United States v. Ponzo , 853 F.3d 558 ( 2017 )

United States Court of Appeals
For the First Circuit
Nos. 14-1528
14-1548
14-1906
15-1878
15-2277
UNITED STATES OF AMERICA,
Appellee,
v.
ENRICO PONZO,
a/k/a Henry Ponzo, a/k/a Michael P. Petrillo, a/k/a Rico, a/k/a
Joey, a/k/a Jeffrey John Shaw, a/k/a Jay Shaw,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Thompson and Barron, Circuit Judges,
and McConnell, District Judge.*
Allison J. Koury for appellant.
William A. Glaser, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
* Of the District of Rhode Island, sitting by designation.
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, Michael L. Tabak, Assistant United States Attorney,
Karen D. Beausey, Assistant United States Attorney, and Dustin M.
Chao, Assistant United States Attorney, were on brief, for
appellee.
April 7, 2017
THOMPSON, Circuit Judge. Enrico Ponzo operated as a
member of the northeast crime syndicate known as the Patriarca
Family of La Cosa Nostra ("LCN"). After being charged with
multiple criminal offenses, he absconded to Arizona (and later to
Idaho), changed his identity, and joined a marijuana-shipping
conspiracy. A jury later convicted him on a bevy of charges,
including conspiracy to commit racketeering, conspiracy to commit
murder in aid of racketeering, conspiracy to distribute cocaine,
extortion, flight from justice, and conspiracy to distribute
marijuana. And in this appeal, he complains of an assortment of
supposed errors -- ranging from the prosecution's use of the grand
jury to the court's sentence selection, and almost everything in
between -- but none persuades. Before explaining why that is, we
briefly state the background facts, reserving additional detail
for inclusion in our discussion of the relevant issues.
BACKGROUND1
This case centers on Ponzo's affiliation with LCN, a
crime network with a "boss," "soldiers," and "associates" -- an
affiliation that began in the late 1980s and ended in the mid
1990s, give or take. LCN operated its organized crime network
1 Because Ponzo challenges the sufficiency of the evidence,
we recite the facts in the light most favorable to the government.
See United States v. Munyenyezi, 781 F.3d 532, 534 n.1 (1st Cir.
2015).
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through trafficking drugs, loansharking, extortion, and illegal
gambling. Ponzo's LCN membership formed the basis for the
Racketeer Influenced and Corrupt Organizations Act ("RICO")
conspiracy for which he was convicted. Following his activities
with LCN, Ponzo fled Massachusetts with multiple criminal charges
pending and established himself in a marijuana-shipping business
in Arizona. Later, he met his then-girlfriend and left Arizona
and the marijuana business. And he eventually settled down in
Idaho as a cattle rancher.
We begin with LCN. As a member of LCN, Ponzo's duties
included "collecting envelopes" -- that is, using threats and
intimidation to extort money from bookies and drug dealers. He
also collected debts owed from loan sharking.2
In addition to his "collecting business," Ponzo was also
involved in drug dealing. He bought cocaine from a man named John
Mele and frequently rode with Vinny Marino (a/k/a Gigi Portalla)
during the transactions with Mele. In turn, Ponzo sold this
cocaine on the street.
2 For example, one time Ponzo entered a restaurant, demanded
repayment of a $25,000 loan owed to a loan shark, and threatened
to kill the owner if he did not repay the money. A month after
this conversation, the owner sold his restaurant and paid Ponzo
the $25,000.
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Following the death of Raymond Patriarca, the LCN's
"boss," in 1984, confusion regarding leadership occurred. In the
ensuing years, Frank Salemme began attempting to take control.
Consequentially, a chasm occurred in the organization, with two
factions fighting for control -- the Salemme faction and an anti-
Salemme faction. In 1989, Salemme, leader of the Salemme faction,
was shot multiple times at an IHOP restaurant but survived. Trial
testimony revealed that Ponzo, along with Marino, shot at Salemme.
The attempt on Salemme's life and wayward leadership created a
powder keg within LCN.
In the summer of 1994, the intra-LCN conflict came to
the fore. Ponzo and another LCN member, Michael Romano Jr., got
arrested for possession of cocaine with the intent to distribute.
Ponzo posted bail and was released. About a month later, Ponzo
and Romano Jr. were driving to "collect an envelope" from Joseph
Cirame when their car got a flat tire. Ponzo left the car and
walked away to make a phone call. At this point, a car pulled up,
and someone inside shot and killed Romano Jr. Trial testimony
conflicted as to whether Ponzo was the target of the murder;
however, testimony did show that Anthony Ciampi and Michael Romano
Sr., also members of the anti-Salemme faction, questioned Ponzo's
loyalty and blamed him for Romano Jr.'s death. Ponzo asserts that
a man named David Clark intended to kill him but killed Romano Jr.
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instead. Anyway, about a month after the Romano Jr. murder, Ponzo
(along with Sean Cote) shot Cirame, a member of the Salemme faction
believed to be responsible for Romano Jr.'s death.
Meanwhile, in September 1994, the Commonwealth of
Massachusetts charged Ponzo with assault with intent to murder in
an unrelated case. Roughly two months later, in November 1994,
Ponzo failed to appear in state court on the possession of cocaine
charges; accordingly, the court issued a warrant for his arrest.
Ponzo hid from the arrest warrant at the home of his drug supplier,
Mele. While in hiding, Ponzo implored Mele to set him up with a
marijuana-trafficking business in Arizona. Obliging the request,
Mele, after helping Ponzo move to Arizona, introduced him to the
marijuana-shipping business, where these logisticians packaged the
marijuana in Arizona and shipped the marijuana to Massachusetts.
In Arizona, Mele taught Ponzo how to package the
marijuana and introduced him to Jesus Quintero and Steve Stoico,
members of the marijuana conspiracy. Ponzo also began using a
false identity at that time -- Jeffrey Shaw. Through the
conspiracy, Ponzo and his co-conspirators purchased and shipped
between 1,000 and 1,500 pounds of marijuana a year to the Bay
State.
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Several years after Ponzo departed Massachusetts, on
April, 4, 1997, a federal grand jury indicted him and 14 others on
charges stemming from their LCN-related conduct in Massachusetts.
In 1998, Cara Pace began a relationship with Ponzo --
that is, Jeffery Shaw, as she knew him. And in March 1999, Ponzo
left Arizona with Pace and settled down in Marsing, Idaho, where
they had two children.
Acting upon a tip, the FBI learned of Ponzo's location
about 17 years after he fled Massachusetts. They investigated
Ponzo for about a month after learning of his whereabouts. And on
February 7, 2011, law enforcement arrested him at his Idaho home.
The authorities confirmed his identity through fingerprint
identification.
Following his arrest in Idaho, a federal grand jury in
Massachusetts issued a superseding indictment against Ponzo, which
included charges for his conduct in Arizona and two new charges
for his activity in Massachusetts. After a 26-day trial, a jury
convicted him of conspiracy to commit racketeering, in violation
of 18 U.S.C. § 1962(d); conspiracy to commit murder in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(5); using or
carrying a firearm during a crime of violence, in violation of 18
U.S.C. § 924(c); conspiracy to distribute and to possess with the
intent to distribute 500 grams or more of cocaine, in violation of
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21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B); conspiracy to collect
extensions of credit by extortionate means, in violation of 18
U.S.C. § 894(a)(1); use of extortionate means to collect extensions
of credit, in violation of 18 U.S.C. § 894(a)(1); unlawful flight
to avoid prosecution, in violation of 18 U.S.C. § 1073; conspiracy
to distribute and to possess with intent to distribute at least
1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846 and
841(a)(1) and (b)(1)(A); conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i); laundering of monetary
instruments, in violation of 18 U.S.C. § 1956(a)(1)(B)(1); and
attempting to tamper with a witness, in violation of 18 U.S.C.
§ 1512(b)(1).
Which brings us to today, with Ponzo presenting 15 issues
on appeal, though most of these have sub-issues too. For clarity's
sake, we address his issues in chronological order -- starting
with his pretrial claims and ending with his sentencing arguments.
DISCUSSION
I. Grand Jury
Ponzo claims prosecutors improperly used the grand jury
for trial preparation. The district court disagreed. And applying
an "intermediate level of appellate scrutiny" -- a standard "more
rigorous than the abuse-of-discretion or clear-error standards,
but stopping short of plenary or de novo review," United States v.
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Flemmi, 245 F.3d 24, 28 (1st Cir. 2001) (quotation marks omitted)
-- we affirm.
The background events are easily summarized. In 2011,
after his original indictment in 1997, the government sought a
superseding indictment following Ponzo's arrest. Ponzo argued
unsuccessfully in the district court that the government
subpoenaed Annette Gestwicki and Leonard Senibaldi to testify
before the subsequent grand jury for the purpose of preparing for
trial on an offense for which he was already indicted -- the 1994
attempted murder of Cirame.
As for the law, all agree that the government cannot use
a grand jury "principally to prepare pending charges for trial."
Id. (emphasis added). All agree too that "when the new indictment
charges new crimes . . . , it adequately evinces the propriety of
the prosecutor's purpose" and so undercuts the grand-jury-abuse
claim. Id. at 30. And because the superseding indictment here
added additional charges, Ponzo cannot meet his "heavy burden" of
showing grand jury abuse. See id. at 28.
II. Joinder of Charges and Severance
Ponzo criticizes the government for improperly joining
the Arizona marijuana and money-laundering charges with the
Massachusetts LCN charges in a single indictment. See Fed. R.
Crim. P. 8(a) (permitting joinder of counts against a single
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defendant only if the offenses "are of the same or similar
character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan").
In his mind, the two sets of charges involve different statutes,
locations, modes of operation, and (for the most part)
participants. And he blasts the district court for refusing to
sever the allegedly incompatible charges. See Fed. R. Crim. P.
14(a) (authorizing severance "[i]f the joinder of offenses . . .
appears to prejudice a defendant"). The government sees no error
with the court's handling of the joinder/severance issues.3 If we
"find both misjoinder and actual prejudice, we must vacate the
[judgment of] conviction." See United States v. Natanel, 938 F.3d
302, 307 (1st Cir. 1991) (citing United States v. Lane, 474 U.S.
438, 449 (1986)). But bearing in mind our standards of review --
de novo for the joinder issue and abuse of the discretion for the
severance issue, see United States v. Meléndez, 301 F.3d 27, 35
(1st Cir. 2002) -- we see no reason to reverse.
Our reasoning is straightforward. Even assuming
(without deciding) that misjoinder occurred, the error (if any)
was harmless. Cf. United States v. Edgar, 82 F.3d 499, 504 (1st
Cir. 1996) (taking a similar approach in a similar situation).
