United States v. Appolon ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-1627
UNITED STATES OF AMERICA,
Appellee,
v.
RALPH APPOLON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, District Judge]
Before
Howard, Stahl, and Lipez,
Circuit Judges.
Derege B. Demissie for defendant-appellant.
Ryan M. DiSantis, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
April 29, 2013
LIPEZ, Circuit Judge. Appellant Ralph Appolon was
charged with one count of conspiring to commit wire fraud in
violation of 18 U.S.C. § 371 and four counts of committing wire
fraud in violation of 18 U.S.C. § 1343. These charges arose out of
his connection to a mortgage fraud scheme. After a lengthy jury
trial, Ralph1 was found guilty of all charges against him, and was
sentenced to a term of imprisonment followed by supervised release.
He raises a number of challenges to the district court's
evidentiary rulings, the sufficiency of the evidence against him,
and the loss calculation used to establish his sentence. Upon
careful consideration, we affirm his convictions and sentence.
I.
A. The Mortgage Fraud Scheme
The companion case to this appeal, United States v.
Appolon, 695 F.3d 44, 51-53 (1st Cir. 2012) ["Daniel Appolon"],
lays forth the basic facts of the mortgage fraud scheme at issue in
great detail, and we assume the reader's familiarity with that
opinion.2 As we described,
[t]he scheme itself was uncomplicated:
appellants and their coconspirators arranged
1
A number of the conspirators in this scheme are related and
therefore share the same surname. For clarity's sake, we refer to
the Appolons by their first names throughout the opinion.
2
Ralph's case was originally joined to that of his
codefendants, but he was tried separately after his attorney
withdrew shortly before the joint trial. Daniel Appolon, 695 F.3d
at 52 n.1.
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for straw buyers to purchase real property at
the asking price, falsified mortgage loan
applications for the straw buyers to obtain
financing for an artificially-inflated
purchase price, and pocketed the difference.
The loans secured by each of the properties
involved in appellants' scheme eventually went
into default, and most of the properties were
forced into foreclosure at huge losses for the
lenders.
Id. at 51. Twenty-one properties were sold as part of this scheme.
Id. at 53. The conspiracy involved a number of individuals,
including: Eric Levine, a real estate lawyer who had been suspended
from the practice of law; Daniel Lindley, another real estate
attorney; Latoya Haltiwanger, a residential mortgage broker; and
Ernst Appolon, a realtor. Id. at 52. Ernst Appolon's brothers,
Daniel and Ralph, also participated in the scheme. Id.
The trial record discloses the following facts, described
in the light most favorable to the jury's verdict. See United
States v. Mubayyid, 658 F.3d 35, 41 (1st Cir. 2011). Ralph was a
loan originator with New England Merchants, a real estate company
where he worked with Ernst and Daniel. His main responsibility was
to recruit and cultivate straw buyers to participate in the
fraudulent property deals. These buyers typically provided their
names and credit histories for the purchase in exchange for various
benefits, including having mortgage payments made on their behalf
or receiving remuneration for their participation. Ralph also
created and processed loan applications for the property deals,
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which contained various representations regarding the straw buyers
who were purportedly applying for the loans.
Ralph's wire fraud charges arose from his involvement
with transactions surrounding two properties located at 586 East
Third Street, South Boston, MA ("the Third Street property") and
3231 Washington Street, Jamaica Plain, MA ("the Washington Street
property").
B. The Third Street Property
The Third Street property's purchase took place in June
2005. Ralph's coconspirators recruited him to find a purchaser,
telling him that he could write the mortgage documents and would
obtain a commission on the loan. When Ralph was unable to secure
a purchaser, Levine and the seller, Robert Odimegwu, asked Ralph to
buy the property himself, on the conditions that Ralph would
receive a portion of the realtor commission as well as a hefty
referral fee, and that Levine and Odimegwu would pay the mortgage
for a year.
Ralph assented, but put the property in the name of his
mother-in-law, Violetha Clemendore. Clemendore agreed to assist
Ralph and sign loan documents at his request, believing that her
participation would help Ralph and her daughter with their real
estate ventures. He prepared and submitted a mortgage loan
application on Clemendore's behalf to Long Beach Mortgage. This
application contained a number of false statements concerning,
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inter alia, the purchase price, Clemendore's intent to maintain her
primary residence at the property, and her monthly income. Based
on the application and related paperwork, Long Beach Mortgage
approved 100 percent financing for the purchase and wired loan
proceeds to Lindley's account. The proceeds were transferred to
Levine's account after the closing, and Levine in turn paid Ralph
$60,000, as well as a loan origination commission of almost $6,000.
