United States v. Cohen

United States Court of Appeals
For the First Circuit
Nos. 16-1682, 16-1703
UNITED STATES OF AMERICA,
Appellee,
v.
R. DAVID COHEN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
James B. Kransoo, with whom Krasnoo, Klehm & Falkner LLP was
on brief, for appellant.
Ryan M. DiSantis, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on brief,
for appellee.
April 6, 2018
BARRON, Circuit Judge. R. David Cohen ("Cohen") appeals
his convictions for one count of conspiracy to convert government
property, in violation of 18 U.S.C. § 371; fourteen counts of
conversion of government property, in violation of 18 U.S.C. § 641;
and one count of conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h). He also challenges his sentence.
The convictions stem from his role in using bank accounts that he
owned or controlled in order to negotiate fraudulently-obtained
federal tax refund checks. We affirm the convictions and the
sentence.
I.
Cohen and his co-conspirators, both indicted and
unindicted, were alleged to have engaged in a scheme in
Massachusetts that, beginning in October 2011 and continuing
through December 2014, involved the use of stolen identities to
obtain fraudulent tax refunds from the United States Internal
Revenue Service ("IRS"). The alleged scheme worked as follows.
The conspirators (though not Cohen) obtained tax refund
checks by using stolen identities. Cohen, who was a real estate
attorney in Massachusetts, deposited the refund checks into his
existing Interest on Lawyers' Trust Accounts ("IOLTA")1 bank
1As explained in the trial testimony of the executive
director of the IOLTA Committee of the Massachusetts Supreme
Judicial Court, an IOLTA account is a "pooled, interest bearing
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account, subsequently-opened IOLTA accounts, and conventional
business accounts (opened by himself or by a co-conspirator) at
various banks. Cohen and his co-conspirators then wrote checks
from those accounts that were cashed, made cash withdrawals from
those accounts, and engaged in other transactions in order to
launder the tax refunds. When questioned by various bank officials
about the deposits being made to the various IOLTA and business
accounts, Cohen often stated that he was depositing checks in these
accounts for clients who were involved in real estate closing
transactions for which he was their attorney.
About a year and a half into the alleged scheme, on or
about May 22, 2013, Cohen entered into an agreement with the
Massachusetts Attorney General's Office (the "AG Settlement") to
settle a lawsuit alleging that Cohen provided his advice for, and
consent to, unlawful conduct by a client whom Cohen represented.
In the AG Settlement, Cohen agreed to pay a $40,000 fine and not
to conduct real estate closings for a period of six months. The
government alleges that, after entering into the AG Settlement,
Cohen stopped using his IOLTA accounts to launder the fraudulently-
account" that a Massachusetts attorney uses to hold "client funds"
and keep that money "separate from the attorney's operating or
. . . business account." As the witness explained, Massachusetts
Rule of Professional Conduct 1.15, promulgated by the
Massachusetts Supreme Judicial Court for attorneys admitted to the
bar in Massachusetts, requires Massachusetts attorneys to "keep[]
client funds separate from attorney's [operating or business]
funds."
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obtained checks, at which time the conspiracy switched to using
conventional business bank accounts for such activities.
At trial, Cohen testified in his own defense. He
asserted that he was not a "crook," but a "fool" who "was do[ing]
favors for people who he knows, who are friends," and that he
failed to look closely at documents or ask enough questions. After
a ten-day trial, however, the jury convicted him of each of the
sixteen counts that were given to the jury.
At sentencing, Cohen disputed the sentencing range that
the Pre-sentence Report ("PSR") set forth under the United States
Sentencing Guidelines (the "Sentencing Guidelines"). Cohen
contended that the PSR wrongly calculated that range by attributing
too large a loss from the conspiracy to him and, therefore, by
applying too large an enhancement to his base offense level, see
U.S.S.G. § 2B1.1(b)(1)(I) (2015); by wrongly applying to his base
offense level the enhancement that applies for an offense that
involves ten or more victims, see id. § 2B1.1(b)(2)(A)(i); and by
wrongly applying to his base offense level the enhancement that
applies for obstruction of justice, see id. § 3C1.1. Cohen argued
that, without these wrongly applied enhancements, he should have
been assigned a total offense level of twenty-two, which, given
his criminal history, would appear to have resulted in a sentencing
range of forty-one to fifty-one months imprisonment under the
Sentencing Guidelines.