3 The parties agree that Ponzo preserved these issues for our
consideration.
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And that is because -- as the government notes -- the joinder here
did not "result in 'actual prejudice,'" defined "as the
'substantial and injurious effect or influence in determining the
jury's verdict.'" Id. at 504 (quoting Lane, 474 U.S. at 449). The
court, after all, told the jury to consider each count separately.
And "the case for prejudice is especially weak" when a court does
precisely that. United States v. Taylor, 54 F.3d 967, 974 (1st
Cir. 1995). On top of that, the jury actually acquitted Ponzo on
three counts -- which showed the jury could "discriminat[e] among
the evidence applicable to each count," which helps undercut an
actual-prejudice claim. See Edgar, 82 F.3d at 504.
Hold on, says Ponzo: Prejudice there surely was because
the Arizona "marijuana and money laundering evidence would not
have been independently admissible at trial of the [Massachusetts]
charges, and the [Massachusetts] evidence would not have been
independently admissible at trial of the Arizona marijuana and
money laundering charges." But he fails to explain how or why
this is so. And an "unexplained assertion" like this "is not
enough to establish prejudicial joinder." Id. at 504 n.5
(quotation marks omitted). Well, then, writes Ponzo, prejudice
there certainly was because "he was forced to decide between
testifying as to all sets of charges or testifying as to none."
To get anywhere, he had to "make[] a convincing showing that he
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has both important testimony to give concerning one count and
strong need to refrain from testifying on the other." See
Meléndez, 301 F.3d at 36. And he believes he did so, claiming he
argued below both that he "need[ed] to testify as to the flight
from justice and the [Massachusetts] charges . . . to present his
belief that he did not violate the law" when he skedaddled from
the Bay State and that he "need[ed] to avoid testifying as to the
money laundering charges, which flowed from the Arizona marijuana
activity." But what he points to for support is a brief exchange
he had with the court where he expressed concern about testifying
because he did not want to incriminate himself on federal charges
pending against him in Idaho -- an argument different from the one
he makes here. So he waived his newly minted claim. See Ahern v.
Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) (stressing that "[a]n
appellant cannot change horses in mid-stream, arguing one theory
below and a quite different theory on appeal").
The net result of all this is that the district court's
ruling stands.
III. Statute of Limitations
"Except as otherwise expressly provided by law," a five-
year statute of limitations applies to non-capital crimes. See 18
U.S.C. § 3282(a). Alluding to that proviso, Ponzo argues that the
government did not bring the following charges against him within
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that five-year period: (a) "the Arizona marijuana and money
laundering charges"4 and (b) the "new charges" of conspiracy and
use of extortionate means to collect debt added by "the superseding
indictment."5 But another statute provides an exception to
§ 3282(a), saying that "[n]o statute of limitations shall extend
to any person fleeing from justice." Id. § 3290. Emphasizing
that he fled from "state charges," Ponzo argues that the "natural
reading" of this exception is that "flight from state charges [does
not] toll[] the statute [of limitations] for federal charges for
different conduct." For support, he relies on a dissenting opinion
in a Tenth Circuit case,6 while conceding that "[s]everal circuits"
-- the Second, Sixth, Ninth, and, of course, Tenth -- reject his
view.7 Yet he still believes that the "charges should have been
barred by the statute of limitations" and "dismissed with
prejudice." The government disagrees with Ponzo, unsurprisingly,
4 Counts 11, 12, 13, and 14 on the verdict form, which
correspond to counts 14, 15, 16, and 17 of the superseding
indictment.
5 Counts 6 and 7 on the verdict form, which correspond to
counts 9 and 10 in the superseding indictment.
6 See United States v. Morgan, 922 F.2d 1495, 1499 (10th Cir.
1991) (Logan, J., dissenting).
7 See United States v. Rivera-Ventura, 72 F.3d 277, 281-84
(2d Cir. 1995); United States v. Hoffman, 124 F.3d 200, at *2-*4
(6th Cir. 1997) (unpublished table decision); United States v.
Gonsalves, 675 F.2d 1050, 1052-53 (9th Cir. 1982); Morgan, 922
F.2d at 1497-98.
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noting (among other things and without contradiction) that his
theory -- that the statute of limitations barred his prosecution
on these counts because his flight "should not toll the statute
for subsequent, unrelated conduct" -- makes its début on appeal.
Having carefully considered all aspects of the matter, we think
Ponzo's theory does not fly, as we now explain.
Before trial Ponzo filed with the district court a
document titled "NOTICE REGARDING STATUTE OF LIMITATIONS," which
stated that he "reserve[d] his right . . . to raise a statute of
limitations defense" as to the "new counts" if "the evidence as
presented at trial" shows that the "new counts" were not timely.
He then later moved for judgment of acquittal, arguing that "[a]s
to the" new counts, the government did not prove "that the acts
were committed within" § 3282(a)'s five-year limitations period
and so "[j]udgment" on the new counts "should be entered" for him.
The ramifications for Ponzo's appeal are clear:
As for the "Arizona marijuana and money laundering
charges," because Ponzo failed to argue in the district court that
his prosecution on those charges violated" § 3282(a), he "cannot
successfully raise the statute-of-limitations defense" in this
court. Musacchio v. United States, 136 S. Ct. 709, 713, 716
(2016). "[A] statute-of-limitations defense," the Supreme Court
tells us, "becomes part of a case only if the defendant puts the
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defense in issue." Id. at 718. If he "does not press the defense,"
then "there is no error for an appellate court to correct -- and
certainly no plain error." Id. So "a district court's failure to
enforce an unraised limitations defense under § 3282(a) cannot be
plain error." Id. And because Ponzo argued below only that the
"new charges" should be dismissed under § 3282(a), his argument
here about the "Arizona marijuana and money laundering charges" is
a no-go. See id.; see generally United States v. Ongaga, 820 F.3d
152, 161-62 (5th Cir. 2016) (applying Musacchio).
As for the "new charges," while Ponzo did raise a
limitations defense before and during trial, he did not make the
argument he makes here to the district court. So we review his
claim only for plain error -- a difficult-to-meet "standard that
requires him to show error, plainness, prejudice to [him] and the
threat of a miscarriage of justice." United States v. Jones, 748
F.3d 64, 69 (1st Cir. 2014) (quotation marks omitted). But as he
himself candidly admits, the circuits to consider the issue --
whether § 3290 tolls the limitations period for "subsequent,
unrelated conduct" -- reject the argument he advances. So we are
miles away from a plain error, to put it bluntly.8 See, e.g.,
8 Ponzo says in one short sentence that "[t]he Government at
least agreed in theory that 'It's true that the old Indictment did
not toll anything because the new counts are new counts." We have
no idea what this means, however. And Ponzo offers no explanation.
So whatever the point is he is trying to make, we hold it waived.
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United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per
curiam); United States v. Gravenhorst, 190 F. App'x 1, 4 (1st Cir.
2006) (per curiam).
IV. Suppression of Evidence
Next, Ponzo faults the district court for denying his
motion to suppress evidence seized from his Idaho home. We need
to cover a lot of ground -- so much so that we provide a short
road map for the readers' convenience. Part A sketches the
background events. Part B summarizes the parties' arguments. Part
C mentions the standards of review. And Part D explains our take
on the issues.
See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st
Cir. 2011) (deeming "waived arguments confusingly constructed and
lacking in coherence," noting that because judges are not psychics,
"parties must spell out their issues clearly" (quotation marks
omitted)).
Ponzo also makes a one-sentence claim that the
superseding indictment was "deficient" on the extortion charges -
- which, recall, were the "new charges" -- "because it did not
name the victim." Why he put this sentence in the statute-of-
limitations section of his initial brief escapes us. Anyhow, any
defect or error here -- to the extent one existed at all -- was
harmless because it in no way prejudiced Ponzo. And that is
because the government gave him the victim's name months before
trial -- something the lower court relied on in denying his motion
for a bill of particulars (a ruling he does not contest on appeal).
Cf. generally United States v. Olano, 507 U.S. 725, 734-35 (1993)
(emphasizing the centrality of prejudice to the harmless-error
analysis).
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A. Background
In January 2011, the FBI got a tip that a man calling
himself "Jay Shaw" who looked an awful lot like Ponzo lived at
6107 Hogg Road, Marsing, Idaho.9 After investigating the matter,
the FBI believed it "highly likely" that the two men were one and
the same. On February 7, federal and state officers apprehended
Ponzo on his way to see a neighbor. He asked to speak with his
attorney, though he did say he had two children and later said
they were not home. Concerned that the kids were home and would
be all alone with him in custody, agents decided to see for
themselves whether they were there or not. So they knocked on the
front door. No one answered. But they did hear a radio or
television, so they peered through the window and saw what appeared
to be a rifle (later determined to be an air rifle) and a security
camera. Satisfied that no one was in the house, agents left the
property. A fingerprint analysis done at the jail confirmed Shaw
was Ponzo.
That very day, agents also talked to some of Ponzo's
neighbors, a bunch of whom had known him as Jay Shaw and confirmed
he lived at the Hogg Road address. One of them added that Ponzo
said that he owned guns. The neighbor also remembered that Ponzo
9 All dates here are in the year 2011 unless otherwise
specified.
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had brought and used an AR-15 rifle when they went target shooting
about four months earlier, in October 2010.
Based on this information, agents sought and received
a warrant to search Ponzo's home for evidence related to his false
identities, his income sources while living as fugitive, and his
firearm possession. Executing the warrant on February 8 -- one
day after his arrest -- agents found (among other things) a cache
of guns, ammunition, and publications on creating false
identifications, as well as an identification-making kit. Agents
also found multiple computers.
Agents then sought and obtained a second warrant to
search the computers, discs, and flash drives in the house for
information relating to (among other things) Ponzo's false
identities and financial support during his time on the lam.
Returning to the house on March 28, they noticed that someone had
pulled up the carpet in the master bedroom closet, revealing an
empty floor safe that looked like it had been broken into. Agents
called the person now leasing Ponzo's home, Kelly Verceles.
Returning to 6107 Hogg Road, Verceles took the agents to see the
safe's contents -- which included over $100,000 in cash, gold coins
worth about $65,000, and more fake identification cards and
driver's licenses with Ponzo's picture. Agents later learned that
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Verceles and a co-worker had cut open the safe with an acetylene
torch and had stolen the items.