C. The Washington Street Property
Ralph also participated in the September 2005 sale of the
Washington Street property. A man named Peter Robinson served as
the straw buyer for this purchase. Robinson testified that he
spoke with Ralph at least once during the purchasing process, and
on one occasion another conspirator witnessed Robinson, Ernst, and
Ralph meet together at the New England Mortgage office. Robinson's
loan application listed Ralph as the loan interviewer, and Ralph
also acted as the broker representative for the purchase.
Robinson's purported loan application was submitted to a
company called WMC Mortgage Corporation ("WMC Mortgage"). The
application contained various false statements, including
information about his employment at a second job,
misrepresentations regarding his monthly income, and a $29,000 bank
account balance he did not actually have. The closing for the
Washington Street property took place in September 2005, with
Robinson, Ernst, and an attorney present. Ralph was at the closing
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for a short period of time. After the closing, Ralph received
$8,320 in excess funds from one of Levine's accounts, as well as a
broker fee in a similar amount.
After a nine-day trial, the jury returned guilty verdicts
on the conspiracy count as well as all four wire fraud counts. The
district court sentenced Ralph to 60 months' imprisonment on the
conspiracy count and 70 months' imprisonment on each wire fraud
count, all to run concurrently. Ralph was also sentenced to two
years of supervised release, and ordered to forfeit approximately
$1.9 million that he had gained from his participation in the
conspiracy. This timely appeal followed.
II.
Ralph raises various challenges to his conviction and
sentence, some of which coincide with arguments raised by his
coconspirators in Daniel Appolon. We begin by addressing the
arguments unique to Ralph's appeal.
A. Sufficiency of the Evidence
Ralph moved for a judgment of acquittal on all of the
charges against him under Federal Rule of Criminal Procedure 29.
The district court denied Ralph's motion, and he appeals from that
ruling. We review a challenge based on insufficiency of the
evidence de novo, viewing the evidence in the light most favorable
to the jury's verdict. United States v. Rodríguez–Vélez, 597 F.3d
32, 38 (1st Cir. 2010). We give equal weight to direct and
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circumstantial evidence. See United States v. Ortiz, 447 F.3d 28,
32 (1st Cir. 2006). The inquiry focuses on whether "'a rational
jury could have found that the government proved each element of
the crime beyond a reasonable doubt.'" United States v.
Mardirosian, 602 F.3d 1, 7 (1st Cir. 2010) (quoting United States
v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993)). We begin with
Ralph's arguments as to the substantive wire fraud counts before
turning to his conviction on the conspiracy count.
1. The Wire Fraud Counts
The elements of a wire fraud conviction under 18 U.S.C.
§ 1343 are: (1) a scheme or artifice to defraud using false or
fraudulent pretenses; (2) the defendant's knowing and willing
participation in the scheme or artifice with the intent to defraud;
and (3) the use of the interstate wires in furtherance of the
scheme. See United States v. Sawyer, 85 F.3d 713, 723 (1st Cir.
1996); United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir.
1993). The false or fraudulent representation must be material.
Neder v. United States, 527 U.S. 1, 25 (1999); United States v.
Blastos, 258 F.3d 25, 27 (1st Cir. 2001).
a. Counts Two and Three (Third Street
Transaction)
Counts Two and Three arose from Ralph's participation in
the sale of the East Third Street property to Ralph's mother-in-
law, Clemendore. Appellant's challenge to these counts concerns
the materiality of his misrepresentations. A material statement
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"has a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which it
was addressed." Neder, 527 U.S. at 16 (quoting United States v.
Gaudin, 515 U.S. 506, 509 (1995)) (internal quotation marks
omitted) (alteration in original). The government need not prove
that the decisionmaker actually relied on the falsehood or that the
falsehood led to actual damages. See id. at 24-25 ("The common-law
requirements of justifiable reliance and damages . . . plainly have
no place in the federal fraud statutes." (internal quotation marks
omitted)).
