US v. Ponzo

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; David J. Barron, Appellate Judge and John J. McConnell , Jr., U.S. District Judge*. Published. *Of the District of Rhode Island, sitting by designation. [14-1528, 14-1548, 15-1878, 14-1906, 15-2277]

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Entry ID: 6082524

United States Court of Appeals
For the First Circuit
Nos.

14-1528
14-1548
14-1906
15-1878
15-2277
UNITED STATES OF AMERICA,
Appellee,
v.

ENRICO PONZO,
a/k/a Henry Ponzo, a/k/a Michael P. Petrillo, a/k/a Rico, a/k/a
Joey, a/k/a Jeffrey John Shaw, a/k/a Jay Shaw,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Thompson and Barron, Circuit Judges,
and McConnell, District Judge.*

Allison J. Koury for appellant.
William A. Glaser, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy

*

Of the District of Rhode Island, sitting by designation.

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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

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THOMPSON, Circuit Judge.

Entry ID: 6082524

Enrico Ponzo operated as a

member of the northeast crime syndicate known as the Patriarca
Family of La Cosa Nostra ("LCN").

After being charged with

multiple criminal offenses, he absconded to Arizona (and later to
Idaho), changed his identity, and joined a marijuana-shipping
conspiracy.

A jury later convicted him on a bevy of charges,

including conspiracy to commit racketeering, conspiracy to commit
murder in aid of racketeering, conspiracy to distribute cocaine,
extortion,

flight

from

justice,

and

conspiracy

to

distribute

marijuana.

And in this appeal, he complains of an assortment of

supposed errors -- ranging from the prosecution's use of the grand
jury to the court's sentence selection, and almost everything in
between -- but none persuades.

Before explaining why that is, we

briefly state the background facts, reserving additional detail
for inclusion in our discussion of the relevant issues.
BACKGROUND1
This case centers on Ponzo's affiliation with LCN, a
crime network with a "boss," "soldiers," and "associates" -- an
affiliation that began in the late 1980s and ended in the mid
1990s, give or take.

LCN operated its organized crime network

1

Because Ponzo challenges the sufficiency of the evidence,
we recite the facts in the light most favorable to the government.
See United States v. Munyenyezi, 781 F.3d 532, 534 n.1 (1st Cir.
2015).
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through trafficking drugs, loansharking, extortion, and illegal
gambling.

Ponzo's

Racketeer

LCN

Influenced

membership

and

Corrupt

formed

the

Organizations

conspiracy for which he was convicted.

basis
Act

for

the

("RICO")

Following his activities

with LCN, Ponzo fled Massachusetts with multiple criminal charges
pending and established himself in a marijuana-shipping business
in Arizona.

Later, he met his then-girlfriend and left Arizona

and the marijuana business.

And he eventually settled down in

Idaho as a cattle rancher.
We begin with LCN.

As a member of LCN, Ponzo's duties

included "collecting envelopes" -- that is, using threats and
intimidation to extort money from bookies and drug dealers.

He

also collected debts owed from loan sharking.2
In addition to his "collecting business," Ponzo was also
involved in drug dealing.

He bought cocaine from a man named John

Mele and frequently rode with Vinny Marino (a/k/a Gigi Portalla)
during the transactions with Mele.

In turn, Ponzo sold this

cocaine on the street.

2

For example, one time Ponzo entered a restaurant, demanded
repayment of a $25,000 loan owed to a loan shark, and threatened
to kill the owner if he did not repay the money. A month after
this conversation, the owner sold his restaurant and paid Ponzo
the $25,000.
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Following the death of Raymond Patriarca, the LCN's
"boss," in 1984, confusion regarding leadership occurred.

In the

ensuing years, Frank Salemme began attempting to take control.
Consequentially, a chasm occurred in the organization, with two
factions fighting for control -- the Salemme faction and an antiSalemme 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.
walked away to make a phone call.

Ponzo left the car and

At this point, a car pulled up,

and someone inside shot and killed Romano Jr.

Trial testimony

conflicted as to whether Ponzo was the target of the murder;
however, testimony did show that Anthony Ciampi and Michael Romano
Sr., also members of the anti-Salemme faction, questioned Ponzo's
loyalty and blamed him for Romano Jr.'s death.

Ponzo asserts that

a man named David Clark intended to kill him but killed Romano Jr.
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instead.

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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.
false

identity

at

that

time

--

Ponzo also began using a

Jeffrey

Shaw.

Through

the

conspiracy, Ponzo and his co-conspirators purchased and shipped
between 1,000 and 1,500 pounds of marijuana a year to the Bay
State.

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Several years after Ponzo departed Massachusetts, on
April, 4, 1997, a federal grand jury indicted him and 14 others on
charges stemming from their LCN-related conduct in Massachusetts.
In 1998, Cara Pace began a relationship with Ponzo -that is, Jeffery Shaw, as she knew him.

And in March 1999, Ponzo

left Arizona with Pace and settled down in Marsing, Idaho, where
they had two children.
Acting upon a tip, the FBI learned of Ponzo's location
about 17 years after he fled Massachusetts.

They investigated

Ponzo for about a month after learning of his whereabouts.

And on

February 7, 2011, law enforcement arrested him at his Idaho home.
The

authorities

confirmed

his

identity

through

fingerprint

identification.
Following his arrest in Idaho, a federal grand jury in
Massachusetts issued a superseding indictment against Ponzo, which
included charges for his conduct in Arizona and two new charges
for his activity in Massachusetts.