Ponzo moved pretrial to suppress some of the evidence
seized from his house -- we say "some" because he did not move to
suppress the evidence produced by Verceles. The district court
denied his motion without holding an evidentiary hearing,
concluding that even if the agents' initial intrusion onto his
property was unlawful, they had seized the challenged evidence
through an "independent source" untainted by the supposedly
illegal encroachment.
B. Parties' Arguments
After criticizing the court for deciding the suppression
motion "without the benefit of any testimony at all," Ponzo argues
as follows against the court's ruling: (a) Agents acted illegally
when they peered through the window and spotted the air rifle and
surveillance camera -- and excising that unlawfully obtained
visual evidence from the February search warrant affidavit means
no probable cause supported the February search warrant.
(b) Agents noticed the computers during the illegal February
search, which, again, flowed from the initial illegal entry onto
his property -- and excising that unlawfully obtained visual
evidence from the March search warrant affidavit means no probable
cause supported the March search warrant either. Also, (c) the
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court should have suppressed the evidence Verceles produced
because he had no actual or apparent authority to consent and
because his consent was not voluntary.
The government has a markedly different view from
Ponzo's: (a) The court assumed disputed facts in Ponzo's favor
and decided the motion on purely legal grounds, eliminating any
need for an evidentiary hearing. (b) Seeing the air rifle and
surveillance camera through the window neither affected law
enforcement's decision to seek any warrant nor influenced the
magistrate's decision to issue a warrant -- plus the remaining
portions of the affidavits were sufficient to establish probable
cause. And (c) Ponzo waived the argument about the evidence
obtained from the floor safe by not raising it below -- moreover,
the argument clearly has no merit because Verceles voluntarily
gave the items to the agents.
We agree with the government, for reasons we will get to
after identifying the applicable standards of review.
C. Standards of Review
We review the district court's decision to deny an
evidentiary hearing only for abuse of discretion. See, e.g.,
United States v. Francois, 715 F.3d 21, 32 (1st Cir. 2013). And
when considering a suppression ruling, we review legal questions
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de novo and factual findings for clear error. See, e.g., United
States v. Hinkley, 803 F.3d 85, 90 (1st Cir. 2015).
D. Our Analysis
The evidentiary-hearing issue is easily resolved. A
defendant has no right to an evidentiary hearing unless he shows
"that material facts are in doubt or dispute, and that such facts
cannot reliably be resolved on a paper record" -- most critically,
he "must show that there are factual disputes which, if resolved
in his favor, would entitle him to the requested relief."
Francois, 715 F.3d at 32 (quotation marks omitted). Ponzo has not
satisfied this burden. The district court (don't forget) decided
Ponzo's suppression motion after assuming -- for argument's sake,
favorably to Ponzo -- that agents saw the air rifle and
surveillance camera during an illegal search. And Ponzo points to
no facts in dispute that could undercut the court's "independent
source" determination. So we find no abuse of discretion here.
Moving on, we know that under the independent-source
doctrine, evidence acquired from a lawful source that is
independent of any Fourth Amendment infraction is admissible --
the thinking being that the exclusionary rule should not put agents
"in a worse position" than if the constitutional infraction had
not happened. See Nix v. Williams, 467 U.S. 431, 443 (1984); see
also Murray v. United States, 487 U.S. 533, 538 (1988) (emphasizing
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that "[s]o long as a later, lawful seizure is genuinely independent
of an earlier, tainted one . . . there is no reason why the
independent source doctrine should not apply"). And when dealing
with
a search warrant premised on an application containing
illegally obtained evidence . . . the fruits of that
search would be admissible through the independent
source doctrine unless (1) "the agents' decision to seek
the warrant was prompted by what they had seen during"
the initial illegal search or (2) "information obtained
during that [illegal search] was presented to the
Magistrate and affected his decision to issue the
warrant."
United States v. Soto, 799 F.3d 68, 82 (1st Cir. 2015) (quoting
Murray, 487 U.S. at 542). Because this is a disjunctive test, a
defendant need only win under one of the two prongs.
Like the district court, we assume (without granting)
that agents offended Ponzo's constitutional rights when they went
up to his house and peeked through his window. Turning to the
first question, we, also like the district court, conclude that
these agents would have sought a warrant even if they had not seen
the air rifle and security camera. We say this because law
enforcement had known about Ponzo's fugitive-from-justice status,
had concluded he was living under an assumed name at the 6107 Hogg
Road address, and had heard about his having guns. On the second
question, we, again like the district court, conclude that the
affidavit, shorn of any tainted info, contained ample facts to
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support probable cause to search Ponzo's abode. Arguing against
this conclusion, Ponzo claims the neighbor's comment that he "had
gone to a shooting range . . . four months earlier [a] was fruit
of the poisonous tree, [b] too stale to provide probable cause,
and [c] did not support a finding that he would have firearms at
his residence." We reject claim [a] because agents got the info
from an independent interview with the neighbor. We reject claim
[b] because "firearms, unlike drugs, are durable goods useful to
their owners for long periods of time." United States v. Singer,
943 F.2d 758, 763 (7th Cir. 1991) (holding that six-month-old info
about a firearm was not "stale"); see also United States v. Neal,
528 F.3d 1069, 1074 (8th Cir. 2008) (explaining that info "that
someone is suspected of possessing firearms illegally is not stale,
even several months later, because individuals who possess
firearms tend to keep them for long periods of time"); cf.
generally United States v. Pierre, 484 F.3d 75, 83 (1st Cir. 2007)
(stressing that "[w]hen evaluating a claim of staleness, courts do
not measure the timeliness of information simply by counting the
number of days that have elapsed," adding that a court must instead
"assess the nature of the information, the nature and
characteristics of the suspected criminal activity, and the likely
endurance of the information"). And we reject claim [c] because
the agent's affidavit said "firearms/ammunition" are "the kinds of
- 23 -
evidence . . . typically maintained at a person's" home -- that
matters because the required nexus "between the objects to be
seized and the premises searched" may be "inferred from the type
of crime, the nature of the items sought, the extent of an
opportunity for concealment and normal inferences as to where a
criminal would hide" evidence of the suspected crimes. See United
States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999) (quotation marks
omitted).
Having found the February search warrant valid, we also
reject Ponzo's theory that the computers seized during the warrant-
backed search in March were the fruit of the poisonous tree.
That brings us to Ponzo's charge that the district court
stumbled by "fail[ing] to address the illegality of the so-called
'consent search'" of the floor safe that Verceles had broken into.
The problem here is that Ponzo did not argue in his suppression
motion that the court should exclude the evidence Verceles had
handed over, making the claim untimely. See United States v.
Albertelli, 687 F.3d 439, 444 (1st Cir. 2012). And a court cannot
consider an untimely claim unless "the party shows good cause."
See Fed. R. Crim. P. 12(c)(3); see also United States v. Santiago-
González, 825 F.3d 41, 46 n.7 (1st Cir. 2016). Ponzo makes no
effort to show this. And he also makes no effort to explain why,
in the absence of any such showing, he is entitled to review even
- 24 -
under the demanding plain-error standard. So we treat this aspect
of his suppression argument "as waived." See United States v.
Sepúlveda-Hernández, 817 F.3d 30, 34 (1st Cir. 2016).
V. Attorney Conflict of Interest
Ponzo's next -- and perhaps most serious -- argument is
that the district court saddled him with a conflict-ridden lawyer,
court-appointed counsel John Cunha. As Ponzo tells it, Cunha
operated under two conflicts of interest, thereby violating his
Sixth Amendment right to conflict-free representation. The first
potential conflict comes from Cunha's prior appellate
representation of David Clark, the man Ponzo alleges tried to kill
him. The second potential conflict involves Cunha's prior
representation of Robert Carrozza Jr., a former codefendant of a
government witness -- Bobby Luisi Jr. -- in Ponzo's case.
Reviewing de novo, see United States v. Martínez-Hernández, 818
F.3d 39, 46 (1st Cir. 2016), we reject Ponzo's conflict-of-interest
contentions.
A. Guiding Principles
The Sixth Amendment guarantees the right to conflict-
free counsel. See, e.g., Yeboah-Sefah v. Ficco, 556 F.3d 53, 68
(1st Cir. 2009). And caselaw illustrates how this principle works.
For instance, caselaw holds that a lawyer's simultaneous
representation of multiple codefendants at trial "inherently"
- 25 -
raises a potential conflict of interest. Mickens v. Taylor, 535
U.S. 162, 168 (2002) (discussing Holloway v. Arkansas, 435 U.S.
475, 489-90 (1978)). That being so, the Supreme Court has
"create[d] an automatic reversal rule" for situations "where
defense counsel is forced to represent codefendants over his timely
objection, unless the trial court has determined there is no
conflict." Id. (discussing Holloway, 435 U.S. at 488).
Simplifying our task, Ponzo's appellate lawyer told us at oral
argument that he is not relying on the automatic-reversal rule --
which means we need say no more about that subject.
Turning, then, to situations where the automatic-
reversal rule does not apply, we see that the high Court has
required defendants there to show that "a conflict of interest
actually affected" the lawyer's "performance -- as opposed to a
mere theoretical division of loyalties." Id. at 168, 171 (emphasis
removed). Unlike ineffective assistance claims governed by
Strickland v. Washington, 466 U.S. 668, 687 (1984) -- a case
requiring the defendant to show that counsel's performance was
deficient and that this defective representation prejudiced the
case's outcome -- prejudice is presumed if a defendant meets this
test. Mickens, 535 U.S. at 166; see also United States v.
DeCologero, 530 F.3d 36, 76-77 (1st Cir. 2008) (noting that adverse
effect is much easier to show than the actual prejudice required
- 26 -
for "ineffective assistance of counsel claims"). And to show an
actual conflict of interest, a defendant must demonstrate "that
(1) the lawyer could have pursued a plausible alternative defense
strategy or tactic and (2) the alternative strategy or tactic was
inherently in conflict with or not undertaken due to the attorney's
other interests or loyalties."10 United States v. Colón-Torres,
382 F.3d 76, 88 (1st Cir. 2004) (quoting United States v.
Soldevila–Lopez, 17 F.3d 480, 486 (1st Cir. 1994)); accord United
States v. Cardona-Vicenty, 842 F.3d 766, 772-73 (1st Cir. 2016);
see also DeCologero, 530 F.3d at 77 (emphasizing that "[s]howing
an adverse effect . . . requires more than mere speculation").
