United States v. DeSimone ( 2012 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 11-1996
    UNITED STATES,
    Appellee,
    v.
    ROCCO P. DESIMONE,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. William E. Smith, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Boudin and Lipez, Circuit Judges.
    Kenneth Seiger for appellant.
    Donald C. Lockhart, Assistant United States Attorney, with
    whom Peter F. Neronha, United States Attorney, was on brief, for
    appellee.
    November 9, 2012
    LYNCH, Chief Judge. Rocco DeSimone, a persuasive con man
    operating in Rhode Island, defrauded a number of investors, most
    neither wealthy nor experienced in investing, in a series of
    schemes which used the mails.        He also laundered money he received
    from the fraud by buying himself a $180,000 sports car.            He freely
    lied to his victims about three supposedly sizzling new inventions
    with   purportedly   huge   market    potential,    well   aware   that   his
    statements were false -- and then covered his lies with more lies.
    DeSimone's scheme involved the "DrinkStik," through which people in
    protective suits supposedly could drink; the "SONG Tube," intended
    for feeding patients unable to eat; and the "Disk Shield," which
    was supposed to protect CDs and DVDs.          All told, investors lost
    about six million dollars.
    A federal jury convicted DeSimone of seven counts of mail
    fraud and one count of money laundering.           He was sentenced to 192
    months imprisonment and ordered to pay $6,030,145 in restitution
    and to forfeit certain property.        At the time he was 58 years old.
    On appeal DeSimone challenges his conviction, arguing he
    must be given a new trial because of errors in evidentiary rulings
    and a failure by the court to declare a mistrial after the
    admission   of evidence     of his    escape   from   prison   following   a
    separate conviction on tax charges.        As to his sentence, DeSimone
    argues the district court incorrectly calculated the number of
    -2-
    victims and the amounts of forfeiture and of restitution.                           His
    arguments lack merit.
    We affirm DeSimone's convictions, deny his request for a
    new trial, and affirm his sentence.
    I.
    DeSimone     wisely   does       not        argue    the    evidence    was
    insufficient to support his conviction.                   We lay out the general
    story to provide a context for evaluating his claims.                     We describe
    the evidence presented at trial in the light most favorable to the
    jury's guilty verdict.       See United States v. Manor, 
    633 F.3d 11
    , 12
    (1st Cir. 2011).
    A.          Victim McKittrick and the DrinkStik and SONG Tube Frauds
    In   2005,   a   medical     doctor         named    Robert    McKittrick
    invented and patented the "DrinkStik," a device meant to allow
    people wearing protective suits in contaminated areas to stay
    hydrated.    His efforts to sell the invention failed.1
    One of McKittrick's friends, David Lindsay, was a martial
    arts instructor who taught private lessons to DeSimone.                       Lindsay
    introduced   McKittrick      to   DeSimone         in    2005.         McKittrick   had
    described the Drinkstik to Lindsay, who mentioned it to DeSimone.
    McKittrick then described the invention to DeSimone during their
    first meeting, at DeSimone's prompting.
    1
    Jonathan Denker, director of sales for a military and
    emergency equipment supplier, testified at trial that the DrinkStik
    could not have worked in practice.
    -3-
    In the spring of 2006,2 DeSimone, McKittrick, and Lindsay
    met again, and DeSimone told McKittrick that he would like to take
    on selling the DrinkStik.      DeSimone explained that his career
    involved selling high-value items, including paintings, to people
    of means to whom he had special access.
    DeSimone falsely told McKittrick that he knew a man named
    Jimmy or Ned Johnson who was the owner of Fidelity Investments,
    that he and Johnson had done many art deals in the past, and that
    "they were very, very friendly, first name basis, you know, they
    went to dinner and knew each other very, very intimately." Several
    times, when McKittrick visited DeSimone's home, DeSimone received
    phone calls and told McKittrick that it was Johnson who was on the
    phone.   DeSimone's wife, Gail DeSimone, also "[o]n more than one
    occasion" told McKittrick that Johnson "had been [to their house],
    that he was a nice guy.   He was very interested in the project."
    None of this was true.    Edward Johnson, III, is a real person who
    2
    In 2005, DeSimone was convicted of filing a false tax return
    in the United States District Court for the District of Rhode
    Island, receiving a sentence of 27 months imprisonment. United
    States v. DeSimone, No. 04-80S (D.R.I. Mar. 22, 2005). He began
    serving his sentence that year and served six months before he was
    granted bail pending appeal in March of 2006. United States v.
    DeSimone, 
    424 F. Supp. 2d 344
     (D.R.I. 2006).        DeSimone told
    McKittrick and Lindsay that he had been released from prison
    because he had been exonerated, and that his conviction was
    actually his accountant's fault. DeSimone had not in fact been
    exonerated, and his appeal was later denied.     United States v.
    DeSimone, 
    488 F.3d 561
     (1st Cir. 2007). After DeSimone's return to
    prison, he escaped in March of 2008 for several days. The escape
    is discussed later.
    -4-
    is head of Fidelity Investments, but DeSimone had never met Johnson
    and Johnson knew nothing of DeSimone or the DrinkStik.