After a 26-day trial, a jury

convicted him of conspiracy to commit racketeering, in violation
of 18 U.S.C. § 1962(d); conspiracy to commit murder in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(5); using or
carrying a firearm during a crime of violence, in violation of 18
U.S.C. § 924(c); conspiracy to distribute and to possess with the
intent to distribute 500 grams or more of cocaine, in violation of
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21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B); conspiracy to collect
extensions of credit by extortionate means, in violation of 18
U.S.C. § 894(a)(1); use of extortionate means to collect extensions
of credit, in violation of 18 U.S.C. § 894(a)(1); unlawful flight
to avoid prosecution, in violation of 18 U.S.C. § 1073; conspiracy
to distribute and to possess with intent to distribute at least
1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846 and
841(a)(1) and (b)(1)(A); conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i); laundering of monetary
instruments, in violation of 18 U.S.C. § 1956(a)(1)(B)(1); and
attempting to tamper with a witness, in violation of 18 U.S.C.
§ 1512(b)(1).
Which brings us to today, with Ponzo presenting 15 issues
on appeal, though most of these have sub-issues too. For clarity's
sake, we address his issues in chronological order -- starting
with his pretrial claims and ending with his sentencing arguments.
DISCUSSION
I.

Grand Jury
Ponzo claims prosecutors improperly used the grand jury

for trial preparation. The district court disagreed. And applying
an "intermediate level of appellate scrutiny" -- a standard "more
rigorous than the abuse-of-discretion or clear-error standards,
but stopping short of plenary or de novo review," United States v.
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Flemmi, 245 F.3d 24, 28 (1st Cir. 2001) (quotation marks omitted)
-- we affirm.
The background events are easily summarized.

In 2011,

after his original indictment in 1997, the government sought a
superseding indictment following Ponzo's arrest.
unsuccessfully

in

the

district

court

that

Ponzo argued

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.
II.

See id. at 28.

Joinder of Charges and Severance
Ponzo criticizes the government for improperly joining

the

Arizona

marijuana

and

money-laundering

charges

Massachusetts LCN charges in a single indictment.

with

the

See Fed. R.

Crim. P. 8(a) (permitting joinder of counts against a single
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defendant

only

if

the

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offenses

Date Filed: 04/07/2017

"are

of

the

same

Entry ID: 6082524

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

participants.

of

operation,

and

(for

the

most

part)

And he blasts the district court for refusing to

sever the allegedly incompatible charges.

See Fed. R. Crim. P.

14(a) (authorizing severance "[i]f the joinder of offenses . . .
appears to prejudice a defendant").

The government sees no error

with the court's handling of the joinder/severance issues.3

If we

"find both misjoinder and actual prejudice, we must vacate the
[judgment of] conviction."

See United States v. Natanel, 938 F.3d

302, 307 (1st Cir. 1991) (citing United States v. Lane, 474 U.S.
438, 449 (1986)).

But bearing in mind our standards of review --

de novo for the joinder issue and abuse of the discretion for the
severance issue, see United States v. Meléndez, 301 F.3d 27, 35
(1st Cir. 2002) -- we see no reason to reverse.
Our

reasoning

is

straightforward.

Even

assuming

(without deciding) that misjoinder occurred, the error (if any)
was harmless.

Cf. United States v. Edgar, 82 F.3d 499, 504 (1st

Cir. 1996) (taking a similar approach in a similar situation).

3

The parties agree that Ponzo preserved these issues for our
consideration.
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And that is because -- as the government notes -- the joinder here
did

not

"result

in

'actual

prejudice,'"

defined

"as

the

'substantial and injurious effect or influence in determining the
jury's verdict.'" Id. at 504 (quoting Lane, 474 U.S. at 449).

The

court, after all, told the jury to consider each count separately.
And "the case for prejudice is especially weak" when a court does
precisely that.
Cir. 1995).

United States v. Taylor, 54 F.3d 967, 974 (1st

On top of that, the jury actually acquitted Ponzo on

three counts -- which showed the jury could "discriminat[e] among
the evidence applicable to each count," which helps undercut an
actual-prejudice claim.

See Edgar, 82 F.3d at 504.

Hold on, says Ponzo:

Prejudice there surely was because

the Arizona "marijuana and money laundering evidence would not
have been independently admissible at trial of the [Massachusetts]
charges, and the [Massachusetts] evidence would not have been
independently admissible at trial of the Arizona marijuana and
money laundering charges."
this is so.
enough

to

But he fails to explain how or why

And an "unexplained assertion" like this "is not
establish

prejudicial

(quotation marks omitted).

joinder."

Id.

at

504

n.5

Well, then, writes Ponzo, prejudice

there certainly was because "he was forced to decide between
testifying as to all sets of charges or testifying as to none."
To get anywhere, he had to "make[] a convincing showing that he
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has both important testimony to give concerning one count and
strong

need

to

refrain

Meléndez, 301 F.3d at 36.

from

testifying

on

the

other."

See

And he believes he did so, claiming he

argued below both that he "need[ed] to testify as to the flight
from justice and the [Massachusetts] charges . . . to present his
belief that he did not violate the law" when he skedaddled from
the Bay State and that he "need[ed] to avoid testifying as to the
money laundering charges, which flowed from the Arizona marijuana
activity."

But what he points to for support is a brief exchange

he had with the court where he expressed concern about testifying
because he did not want to incriminate himself on federal charges
pending against him in Idaho -- an argument different from the one
he makes here.

So he waived his newly minted claim.

See Ahern v.

Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) (stressing that "[a]n
appellant cannot change horses in mid-stream, arguing one theory
below and a quite different theory on appeal").
The net result of all this is that the district court's
ruling stands.
III.

Statute of Limitations
"Except as otherwise expressly provided by law," a five-

year statute of limitations applies to non-capital crimes.
U.S.C. § 3282(a).

