Case Information
*1 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 *2 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
*3
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.
BACKGROUND [1] 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 *4 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.
*5 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. *6 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.
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 *8 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.
*9
Flemmi,
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 *10 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,
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
*12
has both important testimony to give concerning one count and
strong need to refrain from testifying on the other." See
Meléndez,
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 *13 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, *14 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 *15 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.,
*16
United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per
curiam); United States v. Gravenhorst,
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,
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,
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 *18 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 *19 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 *20 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,
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,
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,
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,
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
*23
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,
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,
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,
For instance, caselaw holds that a lawyer's simultaneous representation of multiple codefendants at trial "inherently" *26 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,
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
*28
successive representation. DeCologero,
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 *29 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.
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
*31
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,
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," *32 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
*33
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,
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
*34
"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,
*35 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,
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,
The rationale underlying this exception -- that "a
defendant should not be permitted to benefit from his own wrong,"
see Giles,
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,
VIII. Testimony of Co-conspirators
Ponzo accuses the district court of committing reversible error by admitting (a) testimony from co-conspirators *38 -- 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,
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 *40 "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 *41 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.
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,
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
*44
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,
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 *45 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,
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.
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 *47 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,
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
*48
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,
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,
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,
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 *51 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,
*52 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 *53 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,
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.
*54
Hill,
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,
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,
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 *60 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,
(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 *61 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
*62
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,
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,
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
*64
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,
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
*65
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,
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
*66
"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
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,
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,
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).
Notes
[*] Of the District of Rhode Island, sitting by designation.
[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,
[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.
[3] The parties agree that Ponzo preserved these issues for our consideration.
[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,
[7] See United States v. Rivera-Ventura, 72 F.3d 277, 281-84
(2d Cir. 1995); United States v. Hoffman,
[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.
[9] All dates here are in the year 2011 unless otherwise specified.
[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,
[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").
[12] As we noted many pages ago, § 3290 provides that "[n]o statute of limitations shall extend to any person fleeing from justice."
[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,
[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).
[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,
[16] Given the court's approach, Ponzo's challenges to groups other than Group 3 are irrelevant.
[17] To 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).
[18] Hurley dealt with a RICO forfeiture provision in § 1963(a),
rather than the drug-related forfeiture provision in § 853(a).
See
[19] All dates here are in that year.