    DeSimone    told    McKittrick       that:     (1)   Johnson      had
    "guaranteed him [the DrinkStik] would be sold"; (2) "Mr. Johnson
    was purchasing it.    It was already worked out.           The lawyers were
    already putting papers together"; and (3) "the deal was done.                He
    had shaken hands with Johnson." DeSimone said the sale would occur
    by September of 2006.         Though McKittrick only wanted to give
    DeSimone a sales commission, DeSimone insisted that he needed a
    one-third ownership interest in the DrinkStik to show Johnson that
    the project was credible.
    DeSimone convinced McKittrick that he knew Johnson, and
    that Johnson had offered to buy the DrinkStik.             On May 29, 2006,
    McKittrick and DeSimone entered into an agreement giving DeSimone
    a one-third ownership interest in the parent company holding the
    patent rights to the DrinkStik.            DeSimone set up a company --
    Falcon, Limited -- that controlled his stake in the DrinkStik.
    This gave DeSimone a platform to fraudulently market the DrinkStik
    to other "investors."         DeSimone later persuaded McKittrick to
    transfer an additional two percent interest in the DrinkStik to
    DeSimone   in   furtherance    of   his    scheme   to   sell   stock   in   the
    DrinkStik, purportedly to raise operating capital.
    McKittrick had also received a patent for a second
    invention, called the SONG Tube, that was designed to make it
    -5-
    easier to insert a feeding tube into patients' stomachs through
    their noses or mouths.       After McKittrick transferred a one-third
    interest in the DrinkStik to DeSimone, DeSimone told him that he
    was also negotiating with Tyco Corporation to sell the SONG Tube.
    This was not true.      McKittrick transferred a one-third interest in
    the SONG Tube to DeSimone, in reliance on this representation.
    DeSimone told McKittrick that Johnson had offered $264
    million for the DrinkStik and that the deal would take place in
    September of 2006. Just before September, DeSimone told McKittrick
    that the deal would be delayed because they needed to change the
    structure of the entities holding interests in the DrinkStik.
    DeSimone then told McKittrick that he had set up several meetings
    with Johnson.     When none of these meetings took place, DeSimone
    claimed it was because of business that took Johnson abroad.
    Around Thanksgiving of 2006, DeSimone told McKittrick that a deal
    with Johnson was imminent, and that McKittrick needed to quit his
    medical residency in New Jersey and return to Rhode Island so he
    could sign the papers immediately if needed.         Believing DeSimone,
    McKittrick did exactly that, to his regret.
    DeSimone then informed McKittrick that the deal would
    close by February of 2007.      But in February DeSimone said that the
    deal would once again be delayed because Johnson's daughter,
    Abigail,   had   been   admitted   to   the   hospital,   and   because   of
    -6-
    McKittrick's failure to obtain international patent protection for
    the DrinkStik.
    DeSimone had McKittrick make presentations about the
    DrinkStik to Raytheon Corporation, purportedly to bid up the price
    by creating competition with Johnson.    Raytheon never offered to
    purchase the Drinkstik.
    DeSimone conceded at trial that Edward Johnson, III, the
    chief executive officer of Fidelity Investments, had never met
    DeSimone, did not know who DeSimone was, and had never socialized
    or spoken with DeSimone or been to DeSimone's house. DeSimone also
    stipulated that he never spoke with anyone at Fidelity Investments
    concerning the DrinkStik.
    B.        The DrinkStik Fraud and Victims Lindsay and His Circle
    After DeSimone acquired his one-third interest in the
    DrinkStik, he asked Lindsay -- who was struggling financially and
    caring for a disabled daughter -- to speak to his friends and
    family about investing in the DrinkStik.     DeSimone told Lindsay
    that a sale of the DrinkStik to Johnson was imminent, likely by
    September of 2006.   Lindsay told his family and friends about "Mr.
    DeSimone's connections" and that "this was a very, very good
    opportunity."    Most of these friends and family told Lindsay that
    they could not afford to invest. When Lindsay reported to DeSimone
    that "a lot of these people, because they're all blue collar
    workers, they just don't have the money to go and invest in
    -7-
    something of this sort," DeSimone suggested that they purchase a
    painting and set it aside so that if the Drinkstik "doesn't sell,
    we'll sell the painting and then we can reimburse your friends."
    Based on this, some of Lindsay's friends eventually invested.
    DeSimone then persuaded Lindsay to take $10,000 out of his home
    equity line of credit to provide DeSimone with cash to purchase a
    Georgia O'Keefe painting that DeSimone had allegedly found in
    Newport.     DeSimone then told Lindsay that the painting had been
    sent to be cared for, and later claimed that the painting had sold
    for $900,000.    None of this was true.
    Lindsay reported to his friends and family that he had
    purchased a painting which would protect their investments in the
    DrinkStik.      He also relayed that DeSimone had told him that
    Raytheon, Tyco, and Fidelity were interested in the DrinkStik and
    that Johnson was a good friend of DeSimone.   Based on these lies by
    DeSimone, Lindsay collected $100,000 from his family and friends,
    took out another $25,000 from his own home equity line of credit,
    and wrote a check for $125,000 to DeSimone.        Lindsay's sister
    separately invested $5,000.