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The District Court disagreed, applied the enhancements,
and calculated Cohen's total offense level to be twenty-eight,
which corresponded to a recommended guideline sentencing range of
seventy-eight to ninety-seven months imprisonment. However, after
considering the sentencing factors set forth in 18 U.S.C. § 3553,
the District Court found the guideline range to be "too high" and
sentenced Cohen to a below-guideline term of imprisonment of fifty-
four months.2
Cohen now appeals both his convictions and his sentence.
II.
We start with Cohen's challenge to his convictions. He
argues first that they must be vacated because the District Court
erred in "permit[ting the AG Settlement]" to be used at trial. He
also argues that the convictions must be vacated because the
District Court erred in allowing an expert witness for the
government to testify regarding the Massachusetts "rules about
IOLTA accounts" for attorneys. We find neither argument
persuasive.
A.
The facts that bear on Cohen's challenge regarding the
AG Settlement are as follows. Prior to trial, the government
2
The District Court also sentenced Cohen to thirty-six months
of supervised release upon the completion of his term of
imprisonment.
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informed Cohen and the District Court that if Cohen presented any
character witnesses to testify to his reputation for truthfulness
and honesty, the government intended to cross-examine those
witnesses about the AG Settlement. During trial, but prior to the
close of the government's case, the government also made clear
that if Cohen decided to testify in his own defense, the government
would cross-examine Cohen about the AG Settlement pursuant to
Federal Rule of Evidence 608(b).3
In light of the government's stated intentions, Cohen
requested the District Court "rule . . . in advance of [Cohen's]
testimony, to exclude completely any cross-examination of him
arising out of the [AG Settlement]." United States v. Cohen, No.
1:15-cr-10008-LTS (D. Mass. Jan. 17, 2016). Cohen's counsel told
the District Court that he had been under the impression that
evidence concerning the AG Settlement "wasn't going to see the
light of day, if [his] reputation evidence wasn't going to come
[in]." He explained, however, that if evidence of the AG
Settlement would be used to cross-examine Cohen, then Cohen "might
3Federal Rule of Evidence 608(b) states, in relevant part,
that though "extrinsic evidence is not admissible to prove specific
instances of a witness's conduct in order to attack or support the
witness's character for truthfulness . . . the court may, on
cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of:
(1) the witness; or (2) another witness whose character the witness
being cross-examined has testified about."
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as well" introduce "a fair number of reputation witnesses" "because
[he was] foiled."
After hearing argument by both parties, the District
Court, in a January 17, 2016 order, ruled as follows:
This request is DENIED without prejudice to
the defendant challenging specific questions
posed by the government on cross-examination.
The Court notes that permissible cross-
examination of the defendant and permissible
cross-examination of possible defense
character witnesses is not identical. For
example, as to the latter the government may
challenge the basis for the witness'[s]
opinion or reputation testimony regarding the
defendant's character. Thus, while asking the
character witness whether he or she is aware
of the fact of the lawsuit may well be a
permissible challenge to the basis of the
witness'[s] testimony that same question of
the defendant, at least standing alone, does
not appear to bear on truthfulness or
untruthfulness.
The parties then informed the District Court that they
had "reached an agreement." If Cohen testified and the government
chose to cross-examine him about the AG Settlement, the government
agreed that it would only ask Cohen "of the date of the [AG
Settlement], when [Cohen] agreed with the Attorney General's
[O]ffice not to engage in real estate transactions for six months."
In return, Cohen agreed that he would not "present[] any reputation
evidence witness[es] at all." At trial, the government limited
its cross-examination to the agreed-upon scope and, thereafter,
Cohen did not call any character witnesses.