See 18

Alluding to that proviso, Ponzo argues that the

government did not bring the following charges against him within
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that five-year period:

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(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

prejudice."

the

statute

of

limitations"

and

"dismissed

with

The government disagrees with Ponzo, unsurprisingly,

4

Counts 11, 12, 13, and 14 on the verdict form, which
correspond to counts 14, 15, 16, and 17 of the superseding
indictment.
5

Counts 6 and 7 on the verdict form, which correspond to
counts 9 and 10 in the superseding indictment.
6

See United States v. Morgan, 922 F.2d 1495, 1499 (10th Cir.
1991) (Logan, J., dissenting).
7

See United States v. Rivera-Ventura, 72 F.3d 277, 281-84
(2d Cir. 1995); United States v. Hoffman, 124 F.3d 200, at *2-*4
(6th Cir. 1997) (unpublished table decision); United States v.
Gonsalves, 675 F.2d 1050, 1052-53 (9th Cir. 1982); Morgan, 922
F.2d at 1497-98.
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noting (among other things and without contradiction) that his
theory -- that the statute of limitations barred his prosecution
on these counts because his flight "should not toll the statute
for subsequent, unrelated conduct" -- makes its début on appeal.
Having carefully considered all aspects of the matter, we think
Ponzo's theory does not fly, as we now explain.
Before trial Ponzo filed with the district court a
document titled "NOTICE REGARDING STATUTE OF LIMITATIONS," which
stated that he "reserve[d] his right . . . to raise a statute of
limitations defense" as to the "new counts" if "the evidence as
presented at trial" shows that the "new counts" were not timely.
He then later moved for judgment of acquittal, arguing that "[a]s
to the" new counts, the government did not prove "that the acts
were committed within" § 3282(a)'s five-year limitations period
and so "[j]udgment" on the new counts "should be entered" for him.
The ramifications for Ponzo's appeal are clear:
As

for

the

"Arizona

marijuana

and

money

laundering

charges," because Ponzo failed to argue in the district court that
his prosecution on those charges violated" § 3282(a), he "cannot
successfully raise the statute-of-limitations defense" in this
court.

Musacchio v. United States, 136 S. Ct. 709, 713, 716

(2016).

"[A] statute-of-limitations defense," the Supreme Court

tells us, "becomes part of a case only if the defendant puts the
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defense in issue." Id. at 718. If he "does not press the defense,"
then "there is no error for an appellate court to correct -- and
certainly no plain error."

Id.

So "a district court's failure to

enforce an unraised limitations defense under § 3282(a) cannot be
plain error."

Id.

And because Ponzo argued below only that the

"new charges" should be dismissed under § 3282(a), his argument
here about the "Arizona marijuana and money laundering charges" is
a no-go.

See id.; see generally United States v. Ongaga, 820 F.3d

152, 161-62 (5th Cir. 2016) (applying Musacchio).
As for the "new charges," while Ponzo did raise a
limitations defense before and during trial, he did not make the
argument he makes here to the district court.

So we review his

claim only for plain error -- a difficult-to-meet "standard that
requires him to show error, plainness, prejudice to [him] and the
threat of a miscarriage of justice."

United States v. Jones, 748

F.3d 64, 69 (1st Cir. 2014) (quotation marks omitted).

But as he

himself candidly admits, the circuits to consider the issue -whether § 3290 tolls the limitations period for "subsequent,
unrelated conduct" -- reject the argument he advances.
miles away from a plain error, to put it bluntly.8

8

So we are
See, e.g.,

Ponzo says in one short sentence that "[t]he Government at
least agreed in theory that 'It's true that the old Indictment did
not toll anything because the new counts are new counts." We have
no idea what this means, however. And Ponzo offers no explanation.
So whatever the point is he is trying to make, we hold it waived.
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United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per
curiam); United States v. Gravenhorst, 190 F. App'x 1, 4 (1st Cir.
2006) (per curiam).
IV.

Suppression of Evidence
Next, Ponzo faults the district court for denying his

motion to suppress evidence seized from his Idaho home.

We need

to cover a lot of ground -- so much so that we provide a short
road map for the readers' convenience.

Part A sketches the

background events. Part B summarizes the parties' arguments. Part
C mentions the standards of review.

And Part D explains our take

on the issues.

See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st
Cir. 2011) (deeming "waived arguments confusingly constructed and
lacking in coherence," noting that because judges are not psychics,
"parties must spell out their issues clearly" (quotation marks
omitted)).
Ponzo also makes a one-sentence claim that the
superseding indictment was "deficient" on the extortion charges - which, recall, were the "new charges" -- "because it did not
name the victim."
Why he put this sentence in the statute-oflimitations section of his initial brief escapes us. Anyhow, any
defect or error here -- to the extent one existed at all -- was
harmless because it in no way prejudiced Ponzo.
And that is
because the government gave him the victim's name months before
trial -- something the lower court relied on in denying his motion
for a bill of particulars (a ruling he does not contest on appeal).
Cf. generally United States v. Olano, 507 U.S. 725, 734-35 (1993)
(emphasizing the centrality of prejudice to the harmless-error
analysis).
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A.

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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.
front door.

No one answered.

So they knocked on the

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.
said that he owned guns.

One of them added that Ponzo

The neighbor also remembered that Ponzo

9

All dates here are in the year 2011 unless otherwise
specified.
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had brought and used an AR-15 rifle when they went target shooting
about four months earlier, in October 2010.
Based on this information, agents sought and received
a warrant to search Ponzo's home for evidence related to his false
identities, his income sources while living as fugitive, and his
firearm possession.

Executing the warrant on February 8 -- one

day after his arrest -- agents found (among other things) a cache
of

guns,

ammunition,

and

publications

on

creating

identifications, as well as an identification-making kit.

false
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.
called

the

person

now

leasing

Ponzo's

home,

Kelly

Agents

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

driver's licenses with Ponzo's picture.

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identification

cards

and

Agents later learned that

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Verceles and a co-worker had cut open the safe with an acetylene
torch and had stolen the items.
Ponzo moved pretrial to suppress some of the evidence
seized from his house -- we say "some" because he did not move to
suppress the evidence produced by Verceles.
denied

his

motion

without

holding

an

The district court

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.
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should

have

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the

evidence

Verceles

Entry ID: 6082524

produced

because he had no actual or apparent authority to consent and
because his consent was not voluntary.
The
Ponzo's:

government

has

a

markedly

different

view

from

(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

window

camera

through

the

neither

affected

law

enforcement's decision to seek any warrant nor influenced the
magistrate's decision to issue a warrant -- plus the remaining
portions of the affidavits were sufficient to establish probable
cause.