    Around August of 2006, DeSimone falsely informed Lindsay
    that Johnson had agreed to buy the DrinkStik for $260 million.
    Lindsay then told an acquaintance, Michael Malone, that DeSimone
    had stated that the DrinkStik "was going to be sold shortly" for
    -8-
    $300 million. Based on this, Malone invested $25,000 in the DrinkStik.
    In September of 2006, DeSimone persuaded John Agostini --
    who   had   already   contributed   $50,000   of   the    $125,000   Lindsay
    previously entrusted to DeSimone -- to invest another $25,000 in
    the DrinkStik "because it's sold" and "the more money you get in,
    the more money you're going to make."              DeSimone falsely told
    another friend of Lindsay's, Paul Gregson, that Raytheon was "very
    interested    in   purchasing"   the   DrinkStik    and   that   "they    had
    purchased the item"; he also told Gregson that he personally knew
    Johnson and that Johnson was interested in the DrinkStik. DeSimone
    added that any investment would be covered by the purchase or
    acquisition of a painting. Based on this, Gregson invested $25,000
    in the DrinkStik with DeSimone.        The total sum of the investments
    that DeSimone fraudulently procured from Lindsay and his friends
    and family for the DrinkStik was $205,000.
    In late 2006 or early 2007, DeSimone told Lindsay that
    Raytheon had offered to buy the DrinkStik for $280 million and that
    the closing date was February 15, 2007.              DeSimone also told
    Gregson,    Agostini,   and   Malone   that   Raytheon     had   bought   the
    DrinkStik, and that they were millionaires. None of this was true.
    Lindsay called his friends and family and related these reports of
    good news.    When the purported closing date of February 15, 2007
    came and went, DeSimone told Lindsay, Gregson, Agostini, Malone,
    -9-
    and another investor, John Kilday, that Raytheon had passed on the
    deal at the last minute but that Tyco was now interested.
    In reality, though DeSimone organized one meeting with
    Raytheon, no Raytheon representative ever offered to purchase the
    Drinkstik or discussed dollar amounts relating to a possible
    purchase.   Similarly, though DeSimone had a phone call with a Tyco
    representative,     Tyco    never   expressed   interest   in    buying   the
    DrinkStik or SONG Tube.
    C.          The Disk Shield Fraud and Lindsay Group Victims
    In May or June of 2006, DeSimone told Lindsay that, along
    with his accountant, Ronald Rodrigues, he owned the "Disk Shield,"
    an   invention     that    purportedly   protected   CDs   and   DVDs     from
    scratching.      DeSimone falsely told Lindsay that Nintendo and Sony
    were interested in buying the Disk Shield.            DeSimone also told
    Gregson that he, DeSimone, was part owner of the Disk Shield, and
    that Sony had already purchased it.         DeSimone asked both Lindsay
    and Gregson if they would be interested in investing in the Disk
    Shield; each agreed and transferred $10,000 to DeSimone.
    DeSimone falsely told Lindsay that the Disk Shield had
    sold to Nintendo for $11 million and that the deal would close in
    January of 2007. DeSimone then claimed that complications with the
    corporate structure holding the interest in the Disk Shield had
    delayed the closing, and that the "money was in OFAC [U.S. Office
    of Foreign Assets Control]."         Ultimately, DeSimone told Lindsay
    -10-
    that the Nintendo deal did not close because "Ron Rodrigues messed
    up the paperwork."
    In reality, DeSimone had no stake in the Disk Shield; it
    was wholly owned by Rodrigues and its inventor, Paul F. Schwab.
    Nintendo   had    no    record   of   any   communications    with   DeSimone,
    Rodrigues,   or    Schwab    regarding      the   Disk   Shield,   and   neither
    Nintendo nor Sony ever offered to purchase the Disk Shield.                  In
    fact, no company ever offered money for the Disk Shield.
    D.         Other Victims of the DrinkStik and SONG Tube Frauds
    In September of 2006, DeSimone described the DrinkStik
    and the SONG Tube to Frederick Weissberg, a California dealer in
    ancient Japanese swords.         DeSimone falsely said that Raytheon was
    "ready to buy [the DrinkStik], it was a done deal," and that
    Raytheon would pay more than $400 million for the invention at a
    closing date in early 2007.           DeSimone said he was also "very good
    friends" with "Jimmy Johnson, who was the head of Fidelity,"3 and
    that Johnson was "ready at a moment's notice to write a check for
    $160 million."         DeSimone falsely told Weissberg that he was in
    talks with Tyco about the SONG Tube, and later stated that though
    3
    In 2004 or 2005, DeSimone had set up a three-way telephone
    conversation between Weissberg, DeSimone, and "Mr. Johnson of
    Fidelity" wherein "Johnson" discussed purchasing a $500,000 sword
    from Weissberg. The phone number that Weissberg used to contact
    "Johnson" actually belonged to Florian "Al" Monday, a friend of
    DeSimone's.