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On appeal, Cohen now characterizes the District Court's
conditional order as "permitting the [g]overnment to use . . .
prejudicial, irrelevant evidence to impeach Cohen's [potential]
witnesses who would have testified to Cohen's reputation for
truthfulness and honesty." He also contends that the "repeated
references to the [AG Settlement] during cross-examination of
Cohen's [potential] reputation-evidence witnesses, . . . would
have been so prejudicial to [Cohen's] defense . . . Cohen was
forced to eliminate [the reputation witness] portion of his
defense." He argues that the District Court therefore abused its
discretion and, in doing so, violated his Sixth Amendment right to
present his defense.
As an initial matter, Cohen's characterization of the
ruling as "permitting" the use of the AG Settlement is mistaken.
The District Court never ruled that the AG Settlement could be
used during cross-examination. The District Court merely ruled
that it would rule on a question-by-question basis whether
questions regarding the AG Settlement would be permitted during
cross-examination.
In addition, in now arguing that he was prejudiced by
the conditional ruling because he was deterred from putting on
character witnesses, Cohen makes a prejudice argument that appears
to be inconsistent with the representation that he made to the
District Court. Prior to the conditional ruling Cohen informed
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the District Court that if it did permit Cohen to be cross-examined
about the AG Settlement, then he likely would go ahead and put on
his character witnesses because the AG Settlement would already
have been referenced.
Even apart from these problems with Cohen's challenge to
the conditional ruling, there is another. We have stated, based
on Luce v. United States, 469 U.S. 38 (1984), that a party waives
a challenge to a conditional ruling concerning how cross-
examination of a witness may proceed, unless the objecting party
actually calls the witness to the stand to "give the court a chance
to perform the required balancing in the concrete context of actual
question and answer." United States v. Mazza, 792 F.2d 1210, 1222–
23 (1st Cir. 1986); see also United States v. Monell, 801 F.3d 34,
48 (1st Cir. 2015) (finding defendant waived his challenge that an
evidentiary ruling violated his Sixth Amendment right to call a
witness in his defense at trial where defendant did not call the
witness).4 As we have previously said, "it is too great a handicap
to bind a trial judge to a ruling on a subtle evidentiary question
4Though Luce considered the balancing of probative value
versus prejudicial effect with respect to Federal Rule of Evidence
609, we see no reason why the reasoning of Luce would not apply in
the context of Rule 608(b), see United States v. Weichert, 783
F.2d 23, 25 (2d Cir. 1986), and Rule 403, see Monell, 801 F.3d at
48. Nor does Cohen argue otherwise.
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. . . outside a precise factual context." United States v.
Griffin, 818 F.2d 97, 104 (1st Cir. 1987).5
Because of the agreement that Cohen reached with the
government, none of the character witnesses Cohen contends that he
wanted to testify actually did and his own cross-examination
concerning the AG Settlement was limited. Thus, it is unclear
from the record before us what questions or testimony, if any, the
jury would have been allowed to hear concerning the AG Settlement
if Cohen's character witnesses had taken the stand, or if Cohen
himself had been subject to a fuller cross-examination.
In fact, Cohen's counsel explained to the District Court
in advance of the conditional ruling that a determination about
whether the prosecution should be able to ask a question to a
character witness about the AG Settlement "depend[ed] on what kind
of question[s] [the government] want[ed] to put to the reputation
evidence witness[es] on cross-examination." And, in the absence
of the agreement, the government, based on the apparent strength
of its case, "might have elected not to risk a reversible appellate
5 "This does not mean, of course, that the evidence must
always be revealed to the jury." Griffin, 818 F.2d at 105.
"Counsel should cooperate with the district court in exercising
restraint and in employing the prophylaxis of the sidebar, where
appropriate," and "[i]n more complex situations, counsel may
request that the jurors retire, or in exceptional cases, that the
actual testimony be screened voir dire in the jury's absence."
Id.
- 10 -
issue," Monell, 801 F.3d at 49, by deciding not to undertake such
cross-examination at all.6
For these reasons, it is "difficult to evaluate the
degree of unfair prejudice," id., if any, that flowed from the
conditional ruling. Accordingly, it is impossible for us to
conclude on this record that, merely by conditionally denying
Cohen's motion concerning the AG Settlement, the District Court
effectively precluded Cohen from mounting what he contends would
have been an important part of his defense. This challenge to the
convictions therefore fails.
B.