And (c) Ponzo waived the argument about the evidence

obtained from the floor safe by not raising it below -- moreover,
the argument clearly has no merit because Verceles voluntarily
gave the items to the agents.
We agree with the government, for reasons we will get to
after identifying the applicable standards of review.
C.

Standards of Review
We review the district court's decision to deny an

evidentiary hearing only for abuse of discretion.

See, e.g.,

United States v. Francois, 715 F.3d 21, 32 (1st Cir. 2013).

And

when considering a suppression ruling, we review legal questions

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de novo and factual findings for clear error.

Entry ID: 6082524

See, e.g., United

States v. Hinkley, 803 F.3d 85, 90 (1st Cir. 2015).
D.

Our Analysis
The evidentiary-hearing issue is easily resolved.

A

defendant has no right to an evidentiary hearing unless he shows
"that material facts are in doubt or dispute, and that such facts
cannot reliably be resolved on a paper record" -- most critically,
he "must show that there are factual disputes which, if resolved
in

his

favor,

would

entitle

him

to

the

requested

Francois, 715 F.3d at 32 (quotation marks omitted).
satisfied this burden.

relief."

Ponzo has not

The district court (don't forget) decided

Ponzo's suppression motion after assuming -- for argument's sake,
favorably

to

Ponzo

--

that

agents

saw

surveillance camera during an illegal search.

the

air

rifle

and

And Ponzo points to

no facts in dispute that could undercut the court's "independent
source" determination.

So we find no abuse of discretion here.

Moving on, we know that under the independent-source
doctrine,

evidence

acquired

from

a

lawful

source

that

is

independent of any Fourth Amendment infraction is admissible -the thinking being that the exclusionary rule should not put agents
"in a worse position" than if the constitutional infraction had
not happened.

See Nix v. Williams, 467 U.S. 431, 443 (1984); see

also Murray v. United States, 487 U.S. 533, 538 (1988) (emphasizing
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that "[s]o long as a later, lawful seizure is genuinely independent
of an earlier, tainted one . . . there is no reason why the
independent source doctrine should not apply").

And when dealing

with
a search warrant premised on an application containing
illegally obtained evidence . . . the fruits of that
search would be admissible through the independent
source doctrine unless (1) "the agents' decision to seek
the warrant was prompted by what they had seen during"
the initial illegal search or (2) "information obtained
during that [illegal search] was presented to the
Magistrate and affected his decision to issue the
warrant."
United States v. Soto, 799 F.3d 68, 82 (1st Cir. 2015) (quoting
Murray, 487 U.S. at 542).

Because this is a disjunctive test, a

defendant need only win under one of the two prongs.
Like the district court, we assume (without granting)
that agents offended Ponzo's constitutional rights when they went
up to his house and peeked through his window.

Turning to the

first question, we, also like the district court, conclude that
these agents would have sought a warrant even if they had not seen
the air rifle and security camera.

We say this because law

enforcement had known about Ponzo's fugitive-from-justice status,
had concluded he was living under an assumed name at the 6107 Hogg
Road address, and had heard about his having guns.

On the second

question, we, again like the district court, conclude that the
affidavit, shorn of any tainted info, contained ample facts to
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support probable cause to search Ponzo's abode.

Entry ID: 6082524

Arguing against

this conclusion, Ponzo claims the neighbor's comment that he "had
gone to a shooting range . . . four months earlier [a] was fruit
of the poisonous tree, [b] too stale to provide probable cause,
and [c] did not support a finding that he would have firearms at
his residence."

We reject claim [a] because agents got the info

from an independent interview with the neighbor.

We reject claim

[b] because "firearms, unlike drugs, are durable goods useful to
their owners for long periods of time."

United States v. Singer,

943 F.2d 758, 763 (7th Cir. 1991) (holding that six-month-old info
about a firearm was not "stale"); see also United States v. Neal,
528 F.3d 1069, 1074 (8th Cir. 2008) (explaining that info "that
someone is suspected of possessing firearms illegally is not stale,
even

several

firearms

tend

months
to

later,

keep

them

because
for

long

individuals
periods

of

who

possess

time");

cf.

generally United States v. Pierre, 484 F.3d 75, 83 (1st Cir. 2007)
(stressing that "[w]hen evaluating a claim of staleness, courts do
not measure the timeliness of information simply by counting the
number of days that have elapsed," adding that a court must instead
"assess

the

nature

of

the

information,

the

nature

and

characteristics of the suspected criminal activity, and the likely
endurance of the information").

And we reject claim [c] because

the agent's affidavit said "firearms/ammunition" are "the kinds of
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evidence . . . typically maintained at a person's" home -- that
matters because the required nexus "between the objects to be
seized and the premises searched" may be "inferred from the type
of crime, the nature of the items sought, the extent of an
opportunity for concealment and normal inferences as to where a
criminal would hide" evidence of the suspected crimes.

See United

States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999) (quotation marks
omitted).
Having found the February search warrant valid, we also
reject Ponzo's theory that the computers seized during the warrantbacked search in March were the fruit of the poisonous tree.
That brings us to Ponzo's charge that the district court
stumbled by "fail[ing] to address the illegality of the so-called
'consent search'" of the floor safe that Verceles had broken into.
The problem here is that Ponzo did not argue in his suppression
motion that the court should exclude the evidence Verceles had
handed over, making the claim untimely.

See United States v.

Albertelli, 687 F.3d 439, 444 (1st Cir. 2012).

And a court cannot

consider an untimely claim unless "the party shows good cause."
See Fed. R. Crim. P. 12(c)(3); see also United States v. SantiagoGonzález, 825 F.3d 41, 46 n.7 (1st Cir. 2016).
effort to show this.

Ponzo makes no

And he also makes no effort to explain why,

in the absence of any such showing, he is entitled to review even
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under the demanding plain-error standard.

Entry ID: 6082524

So we treat this aspect

of his suppression argument "as waived."

See United States v.

Sepúlveda-Hernández, 817 F.3d 30, 34 (1st Cir. 2016).
V.