Please note: Mickens said that Supreme Court caselaw
"does not clearly establish, or indeed even support," applying the
actual-conflict standard "unblinkingly" to situations -- like
Ponzo's -- involving successive representation of clients. 535
U.S. at 174–75. But Mickens did not decide whether this standard
applied in the successive-representation context, saying the
question remained "open." Id. at 176. We too have not said
whether the actual-conflict standard applies to cases of
10
Prong one of this "test acts as a check on the possibility
of a defendant twisting a mere conflict of opinion as to what is
in the client's best interests into a 'conflict of interest'
between client and attorney." Cody v. United States, 249 F.3d 47,
54 n.7 (1st Cir. 2001).
- 27 -
successive representation. DeCologero, 530 F.3d at 77 n.24; see
generally Reyes-Vejerano v. United States, 276 F.3d 94, 100 (1st
Cir. 2002) (suggesting that an actual conflict may arise in
successive-representation cases because "one client may stand to
gain through negotiations with prosecutors that will injure
another, raising concerns of loyalty; or information obtained in
the representation of one client may be potentially useful to
another, raising concerns of confidentiality," especially "if the
first client is a possible witness at the second client's trial").
And because we can decide Ponzo's appeal without ruling on the
standard, we provide him the benefit of the actual-conflict
standard and once again reserve the question for another day.11
B. Conflict Involving David Clark
The back story behind the first alleged conflict of
interest is this. Originally, Ponzo chose attorney David Duncan
to represent him. But after reaching irreconcilable differences
regarding defense strategy, Ponzo moved for hybrid representation,
so he could act as pro se co-counsel. The magistrate judge denied
11
Offering no legal authority supporting his point, Ponzo
spends two sentences suggesting that because he raised the
conflict-of-interest issue pre-trial, he "only" had to show "a
division of loyalties" on Cunha's part, not "a conflict that
affected" Cunha's "performance." But his suggestion is so little
developed that it is waived. See, e.g., Muñiz v. Rovi, 373 F.3d
1, 8 (1st Cir. 2004) (deeming waived skeletal argument
unaccompanied by "citation to any pertinent authority").
- 28 -
this motion, which led to Duncan's withdrawal as counsel. Later,
the court appointed Cunha to represent Ponzo. On the first day of
trial, 13 months into his representation, Ponzo moved pro se for
a new attorney because, 12 years prior, Cunha had represented
Clark, whom Ponzo claims tried to kill him but killed his friend
-- Romano Jr. -- instead.
According to Ponzo, a key incident giving rise to the
supposed conflict occurred in September 1994, when Romano Jr. was
shot and killed. Trial testimony conflicted as to who shot Romano
Jr. One account, however, placed Clark at the scene, with Ponzo
as the intended target. The same day that Romano Jr. was murdered,
Clark killed a state trooper during a traffic stop. And Cunha
represented Clark on appeal after Clark's state-court conviction
for the trooper's murder. Later, toward the end of 1994, Ponzo
fled from Massachusetts to Arizona.
Ponzo brought this alleged conflict to the district
court's attention on the first day of trial. In response, Cunha
explained that "[t]here have been allegations sort of floating
about, if you will, that Mr. Clark may have been one of the ones
who shot at Michael Romano, Junior." Cunha went on to say that he
did not see a conflict. The court agreed and denied Ponzo's pro
se motion.
- 29 -
Ponzo asks us to reverse and remand for a new trial,
arguing that Cunha "had no interest in painting Clark, his former
client, as a killer or accusing him of uncharged conduct." Noting
that 18 U.S.C. § 3290 tolls the statute of limitations if the
accused "fle[d] from justice," Ponzo adds that the evidence he
asked Cunha to introduce would have shown that he fled
Massachusetts not to avoid prosecution but to save his life.12 And
that evidence would have removed his case from § 3290's reach,
meaning some of the charges against him "would have been barred by
the statute of limitations" -- or so he contends. Like the
government, we disagree.
Admittedly, a lawyer faced with the prospect of accusing
a former client of a murder -- one that occurred the same day as
the murder for which the attorney previously defended that client
-- may feel trapped between a rock and hard place. But Ponzo's
contention -- that he hightailed it to Arizona not to duck
prosecution but because he feared for his life -- is hard to
reconcile with the fact that instead of leaving Massachusetts
immediately after the threat to his life, he stayed and tried to
kill Cirame two weeks later. Anyhow, Cunha's actions are easily
12
As we noted many pages ago, § 3290 provides that "[n]o
statute of limitations shall extend to any person fleeing from
justice."
- 30 -
explained as a strategic attempt to distance Ponzo from LCN:
Presenting the evidence advocated by Ponzo would have placed him
right in the middle of the intra-LCN conflicts -- remember, the
charges against him included RICO charges involving a crime
syndicate, and so evidence suggesting participation in the
organization would have inculpated him. Consistent with Supreme
Court precedent holding that an actual conflict entails a conflict
"that adversely affects counsel's performance," Mickens, 535 U.S.
at 172 n.5, our caselaw says that forgoing an implausible strategy
or a strategy that could inculpate the defendant does not
constitute an actual conflict. See Cody, 249 F.3d at 54; Bucuvalas
v. United States, 98 F.3d 652, 657 (1st Cir. 1996); Guaraldi v.
Cunningham, 819 F.2d 15, 17-18 (1st Cir. 1987). And these
decisions throw cold water on Ponzo's first conflict claim.
C. Conflict Involving Robert Carrozza Jr.
Even less need be said about Ponzo's alleged conflict
flowing from Cunha's prior representation of Robert Carrozza Jr.
in an unrelated matter. "The conflict arises," Ponzo writes,
"because when [Cunha] represented Carrozza[] Jr., he [Carrozza
Jr.] was a co-defendant of Bobby Luisi Jr." -- a person who
testified against Ponzo at trial and admitted to trying to kill
Ponzo. The government brought this potential conflict to the
court's attention. Though he had "very little memory of the case,"
- 31 -
Cunha did tell the court that Luisi Jr. had separate counsel and
that no joint-defense agreement existed. Stressing that he "never
really represented [Carrozza Jr.]," Cunha added that he withdrew
from representing Carrozza Jr. after another lawyer began
negotiating a plea agreement for him. The court concluded that no
conflict existed. We agree. Ponzo speculates that Cunha's "prior
representation . . . could have affected his representation of
Ponzo." But he offers nothing to back up that speculation. And
mere speculation does not suffice to show a Sixth Amendment
infraction. See, e.g., Cardona-Vicenty, 842 F.3d at 773.
Consequently, Ponzo's second conflict argument is no more
convincing than the first.13
VI. Sixth Amendment Right to Participate in One's Defense
We now address Ponzo's preserved claim that the district
court violated his Sixth Amendment right to participate in his own
defense by not giving him hearing aids costing $2,000. What the
Sixth Amendment requires for hearing-impaired defendants is
apparently a question of first impression in our court. Following
13
Ponzo floats the idea that the district court wrongly denied
him the right to use "seized, untainted funds to retain counsel,"
without showing that the funds were indeed untainted. And this
lack of developed argumentation dooms his claim. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived").
- 32 -
the parties' lead, we look to caselaw involving non-English
speaking defendants for guidance, knowing that this sort of inquiry
is inherently fact-intensive and thus receives abuse-of-discretion
review. See United States v. Carrion, 488 F.2d 12, 14 (1st Cir.
1973) (noting that "considerations of judicial economy" require
that "the trial court, coming into direct contact with the
defendant, be granted wide discretion in determining whether an
interpreter is necessary").
Relying on cases involving non-English speaking
defendants, a sibling circuit has held -- in a case Ponzo relies
on -- "that the Sixth Amendment right to participate in one's own
trial encompasses the right to reasonable accommodations for
impairments to that participation, including hearing impairments."
United States v. Crandall, 748 F.3d 476, 481 (2d Cir. 2014).
Assuming arguendo the applicability of this framework, we think
Ponzo has not shown a lack of a reasonable accommodation.
According to an audiologist's report, Ponzo suffers from
"moderate" hearing loss -- a level of hearing loss that would
"prevent [him] from hearing most conversation unless at close
range." Acting to accommodate this impairment, the district court
provided him with (a) headphones that amplified the sounds in the
courtroom and (b) real-time transcripts. Ponzo calls the
headphones inadequate because they supposedly prevented him from
- 33 -
"consult[ing] with his attorney during the trial," apparently
because they made him "unable to speak and listen at the same
time." But as the government asserts (without contradiction),
Ponzo never claimed below that he could not communicate with
counsel by passing notes while wearing the headphones. And he
advances no persuasive argument here suggesting that hearing aids
costing $2,000 were the only reasonable accommodation for his
condition. Ponzo does protest that as a "public entity," the
district court had to give him the hearing aids "under the
Americans with Disabilities Act." But he makes no convincing
argument that "public entity" includes the federal courts. Cf.
generally Roman v. Jefferson, 495 F. App'x 804, 806 (9th Cir. 2012)
(concluding that "[w]hile the [Act] requires state courts to make
disability accommodations, [it] does not apply to federal courts"
(citing 42 U.S.C. § 12131(1))).14
14 The Act defines "public entity" as
(A) any State or local government;
(B) any department, agency, special purpose district, or
other instrumentality of a State or States or local
government; and
(C) the National Railroad Passenger Corporation, and any
commuter authority (as defined in section 24102(4) of
Title 49).
42 U.S.C. § 12131(1)(A)-(C).
- 34 -
Discerning no hint of abused discretion in this
situation, we trudge on.
VII. Prior Testimony of an Unavailable Witness
Ponzo argues further that the district court violated
his rights under the Confrontation Clause by admitting the
testimony of Mark Hildonen -- a witness who had testified at
Ponzo's co-conspirators' 1998 trial but who had died before
Ponzo's 2013 trial. Because we are dealing with a preserved claim
of error, our review is de novo. See United States v. Liriano,
761 F.3d 131, 136 (1st Cir. 2014). But there is simply no error
here for us to remedy.
The Confrontation Clause -- which gives a criminal
defendant "the right . . . to be confronted with the witnesses
against him," see U.S. Const. amend. VI -- bars admission of
testimonial hearsay unless "the declarant is unavailable" and "the
defendant had a prior opportunity" for cross-examination, see
Crawford v. Washington, 541 U.S. 36, 59 (2004). But a defendant's
confrontation rights are subject to certain exceptions, including
the forfeiture-by-wrongdoing exception -- a common-law doctrine
that allows admission of unconfronted testimonial statements
"where the defendant ha[s] engaged in wrongful conduct designed to
prevent a witness's testimony." Giles v. California, 554 U.S.
353, 366 (2008); see also Crawford, 541 U.S. at 62 (stressing that
- 35 -
"the rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equitable
grounds"); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.