Here, the misrepresentations at issue were contained in
the mortgage application Ralph prepared and submitted to Long Beach
Mortgage. Ralph observes that the government presented no evidence
regarding Long Beach Mortgage's loan evaluation process, in
contrast to the Washington Street transaction, where the government
presented witness testimony from a WMC Mortgage representative who
spoke about the types of factors that company used when evaluating
an application. Without any information regarding the types of
information that Long Beach found relevant in deciding whether to
approve a loan, Ralph argues, the government could not establish
that any of the misrepresentations on the application were factors
in the company's decisionmaking.
The record defeats this contention. The Long Beach loan
file for the Third Street transaction included application forms
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that specifically sought information regarding the purchaser's
income, assets, and intent to reside in the property, all of which
were designed to assess the borrower's creditworthiness. Cf.
United States v. Kenrick, 221 F.3d 19, 32 (1st Cir. 2000) (stating,
in context of bank fraud conviction, that "misrepresentation about
a borrower's creditworthiness can certainly be a material falsehood
that supports a []conviction"). Ralph provided responses to these
requests that the trial testimony established as untrue, including
a verification of Clemendore's rent, information regarding her
employment, and an occupancy agreement that certified her intent to
live at the Third Street residence. The fact that Long Beach's
loan application explicitly sought this information from the
applicant indicates that Clemendore's responses were capable of
influencing its decision.
Moreover, the government adduced other evidence regarding
the types of information material to Long Beach's decisionmaking
process. Specifically, the government called Diane Taylor, a
representative of WMC Mortgage, the lender for the Washington
Street transaction, to testify about WMC Mortgage's practices.
Although Taylor could not speak to Long Beach's lending protocols,
she testified about a range of criteria relevant to WMC Mortgage's
lending decisions, including information regarding income and
employment, assets, and residence at the purchased property. As
noted above, Long Beach's mortgage application requested the same
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information. Indeed, the trial testimony establishes that the loan
file for the Third Street transaction contained loan applications
substantially similar to WMC Mortgage's applications, strongly
supporting the inference that the two mortgage companies used the
same types of information in assessing mortgage applications. A
reasonable jury could thus rely on Taylor's testimony, combined
with the similarity between Long Beach's and WMC Mortgage's loan
applications, to conclude that Long Beach would have considered the
same types of factors in assessing Clemendore's loan application.
In light of all this evidence, it is of no moment that
the government did not introduce testimony from a Long Beach
representative regarding the specific types of information it found
material. This challenge therefore fails.
b. Counts Six and Seven (Washington Street
Transaction)
Counts Six and Seven concerned Ralph's engagement with
the Washington Street property transaction, and he asserts two main
challenges to the sufficiency of the evidence supporting these
convictions. First, he argues that the government failed to
present evidence that Ralph knew the representations on the loan
application were false or misleading. Ralph relies heavily on the
notion that Robinson, the property's purchaser, dealt primarily
with Ernst. The government introduced other evidence demonstrating
Ralph's interactions with Robinson, however, including Robinson's
testimony that he spoke with Ralph regarding the transaction on at
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least one occasion, and that Ralph was present briefly at the
closing. Additionally, another conspirator testified that Robinson
came to the office multiple times looking for Ralph, and witnessed
Ralph, Ernst, and Robinson meeting at the office on at least one
occasion. These facts establish that Robinson had at least some
interaction with Ralph regarding the loan transaction. Moreover,
testimony from one of Lindley's employees established that Ralph
acted as the broker representative on the transaction, and that he
put his name on a number of fax transmissions with Lindley's
office. Ralph also listed himself as the interviewer on the loan
applications that contained the false statements, as well as other
forms related to the transaction. The false verification of rent
from the lender file listed Ralph as the requesting party and gave
New England Merchants' address as the location of Robinson's
landlord.3
This compilation of evidence gives rise to the reasonable
inference not only that Ralph was an active participant in the
transaction, but also that he participated with the specific intent
to defraud. See United States v. Alfonzo–Reyes, 592 F.3d 280, 291
(1st Cir. 2010) ("Direct evidence is not required to find [a
defendant] guilty, and juries are entitled to draw reasonable
inferences at trial based on circumstantial evidence."). These
3
Some of the documents described above have not been made
part of the record on appeal. We thus rely on the government's
descriptions of them, which appellant has not disputed in any way.
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facts, joined with Ralph's "general awareness of the mechanics of
appellants' scheme," Daniel Appolon, 695 F.3d at 59, are more than
sufficient to meet the government's burden.