Attorney Conflict of Interest
Ponzo's next -- and perhaps most serious -- argument is

that the district court saddled him with a conflict-ridden lawyer,
court-appointed counsel John Cunha.

As Ponzo tells it, Cunha

operated under two conflicts of interest, thereby violating his
Sixth Amendment right to conflict-free representation.

The first

potential

appellate

conflict

comes

from

Cunha's

prior

representation of David Clark, the man Ponzo alleges tried to kill
him.

The

second

potential

conflict

involves

Cunha's

prior

representation of Robert Carrozza Jr., a former codefendant of a
government

witness

--

Bobby

Luisi

Jr.

--

in

Ponzo's

case.

Reviewing de novo, see United States v. Martínez-Hernández, 818
F.3d 39, 46 (1st Cir. 2016), we reject Ponzo's conflict-of-interest
contentions.
A.

Guiding Principles
The Sixth Amendment guarantees the right to conflict-

free counsel.

See, e.g., Yeboah-Sefah v. Ficco, 556 F.3d 53, 68

(1st Cir. 2009). And caselaw illustrates how this principle works.
For instance, caselaw holds that a lawyer's simultaneous
representation of multiple codefendants at trial "inherently"
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raises a potential conflict of interest.

Entry ID: 6082524

Mickens v. Taylor, 535

U.S. 162, 168 (2002) (discussing Holloway v. Arkansas, 435 U.S.
475,

489-90

"create[d]

(1978)).
an

That

automatic

being

reversal

so,

the

rule"

Supreme

for

Court

situations

has

"where

defense counsel is forced to represent codefendants over his timely
objection, unless the trial court has determined there is no
conflict."

Id.

(discussing

Holloway,

435

U.S.

at

488).

Simplifying our task, Ponzo's appellate lawyer told us at oral
argument that he is not relying on the automatic-reversal rule -which means we need say no more about that subject.
Turning,

then,

to

situations

where

the

automatic-

reversal rule does not apply, we see that the high Court has
required defendants there to show that "a conflict of interest
actually affected" the lawyer's "performance -- as opposed to a
mere theoretical division of loyalties." Id. at 168, 171 (emphasis
removed).

Unlike

ineffective

assistance

claims

governed

by

Strickland v. Washington, 466 U.S. 668, 687 (1984) -- a case
requiring the defendant to show that counsel's performance was
deficient and that this defective representation prejudiced the
case's outcome -- prejudice is presumed if a defendant meets this
test.

Mickens, 535 U.S. at 166; see also United States v.

DeCologero, 530 F.3d 36, 76-77 (1st Cir. 2008) (noting that adverse
effect is much easier to show than the actual prejudice required
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for "ineffective assistance of counsel claims").

Entry ID: 6082524

And to show an

actual conflict of interest, a defendant must demonstrate "that
(1) the lawyer could have pursued a plausible alternative defense
strategy or tactic and (2) the alternative strategy or tactic was
inherently in conflict with or not undertaken due to the attorney's
other interests or loyalties."10
382

F.3d

76,

88

(1st

Cir.

United States v. Colón-Torres,

2004)

(quoting

United

States

v.

Soldevila–Lopez, 17 F.3d 480, 486 (1st Cir. 1994)); accord United
States v. Cardona-Vicenty, 842 F.3d 766, 772-73 (1st Cir. 2016);
see also DeCologero, 530 F.3d at 77 (emphasizing that "[s]howing
an adverse effect . . . requires more than mere speculation").
Please note:

Mickens said that Supreme Court caselaw

"does not clearly establish, or indeed even support," applying the
actual-conflict standard "unblinkingly" to situations -- like
Ponzo's -- involving successive representation of clients.
U.S. at 174–75.
applied

in

the

But Mickens did not decide whether this standard
successive-representation

question remained "open."
whether

the

535

Id. at 176.

actual-conflict

standard

10

context,

saying

the

We too have not said
applies

to

cases

of

Prong one of this "test acts as a check on the possibility
of a defendant twisting a mere conflict of opinion as to what is
in the client's best interests into a 'conflict of interest'
between client and attorney." Cody v. United States, 249 F.3d 47,
54 n.7 (1st Cir. 2001).
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successive representation.

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Date Filed: 04/07/2017

Entry ID: 6082524

DeCologero, 530 F.3d at 77 n.24; see

generally Reyes-Vejerano v. United States, 276 F.3d 94, 100 (1st
Cir. 2002) (suggesting that an actual conflict may arise in
successive-representation cases because "one client may stand to
gain

through

negotiations

with

prosecutors

that

will

injure

another, raising concerns of loyalty; or information obtained in
the representation of one client may be potentially useful to
another, raising concerns of confidentiality," especially "if the
first client is a possible witness at the second client's trial").
And because we can decide Ponzo's appeal without ruling on the
standard,

we

provide

him

the

benefit

of

the

actual-conflict

standard and once again reserve the question for another day.11
B.

Conflict Involving David Clark
The back story behind the first alleged conflict of

interest is this.

Originally, Ponzo chose attorney David Duncan

to represent him.

But after reaching irreconcilable differences

regarding defense strategy, Ponzo moved for hybrid representation,
so he could act as pro se co-counsel.

11

The magistrate judge denied

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").
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this motion, which led to Duncan's withdrawal as counsel.
the court appointed Cunha to represent Ponzo.

Later,

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.
Jr.

Trial testimony conflicted as to who shot Romano

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."
did not see a conflict.

Cunha went on to say that he

The court agreed and denied Ponzo's pro

se motion.

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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

Massachusetts not to avoid prosecution but to save his life.12

fled
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.
contention

--

that

he

hightailed

it

to

Arizona

But Ponzo's
not

to

duck

prosecution but because he feared for his life -- is hard to
reconcile with the fact that instead of leaving Massachusetts
immediately after the threat to his life, he stayed and tried to
kill Cirame two weeks later.