1996) (explaining that it suffices "to show that the evildoer was
motivated in part by a desire to silence the witness; the intent
to deprive the prosecution of testimony need not be the actor's
sole motivation").
The rationale underlying this exception -- that "a
defendant should not be permitted to benefit from his own wrong,"
see Giles, 554 U.S. at 365 -- supports its application here. Had
Ponzo been at the 1998 trial, he could have cross-examined
Hildonen. But like a defendant who obtains a witness's absence by
killing him, by fleeing and remaining on the lam for years, Ponzo
effectively schemed to silence Hildonen's testimony against him.
And Hildonen's subsequent unavailability signifies the success of
that scheming. So Ponzo forfeited his confrontation right. See
Barker v. Morris, 761 F.2d 1396, 1400-03 (9th Cir. 1985) (finding
that defendant's "lack of opportunity" to cross-examine a witness
was "directly attributable to [his] fugitive status"); United
States v. Dikeocha, 218 F.3d 706, 712 n.5 (7th Cir. 2000) (noting
that if the defendant had "not been a fugitive" he could have
cross-examined the unavailable witness at his co-defendants'
trial). To hold otherwise would allow Ponzo to profit from his
- 36 -
wrongful conduct and would undermine the "integrity of the
criminal-trial system" -- which we cannot allow. See Davis v.
Washington, 547 U.S. 813, 833 (2006).
Looking for a way out this predicament, Ponzo says that
because he "fled Massachusetts three years before this [federal]
indictment" and "was living in hiding from his past," we "cannot
simply presume that he was even aware of the indictment, let alone
the 1998 trial." But because he cites no authority for this
argument (nor does he give us a convincing explanation of what the
law should be, assuming he found no authority), he has waived it.
See, e.g., Muñiz, 373 F.3d at 8; see also United States v. Acosta-
Colon, 741 F.3d 179, 193 (1st Cir. 2013) (emphasizing that a
party's not "liv[ing] up to his obligation to develop[] a sustained
argument out of . . . legal precedents . . . leads to waiver"
(quotations omitted)). Ponzo also talks down Barker, saying it is
"pre-Crawford law." But he does not explain why that matters,
particularly since Supreme Court caselaw makes clear that a
defendant's confrontation rights remain subject to the forfeiture-
by-wrongdoing exception. See Giles, 554 U.S. at 366; Crawford,
541 U.S. at 62.
VIII. Testimony of Co-conspirators
Ponzo accuses the district court of committing
reversible error by admitting (a) testimony from co-conspirators
- 37 -
-- Mark Weddleton and Paul Piano -- who talked about the marijuana
activities in Arizona after he supposedly "left"; and (b) testimony
about his co-conspirators' doings at Ciampi's club in 1992, given
that he supposedly did not visit the club until 1994. The parties
wrangle over the standard of review. Believing he preserved these
evidentiary arguments, Ponzo says abuse-of-discretion review
applies. The government, meanwhile, thinks Ponzo preserved all
claims except for his challenge to Weddleton's testimony. And the
government asks us to apply plain-error review to that challenge.
Firing back, Ponzo contends he "had a standing objection to co-
conspirator statements," which, he adds, "preserved" the issue for
abuse-of-discretion analysis. We need not referee this tussle,
however: even assuming, favorably to Ponzo, that abuse-of-
discretion scrutiny applies throughout, his claim of error fails.
We start with Ponzo's argument that Weddleton's and
Piano's testimony was inadmissible because he had "withdrawn" from
the Arizona conspiracy before they had joined it. Co-conspirators'
statements "made during the course of the conspiracy and made in
furtherance of the conspiracy are admissible." United States v.
Fields, 871 F.2d 188, 199 (1st Cir. 1989) (citing United States v.
U.S. Gypsum Co., 333 U.S. 364, 393 (1948)); see also Fed. R. Evid.
801(d)(2)(E). Ponzo had the burden of establishing his withdrawal.
See, e.g., United States v. Eppolito, 543 F.3d 25, 49 (1st Cir.
- 38 -
2008). To withdraw from a conspiracy, a person must "act
affirmatively either to defeat or disavow the purposes of the
conspiracy." United States v. Paz-Alvarez, 799 F.3d 12, 26 n.13
(1st Cir. 2015) (quotation marks omitted). Typically, that
requires the accused to come clean with the authorities or
communicate with "his co-conspirators that he has abandoned the
enterprise and its goals." United States v. Juodakis, 834 F.2d
1099, 1102 (1st Cir. 1987) (per curiam). Ponzo points to no
evidence suggesting he did either. Instead, he talks up evidence
indicating he had stopped working with certain conspirators. But
"the '[m]ere cessation of activity in furtherance of the conspiracy
does not constitute withdrawal.'" United States v. Ngige, 780
F.3d 497, 503–04 (1st Cir. 2015) (alteration in original) (quoting
United States v. Ciresi, 697 F.3d 19, 27 (1st Cir. 2012)).
Therefore, Ponzo did not establish withdrawal from the conspiracy.
As a fallback, Ponzo claims Weddleton and Piano joined
the conspiracy only after he "had left." But the evidence shows
Mele recruited both Weddleton and Piano to receive marijuana
shipments in Massachusetts during the time Ponzo was shipping
marijuana from Arizona. So this contention goes nowhere.
Taking a slightly different tack, Ponzo notes how
Weddleton testified that David Rudolph -- Ponzo's previous
roommate -- described Ponzo as "a smart guy" who knew the marijuana
- 39 -
"business good." As Ponzo sees things, that evidence was
inadmissible hearsay under Rule 801(d)(2)(E). We think not.
Having already reasoned that Ponzo had not withdrawn from the
conspiracy, we need only consider whether the challenged testimony
furthered the conspiracy. Testimony furthers the conspiracy if it
"tends to advance the objects of the conspiracy as opposed to
thwarting its purpose." United States v. Fogg, 666 F.3d 13, 15
(1st Cir. 2011) (quotation marks omitted). Judged against this
standard, Rudolph's statements satisfy the "in furtherance"
requirement because they showed Ponzo's role in the conspiracy or
alternatively bolstered his standing within the organization since
they characterized him as an experienced marijuana packer. See,
e.g., United States v. Correa-Osorio, 784 F.3d 11, 25 (1st Cir.
2015) (noting that "the 'in furtherance' requirement can be
satisfied (among other ways) by statements identifying other
conspirators, explaining how the conspiracy works, or updating
members on the conspiracy's doings"); Ciresi, 697 F.3d at 29–30
(finding that statements of reassurance further the conspiracy).
That leaves us with Ponzo's argument that the court
erred by admitting evidence about illegal activities at Ciampi's
club in 1992 when he allegedly did not go there until 1994. The
court did not reversibly err for a simple reason: Ponzo joined
the conspiracy in 1989, and these activities took place during his
- 40 -
participation in the conspiracy. Also, Ponzo does not dispute
that the illegal acts, as described in the testimony, furthered
the conspiracy -- so we say no more about that subject.
The bottom line is that the district court did not abuse
its discretion by admitting this testimony.
IX. Sufficiency of Evidence
Ponzo attacks the sufficiency of the evidence on two of
the nine racketeering acts underlying his RICO conspiracy
conviction: the attempted murder of Cirame and the assault with
the attempt to murder Cirame. Ponzo also questions the sufficiency
of the evidence supporting the finding that he had conspired to
distribute 500 grams or more of cocaine. Because he preserved
neither challenge, our review is limited to preventing a "clear
and gross injustice" -- a "stringent standard, which we have
described as a particularly exacting variant of plain error
review." United States v. Foley, 783 F.3d 7, 12-13 (1st Cir.
2015). As per usual, we view the evidence in the light most
favorable to the government, taking all reasonable inferences in
its favor. See, e.g., United States v. Rodríguez-Milián, 820 F.3d
26, 31 (1st Cir. 2016). But there is not so much as a whiff of a
clear and gross injustice here, though Ponzo would still be out of
luck "even under traditional plain error." See Foley, 783 F.3d at
13.
- 41 -
A. The Cirame Shooting
The jury found that Ponzo had committed nine predicate
acts -- well beyond the two predicate acts necessary for a RICO
violation. See 18 U.S.C. § 1961(5) (specifying that a pattern of
racketeering activity requires only two predicate acts committed
within 10 years of each other); see also United States v. Marino,
277 F.3d 11, 18-19 (1st Cir. 2002). He, again, only challenges
the jury's findings on the two having to do with the Cirame
shooting -- to be precise, he is contesting the legal (rather than
the factual) sufficiency of the government's proof, given he
questions the lawfulness of certain rulings admitting certain
evidence. But because he does not show any defects with the other
seven predicate acts, his first sufficiency claim is a nonstarter.
See generally United States v. Dhinsa, 243 F.3d 635, 670 (2d Cir.
2001) (noting that "the jury's findings of two predicate acts,
lawfully constituting a RICO pattern, and of the other elements of
a RICO offense, will permit affirmance of a RICO conviction
notwithstanding the invalidation of other predicate acts," and
further noting that the defective predicate did not "dominate"
this prosecution, "eclipsing all else" (internal quotations
omitted)); United States v. Paccione, 949 F.3d 1183, 1197-98 (2d
Cir. 1991) (finding that a "deficiency" with one predicate act did
- 42 -
not require reversal of the RICO convictions because the remaining
eight predicate acts "suffer[ed] no defects").15
B. The Cocaine Conspiracy
A count in the superseding indictment charged that from
"in or before 1989" through "in or after October 1994," Ponzo
conspired with others "known and unknown to the Grand Jury . . .
to possess with intent to distribute, and to distribute, . . . 500
grams or more . . . of cocaine." And the evidence at trial --
viewed from a prosecution-friendly vantage point -- showed the
following: Mele regularly sold one-ounce quantities (28.35 grams)
of cocaine to Marino in the mid to late 1980s. And Ponzo helped
Marino deliver the cocaine. Mele also sold Ponzo "eight balls"
(1/8 ounce, or about 3.5 grams each). Ponzo was still distributing
cocaine with Marino in the early to mid-1990s, delivering cocaine
to one of Marino's customers "a couple of times" a week. Around
this time, Ponzo hooked up with Romano Sr. -- a distributor buying
up to six ounces (170 grams) per transaction from a supplier -- as
15 If more were needed -- and it is not -- we note the
following. The government proves racketeering when it proves two
predicate acts of racketeering "or, alternatively, when it proves
the collection of a single unlawful debt." United States v.
Weiner, 3 F.3d 17, 23 (1st Cir. 1993). And not only did Ponzo's
jury find the requisite predicate acts, but it also found the
collection of an unlawful debt -- a finding he does not challenge.
