United States v. Ponzo
2017 U.S. App. LEXIS 6058
| 1st Cir. | 2017Background
- Enrico Ponzo was a member of the Patriarca LCN (organized crime) involved in extortion, loansharking and drug distribution in Massachusetts in late 1980s–mid-1990s; charged in a 1997 federal indictment.
- After state charges and an intra-family conflict (including a 1994 killing of Michael Romano Jr. and a shooting of Cirame), Ponzo fled Massachusetts, adopted the alias Jeffrey/"Jay" Shaw, and joined an Arizona–Massachusetts marijuana-shipping conspiracy.
- FBI located and arrested Ponzo in Marsing, Idaho, in February 2011; a superseding indictment added Arizona conspiracies and new extortion counts.
- After a 26-day trial (2013), a jury convicted Ponzo of multiple counts including RICO conspiracy, murder conspiracy in aid of racketeering, drug conspiracies (cocaine and marijuana), extortion, flight from justice, § 924(c) firearm offense, money laundering, and witness tampering.
- Ponzo appealed raising 15 issues (grand‑jury use, joinder/severance, statute of limitations, suppression, conflicts of counsel, right to participate/hearing aids, Confrontation Clause, co‑conspirator testimony, sufficiency, waiver of testimony, prosecutorial misconduct, verdict form/§ 924(c), sentencing, and forfeiture). The First Circuit affirmed in all respects and dismissed a separate appeal as untimely.
Issues
| Issue | Ponzo's Argument | Government's Argument | Held |
|---|---|---|---|
| Use of grand jury to call witnesses for superseding indictment | Grand jury subpoenas for witnesses were used to prepare trial on already‑indicted murder (abuse) | Superseding indictment added new charges, validating grand jury purpose | No abuse; intermediate scrutiny, conviction affirmed (Flemmi standard) |
| Joinder of Arizona and Massachusetts counts; severance | Misjoinder prejudiced defense; forced choice whether to testify | Counts were part of common scheme; jury instructed to consider counts separately; no actual prejudice | Even if misjoined, error harmless; no reversible prejudice |
| Statute of limitations (§§ 3282/3290) | Flight from state charges should not toll federal limitations for unrelated later conduct | § 3290 tolls where defendant fled from justice; defense not preserved for some counts | Rejected; arguments mostly unpreserved or contrary to precedent; tolling applies; no plain error |
| Suppression of evidence from Idaho home (window peek, warrants, safe) | Initial peeking through window was illegal and tainted subsequent warrants; evidence from safe improperly admitted | Independent‑source doctrine and other independent leads supported warrants; safe evidence untimely challenged or voluntary | District court did not abuse discretion; warrants valid on independent‑source grounds; safe evidence claim waived or meritless (Nix/Murray/Soto) |
| Conflict of counsel (prior representation of other figures) | Court‑appointed counsel Cunha had conflicts from prior representation of David Clark and Robert Carrozza Jr.; affected defense | Cunha had minimal connection; strategy choices plausible; no actual adverse effect shown | No Sixth Amendment violation; no actual conflict established under Mickens/Colón‑Torres standards |
| Right to participate / hearing aids (ADA claim) | Court refused $2,000 hearing aids; violated right to participate and ADA | Court provided amplified headphones and real‑time transcripts; no showing aids were only reasonable accommodation | No abuse of discretion; accommodations adequate; ADA inapplicability to federal courts not established (Crandall analogy) |
| Admission of prior witness testimony (Hildonen) — Confrontation Clause | Admission of co‑defendant trial testimony violated Crawford | Defendant’s flight caused unavailability; forfeiture‑by‑wrongdoing applies | Admission proper under forfeiture‑by‑wrongdoing (Giles/Crawford) |
| Co‑conspirator testimony and withdrawal defense | Testimony about Arizona activity post‑departure and club conduct pre‑visit was unfair | No evidence Ponzo withdrew; statements were in furtherance of conspiracy | Statements admissible; withdrawal not established; no abuse of discretion (Fields/Fogg) |
| Sufficiency re: Cirame shooting and cocaine conspiracy | Insufficient evidence on predicate acts and 500g cocaine quantity | Evidence supported reasonably foreseeable drug quantities and sufficient predicate acts | No clear and gross injustice; convictions supported (Sepulveda standard) |
| Waiver of right to testify | Waiver not knowing because judge didn’t answer questions about Idaho charges/prior convictions | Trial counsel primarily advises defendant; judge need not inquire; defendant conferred with counsel | No plain error; waiver valid (Casiano‑Jiménez/Owens) |
| Prosecutorial conduct (witness questions, closing, vouching) | Misconduct in examining former counsel, misstating evidence, and vouching | Questions were limited/unanswered; arguments were fair inferences; "we" referred to record review | No plain error; no prejudice shown (Robinson/Meadows) |
| Verdict form / § 924(c) labeling | Verdict form mislabeled as possession vs. use/carry; special‑verdict blanks suggest misuse | Jury was properly instructed on use/carry; form viewed with charge; jurors presumed to follow instructions | No plain error; conviction under § 924(c) stands |
| § 924(c) predicate (crime of violence) post‑Johnson | Under Johnson, the residual/risk‑of‑force clause is void; conspiracy to commit murder lacks force element | Circuits split; not clearly foreclosed by controlling precedent | No plain error given circuit split; § 924(c) conviction affirmed pending higher‑court resolution |
| Sentencing (ex post facto, criminal history, career offender) | Use of 2013 guidelines and career‑offender designation violated ex post facto or misapplied history | Range same under older/newer guidelines; findings supported; career‑offender label didn’t affect range | No reversible error; guidelines range unaffected; calculations sustained |
| Forfeiture ($2.25M) | Amount exceeded indictment; should be limited to actual receipts or net profits; excessive fine | Indictment need not specify amount; forfeiture may include foreseeable proceeds; remission/hardship remedies exist | Forfeiture determination proper; amount based on foreseeable gross proceeds; Eighth Amendment claim unsupported; some procedural appeals untimely |
Key Cases Cited
- United States v. Flemmi, 245 F.3d 24 (1st Cir.) (grand‑jury abuse standard and intermediate scrutiny)
- Nix v. Williams, 467 U.S. 431 (1984) (independent‑source doctrine)
- Murray v. United States, 487 U.S. 533 (1988) (warrant affidavits and independent source test)
- Mickens v. Taylor, 535 U.S. 162 (2002) (actual‑conflict standard for counsel conflicts)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework)
- Giles v. California, 554 U.S. 353 (2008) (forfeiture‑by‑wrongdoing exception)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (statute‑of‑limitations defense must be raised below)
- United States v. Sepulveda, 15 F.3d 1161 (1st Cir.) (drug‑quantity foreseeability in conspiracy)
- United States v. Singer, 943 F.2d 758 (7th Cir.) (staleness and durability of firearms evidence)
- United States v. Pierre, 484 F.3d 75 (1st Cir.) (staleness analysis and nexus for searches)