Anyhow, Cunha's actions are easily

12

As we noted many pages ago, § 3290 provides that "[n]o
statute of limitations shall extend to any person fleeing from
justice."
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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

syndicate,

and

him
so

included
evidence

RICO

charges

suggesting

organization would have inculpated him.

involving

participation

a

crime

in

the

Consistent with Supreme

Court precedent holding that an actual conflict entails a conflict
"that adversely affects counsel's performance," Mickens, 535 U.S.
at 172 n.5, our caselaw says that forgoing an implausible strategy
or

a

strategy

that

could

inculpate

the

defendant

does

not

constitute an actual conflict. See Cody, 249 F.3d at 54; Bucuvalas
v. United States, 98 F.3d 652, 657 (1st Cir. 1996); Guaraldi v.
Cunningham,

819

F.2d

15,

17-18

(1st

Cir.

1987).

And

these

decisions throw cold water on Ponzo's first conflict claim.
C.

Conflict Involving Robert Carrozza Jr.
Even less need be said about Ponzo's alleged conflict

flowing from Cunha's prior representation of Robert Carrozza Jr.
in an unrelated matter.

"The conflict arises," Ponzo writes,

"because when [Cunha] represented Carrozza[] Jr., he [Carrozza
Jr.] was a co-defendant of Bobby Luisi Jr." -- a person who
testified against Ponzo at trial and admitted to trying to kill
Ponzo.

The government brought this potential conflict to the

court's attention. Though he had "very little memory of the case,"
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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

negotiating a plea agreement for him.
conflict existed. We agree.

another

lawyer

began

The court concluded that no

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.,

Consequently,

Ponzo's

Cardona-Vicenty,

second

conflict

842

argument

F.3d

at

773.

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.
Sixth

Amendment

requires

for

hearing-impaired

defendants

apparently a question of first impression in our court.

13

What the
is

Following

Ponzo floats the idea that the district court wrongly denied
him the right to use "seized, untainted funds to retain counsel,"
without showing that the funds were indeed untainted. And this
lack of developed argumentation dooms his claim. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived").
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the

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parties'

lead,

we

Page: 33

look

to

Date Filed: 04/07/2017

caselaw

involving

Entry ID: 6082524

non-English

speaking defendants for guidance, knowing that this sort of inquiry
is inherently fact-intensive and thus receives abuse-of-discretion
review.

See United States v. Carrion, 488 F.2d 12, 14 (1st Cir.

1973) (noting that "considerations of judicial economy" require
that

"the

trial

court,

coming

into

direct

contact

with

the

defendant, be granted wide discretion in determining whether an
interpreter is necessary").
Relying

on

cases

involving

non-English

speaking

defendants, a sibling circuit has held -- in a case Ponzo relies
on -- "that the Sixth Amendment right to participate in one's own
trial

encompasses

the

right

to

reasonable

accommodations

for

impairments to that participation, including hearing impairments."
United States v. Crandall, 748 F.3d 476, 481 (2d Cir. 2014).
Assuming arguendo the applicability of this framework, we think
Ponzo has not shown a lack of a reasonable accommodation.
According to an audiologist's report, Ponzo suffers from
"moderate" hearing loss -- a level of hearing loss that would
"prevent [him] from hearing most conversation unless at close
range."

Acting to accommodate this impairment, the district court

provided him with (a) headphones that amplified the sounds in the
courtroom

and

(b)

real-time

transcripts.

Ponzo

calls

the

headphones inadequate because they supposedly prevented him from
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"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.
district

Ponzo does protest that as a "public entity," the

court

had

to

give

him

the

Americans with Disabilities Act."

hearing

aids

"under

the

But he makes no convincing

argument that "public entity" includes the federal courts.

Cf.

generally Roman v. Jefferson, 495 F. App'x 804, 806 (9th Cir. 2012)
(concluding that "[w]hile the [Act] requires state courts to make
disability accommodations, [it] does not apply to federal courts"
(citing 42 U.S.C. § 12131(1))).14

14

The Act defines "public entity" as

(A) any State or local government;
(B) any department, agency, special purpose district, or
other instrumentality of a State or States or local
government; and
(C) the National Railroad Passenger Corporation, and any
commuter authority (as defined in section 24102(4) of
Title 49).
42 U.S.C. § 12131(1)(A)-(C).
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Discerning

no

Page: 35

hint

Date Filed: 04/07/2017

of

abused

Entry ID: 6082524

discretion

in

this

situation, we trudge on.
VII.

Prior Testimony of an Unavailable Witness
Ponzo argues further that the district court violated

his

rights

under

the

Confrontation

Clause

by

admitting

the

testimony of Mark Hildonen -- a witness who had testified at
Ponzo's

co-conspirators' 1998 trial but who had died before

Ponzo's 2013 trial.

Because we are dealing with a preserved claim

of error, our review is de novo.

See United States v. Liriano,

761 F.3d 131, 136 (1st Cir. 2014).

But there is simply no error

here for us to remedy.
The

Confrontation

Clause

--

which

gives

a

criminal

defendant "the right . . . to be confronted with the witnesses
against him," see U.S. Const. amend. VI -- bars admission of
testimonial hearsay unless "the declarant is unavailable" and "the
defendant had a prior opportunity" for cross-examination, see
Crawford v. Washington, 541 U.S. 36, 59 (2004).

But a defendant's

confrontation rights are subject to certain exceptions, including
the forfeiture-by-wrongdoing exception -- a common-law doctrine
that

allows

admission

of

unconfronted

testimonial

statements

"where the defendant ha[s] engaged in wrongful conduct designed to
prevent a witness's testimony."

Giles v. California, 554 U.S.

353, 366 (2008); see also Crawford, 541 U.S. at 62 (stressing that
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rule

of

extinguishes

Page: 36

forfeiture

by

confrontation

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wrongdoing

claims

on

(which

we

essentially

Entry ID: 6082524

accept)
equitable

grounds"); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.
1996) (explaining that it suffices "to show that the evildoer was
motivated in part by a desire to silence the witness; the intent
to deprive the prosecution of testimony need not be the actor's
sole motivation").
The

rationale

underlying

this

exception

--

that

"a

defendant should not be permitted to benefit from his own wrong,"
see Giles, 554 U.S. at 365 -- supports its application here.
Ponzo

been

Hildonen.

at

the

1998

trial,

he

could

have

Had

cross-examined

But like a defendant who obtains a witness's absence by

killing him, by fleeing and remaining on the lam for years, Ponzo
effectively schemed to silence Hildonen's testimony against him.
And Hildonen's subsequent unavailability signifies the success of
that scheming.