    -11-
    discussions with Raytheon about the DrinkStik had "stalled because
    of patent problems," Tyco was "very interested" in the DrinkStik.
    DeSimone told Weissberg that a one-percent interest in
    the DrinkStik would cost $200,000, but that the pay-out would be $4
    million.   Weissberg, his brother, and a friend of his ultimately
    invested $600,000 in cash in the DrinkStik, after Weissberg told
    his brother and the friend that this was "a done deal," that it was
    "going to fund," and that "it was a fantastic, wonderful deal."
    Weissberg also sent DeSimone three swords worth more than $600,000
    and forgave two sword-related debts on the understanding that these
    objects and debts would be credited to his investment in the
    DrinkStik. Weissberg believed that his investment also gave him an
    interest in the SONG Tube.
    In late May or early June of 2007, DeSimone told Andrew
    Quirt, a Minnesota dealer who sold Japanese swords and art, "that
    there were several exciting inventions that he was going to make a
    great deal of money on."      DeSimone told Quirt that he had a
    controlling interest in the DrinkStik and that an agreement with
    Raytheon to purchase the DrinkStik was in the works, that the sale
    of the DrinkStik was imminent, and that it was already in the hands
    of Raytheon's attorneys.   DeSimone invited Quirt to invest in the
    DrinkStik, and Quirt, based on DeSimone's false representation,
    decided to invest by sending DeSimone three swords worth roughly
    -12-
    $500,000.    DeSimone told him that this investment would net him a
    return of $4.4 million.
    In October of 2006, DeSimone told Allan H. Dyer, a
    retired    businessman   from    Indianapolis,       about   the   DrinkStik.
    DeSimone said that Raytheon "was highly interested in purchasing
    it" and that he expected a deal with Raytheon to close in January
    of 2007, making each percentage of stock in Falcon, Limited -- the
    entity holding DeSimone's interest in the DrinkStik -- worth $2.5
    million.      When   DeSimone    asked   Dyer   to    invest   money   in   the
    DrinkStik, Dyer refused.        However, Dyer agreed to exchange an oil
    painting by Pierre-Auguste Renoir, "Paysage a Cagnes," for one
    percent of Falcon, Limited, and to forgive debts amounting to
    $2.415 million for another two and a half percent of Falcon,
    Limited.
    In early 2007, DeSimone told his chiropractor, Robert
    Marzilli, about the DrinkStik; he said that Tyco and Raytheon were
    interested in the invention, and that "it was going to be sold very
    quickly."    DeSimone asked Marzilli to invest in the DrinkStik at a
    price of $50,000 per share, but Marzilli could not afford this
    amount. DeSimone then brought the price down to $25,000 per share,
    and Marzilli told his mother about the invention and she agreed to
    invest.     When Marzilli expressed reservations about investing to
    DeSimone, stating that the money was not coming from him but from
    his mother, DeSimone assured him that "it was a done deal" and that
    -13-
    he was "a hundred percent sure."        Marzilli agreed to invest in the
    DrinkStik and gave DeSimone a check for $25,000.
    E.         DeSimone's Use of the Mails
    DeSimone sent investor questionnaires and subscription
    agreements through the mail to many of the investors in the
    DrinkStik.      Many of these investors returned these documents to
    Rodrigues,   DeSimone's       accountant,    by   mail.   The   subscription
    agreement explained that any investment in the DrinkStik carried a
    high   degree    of   risk;    when   Agostini     hesitated    to   sign   the
    subscription agreement, DeSimone told him that if he did not sign,
    he would not "get [his] money."
    F.         DeSimone's Re-Incarceration and Escape
    In July of 2007, DeSimone returned to prison to complete
    the remainder of his sentence for filing false tax returns.                  In
    August of 2007, suspecting that DeSimone was orchestrating a scam,
    McKittrick and Lindsay went to the FBI to offer cooperation in
    investigating DeSimone.        On March 13, 2008, FBI agents executed a
    search warrant at DeSimone's home, searching for items relating to
    the DrinkStik and Disk Shield.          DeSimone's wife, Gail, was home
    during the search.     As the search was going on DeSimone called her
    on the phone.     Gail explained to him that FBI agents were at the
    house, searching for materials relating to the DrinkStik and Disk
    Shield.
    -14-
    Two   days   later,   Gail   visited   DeSimone   at   prison.
    DeSimone used this visit to escape.        He "left with her," though he
    understood that he was "not allowed to do that."4             At that time,
    DeSimone had nine months remaining on his sentence.                DeSimone
    traveled from New Jersey, where he had been incarcerated, to Rhode
    Island, Connecticut, Massachusetts, and New York before turning
    himself in; he spent three-and-a-half days at large.               DeSimone
    testified that he escaped from prison because he feared for his
    family's safety based on threats purportedly made by McKittrick and
    Lindsay.5   DeSimone admitted, however, that McKittrick and Lindsay
    had not spoken to Gail since November 9, 2007.           Moreover, in the
    course of his flight DeSimone had Gail return to their home, though
    McKittrick and Lindsay knew its location.          DeSimone also testified
    that during his flight, he traveled to New York to inquire about
    whether some of his paintings had been sold and whether he could
    obtain the proceeds.      DeSimone turned himself in after he learned
    that the paintings had not been sold.         He was returned to prison
    and was prosecuted on a charge of escape in the District of New
    Jersey, where he pled guilty on July 29, 2008.
