996 F.3d 21
1st Cir.2021Background
- Grullon participated in a stolen-identity tax-refund scheme that used fraudulent tax returns and laundered IRS refund checks through IOLTA accounts and accounts opened in the name of Grullon’s business, AD Professional.
- Gonzalez-Pabon, a cooperating coconspirator, testified that Grullon recruited him into AD Professional, instructed him to open and use multiple bank accounts, gave him checks to deposit, and paid other coconspirators.
- Grullon was tried, convicted of conspiracy, money-laundering conspiracy, and multiple counts of converting government property, and sentenced to 84 months’ imprisonment with restitution of approximately $1.6 million.
- Pretrial, Grullon moved to admit evidence of Special Agent Clarke’s unrelated sexual assault (404(b) theory) and sought the unredacted PSR of Gonzalez-Pabon for impeachment; the court preliminarily excluded the Clarke evidence without prejudice and took the PSR request under advisement but issued no final ruling.
- At sentencing the court applied a 2-level leadership enhancement (U.S.S.G. §3B1.1(c)) and a 16-level loss enhancement (U.S.S.G. §2B1.1(b)(1)(I)) based on total loss > $1.5M; Grullon appealed the evidentiary rulings and both enhancements.
Issues
| Issue | Plaintiff's Argument (Grullon) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Exclusion of Special Agent Clarke evidence | Clarke’s sexual assault shows investigator’s willingness to lie and abuse power; relevant to impeachment of the investigation | Clarke had minimal role in investigation; court’s preliminary limine exclusion required renewal at trial | Waived/forfeited by Grullon; appellate court declines to reach merits (no preservation) |
| Access to unredacted PSR / court’s failure to rule | Judge erred by not ruling and by denying access to unredacted PSR needed to impeach Gonzalez-Pabon | Grullon forfeited/waived the issue by not pressing for a ruling; no compelling need shown | Reviewed for plain error and rejected: no controlling precedent compelled relief and Grullon failed to show prejudice or compelling need |
| Leadership enhancement (U.S.S.G. §3B1.1(c)) | Grullon claims he was not an organizer/leader (Cohen was ringleader) | Evidence shows Grullon exercised control/authority over Gonzalez-Pabon and directed conspiratorial tasks | Affirmed: district court did not clearly err; testimony showed Grullon supervised/ordered at least one participant |
| Loss-calculation enhancement (amount of loss) | Grullon argues he joined after September 2012 and should not be held accountable for earlier losses (which would reduce the enhancement) | Jury convicted Grullon for conspiracy beginning October 2011; court may rely on trial evidence and PSR to attribute loss | Affirmed: judge reasonably found loss > $1.6M and applied the 16-level enhancement; no clear error |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (distinguishes waiver and forfeiture and frames appellate review standards)
- United States v. Almeida, 748 F.3d 41 (1st Cir. 2014) (definitive vs provisional in limine rulings and preservation)
- Crowe v. Bolduc, 334 F.3d 124 (1st Cir. 2003) (need to renew offer of evidence after provisional pretrial exclusion)
- United States v. Takesian, 945 F.3d 553 (1st Cir. 2019) (plain-error standard explained)
- U.S. Dep’t of Justice v. Julian, 486 U.S. 1 (1988) (PSR confidentiality dicta and reluctance to disclose to third parties)
- United States v. McCullock, 991 F.3d 313 (1st Cir. 2021) (plain-error requires controlling precedent)
- United States v. Picano, 333 F.3d 21 (1st Cir. 2003) (leadership enhancement can rest on control of one participant)
- United States v. Cortés-Cabán, 691 F.3d 1 (1st Cir. 2012) (circumstantial proof sufficient for role-in-offense enhancement)
- United States v. Al-Rikabi, 606 F.3d 11 (1st Cir. 2010) (interpretation of §3B1.1(c) standards)
- United States v. Pizarro-Berríos, 448 F.3d 1 (1st Cir. 2006) (sentencing court may rely on trial evidence for loss calculation)
- United States v. Ramney, 298 F.3d 74 (1st Cir. 2002) (preponderance standard for sentencing loss findings)
- United States v. Codarcea, 505 F.3d 68 (1st Cir. 2007) (attribution of losses for jointly undertaken criminal activity)