So Ponzo forfeited his confrontation right.

See

Barker v. Morris, 761 F.2d 1396, 1400-03 (9th Cir. 1985) (finding
that defendant's "lack of opportunity" to cross-examine a witness
was "directly attributable to [his] fugitive status"); United
States v. Dikeocha, 218 F.3d 706, 712 n.5 (7th Cir. 2000) (noting
that if the defendant had "not been a fugitive" he could have
cross-examined
trial).

the

unavailable

witness

at

his

co-defendants'

To hold otherwise would allow Ponzo to profit from his
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wrongful

conduct

and

Page: 37

would

Date Filed: 04/07/2017

undermine

the

Entry ID: 6082524

"integrity

criminal-trial system" -- which we cannot allow.

of

the

See Davis v.

Washington, 547 U.S. 813, 833 (2006).
Looking for a way out this predicament, Ponzo says that
because he "fled Massachusetts three years before this [federal]
indictment" and "was living in hiding from his past," we "cannot
simply presume that he was even aware of the indictment, let alone
the 1998 trial."

But because he cites no authority for this

argument (nor does he give us a convincing explanation of what the
law should be, assuming he found no authority), he has waived it.
See, e.g., Muñiz, 373 F.3d at 8; see also United States v. AcostaColon, 741 F.3d 179, 193 (1st Cir. 2013) (emphasizing that a
party's not "liv[ing] up to his obligation to develop[] a sustained
argument out of . . . legal precedents . . . leads to waiver"
(quotations omitted)).
"pre-Crawford law."
particularly

since

Ponzo also talks down Barker, saying it is
But he does not explain why that matters,

Supreme

Court

caselaw

makes

clear

that

a

defendant's confrontation rights remain subject to the forfeitureby-wrongdoing exception.

See Giles, 554 U.S. at 366; Crawford,

541 U.S. at 62.
VIII.

Testimony of Co-conspirators
Ponzo

accuses

the

district

court

of

committing

reversible error by admitting (a) testimony from co-conspirators
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-- 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.
wrangle over the standard of review.
evidentiary
applies.

arguments,

Ponzo

says

The parties

Believing he preserved these
abuse-of-discretion

review

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 coconspirator statements," which, he adds, "preserved" the issue for
abuse-of-discretion analysis.
however:

even

assuming,

We need not referee this tussle,

favorably

to

Ponzo,

that

abuse-of-

discretion scrutiny applies throughout, his claim of error fails.
We start with Ponzo's argument that Weddleton's and
Piano's testimony was inadmissible because he had "withdrawn" from
the Arizona conspiracy before they had joined it. Co-conspirators'
statements "made during the course of the conspiracy and made in
furtherance of the conspiracy are admissible."

United States v.

Fields, 871 F.2d 188, 199 (1st Cir. 1989) (citing United States v.
U.S. Gypsum Co., 333 U.S. 364, 393 (1948)); see also Fed. R. Evid.
801(d)(2)(E). Ponzo had the burden of establishing his withdrawal.
See, e.g., United States v. Eppolito, 543 F.3d 25, 49 (1st Cir.
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2008).

To

withdraw

Page: 39

from

a

Date Filed: 04/07/2017

conspiracy,

a

person

Entry ID: 6082524

must

"act

affirmatively either to defeat or disavow the purposes of the
conspiracy."
(1st

Cir.

requires

United States v. Paz-Alvarez, 799 F.3d 12, 26 n.13

2015)
the

(quotation

accused

to

marks

come

omitted).

clean

with

Typically,

the

that

authorities

or

communicate with "his co-conspirators that he has abandoned the
enterprise and its goals."

United States v. Juodakis, 834 F.2d

1099, 1102 (1st Cir. 1987) (per curiam).
evidence suggesting he did either.

Ponzo points to no

Instead, he talks up evidence

indicating he had stopped working with certain conspirators.

But

"the '[m]ere cessation of activity in furtherance of the conspiracy
does not constitute withdrawal.'"

United States v. Ngige, 780

F.3d 497, 503–04 (1st Cir. 2015) (alteration in original) (quoting
United

States

v.

Ciresi,

697

F.3d

19,

27

(1st

Cir.

2012)).

Therefore, Ponzo did not establish withdrawal from the conspiracy.
As a fallback, Ponzo claims Weddleton and Piano joined
the conspiracy only after he "had left."

But the evidence shows

Mele recruited both Weddleton and Piano to receive marijuana
shipments in Massachusetts during the time Ponzo was shipping
marijuana from Arizona.
Taking
Weddleton

a

testified

So this contention goes nowhere.

slightly
that

different

David

tack,

Rudolph

--

Ponzo
Ponzo's

notes

how

previous

roommate -- described Ponzo as "a smart guy" who knew the marijuana
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"business

good."

As

Page: 40

Ponzo

sees

Date Filed: 04/07/2017

things,

that

inadmissible hearsay under Rule 801(d)(2)(E).

Entry ID: 6082524

evidence

was

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).
standard,

Rudolph's

statements

satisfy

Judged against this

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

satisfied

that

(among

"the

other

'in

ways)

furtherance'
by

requirement

statements

can

identifying

be

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.
court did not reversibly err for a simple reason:

The

Ponzo joined

the conspiracy in 1989, and these activities took place during his
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participation in the conspiracy.

Date Filed: 04/07/2017

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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

conviction:

acts

underlying

his

RICO

conspiracy

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

review."

United States v. Foley, 783 F.3d 7, 12-13 (1st Cir.

2015).

a

particularly

exacting

variant

of

plain

error

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."
13.
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The Cirame Shooting
The jury found that Ponzo had committed nine predicate

acts -- well beyond the two predicate acts necessary for a RICO
violation.