    4
    DeSimone was incarcerated at a minimum security facility at
    which headcounts were the main mechanism for preventing inmates
    from escaping. DeSimone disappeared from the facility between two
    of these counts.
    5
    McKittrick and Lindsay denied making any physical threats to
    Gail DeSimone.
    -15-
    G.        Financial Details of the DrinkStik Scheme
    At trial, an IRS special agent, Troy Niro, testified that
    DeSimone procured (1) $1,236,250 in cash, (2) over $2.7 million in
    forgiven debts, and (3) physical assets worth $2,073,500 by selling
    stock in the DrinkStik.6     During the same period, DeSimone's
    expenditures were $1,451,717, of which only $28,481 were expenses
    related to the DrinkStik.   Records did not reveal any purchase of
    a painting that could have covered investments in the DrinkStik.
    DeSimone conceded at trial that "[n]o one's gotten any money back
    from the DrinkStik."
    II.
    On March 11, 2009, a federal grand jury indicted DeSimone
    on nine counts of mail fraud in violation of 
    18 U.S.C. § 1341
     and
    one count of money laundering in violation of 
    18 U.S.C. § 1957
    (a),
    (b)(1)-(2).   The   indictment   alleged   that   DeSimone   "knowingly
    devised and intended to devise a scheme and artifice to defraud,
    and to obtain money and property from individuals interested in
    investing in new inventions, including the Drink Stik, Song Tube
    and Disk Shield inventions, by means of false and fraudulent
    pretenses, representations, and promises."
    6
    In its brief the government states that the SONG Tube "was
    a small aspect of the scheme," and the SONG Tube scheme did not
    generate any independent investments. DeSimone raised $20,000 from
    the Disk Shield fraud and returned this amount to Lindsay and
    Gregson.
    -16-
    On January 5, 2010, DeSimone pled guilty to the charges
    against him, but he then changed his mind.          The district court
    granted DeSimone's motion to withdraw his plea on September 13,
    2010.   On March 1, 2011, the day before his trial was to commence,
    DeSimone moved to exclude (1) his 2008 conviction for escape; and
    (2) "testimony with respect to Disk Shield . . . because there's no
    mail fraud.     There's no allegation of a mailing involved in any
    alleged false pretenses with respect to Disk Shield." The district
    court denied both motions.
    DeSimone's jury trial lasted from March 2, 2011 until
    March 16, 2011, when the jury returned a verdict of guilty on seven
    counts of mail fraud and the one count of money laundering.          The
    jury acquitted DeSimone on two counts of mail fraud relating to
    Dennis Mortimer and David Durning.
    The district court ordered DeSimone to forfeit a painting
    by Renoir that Dyer had transferred to DeSimone in exchange for
    DrinkStik stock, though DeSimone argued that he had owned half of
    the painting before Dyer's DrinkStik investment, and that he should
    only be liable in restitution for the half of the painting that
    Dyer transferred in exchange for the DrinkStik stock.
    At   sentencing,   the     court   adopted   the   presentence
    investigation report without change and found, inter alia, that the
    offense involved ten or more victims and thus warranted a two-level
    increase to DeSimone's offense level. The court sentenced DeSimone
    -17-
    to a total term of 192 months imprisonment. The court also ordered
    DeSimone to pay restitution in the amount of $6,030,145.00, which
    included $3,230,000 in losses suffered by Dyer.                 DeSimone timely
    appealed on July 29, 2011.
    III.
    DeSimone        advances    an   array    of    challenges     to     his
    conviction, forfeiture order, sentence, and restitution order.                     We
    start    with    his     claims   of   evidentiary    and   trial    error.       "We
    generally       review    preserved     evidentiary    errors       for   abuse    of
    discretion."       United States v. Meises, 
    645 F.3d 5
    , 20 (1st Cir.
    2011).    "[T]o the extent that a claim of evidentiary error has not
    been preserved -- that is, when no timely and pointed objection was
    advanced below -- our review is only for plain error."                        United
    States v. Sampson, 
    486 F.3d 13
    , 42 (1st Cir. 2007).
    A.          Alleged Evidentiary and Trial Error
    1.           The Disk Shield Evidence
    We quickly dispose of DeSimone's claim that all evidence
    as to the Disk Shield was extrinsic to the charges and should have
    been excluded as impermissibly prejudicial evidence of other crimes
    under Fed. R. Evid. 404(b)(1) and 403.               Evidence intrinsic to the
    crime for which the defendant is charged and is on trial is not
    governed by Rule 404(b).           United States v. Epstein, 
    426 F.3d 431
    ,
    439 (1st Cir. 2005).         Since the indictment expressly charged that
    the Disk Shield scheme gave rise to DeSimone's mail fraud, evidence
    -18-
    relating to this scheme is not other crimes evidence and it does
    not fall within the scope of Rule 404(b).