Ralph's second contention is similarly unavailing. He
posits that New England Merchants' offices permitted any employee
to use the computer system to generate and transmit forms, thus
making it possible that his brother Ernst or some other employee
forged Ralph's signature and engaged in the inculpatory wire
communications. But Ralph's ability to construct an alternative
(and rather speculative) reading of the evidence does not
invalidate the jury's conclusion. We ask only whether "a rational
fact finder could find that the government proved the essential
elements of its case beyond a reasonable doubt." United States v.
Marin, 523 F.3d 24, 27 (1st Cir. 2008). As we have explained, the
record bears more than sufficient evidence to support the jury's
conclusion. More fundamentally, a wire fraud conviction does not
require that Ralph "have had any personal involvement in initiating
the wire transfers; instead, the use of the wires need only have
been 'a reasonably foreseeable part of the scheme in which he
participated.'" United States v. Vázquez-Botet, 532 F.3d 37, 63-64
(1st Cir. 2008) (quoting Sawyer, 85 F.3d at 723 n.6). The evidence
described above, particularly Ralph's signatures on the transmitted
documents, his interactions with WMC Mortgage, and his awareness of
the general contours of the fraudulent scheme, was sufficient to
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demonstrate that he should have foreseen the use of wire
transmissions as a result of his involvement in the Washington
Street transaction.
For these reasons, Ralph's conviction on Counts Six and
Seven must stand.
2. The Conspiracy Count
To sustain a conviction of conspiracy, the government
must prove that "1) the defendant agreed to commit an unlawful act,
2) the defendant voluntarily participated in the scheme, and 3) one
of the conspirators took an affirmative step toward achieving the
conspiracy's purpose." Cassiere, 4 F.3d at 1015. The defendant
must have both intended to make the agreement as well as intended
to commit the substantive offense. See United States v. Gonzalez,
570 F.3d 16, 24 (1st Cir. 2009). Where the indictment alleges a
conspiracy to commit multiple offenses, "the charge may be
sustained by sufficient evidence of conspiracy to commit any one of
the offenses." United States v. Muñoz-Franco, 487 F.3d 25, 46 (1st
Cir. 2007).
Ralph claims that the government failed to prove the
existence of an agreement among the conspirators. An agreement is
not proven by demonstrating "'mere knowledge of an illegal activity
. . . , let alone [] mere association with other conspirators or
mere presence at the scene of the conspiratorial deeds.'" United
States v. Dellosantos, 649 F.3d 109, 115 (1st Cir. 2011) (quoting
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United States v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991)).
Rather, the government must prove the existence of an "agreement or
understanding as to each defendant." Id. (quoting United States v.
Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989)) (internal
quotation marks omitted). "[C]onspiratorial agreement need not be
express so long as its existence can plausibly be inferred from the
defendants' words and actions and the interdependence of activities
and persons involved." United States v. Boylan, 898 F.2d 230,
241–42 (1st Cir. 1990); see also Muñoz-Franco, 487 F.3d at 45-46.
As the discussion regarding the substantive wire fraud
counts shows, the record is replete with evidence evincing Ralph's
agreement to commit unlawful acts. He made numerous admissions to
an FBI special agent regarding the Third Street transaction,
including that he agreed to purchase the property in his mother-in-
law's name and that he prepared loan applications that he submitted
to the mortgage company. These admissions are supported by volumes
of documentary evidence and testimony establishing the falsity of
the statements contained in the applications that Ralph prepared.
Similar evidence shows his agreement to participate in the
Washington Street scheme, including testimony showing that Ralph
met with Ernst and Robinson on at least one occasion and appended
his name to a number of documents relevant to the transaction.
Ralph's engagement with the scheme rose far beyond
"simple association with the conspirators." United States v.
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Pérez-González, 445 F.3d 39, 49 (1st Cir. 2006). His conduct
demonstrates both his intent to engage in a common scheme and
specific acts in furtherance of that scheme. Thus, there is no
reason to disturb the jury's verdict.4
B. The Admission of the Lindley Files
Ralph contends that the district court erred in admitting
the files of Lindley, who served as the closing attorney on the
real estate transactions. Although Ralph frames this contention
under the heading of "due process," his brief neither explains why
his due process rights were violated by the documents' admission,
nor identifies with any precision the particular documents to which
this argument is addressed. Ralph's vague allusion to due process
notwithstanding, his argument primarily addresses the documents'
admissibility under the Federal Rules of Evidence and we therefore
treat it as such.