So even if he could get some mileage out of his predicate-act
argument (and he cannot), the conviction on the RICO count would
still stand.
- 43 -
evidenced by Ponzo's presence at a meeting where the participants
discussed the cocaine-distribution business and divvyed up
distribution shifts. The government need have proved only that it
was reasonably foreseeable by Ponzo that conspiracy members would
handle over 500 grams of cocaine. See United States v. Sepulveda,
15 F.3d 1161, 1197 (1st Cir. 1993) (emphasizing that "a defendant
is responsible for drugs he personally handled or anticipated
handling, and, under the relevant conduct rubric, for drugs
involved in additional acts that were reasonably foreseeable by
him and were committed in furtherance of the conspiracy"). With
all of this in mind, we conclude that the evidence sufficiently
connected Ponzo to the cocaine conspiracy that involved 500 grams
or more of cocaine -- at the very least, the evidence is not so
insufficient as to cause a clear and gross injustice.
X. Waiver of Right to Testify
Before waiving his right to testify, Ponzo asked the
district court two questions: First, could the prosecution "cross-
examine[]" him on charges pending against him in Idaho? And
second, could the prosecution use his "prior convictions" to
"cross-examine" him? Saying "I'm not in a position to advise you,"
the court directed Ponzo to discuss the matter with his attorney
-- which Ponzo did before waiving his right to testify. Noting
that he had a constitutional right to testify, Ponzo argues for
- 44 -
the first time on appeal that his waiver was not knowing and
voluntary because the court did not answer his questions. Our
review is for plain error. And we find none.
We begin with the obvious: "The defendant's lawyer,
rather than the trial judge, bears the primary responsibility of
informing and advising the defendant of this right, including its
strategic ramifications," Casiano-Jiménez v. United States, 817
F.3d 816, 820 (1st Cir. 2016) -- hence "a trial judge is not
required to apprise a defendant of his right to testify or inquire
whether he has waived it," Owens v. United States, 483 F.3d 48, 58
(1st Cir. 2007). And Ponzo offers no convincing argument for how
the court plainly erred given Casiano-Jiménez and Owens.
Critically too, Ponzo cites no controlling authority showing that
the court had to answer his questions -- which is not the way to
go about showing plain error. See United States v. Morosco, 822
F.3d 1, 21 (1st Cir. 2016) (explaining that "plain error" is "an
indisputable error by the judge, given controlling precedent"
(quotation marks omitted)).
XI. Prosecution's Conduct
Ponzo next maintains that three instances of
prosecutorial misconduct require a new trial. Because he did not
preserve the points below, he is stuck with having to show plain
error -- something he has not done.
- 45 -
A. Examination of Ponzo's Former Attorney
First up is Ponzo's claim that the government improperly
questioned his former attorney, James Costello, about the Arizona
marijuana conspiracy. This is what you need to know.
Costello had represented Ponzo in 1994 on the state
cocaine and assault charges. The government called Costello to
establish that Ponzo had failed to appear in state court in
November 1994, causing that court to issue a warrant. Costello
moved to quash the subpoena, saying that "[w]ithout a waiver from
Ponzo, [he] is duty bound to assert the attorney-client privilege
to the questions he anticipates the government will ask. The
district court ruled that Costello could testify about Ponzo's
failure to appear in state court in 1994 but could "not testify
about anything else," believing that that would infringe upon the
attorney-client privilege.
At trial, after Costello testified that he had been
suspended from the practice of law from 1997 to 2007, the
government asked him if he knew Piano. Costello replied, "I
believe I do, yes, sir. I don't know him, but he's an
acquaintance." The government then asked Costello whether Piano
had "pick[ed] up any packages from you[.]" Ponzo's lawyer objected
before Costello could answer. "What time frame are we talking
about?" the court asked. "In approximately 1998 or 1999," the
- 46 -
government's lawyer responded. And after a sidebar conference to
discuss the matter, the government decided to ask Costello no
further questions.
Despite Ponzo's arguments, we have some doubts whether
the government's queries violated the district court's ruling on
the motion to quash, since we question whether the questions
touched on privileged attorney-client communications. But putting
that aside, we fail to see how either question prejudiced Ponzo.
Ponzo spends no time explaining how he suffered prejudice. And
although the second question may have suggested that Costello was
somehow involved in marijuana trafficking, the query went
unanswered, plus the court told the jury that lawyers' questions
are not evidence. See United States v. Innamorati, 996 F.2d 456,
485 (1st Cir. 1993) (finding no prejudice where witness did not
answer the challenged question and the court instructed the jury
that lawyers' statements are not evidence); see also United States
v. Robinson, 473 F.3d 387, 394 (1st Cir. 2007) (noting that
demonstrating prejudice is "more difficult" when questions go
unanswered). So we cannot say that the complained-of errors rise
to the level of plain error.
B. Characterizations of the Evidence
Second up is Ponzo's claim that the government
mischaracterized evidence during closing arguments. It is a truism
- 47 -
that prosecutors cannot refer to facts not in evidence. See, e.g.,
United States v. Auch, 187 F.3d 125, 129 (1st Cir. 1999). But
they can "ask jurors to draw reasonable inferences from the
evidence." United States v. Meadows, 571 F.3d 131, 145 (1st Cir.
2009). And after carefully reviewing Ponzo's claims, we can say
that none warrants reversal because the prosecutor confined his
comments to evidence in the record and to reasonable inferences
from that evidence. Two examples suffice to illustrate the point.
The government mentioned that Quintero had said that Ponzo had
"shot a .223 or an AK rifle in his free time" in Arizona -- a
statement that Ponzo claims implies that he had a hand in shooting
Salemme. But Quintero did testify that he and Ponzo shot "rifles,"
though he could not specifically recall whether "it was a .223."
And the government made no reference to the Salemme shooting in
this context. The government also said that killing Salemme was
Marino's and Ponzo's "ticket" to getting "made." But Mele did
testify that Marino would "become a made guy" if "Salemme died."
And the government's statement that Ponzo would get "made" too was
premised on a fair inference from this evidence. The long and the
short of it is that nothing Ponzo complains about here amounts to
plain error.
- 48 -
C. Vouching
Third up is Ponzo's claim that the government's use of
the word "we" (e.g., "We know," "We learned") during closing
argument constituted improper vouching -- which "occurs when the
government place[s] the prestige of the United States behind a
witness by making personal assurances about the credibility of a
witness . . . or implies that the jury should credit the
government's evidence simply because the government can be
trusted." Robinson, 473 F.3d at 396 (quotation marks omitted)
(alteration in original). "[W]hen a defendant fails to object at
trial we are not inclined to find improper meaning in a
prosecutor's statement if there is a plausible alternative."
United States v. Rodriguez, 675 F.3d 48, 65 (1st Cir. 2012). The
plausible alternative here -- and the one the record supports --
is that the prosecutor used "we" to rehash the evidence heard at
trial, not to throw the weight of the prosecutor's office behind
the evidence to establish credibility. Also undermining Ponzo's
argument is the fact that he cites no controlling authority finding
prosecutorial misconduct under similar circumstances -- which
means he has not shown plain error. See, e.g., Morosco, 822 F.3d
at 21.
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XII. Verdict Form
We now address Ponzo's argument that the verdict form
allowed the jury to convict him on the § 924(c) firearm count for
merely possessing a firearm in relation to a crime of violence, as
opposed to using or carrying the firearm. Because he did not
object to the verdict's form before the jury retired to deliberate,
we review only for plain error. See United States v. Edelkind,
467 F.3d 791, 795-96 (1st Cir. 2006). And we see nothing of the
sort here.
The current version of § 924(c) covers "any person who,
during and in relation to any crime of violence . . . , uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm." See § 924(c)(1)(A) (emphasis added). But,
both sides tell us, the version in effect at the time of the
offense alleged in the § 924(c) count here covered only the "use
or carry" of a firearm, not possession. Unfortunately, the verdict
form wrongly captioned the § 924(c) firearm count as "firearm
possession in relation to murder conspiracy" -- wrongly, because
(again) the offense charged required using or carrying a firearm,
not mere possession. Studying "the verdict form as a whole,"
however, "in conjunction with" the jury charge, as we must, United
States v. Rodríguez, 735 F.3d 1, 11 (1st Cir. 2013) (quotation
marks omitted), we see that the court correctly instructed the
- 50 -
jury, stating that "the government must prove the defendant
knowingly used or carried a firearm" -- and then the court went on
to define use and carry. We of course presume that jurors obey a
court's instructions. See, e.g., United States v. Gemma, 818 F.3d
23, 37 (1st Cir. 2016). And based on the correct, in-depth
instruction and the presumption that jurors follow instructions,
we cannot find that the error affected Ponzo's substantial rights
because we cannot say that it likely affected the jury verdict.
So the error does not qualify as plain error. See, e.g.,
Rodríguez, 735 F.3d at 11-12 (finding that a jury-verdict form
that mischaracterized the burden of proof did not affect a
defendant's substantial rights where the court properly instructed
the jury and the defendant advanced nothing to suggest prejudice).
Undaunted, Ponzo argues that the jury's answers to the
§ 924(c) count's special-verdict questions suggests that it "did
not find that he had 'used'" a firearm. These questions covered
certain weapons -- like machine guns and shot guns -- that the
government says (without contradiction) would have increased the
mandatory-minimum sentence under the relevant version of § 924(c).
Ponzo cites no authority holding that leaving this section blank
shows that the jury convicted him for less than "using" or
"carrying" a gun. Thus, we stand by our no-plain-error conclusion.
See Morosco, 822 F.3d at 21.
- 51 -
XIII. Conviction Under § 924(c)
Ponzo argues in a supplemental brief that we should toss
out his § 924(c) firearm conviction. His reasoning runs something
like this:
 The jury convicted him of using or carrying a firearm during
a "crime of violence." See § 924(c)(1)(A).
 A "crime of violence" is an offense that "(A) has as an
element the use, attempted use, or threatened use of physical
force against the person . . . , or (B) that by its nature,
involves a substantial risk that physical force against the
person . . . may be used in the course of committing the
offense." Id. § 924(c)(3). Subsection (A) is known as the
"force clause." And subsection (B) is known as the "risk of
force clause" or the "residual clause."
 The § 924(c) firearm count listed conspiracy to commit murder
under state law as the crime-of-violence predicate for the
§ 924(c) violation.