Cohen also argues that the District Court erred in
permitting the government to introduce expert testimony at trial
concerning the rules and regulations relating to Massachusetts
IOLTA accounts. Cohen contends that the admission of this evidence
violated Federal Rule of Evidence 702. That rule required the
District Court to determine whether a "valid connection" existed
"between the expert's testimony and a disputed issue." United
6 Cohen makes no argument that the handful of cross-
examination questions actually asked of him by the government
affected his ability to call his character witnesses or otherwise
prejudiced him. His failure to make any such argument is hardly
surprising, as those questions were within the scope of the
questions Cohen agreed could be asked of him on cross-examination.
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States v. Mehanna, 735 F.3d 32, 66 (1st Cir. 2013) (quoting United
States v. Shay, 57 F.3d 126, 133 n. 5 (1st Cir. 1995)).
Cohen argues that the expert testimony regarding Cohen's
"improper, non-criminal use of his IOLTA accounts . . . did not
assist the jury, . . . as that testimony tended to prove none of
Cohen's crimes." Moreover, Cohen contends, the testimony served
merely to "inflame the jury into thinking that [he wa]s unethical
and therefore must be a bad man and a criminal . . . ."
We review preserved objections to "rulings relating to
the admissibility of expert-witness testimony for clear abuses of
discretion, and will not reverse unless the ruling at issue was
predicated on an incorrect legal standard or we reach a definite
and firm conviction that the court made a clear error of judgment."
United States v. Kantengwa, 781 F.3d 545, 560 (1st Cir. 2015)
(internal quotation marks omitted). The government argues that
Cohen failed to preserve this objection and thus that we should
review his challenge to the evidentiary ruling only for plain
error. But, his challenge fails even under the more favorable
abuse of discretion standard. See Kantengwa, 781 F.3d at 560.
The expert testimony at issue explained to the jury that
the rules governing IOLTA accounts permit transactions involving
third-party funds, and that such third-party transactions are
typical for IOLTA accounts. That testimony assisted the jurors by
informing them of features of the accounts that could have
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facilitated Cohen's ability to negotiate and launder a much higher
volume of tax refund checks by allowing him to conceal his activity
for a period of time, and that could have provided support for
Cohen's cover story that the payees were clients whose funds he
was holding for future property investments. Evidence of the
"IOLTA rules and regulations," coupled with Cohen's "disregard" of
those rules and regulations, also could have been probative of
Cohen's intent and therefore was of assistance to the jury.
Of course, evidence that is admissible under Federal
Rule of Evidence 702 remains subject to Federal Rule of Evidence
403's balancing test. United States v. Tetioukhine, 725 F.3d 1,
6 (1st Cir. 2013). But, "[w]here (as here) a piece of evidence is
determined to be relevant, the district court has wide discretion
in steadying the Rule 403 seesaw." United States v. Pires, 642
F.3d 1, 12–13 (1st Cir. 2011) (quoting Onujiogu v. United States,
817 F.2d 3, 6 (1st Cir. 1987)). "Only rarely -- and in
extraordinarily compelling circumstances -- will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment concerning the relative weighing of probative
value and unfair effect." Id. (quoting Freeman v. Package Mach.
Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). Because the District
Court's decision to allow the admission of this expert testimony
was "within the universe of reasonable decisions," we find no abuse
of discretion. Id. at 13.
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III.
We turn, then, to Cohen's challenges to his sentence.
Cohen contends that his sentence must be vacated because the
District Court erred in imposing each of three sentencing
enhancements in calculating his sentencing range under the
Sentencing Guidelines. We do not agree.
We review preserved objections to a district court's
interpretation of the Sentencing Guidelines de novo. United States
v. Jones, 778 F.3d 375, 383 (1st Cir. 2015). We assess related
factual findings for clear error. United States v. Codarcea, 505
F.3d 68, 71 (1st Cir. 2007). "Clear-error review is demanding:
this standard will be satisfied only if, 'upon whole-record review,
an inquiring court form[s] a strong, unyielding belief that a
mistake has been made.'" United States v. Nuñez, 852 F.3d 141,
144 (1st Cir. 2017) (alteration in original) (quoting United States
v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).