When the defendant has preserved his objections, the
district court's evidentiary rulings are reviewed for abuse of
discretion. United States v. Jiménez, 419 F.3d 34, 43 (1st Cir.
2005). The government contends that Ralph forfeited this claim
below, thereby rendering it subject to plain error review. See
4
Ralph contends that the government did not prove the
existence of an agreement between Levine and Ralph, but it is a
well-settled proposition that "each coconspirator need not know of
or have contact with all other members, nor must they know all of
the details of the conspiracy or participate in every act in
furtherance of it." United States v. Martínez–Medina, 279 F.3d
105, 113 (1st Cir. 2002); see also Pérez-González, 445 F.3d at 49.
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United States v. Chaney, 647 F.3d 401, 406 n.6 (1st Cir. 2011)
(observing that "failure to raise an argument or right due to
inattention or neglect constitutes forfeiture" and issue is
reviewed for plain error). We need not resolve this question,
however, since the district court's admission of these documents
was not an abuse of discretion.
Ralph's first challenge goes to the authenticity of the
Lindley files. To introduce a piece of evidence, the proponent
must demonstrate "that the item is what the proponent claims it
is." Fed. R. Evid. 901(a). This relatively undemanding rule
"requires the trial court to determine if there is a reasonable
probability that the evidence is what it is purported to be."
United States v. Carlos Cruz, 352 F.3d 499, 506 (1st Cir. 2003)
(quoting United States v. Neal, 36 F.3d 1190, 1210 (1st Cir. 1994))
(quotation marks omitted). The proponent "need not rule out all
possibilities inconsistent with authenticity" in order to meet this
burden. Asociación De Periodistas De P.R. v. Mueller, 680 F.3d
70, 79 (1st Cir. 2012) (quoting United States v. Alicea-Cardoza,
132 F.3d 1, 4 (1st Cir. 1997)) (quotation marks omitted). Evidence
can be authenticated in numerous ways, including through the
testimony of a witness with knowledge "that an item is what it is
claimed to be." Fed. R. Evid. 901(b)(1).
The record shows that the government laid a sufficient
foundation for the admission of the Lindley files. On the second
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day of trial, before testimony began, the parties had a colloquy
with the district court regarding the files. When the government
sought to have them admitted provisionally before their
authentication, Ralph objected to "the use of documents that are
not testified to by anybody and . . . the authenticity of which is
in dispute, at least from coming in without a witness." The
government responded that MacPhee, one of its witnesses and
Lindley's former employee, could serve as such a witness. In light
of this representation, the district court gave the government
permission to "use them," but with the caveat that they would not
be "formally in evidence until they're qualified for admission."
MacPhee later gave the promised testimony. She stated
that she was responsible for the filing system at Lindley's office,
and kept files for "real estate matters." She also discussed her
role in updating and maintaining the records, and identified the
files when they were presented to her. After the government moved
to admit the files into evidence, the court concluded during a
brief sidebar that "there's an adequate foundation for the
admission," but clarified that the files would not be admitted for
the truth of their contents.5 As someone who maintained, reviewed
and worked with the files, MacPhee was well-positioned to recognize
5
The court gave a limiting instruction after the sidebar
concluded, and another instruction at the close of evidence.
Ralph's counsel asserted no further objections to the admissibility
of the files, suggesting that he did indeed forfeit this argument.
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and verify the documents in question. Her testimony was more than
sufficient to establish a reasonable probability that the Lindley
files were what they purported to be.
Ralph also suggests that the Lindley files are
inadmissible hearsay because, despite the court's statement to the
contrary, they were admitted for their truth and do not fall under
any exception to the hearsay rule. Fed. R. Evid. 801. This
objection misapprehends the files' probative significance. The
files in question contained numerous records, including
correspondence with lenders and other participants in the
transactions, copies of the loan applications, and documents
related to the transactions' closings. These files were not
introduced for the purpose of establishing the truth of the
assertions contained therein, but rather, as instrumentalities of
the crimes in question. To the extent that the government relied
on any representations contained within these documents, the
representations' probative value was not for their truth. Indeed,
the government sought to admit them for a wholly different purpose
-- "to prove that the statements were made," and to later
demonstrate "through other admissible evidence[] that [the
statements] were false." United States v. Munson, 819 F.2d 337,
340 (1st Cir. 1987) (citation omitted) (quotation marks omitted).