    DeSimone also argues the government failed to prove the
    Disk Shield scheme used the mails, rendering evidence pertaining to
    the scheme inadmissible.         He is wrong for a number of reasons.
    First, the Disk Shield was part of an overall fraudulent scheme to
    promote investment in new inventions to a group of investors
    through a series of lies.        It is clear that the mails were used in
    the overall scheme, especially as to the DrinkStik. The government
    did not need to show as well use of the mails particular to the
    Disk Shield.   The government need only prove that use of the mails
    was "'incident to an essential part of the scheme' or 'a step in
    the plot,'" United States v. Stergios, 
    659 F.3d 127
    , 133 (1st Cir.
    2011) (quoting Schmuck v. United States, 
    489 U.S. 705
    , 710–11
    (1989)), not that it was involved in every step of a particular
    scheme.   Further, whether the sum of the evidence showed the Disk
    Shield scheme used the mails is unrelated to whether evidence of
    this scheme was admissible at trial.
    DeSimone finally argues that the Disk Shield evidence was
    needlessly cumulative and should have been excluded under Rule 403.
    This   argument   is   without    merit.      The   Disk   Shield    evidence,
    pertaining as it did to a mail fraud scheme expressly charged in
    the    indictment,     was   plainly     relevant   and    neither    unfairly
    prejudicial nor needlessly cumulative. And even if the Disk Shield
    -19-
    fraud    had    not    been    charged,     this     evidence    also    demonstrated
    DeSimone's modus operandi in duping victims.
    2.       Evidence of DeSimone's Escape and Conviction for
    Escape
    DeSimone      next    challenges      the   admission     of    evidence
    regarding (1) his 2008 escape from prison and his flight, and (2)
    his conviction for that escape.7
    "As a precursor to admissibility [of evidence of flight],
    the government must present sufficient extrinsic evidence of guilt
    to support an inference that a defendant's flight was not merely an
    episode of normal travel but, rather, the product of a guilty
    conscience      related       to    the crime     alleged."      United       States   v.
    Benedetti, 
    433 F.3d 111
    , 116 (1st Cir. 2005). DeSimone argues that
    the government did not present sufficient predicate evidence that
    "DeSimone's         escape    was    the   product    of   a    guilty    conscience"
    concerning the mail fraud conduct.                 He bases his argument on the
    fact that he turned himself into the Marshals three and a half days
    after his escape, and also asserts that he escaped in order to
    defend himself and help his family.                  The government must present
    only "enough extrinsic evidence to furnish circumstantial badges of
    7
    After the district court denied DeSimone's pre-trial motion
    in limine to exclude this evidence, it was DeSimone who brought up
    the fact of his prior conviction for escape during his cross-
    examination of McKittrick, and the fact of his escape in his cross-
    examination of Lindsay, all in an attempt to cast doubt on these
    witnesses' credibility.     We need not reach the government's
    argument that as a result DeSimone waived this argument under Ohler
    v. United States, 
    529 U.S. 753
     (2000).
    -20-
    guilt."   Id. at 117.     Given that DeSimone escaped from prison two
    days after learning from his wife that FBI agents were searching
    his house, attempted to raise money during his flight and turned
    himself in only after these attempts failed, the trial court had an
    adequate foundation for finding that DeSimone's flight was the
    product of a guilty conscience as to these charges.                  Moreover,
    there was overwhelming evidence of DeSimone's guilt.
    DeSimone next attacks the admission of evidence of his
    escape under Rule 403, saying the escape evidence only went to show
    his purported bad character.         The district court did not abuse its
    discretion in concluding that the prejudice generated by evidence
    of DeSimone's escape did not substantially outweigh its probative
    value.    The court reduced the possibility of unfair prejudice by
    instructing the jury that "[i]ntentional flight after a Defendant
    is accused of a crime is not alone sufficient to prove that he or
    she is guilty.     Flight does not create a presumption of guilt."
    See United States v. Fernández-Hernández, 
    652 F.3d 56
    , 70 n.11 (1st
    Cir. 2011).
    There was no abuse of discretion in the district court's
    admission of the conviction for escape and determination that the
    probative value of this conviction, under Rule 403, outweighed its
    prejudicial   effect     to   DeSimone.      The   government      offered   the
    conviction    in   its   case   in   chief   as    evidence   of    DeSimone's
    consciousness of guilt. It added that if DeSimone chose to testify
    -21-
    the conviction was also admissible under Rule 609.    For the same
    reasons testimony as to his escape was admissible as consciousness
    of guilt, the conviction was properly admitted.   See United States
    v. Brito 
    427 F.3d 53
    , 64 (1st Cir. 2005).      Moreover, the court
    minimized the prejudice to DeSimone with its instruction as to all
    three of DeSimone's prior convictions (including filing a false tax
    return and obtaining money under false pretenses) that "[t]he fact
    that the Defendant was previously convicted of another crime does
    not mean that he committed the crimes for which he is now on
    trial."
    3.     Denial of DeSimone's Motion for a Mistrial
    DeSimone argues that the court should have granted his
    motion for a mistrial because one of the government's witnesses,
    Louis Stein, failed to testify as the government had promised8 when
    it opposed DeSimone's motion in limine.   DeSimone's theory is that
    but for this representation the evidence of his flight would have
    been inadmissible, and its admission was so harmful as to require
    a mistrial.    Our review is for manifest abuse of discretion.