A.
Cohen first argues that the District Court erred in
applying a sixteen-level enhancement to his base offense level
under U.S.S.G. § 2B1.1(b)(1)(I), which is the enhancement that
applies only if the losses from a fraud that are attributable to
the defendant total "[m]ore than $1,500,000." He contends that he
should at most have been subject to the fourteen-level enhancement
that applies for losses that are attributable to a defendant that
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total more than $550,000, but less than $1,500,000. See id.
§§ 2B1.1(b)(1)(H)-(I).
The District Court applied the sixteen-level enhancement
because it found that the entire amount of loss attributed to Cohen
in the PSR -- $1,672,958.74 -- was, in fact, attributable to Cohen.7
The District Court based this finding on, in combination, the
evidence introduced at trial, the evidence introduced through the
testimony of a co-conspirator at the sentencing hearing, and a DVD
of the co-conspirator's post-arrest interview that Cohen admitted
into evidence at sentencing.
The co-conspirator testified at sentencing as follows.
Shortly after Cohen entered into the AG Settlement, Cohen directed
the co-conspirator to open new bank accounts so that the conspiracy
could, and did, continue to cash the fraudulently-obtained tax
refund checks. In addition, Cohen received checks drawn on and
cash drawn from these new accounts, told the co-conspirator that
the tax refund checks being cashed "belonged to fictitious people,"
gave the co-conspirator tax refund checks to cash, and provided
the co-conspirator with notarized forms and tax returns for payees
7 The conduct outlined in the PSR was derived from a statement
of facts submitted by the United States Attorney's Office ("USAO")
in the instant case, a statement of facts submitted by the USAO in
connection with a related case against a co-conspirator, a criminal
complaint affidavit by an IRS agent involved in the investigation
of the scheme which resulted in Cohen's conviction, Cohen's trial
testimony, and a statement of the offense submitted to the
Probation Office by Cohen.
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on some of the fraudulently-obtained checks to provide to a bank
when one bank asked questions about account activity.
Cohen first contends that the District Court erred in
sentencing him on the basis of the conduct that the co-conspirator
described, because Cohen had not pleaded guilty to it, nor had the
government proved it beyond a reasonable doubt. But, as Cohen
concedes, our precedent forecloses that argument. See United
States v. Constant, 814 F.3d 570, 581 (1st Cir. 2016) (citing
United States v. Leahy, 668 F.3d 18, 22 (1st Cir. 2012)).
Cohen next argues that the District Court erred by
relying on the co-conspirator's testimony because Cohen was not
provided "notice" "in advance of sentencing" that the co-
conspirator would be testifying at the sentencing hearing. See
United States v. Acevedo-López, 873 F.3d 330, 341 (1st Cir. 2017)
(explaining that "[a] sentencing court must allow the parties'
attorneys to comment on . . . matters relating to an appropriate
sentence" (quoting Fed. R. Crim P. 32(i)(1)(C)), and that "a
defendant's right to respond to the information offered against
him at sentencing means very little without a right to notice of
that information" (quoting United States v. Millán-Isaac, 749 F.3d
57, 70 (1st Cir. 2014))). But, even if Cohen had preserved his
lack-of-notice argument before the District Court, it fails
because Cohen has failed to explain how he was unduly prejudiced.
See id. at 342 (finding harmless error where defendant failed to
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show how "any harm or prejudice resulted" from the sentencing
court's use, without notice, of certain documents at sentencing).
Cohen acknowledges that prior to the sentencing hearing
he was aware that the PSR recommended applying the sixteen-level
enhancement on the basis of statements by the co-conspirator
regarding Cohen's post-AG Settlement period conduct.
Additionally, just after the co-conspirator testified, the record
shows that Cohen presented two rebuttal witness solely on the issue
of the co-conspirator's English-speaking abilities, an issue that
appeared to be central to Cohen's cross-examination of the co-
conspirator. And Cohen identifies no other evidence that he would
have introduced had he received more notice. Moreover, when Cohen
argued below that the lack of notice left him unprepared to cross-
examine the co-conspirator about certain account expenditures
which "further tend[ed] to undermine [the co-conspirator's]
testimony," Cohen had no reply to the District Court's response
that the foreseeability of the results of the conspiracy (with
respect to Cohen's role) and whether expenditures were
particularly attributable to a specific co-conspirator were
different questions. Thus, any error with respect to notice
regarding the co-conspirator's testimony at sentencing was
harmless. See id.