Consequently, they are not hearsay.
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For these reasons, the district court did not err in
admitting the Lindley files into evidence.
C. Evidence of Uncharged Conduct
Ralph argues that the district court, applying Rule
404(b), improperly admitted evidence related to his involvement in
two real estate transactions that were not the basis of his
indictment. In general, "[e]vidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance
with the character," i.e., as propensity evidence. Fed. R. Evid.
404(b)(1). Evidence of other acts may be admissible, however, if
it has "special relevance," United States v. Rodríguez-Berríos, 573
F.3d 55, 64 (1st Cir. 2009), such as proving "motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident," Fed. R. Evid. 404(b)(2). Our circuit employs
a two-part test in evaluating the admissibility of evidence under
Rule 404(b). First, we determine whether the proffered evidence
truly possesses "special relevance." Rodríguez-Berríos, 573 F.3d
at 64. If it does, we then apply Rule 403 to ascertain whether the
evidence's probative value is substantially outweighed by the
danger of unfair prejudice. Id.; see also Fed. R. Evid. 403
(permitting court to exclude relevant evidence if there is danger
of, inter alia, "unfair prejudice, confusing the issues, [or]
misleading the jury"). We review the district court's
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determination for abuse of discretion. United States v. Luna, 649
F.3d 91, 103 (1st Cir. 2011).6
The evidence at issue concerned Ralph's participation in
the purchase of two properties located at 99 Wayland Street and 25
Nelson Street. The Wayland Street and Nelson Street transactions
were markedly similar to those that formed the basis of the
indictment, in terms of both how the transactions were conducted
and the roles of the assorted players. The transactions both
involved the use of two different purchase prices, falsified
information on loan applications, Ralph's involvement as the loan
originator, Levine or Lindley's involvement in the real estate
closing, and Ralph's receipt of commissions after the closing.
This evidence is highly probative for multiple reasons, including
to show Ralph's intent to engage in the conspiracy, to demonstrate
his knowledge of the conspiracy's mechanics, and to eradicate any
doubt that his participation was somehow unintentional. See United
States v. Gonzalez-Sanchez, 825 F.2d 572, 581 (1st Cir. 1987)
(holding that "evidence of [defendant's] involvement with the same
6
The government argues that the evidence of uncharged conduct
is admissible for an independent reason, which is that it provides
proof of the conspirators' modus operandi. We perceive little, if
any, distinction between this argument and the government's Rule
404(b) argument, since both rely on the marked similarities between
the charged conduct and the uncharged conduct. Indeed, our cases
have explicitly noted that such similarities may give the evidence
"special relevance" for Rule 404(b) purposes. See United States v.
Wyatt, 561 F.3d 49, 53 (1st Cir. 2009). Thus, we believe it more
appropriate to analyze the evidence of uncharged conduct in this
case under the rubric of Rule 404(b).
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people in past arson and fraud schemes is especially probative of
[] whether he was an innocent 'tool' of others or a knowing
participant in the conspiracy"). The uncharged transactions also
took place within the same general timeframe as the charged ones,
further supporting the notion that they were part and parcel of the
same scheme. Any minimal variation in certain aspects of the
transactions' execution does not render the uncharged conduct
irrelevant. See Wyatt, 561 F.3d at 53 (holding that even though
evidence of other transaction was not identical to allegedly
criminal transaction at issue, the transactions "bore enough
indicia of similarity" to support admissibility); United States v.
Landrau-López, 444 F.3d 19, 24 (1st Cir. 2006) ("The other bad act
need not be identical to the crime charged so long as it is
sufficiently similar to allow a juror to draw a reasonable
inference probative of knowledge or intent."). Consequently, the
district court did not err in deciding that this evidence was
relevant conduct for the purposes for Rule 404(b).
The evidence survives Rule 403's balancing analysis for
related reasons. We have observed that while "there is always some
danger that the jury will use other bad acts evidence to infer
criminal propensity," Rule 403 demands the exclusion of such
evidence "only when its probative value is substantially outweighed
by its potential unfairly to prejudice the defendant." Landrau-
Lopez, 444 F.3d at 24; Fed. R. Evid. 403. The only specific
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prejudice Ralph identifies comes from the testimony of the Wayland
Street property's ostensible owner, Rose Charles. Charles was the
best friend of Ralph's mother, and testified in some detail about
her interactions with Ralph during the course of the Wayland Street
transaction. Although Ralph contends that her testimony was
unnecessarily inflammatory, the trial record reveals that it was
largely devoted to explaining her participation in the transaction.