    United States v. Freeman, 
    208 F.3d 332
    , 339 (1st Cir. 2000).   The
    district court disagreed with DeSimone's contention that Stein had
    8
    The government proffered that Stein would testify that
    "Rocco DeSimone told him that the reason why he fled, the reason
    why he escaped from prison was this case, that he didn't want to go
    to jail for the rest of his life." Stein testified, instead, that
    DeSimone said he escaped to help his family and that he felt
    McKittrick was framing him in the DrinkStik investigation.
    -22-
    failed to testify as promised and, in any event, correctly noted
    that the evidence was admissible because "it's the timing of all
    the events that's really the critical connection between the escape
    and the consciousness of guilt."        Stein's testimony provided no
    basis to exclude evidence of DeSimone's flight, much less order a
    mistrial.
    4.     Admission of Evidence Purported to Be Hearsay
    DeSimone argues there was error in admitting testimony
    about two statements attributed to his wife, Gail DeSimone: (1) FBI
    agent Steven Morley's testimony that during the FBI's search of
    DeSimone's home, he heard Gail tell DeSimone by telephone that
    agents were searching for evidence regarding the Disk Shield and
    DrinkStik; and (2) McKittrick's testimony that Gail told him that
    Johnson had been to DeSimone's house.
    DeSimone incorrectly argues that these statements were
    hearsay.    The district court admitted Morley's testimony regarding
    Gail's statements not for the truth of the matter asserted, but to
    show that DeSimone was put on notice of the FBI search.    See, e.g.,
    United States v. Figueroa, 
    818 F.2d 1020
    , 1026 (1st Cir. 1987).    As
    to McKittrick's report of Gail's (false) statements that Johnson
    had visited their house, these statements were not admitted for
    their truth and so were not inadmissible hearsay.
    -23-
    5.        Identification of DeSimone's Voice
    DeSimone next claims that the court erred in allowing a
    witness, Brian DesMarteau, to testify that he spoke with DeSimone
    over the telephone when he had no prior familiarity with DeSimone's
    voice. Fed. R. Evid. 901 requires only a "reasonable probability,"
    United States v. Barrow, 
    448 F.3d 37
    , 42 (1st Cir. 2006), that the
    speaker in the conversation was DeSimone.          DesMarteau testified
    that he was an appraiser of businesses, and that the conversation
    he described was "an interview to see if I would be able" to
    "assess the value of a particular asset that they were considering
    for sale."      The speaker also identified himself as DeSimone to
    DesMarteau.      The government introduced into evidence a letter
    agreement from DesMarteau to DeSimone and McKittrick "confirm[ing]
    that you (Client) have retained Nationwide Valuations (Nationwide)
    to provide valuation consulting services."         This document, signed
    by   DeSimone    and   memorializing     an   agreement    reached     in   a
    conversation,     provided   adequate    grounds   for    concluding    that
    DeSimone was party to the conversation.
    6.        Failure of Court Sua Sponte to Declare Mistrial
    After a Witness's Testimony, Elicited by the
    Defense, that DeSimone Had Previously Pled Guilty
    DeSimone claims error in the district court's failure sua
    sponte to declare a mistrial after Malone, on cross-examination by
    defense counsel, referred to the fact that "Mr. DeSimone pleaded
    guilty." This was a reference to DeSimone's initial guilty plea in
    -24-
    this case, which he withdrew.           DeSimone did not move for a mistrial
    before the district court.            Instead, after Malone's statement, the
    district court sua sponte asked counsel if they had "[a]ny bright
    ideas," to which defense counsel responded "[y]ou can certainly
    instruct the jury.            I had no idea he was going to say that.          I
    asked those questions I did, but I think you can instruct them."
    The court    then,      as    defense    counsel   requested,   gave   a strong
    instruction to the jury both to disregard the comment and about the
    presumption of innocence.             Defense counsel did not object.
    We review the district court's failure to declare a
    mistrial sua sponte for plain error.                 United States v. Lopez
    Garcia, 
    672 F.3d 58
    , 64 (1st Cir. 2012).             Here, there was no error
    at all.   Moreover, the district court minimized any prejudice by
    instructing the jury "to disregard the statement that the witness
    just made" and artfully implying that it related to DeSimone's
    "prior involvements with the criminal justice system."
    7.          The Government's Cross-Examination of DeSimone
    DeSimone challenges the government's cross-examination of
    him in two respects.           First, he argues that its cross-examination
    "contained numerous improper questions that had no evidentiary
    basis, such as asking DeSimone if he told various people, who never
    testified,       that    he    knew    famous   celebrities,    had    collected
    additional investments, or was involved in other inventions,"
    though he did not object to these questions at trial.                  DeSimone
    -25-
    does not explain why these were errors, much less how he was
    harmed, and the record shows that he falsely claimed to have known
    prominent people, thus providing a basis for the questions.