Cohen also argues that the District Court clearly erred
in finding that the post-AG Settlement conduct about which the co-
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conspirator testified was attributable to Cohen. But, Cohen does
not challenge the District Court's finding that the co-
conspirator's testimony was credible. And we have rejected Cohen's
argument that he was not given proper notice that the co-
conspirator would be testifying at sentencing. Accordingly, this
aspect of his challenge fails.
Finally, as the government contends, Cohen's passing
assertion on appeal that the District Court "never considered . . .
[Cohen's] financial resources, his financial needs and his earning
ability and other appropriate factors" is undeveloped and is
therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). We thus reject Cohen's arguments alleging error in
the application of a sixteen-level enhancement to his base offense
level pursuant to U.S.S.G. § 2B1.1(b)(1)(I).
B.
Cohen next argues that the District Court erred in
applying the two-level sentencing enhancement for an offense
involving ten or more victims, U.S.S.G. § 2B1.1(b)(2)(A). Cohen
does so because he contends that "only the Government, not the
payees on erroneously issued [federal] tax refund checks, is a
victim because . . . the payees, never having been entitled to
these checks, suffered no financial hardship."
Cohen's argument rests in part on his apparent
contention that the payees do not meet the definition of "victim"
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laid out in U.S.S.G. § 2B1.1 Application Note 1. That Application
Note defines a victim as: "(A) any person who sustained any part
of the actual loss determined under [U.S.S.G. § 2B1.1](b)(1); or
(B) any individual who sustained bodily injury as a result of the
offense."8 The District Court did not rely, however, on the
definition of "victim" in U.S.S.G. § 2B1.1 Application Note 1.
Rather, the District Court found the payees to be victims in light
of U.S.S.G. § 2B1.1 Application Note 4(E), which states:
Cases Involving Means of Identification. For
purposes of subsection (b)(2) [concerning
multi-victim sentencing enhancements], in a
case involving means of identification
"victim" means (i) any victim as defined in
Application Note 1; or (ii) any individual
whose means of identification was used
unlawfully or without authority.
With respect to Application Note 4(E), Cohen argues that
he "never 'used' means of identification" in the commission of his
offenses of conviction. To support this contention, he relies on
our decision in United States v. Berroa, 856 F.3d 141 (1st Cir.),
cert. denied sub nom. Davila v. United States, 138 S. Ct. 488
(2017), where we construed the meaning of "use" in the context of
the federal aggravated identity theft statute, 18 U.S.C. § 1028A.
8 In U.S.S.G. § 2B1.1(b)(1), "actual loss" is defined as "the
reasonably foreseeable pecuniary harm that resulted from the
offense." U.S.S.G. § 2B1.1 cmt. n.3(A)(i). And within that
definition "pecuniary harm" is defined as "harm that is monetary
or that otherwise is readily measurable in money," and "does not
include emotional distress, harm to reputation, or other non-
economic harm." Id. § 2B1.1(b)(1) cmt. n.3(A)(iii).
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But, even if we apply our precedent construing the term
"use" in § 1028A to construe the term "used" in Application Note
4(E), his argument fails. Berroa determined that a defendant's
conduct with respect to another's means of identification
constituted a "use" of that means of identification so long as
"the defendant attempt[ed] to pass him or herself off as another
person or purport[ed] to take some other action on another person's
behalf." 856 F.3d at 156 (emphasis added); see also United States
v. Morel, Nos. 17-1331, 17-1332, 17-1353 (1st Cir. Mar. 16, 2018)
(relying on Berroa to hold that a defendant "purported to act on
[payee's] behalf" by depositing a fraudulently-obtained tax refund
check bearing the payee's forged signature as an endorsement and
that such an act constituted "use" of that payee's means of
identification under 18 U.S.C. § 1028A)). And there is no dispute
that Cohen, in depositing the fraudulently-obtained tax refund
checks, was purporting to do so on behalf of the payees. Further,
while § 1028A includes a mens rea requirement, see United States
v. Godin, 534 F.3d 51 (1st Cir. 2008) (concluding that the scienter
requirement in § 1028A extends to "of another person"), the record
supports, and Cohen does not dispute, that he knew that the tax
refund checks that he was depositing bore a means of identification
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of another -- specifically the names of the payees.9 Accordingly,
we affirm the District Court's application of the two-level
enhancement under U.S.S.G. § 2B1.1.10
C.