 But, to his way of thinking, "[a] conspiracy" -- to quote his
brief -- "is an agreement to do something and does not have
as an element the use, attempted use or threatened use of
physical force." Plus, he adds, § 924(c)'s risk-of-force
clause is similar to the Armed Career Criminal Act's residual
clause, which the Supreme Court struck as unconstitutionally
- 52 -
vague in Johnson v. United States, 135 S. Ct. 2551, 2556
(2015). And, he points out, § 924(c)'s risk-of-force clause
is identical to a risk-of-force clause in 18 U.S.C. § 16(b),
which some circuits have held to be unconstitutional under
Johnson.
 Ergo -- and to quote again from his brief -- he "cannot be
guilty of carrying/using a firearm in connection with a crime
of violence because the underlying crime was not a crime of
violence."
Because Ponzo did not raise this argument below, we again review
for plain error only. And we again find no plain error exists.
We jump to § 924(c)'s risk-of-force clause, because that
is the simplest way to deal with this issue. See generally
Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st
Cir. 2013) (noting that "[t]he simplest way to decide a case is
often the best" (quoting Chambers v. Bowersox, 157 F.3d 560, 564
n.4 (8th Cir. 1998))). The question presented -- whether
§ 924(c)'s risk-of-force clause is invalid under Johnson's
reasoning -- is an open one in our circuit. True, the Seventh
Circuit held § 924(c)'s risk-of-force clause unconstitutional
given Johnson's logic. United States v. Cardena, 842 F.3d 959,
996 (7th Cir. 2016). But the Second, Sixth, and the Eighth
Circuits reached the opposite result. See, e.g., United States v.
- 53 -
Hill, 832 F.3d 135, 145-50 (2d Cir. 2016); United States v. Taylor,
814 F.3d 340, 375-79 (6th Cir. 2016); United States v. Prickett,
839 F.3d 697, 699-700 (8th Cir. 2016). True too, the Third, Sixth,
Seventh, Ninth, and Tenth Circuits said Johnson nullifies § 16(b)'s
risk-of-force clause -- a clause worded identically to § 924(c)'s
risk-of-force clause, as Ponzo notes. See Baptiste v. Attorney
Gen., 841 F.3d 601, 615-21 (3d Cir. 2016); Shuti v. Lynch, 828
F.3d 440, 445-51 (6th Cir. 2016); United States v. Vivas-Ceja, 808
F.3d 719, 721-23 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110,
1114-20 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (2016) (oral
argument Jan. 17, 2017); Golicov v. Lynch, 837 F.3d 1065, 1069-75
(10th Cir. 2016). But the Fifth Circuit, sitting en banc, rejected
that view. See United States v. Gonzalez-Longoria, 831 F.3d 670,
674-78 (5th Cir. 2016) (en banc); see also Hill, 832 F.3d at 149
(noting that while some circuits used Johnson to nix § 16(b), these
decisions are "unpersuasive" and so did not change the court's
view that § 924(c)'s risk-of-force clause is not
unconstitutionally vague); Taylor, 814 F.3d at 379 (same). And
given the conflicting precedents on the question at hand, any error
here (if error there was) was not plain. See, e.g., United States
v. Pabon, 819 F.3d 26, 34 (1st Cir.), cert. denied, 127 S. Ct. 345(2016); United States v. Goodhue, 486 F.3d 52, 57 (1st Cir. 2007).
- 54 -
Perhaps it is possible for there to be plain error in a
case where many other circuits make the same mistake, so long as
it is clear that they are clearly wrong. But Ponzo attempts no
argument along these lines, even though he bears the burden of
showing plain error. See, e.g., United States v. Rodríguez-Soler,
773 F.3d 289, 293 (1st Cir. 2014). So we say no more about that
point.
XIV. Sentencing Calculations
Turning to sentencing, Ponzo makes three broad claims:
that the court violated the Constitution's Ex Post Facto Clause by
using the 2013 version of the federal sentencing guidelines; that
the court miscalculated his criminal history; and that the court
wrongly labeled him a career offender. Ponzo preserved the ex
post facto issue -- so our review is de novo. See United States
v. Goergen, 683 F.3d 1, 3 (1st Cir. 2012). He preserved some but
not all of his criminal-history arguments -- preserved issues
involve different standards, e.g., clear error for factual
findings and de novo for questions of law, see United States v.
Maldonado, 614 F.3d 14, 17 & n.2 (1st Cir. 2010); an unpreserved
contention receives plain-error review, naturally. And he
preserved the career-offender issue -- so our review is de novo.
See United States v. Velázquez, 777 F.3d 91, 94 (1st Cir. 2015).
When all is said and done, though, we leave his sentence intact.
- 55 -
A. Ex Post Facto
Sentencing a defendant convicted of multiple counts is
no picnic. The guidelines tell courts to "group" the counts that
"involv[e] substantially the same harm," U.S.S.G. § 3D1.2, and
then do "group-by-group, not count-by-count, sentencing
calculations." United States v. Bivens, 811 F.3d 840, 842 (6th
Cir. 2016) (citing U.S.S.G. §§ 3D1.3, 3D1.4). At the risk of
oversimplification, here is how that ordinarily works: the court
computes "the offense level for each count within each group,
attributes to each group the highest offense level of any count
within it" after factoring in certain adjustments for those counts,
"compares the groups to ascertain which has the highest offense
level, considers certain further adjustments . . . , and sentences
the defendant based on that triage." See United States v.
Florence, 143 F.3d 11, 14 (1st Cir. 1998); see also U.S.S.G.
§ 3D1.3 cmt. n.2.
At sentencing, Ponzo -- appearing pro se (with his trial
attorney as standby counsel) -- argued that to avoid an ex post
facto problem, the court should not use the guidelines in effect
at the time of sentencing but should instead use those in vogue
when the crimes were committed. See generally United States v.
Mehanna, 735 F.3d 32, 67 (1st Cir. 2013) (emphasizing the "general
rule" that absent ex post facto problems, a sentencer "should use
- 56 -
the version of the guidelines in effect at the time of the
disposition hearing"). The court thought Ponzo had a point but
said it "need not decide that question because applying the earlier
versions of the guidelines to certain count groups" would produce
"the same guideline range of 360 months to life as would result
from applying" the current guidelines -- though the court, having
concluded that it made no difference which guidelines applied,
stated it was applying the newer guidelines (i.e., the 2013
version). So the court grouped the convictions into eight groups
and then used the older guidelines to do the calculations.
Skipping over details not relevant here, the court concluded that
Group 3 -- comprised of the racketeering conspiracy, the drug
conspiracies, and the money-laundering counts -- had the highest
adjusted offense level. And after applying what is called a
"multiple count adjustment," the court pegged Ponzo's total
offense level at 38 -- which, when paired with a criminal history
category of V or VI (the court said it did not matter which),
yielded a guidelines range of 360 months to life. The court
ultimately gave him 336 months, a sentence that included the 60
months the court had to impose for his § 924(c) conviction.16
16Given the court's approach, Ponzo's challenges to groups
other than Group 3 are irrelevant.
- 57 -
Ponzo basically rehashes the ex post facto argument he
made below, telling us that the court's use of the "newer
guidelines" infracted his constitutional rights. But we see no
violation because, as the district court showed, the guidelines
range was the same under both the older and newer versions. Ever
persistent, Ponzo faults the court for applying a criminal-
livelihood enhancement for Group 3. The court agreed that this
enhancement was not around when the relevant crimes occurred "and,
therefore, . . . would not be applied." But the court added it
could "apply a three-level" enhancement under the older guidelines
based on Ponzo's "role as a manager or supervisor" in the marijuana
conspiracy -- an increase that would help keep the guidelines range
the same under either the older or newer versions of the manual.
Ponzo briefly argues against that enhancement, saying the evidence
below showed that Steven Stoico was "the boss" -- to hear Ponzo
tell it, he (Ponzo) simply "shipped the marijuana." But even if
Stoico was the boss, making him eligible for a four-level
enhancement for being a leader, Ponzo could still get a three-
level manager or supervisor enhancement. See U.S.S.G. § 3B1.1(a),
(b). And the evidence supported the enhancement because Ponzo
trained and paid a guy for packing marijuana. See United States
v. Garcia-Hernandez, 659 F.3d 108, 114 (1st Cir. 2011) (holding
that the aggravating role adjustment found in § 3B1.1(b) requires
- 58 -
the sentencer to find, first, that "the underlying criminal
activity involved more than five participants or was otherwise
extensive," and, second, that the defendant managed or supervised
one or more of the other participants in that activity").
No reversible error happened here.
B. Criminal History
Ponzo says the court erred by assessing criminal-history
points under the guidelines for convictions listed in paragraphs
160-63 of the probation service's presentence report (like the
parties, we will use these paragraph numbers to refer to the
targeted convictions). First he argues (as he did in the district
court) that two convictions -- found in ¶¶ 160 and 163 -- should
not have been counted because they were not supported by "official
court records." Reviewing this matter de novo, we reject his
claim. The conviction in ¶ 163 was based on official court
records, despite what Ponzo says. As for the conviction in ¶ 160,
the probation officer noted she had not "yet" received "official
court documentation." When a defendant contests "a presentence
report's description of an alleged prior conviction," the
government must show "that the description in the report is based
on a sufficiently reliable source." United States v. Brown, 510
F.3d 57, 75 (1st Cir. 2007) (quotations omitted). And where the
presentence report cites solely "non-judicial records," the court
- 59 -
must conduct "additional inquiry into the reliability of these
sources." United States v. Bryant, 571 F.3d 147, 155 (1st Cir.
2009). The government here attached police records to its
sentencing memo that corroborated the information in ¶ 160 --
which, as the government notes (without being contradicted by
Ponzo) established the information's reliability.
Leaving no stone unturned, Ponzo claims he should have
gotten no criminal-history points for the conviction in ¶ 160 since
probation "could not verify" whether he had legal counsel in that
case -- an unpreserved contention limited to plain-error review.
Because "the government establish[ed]" the conviction's
"existence, the burden shift[ed]" to him "to show that the earlier
conviction was constitutionally infirm or otherwise inappropriate
for consideration." See United States v. Barbour, 393 F.3d 82, 93
(1st Cir. 2004). Ponzo does not try to make either showing,
however. And even if we accept arguendo that he was uncounseled,
he has not shown that he did not waive his right to counsel. See
id. Thus once again he comes up short on the plain-error front.