    DeSimone next asserts that the government "improperly
    asked DeSimone to comment on the credibility of other witnesses."
    “[I]t is improper for an attorney to ask a witness whether another
    witness lied on the stand."      United States v. Thiongo, 
    344 F.3d 55
    ,
    61 (1st Cir. 2003).         This rule is not read broadly.          It is not
    improper   to   ask   one    witness    whether   another   was    "wrong"   or
    "mistaken," since such questions do not force a witness "to choose
    between conceding the point or branding another witness as a liar."
    United States v. Gaines, 
    170 F.3d 72
    , 81-82 (1st Cir. 1999).             There
    is no error in simply asking a witness if he agreed with or
    disputed another witness's testimony.             United States v. Wallace,
    
    461 F.3d 15
    , 25 (1st Cir. 2006).
    In cross-examining DeSimone, the government asked him
    without objection whether other witnesses had offered testimony
    that was "untruthful," "not true," or "untrue."              The government
    asked DeSimone whether witnesses were "giving false testimony" or
    testimony that was "inaccurate," and DeSimone's objections to these
    questions were overruled.       The government correctly concedes that
    "[t]he instances of 'untruthful testimony' . . . and 'giving false
    testimony' . . . are somewhat closer to the line."                Indeed, they
    -26-
    went over the line.     It also correctly argues that "not true" does
    not "necessarily imply deliberate falsity."
    There was certainly no plain error as to the unobjected-
    to questions, and no harm from those as to which an objection was
    made.    Even if the government's questions intruded into the jury's
    role, the line of questioning was harmless.                There were obvious
    inconsistencies between DeSimone's testimony and that of other
    witnesses which were apparent to the jury.               Any error could not
    have "contribute[d] to the verdict," United States v. Cudlitz, 
    72 F.3d 992
    , 999 (1st Cir. 1996) (quoting United States v. Rullan-
    Rivera, 
    60 F.3d 16
    , 18 (1st Cir. 1996)).
    The cumulative error doctrine is of no use to DeSimone
    because the only identified error was harmless.
    B.          Attacks on the Forfeiture and Restitution Orders and
    Sentencing
    DeSimone    challenges      the   district     court's    orders   on
    forfeiture and restitution and his sentence.                We review factual
    findings at forfeiture hearings and sentencing for clear error.
    United    States   v.   Reiner,   
    500 F.3d 10
    ,   18    (1st     Cir.   2007)
    (forfeiture); United States v. Shinderman, 
    515 F.3d 5
    , 18 (1st Cir.
    2008) (sentencing).
    1.      Forfeiture: The Ownership of the Renoir Painting
    The court found that Dyer had been fraudulently induced
    to exchange a Renoir painting for one percent of Falcon, Limited,
    and ordered DeSimone to forfeit the painting. DeSimone now asserts
    -27-
    that Dyer owned one-half of the Renoir and that DeSimone owned the
    other half, basing his argument on a declaration by Dyer that his
    losses included "$1,600,000 Half of Renoir painting."        He claims
    that he should only have been ordered to forfeit half the painting.
    His argument fails.
    Although Dyer's declaration and his testimony created
    ambiguity concerning the extent of his ownership of the Renoir, the
    district court sensibly relied on DeSimone's own record of the
    transaction.   It stated that "Allan H. Dyer exchange[d] 'Paysage a
    Cagnes' 1915 painting oil on canvas by Pierce-August [sic] Renoir
    for 1% of Falcon LTD equal to 100 (one hundred) shares."       No more
    was needed.
    2.      Sentencing: Number of Victims
    DeSimone perfunctorily argues that the court should not
    have increased his offense level at sentencing based on the number
    of victims, since "there were only eight victims, because the jury
    found DeSimone not guilty on the counts (counts 2 and 5) related to
    Dennis Mortimer and David Durning, and the remaining individuals
    indicated as victims never testified."       There was no error.     A
    court   "may   consider   acquitted    conduct   in   determining   the
    applicability vel non of a sentencing enhancement," United States
    v. Paneto, 
    661 F.3d 709
    , 715 (1st Cir. 2011), and a court's
    consideration of evidence at sentencing is not circumscribed by
    rules of evidence, United States v. Zapata, 
    589 F.3d 475
    , 485 (1st
    -28-
    Cir. 2009), or the Sixth Amendment right to confrontation, United
    States v. Rodriguez, 
    336 F.3d 67
    , 71 (1st Cir. 2003).
    3.      Amount of Restitution
    Finally, DeSimone asserts for the first time on appeal
    that the district court's restitution order is in error because it
    includes the value of a Monet painting that was "not an actual loss
    related to the mail fraud allegations."     DeSimone's premise is
    wrong.   While the district court did not itemize the specific
    losses comprising the $3,230,000 in restitution owed to Dyer, this
    sum plainly includes the three transactions with Dyer that DeSimone
    recorded -- i.e., $2,415,000 in forgiven debt, plus a Renoir that
    IRS agent Niro valued at $800,000 -- plus another $15,000 that Dyer
    gave to Falcon.   The Monet did not factor into the calculation.
    IV.
    We affirm DeSimone's convictions and his sentence.
    -29-