Finally, Cohen contends that the District Court erred by
increasing his offense level under the Sentencing Guidelines by
two levels pursuant to the obstruction-of-justice enhancement set
forth in U.S.S.G. § 3C1.1. The obstruction-of-justice enhancement
applies "[i]f (1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of justice
. . ., and (2) the obstructive conduct related to . . . the
defendant's offense of conviction . . . ." U.S.S.G. § 3C1.1; see
United States v. Mercer, 834 F.3d 39, 48 (1st Cir. 2016). The
enhancement "is not intended to punish a defendant for the exercise
9The out-of-circuit authority construing Application Note
4(E) on which Cohen relies -- United States v. Hall, 704 F.3d 1317
(11th Cir. 2013) and United States v. Rabiu, 721 F.3d 467 (7th
Cir. 2013) -- is not to the contrary. By Hall's reasoning, Cohen
"used" the payees' personal identifying information by depositing
the checks in order to launder them. See Hall, 704 F.3d at 1322
(determining that the payees' information was "used" once it is
"employ[ed] . . . for the purpose for which the conspiracy was
intended"). And Rabiu expressly approved this reasoning from Hall.
See Rabiu, 721 F.3d at 472-74.
10Cohen also asserts that the enhancement cannot apply
because "the identify thieves" were never "proven to be [his] co-
conspirators." But, Cohen cites no authority for the proposition
that such proof was necessary, as opposed to, for example, mere
proof that Cohen knew he was using the payee information in the
checks that he was depositing without authority.
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of a constitutional right." U.S.S.G. § 3C1.1 cmt. n.2. The
enhancement does apply, however, if a defendant exercises his right
to testify at trial but commits perjury in the process. Id. §
3C1.1 cmt. n.4.
"A defendant commits perjury when he intentionally gives
false testimony under oath on a matter material to the
proceedings." United States v. Díaz, 670 F.3d 332, 351 (1st Cir.
2012). A "sentencing court, however, is not required to address
each element of perjury in a separate and clear finding" in order
to justify application of the enhancement. Mercer, 834 F.3d at 49
(quoting United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994)).
"The district court's determination that enhancement is required
is sufficient . . . if . . . the court makes a finding of an
obstruction of, or impediment to, justice that encompasses all of
the factual predicates for a finding of perjury." United States
v. Dunnigan, 507 U.S. 87, 94 (1993).
The District Court found the following parts of Cohen's
testimony not credible: that he had thirty to forty copies of
driver's licenses for tax refund check payees at one point, of
which all but the small number of licenses that were produced at
trial had been stolen; that he did not know the tax refund checks
were fraudulently obtained despite there being "no good reason for
somebody to be paying him a fee for cashing . . . United States
Treasury checks" that were "as good as gold"; and that he did not
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recollect any of the phone calls with one bank officer who had
testified about those calls. Insofar as these findings sufficed
to show that Cohen had committed perjury in testifying at trial,
Cohen's contention that he is being "punished" for "exercising his
constitutional right to testify" is clearly without merit under
our precedent. See Mercer, 834 F.3d at 49; see also Dunnigan, 507
U.S. at 96 ("Respondent cannot contend that increasing her
sentence because of her perjury interferes with her right to
testify, for we have held on a number of occasions that a
defendant's right to testify does not include a right to commit
perjury.").