As a final effort to chip away some criminal-history
points, Ponzo says (as he did below) that the convictions in
¶¶ 161-63 took place "after the commencement of the instant
offense" and so are "not prior convictions" for purposes of
computing criminal history. Approaching this issue de novo, we
- 60 -
see that the guidelines say "[a] sentence imposed after the
defendant's commencement of the instant offense, but prior to
sentencing on the instant offense, is a prior sentence if it was
for conduct other than conduct that was part of the instant
offense." U.S.S.G. § 4A1.2 cmt. n.1 (emphasis added). "Conduct
that is part of the instant offense," the guidelines add, "means
conduct that is relevant conduct to the instant offense," id. --
i.e., conduct that is "within the scope of" and "in furtherance
of" the criminal activity and was "reasonably foreseeable in
connection with that criminal activity," see U.S.S.G.
§ 1B1.3(a)(1)(B). Ponzo began his participation in the
racketeering conspiracy before he was sentenced on the offenses in
¶¶ 161-63. But critically for our purposes, at the time of
sentencing in this case, he had already been sentenced for the
offenses in ¶¶ 161-63. And nothing leads us to believe -- nor
does Ponzo persuasively argue -- that these convictions
constituted relevant conduct to this case.
No reversible error occurred here.
C. Career-Offender Designation
Ponzo believes the district court wrongly classified him
as a career offender under U.S.S.G. § 4B1.1. But we need not delve
into that issue. And that is because -- as the government says,
and as the court itself noted -- the career-offender designation
- 61 -
made no difference to his guidelines range: even without it, Ponzo
still faced a guidelines range of 360 months to life. And that
makes any error (if there was one) harmless.17 See United States
v. Battle, 637 F.3d 44, 50 (1st Cir. 2011).
We have no reason to reverse here, either.
XV. Forfeiture
The district court ordered Ponzo to forfeit $2.25
million. And Ponzo assigns five errors with that award. The
government sees no problems, we should add. For properly preserved
claims, we review pure "questions of law de novo, but, to the
extent factual issues are intermingled, consider mixed questions
of law and fact under the more deferential clear error standard."
See United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004);
see also United States v. Jose, 499 F.3d 105, 108 (1st Cir. 2007)
(explaining that when a defendant claims a forfeiture is
constitutionally excessive, "[o]ur review is de novo," with
"deference" given "to the district court's factual findings" under
17To the extent Ponzo separately suggests that the court
erred in applying a consecutive sentence under § 4B1.1(c) for
violating § 924(c) -- his brief hints that the court could not use
§ 4B1.1(c) because that subsection "was enacted" after the
completion of the conduct underlying the § 924(c) count -- we say
this (in addition to the point we made above): even before
subsection (c) became part of the career-offender guidelines, the
guidelines made clear that § 924(c)'s mandatory-minimum sentence
was to be applied "consecutively to any other term of
imprisonment." See U.S.S.G. § 2K2.4 cmt n.1 (1993).
- 62 -
the clear-error standard). We review unpreserved issues for plain
error. See, e.g., Jose, 499 F.3d at 108. Readers should consider
an issue preserved (either because it is preserved or because it
is easier for us to assume it is preserved), unless told otherwise.
Ponzo opens up by claiming (without citation to any
authority) that the judge should have limited the forfeiture to
the amount sought in the superseding indictment -- an unpreserved
claim of error. The superseding indictment told Ponzo that the
government sought the "proceeds" of the drug-trafficking crime,
"including but not limited to" a "$1.5 million" judgment. Rule
32(a) of the Federal Rules of Criminal Procedure provides that the
forfeiture notice in an indictment "need not . . . specify the
amount of any forfeiture money judgment that the government seeks,"
see Fed. R. Crim. P. 32(a) -- it logically follows that a
forfeiture determination need not flow from the indictment, or so
says the government. Putting aside this theory, we think what
dooms Ponzo's claim is that he has not shown that this alleged
error was plain under controlling precedent -- which means this
challenge flunks plain-error review. See, e.g., Morosco, 822 F.3d
at 21.
Ponzo next claims the court erred by determining the
forfeiture amount instead of the jury. But that argument has no
traction either. The criminal rules provide that either party may
- 63 -
request "that the jury be retained to determine the forfeitability
of specific property." Fed. R. Crim. P. 32.2(b)(5)(A). But the
rules say nothing about the jury determining the forfeiture amount.
Instead the rules declare that "[i]f the government seeks a
personal money judgment, the court must determine the amount of
money that the defendant will be ordered to pay." Fed. R. Crim.
P. 32.2(b)(1)(A) (emphasis added); cf. generally United States v.
Misla-Aldarondo, 478 F.3d 52, 75 (1st Cir. 2007) (reviewing a
judge-determined forfeiture amount). And today we follow our
sibling circuits in holding that the criminal rules "do[] not
require a jury determination in the form of a personal money
judgment." United States v. Christensen, 828 F.3d 763, 822 (9th
Cir. 2015); see also United States v. Jameel, 626 F. App'x 415,
419 (4th Cir. 2015) (per curiam); United States v. Curbelo, 726
F.3d 1260, 1277 (11th Cir. 2013); United States v. Grose, 461 F.
App'x 786, 806 (10th Cir. 2012); United States v. Gregoire, 638
F.3d 962, 972 (8th Cir. 2011).
Shifting gears, Ponzo also claims the court botched
matters by not limiting "[t]he money judgment . . . to the amount
that [he] actually received for his role in shipping the marijuana,
or at most the profits from the conspiracy." His suggestion that
the forfeiture amount should not include funds received by his co-
conspirators runs headlong into caselaw establishing that "[s]o
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long as the amount handled by others is foreseeable as to a
defendant, the foreseeable amount represents the sounder measure
of liability." See United States v. Hurley, 63 F.3d 1, 22 (1st
Cir. 1995).18
Next, quoting 21 U.S.C. § 853(a) -- which says "[i]n
lieu of a fine otherwise authorized by this part, a defendant who
derives profits or other proceeds from an offense may be fined not
more than twice the gross profits or other proceeds" and which he
agrees he "was subject to" -- Ponzo claims "other proceeds" means
18Hurley dealt with a RICO forfeiture provision in § 1963(a),
rather than the drug-related forfeiture provision in § 853(a).
See 63 F.3d at 22. But the two provisions are similarly worded.
Compare § 1963(a)(3) (calling for the forfeiture of "any property
. . . derived from . . . any proceeds which the person obtained,
directly or indirectly, from racketeering activity or unlawful
debt collection"), with § 853(a)(1) (calling for the forfeiture of
"any property . . . derived from . . . any proceeds the person
obtained, directly or indirectly, as the result of such violation"
of the drug laws). That similarity in wording reflects the fact
that Congress -- as the legislative history of § 853 demonstrates
-- intended these provisions to "closely parallel" one another.
United States v. White, 116 F.3d 948, 950 (1st Cir. 1997). And so
we -- like other courts -- construe them similarly, as White
directs, a case Ponzo does not address.
After oral argument here, the Supreme Court granted
certiorari in a Sixth Circuit case presenting the issue of whether
§ 853(a)(1) mandates joint and several liability among co-
conspirators for forfeiture of the reasonably foreseeable proceeds
of a drug conspiracy. See United States v. Honeycutt, 816 F.3d
362 (6th Cir), cert. granted, 137 S. Ct. 588 (2016) (oral argument
Mar. 29, 2017). We forge ahead, however, as we have done in
similar situations. See, e.g., Yaman v. Yaman, 730 F.3d 1, 4 (1st
Cir. 2013); United States v. Volungus, 595 F.3d 1, 4 (1st Cir.
2010).
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"net profits," not "gross proceeds." But we rejected that very
argument in United States v. Bucci, which held that a district
court did not plainly err by instructing a jury that "proceeds" in
§ 853(a) means the "gross proceeds" of drug trafficking, not "net
profits." See 582 F.3d 108, 121-24 (1st Cir. 2009). True, Bucci
analyzed the issue in terms of plain error. Id. But Bucci made
clear that there was no error at all. See id.Pulling out all the stops, Ponzo claims the money
judgment violated the Eighth Amendment's excessive-fines clause
because (in his view) it will deprive him of the ability to make
a living. See United States v. Sepúlveda-Hernández, 752 F.3d 22,
37 (1st Cir. 2014) ("[a]ssuming, without deciding, that
deprivation of livelihood can constitute a basis for setting aside
a criminal forfeiture judgment"); United States v. Aguasvivas-
Castillo, 668 F.3d 7, 16 (1st Cir. 2012) (holding that a defendant
"may raise whether the forfeiture order is so excessive under the
Eighth Amendment that it would, in extreme cases, effectively
deprive the defendant of his or her future livelihood"). But as
the government points out, "the Attorney General and the Secretary
of the Treasury may remit a forfeiture on the grounds of hardship
to [Ponzo] under 21 U.S.C. §§ 853(j), 881(d), and 19 U.S.C.
§ 1618," if appropriate. See Aguasvivas-Castillo, 688 F.3d at 16.
And as the district court pointed out, "the value of the specific
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assets found forfeitable" will reduce "the money judgment" -- so
Ponzo "will not be required to earn and re-pay the full" $2.25
million. The end result is that Ponzo has not met his "burden to
establish a record at the district court level that could sustain
a deprivation of livelihood claim." See Sepúlveda-Hernández, 752
F.3d at 37.
Ponzo also takes the district court to task for issuing
a September 25, 2015 restraining order on his prison commissary
account without a hearing.19 He says that § 853(e)(2) required the
court to hold a hearing since he asked for one -- this even though
§ 853(e)(2) applies only to temporary restraining orders issued
"when an information or indictment has not yet been filed" and the
restraining order here came after the indictment. But we need not
deal with his argument because -- as the government is quick to
note -- his pro se notice of appeal from the court's order is
untimely. Ponzo dated the notice October 9, exactly 14 days after
the district court entered the order. See generally Fed. R. App.
P. 4(b)(1)(A)(i) (giving a criminal defendant 14 days to file a
notice of appeal). But the notice was not docketed until October
19, 10 days after the due date. See generally United States v.
Gonzalez-Rodriguez, 777 F.3d 37, 40 n.4 (1st Cir. 2015) (explaining
19 All dates here are in that year.
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that "[w]e need to decide" whether Rule 4(b)'s time limits are
jurisdictional "because the time limits, even if not
jurisdictional, are mandatory when raised by the government").
And Ponzo -- represented by counsel on appeal -- does nothing to
establish the timeliness of his notice under the prisoner-mailbox
rule. See Fed. R. App. P. 4(c)(1). Enough said about the
restraining-order issue.
CONCLUSION
Here is what this all means: We dismiss the appeal from
the restraining order (No. 15-2277) as untimely and affirm the
judgments in the other appeals (Nos. 14-1528, 14-1548, 14-1906,
and 15-1878).
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