Her testimony also addressed the disparity between her beliefs
regarding the nature of the deal and Ralph's representations to the
lender. Charles did testify at several points about the personal
impact the transaction had on her, as well as a subsequent
conversation where she "forgave" Ralph for his misdeeds. Despite
the emotional nature of this testimony, the record does not support
the notion that the government admitted this evidence to "paint[]
Appolon as a bad person," as Ralph contends. Although not every
sentence of Charles's testimony was strictly relevant to facts
disputed at trial, the vast bulk of it was highly probative.
We acknowledge that the similarity of the uncharged
conduct at issue simultaneously establishes its relevance and
heightens the possibility that the jury will draw an unfair
inference of propensity. See United States v. Varoudakis, 233 F.3d
113, 123 (1st Cir. 2000). But given the facts of this case and the
notable similarity between the uncharged conduct and the basis of
Ralph's indictment, we are assured that the district court properly
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evaluated the "risk of an improper criminal propensity inference .
. . in light of the totality of the circumstances." Id. at 122.
For these reasons, we affirm the district court's ruling
as to the uncharged conduct.
D. Summary Evidence
Ralph's remaining arguments are largely foreclosed by our
opinion in Daniel Appolon. He contends that the district court
erred in admitting the testimony of a witness, Thomas Zappala, who
summarized voluminous documentary evidence, as well as certain
charts used during Zappala's testimony.7 Ralph objects that
Zappala's summary testimony addressed evidence not admitted at
trial, but Federal Rule of Evidence 1006 does not require that the
documents being summarized also be admitted. Fed. R. Evid. 1006
(stating that "proponents must make the originals or duplicates
available for examination or copying . . . [a]nd the court may
order the proponent to produce them in court"); United States v.
Milkiewicz, 470 F.3d 390, 396 (1st Cir. 2006) ("[T]he evidence
7
The district court did not explicitly state the rule under
which it admitted the charts into evidence. The government, for
its part, cited "Federal Rule of Evidence 2006" in arguing for the
documents' admissibility, but there is no such rule. The
government was apparently invoking Rule 1006, and the district
court evidently admitted the charts on that basis. We therefore
analyze the admission of this evidence under Rule 1006. In the
future, however, "it would be a better practice if the court
specified which evidentiary rule it was relying upon because []
summaries are subject to different rules with different
requirements and purposes." Daniel Appolon, 695 F.3d at 62 n.7.
The same is true of the government.
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underlying Rule 1006 summaries need not be introduced into
evidence"). Accordingly, whether the documents themselves were
introduced is of no consequence. To the extent that Ralph argues
the district court abused its discretion by admitting Zappala's
testimony, our opinion in Daniel Appolon explains why this argument
lacks merit and we need not repeat ourselves here. See Daniel
Appolon, 695 F.3d at 63 (holding that "[t]here was no abuse of
discretion in permitting [Zappala] to testify").8
E. The Sentence
Ralph's sentencing arguments rehearse those his
coconspirators raised in the companion case. Like his fellows,
Ralph contends that the district court should have used the gain to
him, rather than loss to the victims, as the appropriate measure of
loss at sentencing. We declined to accept this contention in
Daniel Appolon and find it similarly unpersuasive here. 695 F.3d
at 66-70 (discussing why "[t]here is no need to resort to gain" in
calculating loss amount at sentencing). His sentence must
therefore remain undisturbed.
8
Ralph's last evidence-related objection is that the
admission of certain statements by his coconspirators violates the
Confrontation Clause. We have addressed and rejected this
contention numerous times. See, e.g., United States v. Ciresi, 697
F.3d 19, 31 (1st Cir. 2012); United States v. Rivera–Donate, 682
F.3d 120, 132 n.11 (1st Cir. 2012); United States v. De La
Paz–Rentas, 613 F.3d 18, 28 (1st Cir. 2010).
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III.
We detect no error in the district court's rulings.
Accordingly, Appolon's convictions and sentence are affirmed.
So ordered.
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