cir. 1983).
The judgment of the district court is affirmed.
________

-18-18-