Turning to Cohen's challenges to the findings
themselves, we first consider his contention that they were flawed
because the District Court "omitt[ed] necessary findings of intent
and of the claimed falsehoods significant hindrance to the
prosecution." But the findings in fact encompassed, either
expressly or impliedly, each of the elements of perjury -- i.e.,
"that the defendant was untruthful at trial with respect to
material matters in this case . . . [b]y virtue of [the
defendant's] failure to give truthful testimony on material
matters that were designed to substantially affect the outcome of
the case." See Dunnigan, 507 U.S. at 95-96 (emphasis omitted).
We note in this regard that the testimony that the District Court
identified as untruthful was plainly relevant to Cohen's mens rea.
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Accordingly, there was no error due to a lack of completeness in
the findings. See United States v. Fermin, 771 F.3d 71, 82 (1st
Cir. 2014) (affirming district court obstruction-of-justice
enhancement where district court did not make a materiality
finding, but testimony supporting enhancement was "obviously
material" (quoting United States v. Campbell, 61 F.3d 976, 984
(1st Cir. 1995))); Matiz, 14 F.3d at 84 (affirming the district
court's finding of perjury though "the court was not explicit as
to whether [the defendant's] testimony was material" because "the
record demonstrate[d]" that the testimony was material); see also
Mercer, 834 F.3d at 49 (affirming district court's obstruction-
of-justice enhancement even though the court was not explicit with
respect to a "willfulness" finding for perjury).
Cohen also argues that the District Court clearly erred
in making certain findings. Cohen points out that the District
Court had to be "reminded that not all [driver's] licenses were
missing." But the District Court clarified at sentencing that it
deemed Cohen's testimony regarding the licenses untruthful because
it found suspect his testimony that the reason he no longer had
"[thirty] or [forty] licenses" in his possession had to do with a
car being stolen in 2012. As the record adequately supports that
finding, this aspect of Cohen's challenge fails.
Cohen also claims that the District Court erroneously
stated that one bank had informed Cohen that his actions amounted
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to "fraud," when the phrase used by the bank was actually "check-
cashing." But, when Cohen pointed out the precise testimony at
sentencing, the District Court clarified that its "conclusion
. . . was that the inference can be drawn from what each of [the]
banks told [Cohen], when they refused to accept any more of these
[tax refund] checks in his account, . . . that there was a big
problem and it was fraud." Thus, this aspect of his challenge
fails as well.
Finally, we reject Cohen's challenge to the District
Court's finding that Cohen was not truthful in testifying that he
had no recollection of having had phone calls with a particular
bank official. The District Court supportably found the bank
officer to be "very careful, very scrupulous, and [that] his
investigation was very meticulous." Moreover, the official
testified at trial that he had multiple calls with Cohen in which
he made clear to Cohen that the bank was suspicious about atypical
check-cashing activity in his account and that he told Cohen that
the bank's interactions with the IRS and the Massachusetts Division
of Banking indicated that checks in Cohen's account "should not
have been issued" and that Cohen was not licensed to operate a
check-cashing business in Massachusetts. We thus conclude that
the District Court did not clearly err in finding incredible
Cohen's claims to have absolutely no recollection of these calls.
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That leaves only Cohen's argument that the imposition of
the obstruction-of-justice enhancement, which requires "willful"
obstruction, was erroneous given that the District Court provided
the jury with a willful blindness instruction. In challenging the
application of the obstruction enhancement below, Cohen argued
that, in light of the willful blindness instruction, "his testimony
in the eyes of the jury may have made him a damned fool, but that's
not the same thing as finding that he's a damned lying fool
. . . ." The District Court concluded, however, that a willful
blindness instruction is not preclusive of a finding that the
defendant perjured himself in testifying at trial.
On appeal, Cohen does not develop a challenge to this
conclusion but instead merely asserts that the District Court
"wrongly imposed the enhancement upon one seen by the jury as
willfully blind but not necessarily consciously obstructive." We,
thus, deem this underdeveloped argument waived. Zannino, 895 F.2d
at 17. Moreover, we note that, in any event, there is Circuit
precedent that affirms sentences including such an enhancement in
cases in which a willful blindness instruction was given. See,
e.g., Fermin, 771 F.3d at 79-82; United States v. Camuti, 78 F.3d
738, 744-45 (1st Cir. 1996).
IV.
For the foregoing reasons, Cohen's convictions and
sentences are affirmed.
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