See 18 U.S.C. § 1961(5) (specifying that a pattern of

racketeering activity requires only two predicate acts committed
within 10 years of each other); see also United States v. Marino,
277 F.3d 11, 18-19 (1st Cir. 2002).

He, again, only challenges

the jury's findings on the two having to do with the Cirame
shooting -- to be precise, he is contesting the legal (rather than
the factual) sufficiency of the government's proof, given he
questions the lawfulness of certain rulings admitting certain
evidence.

But because he does not show any defects with the other

seven predicate acts, his first sufficiency claim is a nonstarter.
See generally United States v. Dhinsa, 243 F.3d 635, 670 (2d Cir.
2001) (noting that "the jury's findings of two predicate acts,
lawfully constituting a RICO pattern, and of the other elements of
a RICO offense, will permit affirmance of a RICO conviction
notwithstanding the invalidation of other predicate acts," and
further noting that the defective predicate did not "dominate"
this

prosecution,

"eclipsing

all

else"

(internal

quotations

omitted)); United States v. Paccione, 949 F.3d 1183, 1197-98 (2d
Cir. 1991) (finding that a "deficiency" with one predicate act did

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not require reversal of the RICO convictions because the remaining
eight predicate acts "suffer[ed] no defects").15
B.

The Cocaine Conspiracy
A count in the superseding indictment charged that from

"in or before 1989" through "in or after October 1994," Ponzo
conspired with others "known and unknown to the Grand Jury . . .
to possess with intent to distribute, and to distribute, . . . 500
grams or more . . . of cocaine."

And the evidence at trial --

viewed from a prosecution-friendly vantage point -- showed the
following:

Mele regularly sold one-ounce quantities (28.35 grams)

of cocaine to Marino in the mid to late 1980s.
Marino deliver the cocaine.

And Ponzo helped

Mele also sold Ponzo "eight balls"

(1/8 ounce, or about 3.5 grams each). Ponzo was still distributing
cocaine with Marino in the early to mid-1990s, delivering cocaine
to one of Marino's customers "a couple of times" a week.

Around

this time, Ponzo hooked up with Romano Sr. -- a distributor buying
up to six ounces (170 grams) per transaction from a supplier -- as

15

If more were needed -- and it is not -- we note the
following. The government proves racketeering when it proves two
predicate acts of racketeering "or, alternatively, when it proves
the collection of a single unlawful debt."
United States v.
Weiner, 3 F.3d 17, 23 (1st Cir. 1993). And not only did Ponzo's
jury find the requisite predicate acts, but it also found the
collection of an unlawful debt -- a finding he does not challenge.
So even if he could get some mileage out of his predicate-act
argument (and he cannot), the conviction on the RICO count would
still stand.
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evidenced by Ponzo's presence at a meeting where the participants
discussed

the

cocaine-distribution

distribution shifts.

business

and

divvyed

up

The government need have proved only that it

was reasonably foreseeable by Ponzo that conspiracy members would
handle over 500 grams of cocaine.

See United States v. Sepulveda,

15 F.3d 1161, 1197 (1st Cir. 1993) (emphasizing that "a defendant
is responsible for drugs he personally handled or anticipated
handling,

and,

under

the

relevant

conduct

rubric,

for

drugs

involved in additional acts that were reasonably foreseeable by
him and were committed in furtherance of the conspiracy").

With

all of this in mind, we conclude that the evidence sufficiently
connected Ponzo to the cocaine conspiracy that involved 500 grams
or more of cocaine -- at the very least, the evidence is not so
insufficient as to cause a clear and gross injustice.
X.

Waiver of Right to Testify
Before waiving his right to testify, Ponzo asked the

district court two questions: First, could the prosecution "crossexamine[]" 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
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the first time on appeal that his waiver was not knowing and
voluntary because the court did not answer his questions.
review is for plain error.

Our

And we find none.

We begin with the obvious:

"The defendant's lawyer,

rather than the trial judge, bears the primary responsibility of
informing and advising the defendant of this right, including its
strategic ramifications," Casiano-Jiménez v. United States, 817
F.3d 816, 820 (1st Cir. 2016) -- hence "a trial judge is not
required to apprise a defendant of his right to testify or inquire
whether he has waived it," Owens v. United States, 483 F.3d 48, 58
(1st Cir. 2007).
the

court

And Ponzo offers no convincing argument for how

plainly

erred

given

Casiano-Jiménez

and

Owens.

Critically too, Ponzo cites no controlling authority showing that
the court had to answer his questions -- which is not the way to
go about showing plain error.

See United States v. Morosco, 822

F.3d 1, 21 (1st Cir. 2016) (explaining that "plain error" is "an
indisputable error by the judge, given controlling precedent"
(quotation marks omitted)).
XI.

Prosecution's Conduct
Ponzo

next

maintains

that

three

prosecutorial misconduct require a new trial.

instances

of

Because he did not

preserve the points below, he is stuck with having to show plain
error -- something he has not done.
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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

government asked him if he knew Piano.
believe

I

do,

acquaintance."

yes,

sir.

I

don't

know

1997

to

2007,

the

Costello replied, "I
him,

but

he's

an

The government then asked Costello whether Piano

had "pick[ed] up any packages from you[.]" Ponzo's lawyer objected
before Costello could answer.
about?" the court asked.

"What time frame are we talking

"In approximately 1998 or 1999," the
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government's lawyer responded.

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And after a sidebar conference to

discuss the matter, the government decided to ask Costello no
further questions.
Despite Ponzo's arguments, we have some doubts whether
the government's queries violated the district court's ruling on
the motion to quash, since we question whether the questions
touched on privileged attorney-client communications.

But putting

that aside, we fail to see how either question prejudiced Ponzo.
Ponzo spends no time explaining how he suffered prejudice.

And

although the second question may have suggested that Costello was
somehow

involved

in

marijuana

trafficking,

the

query

went

unanswered, plus the court told the jury that lawyers' questions
are not evidence.

See United States v. Innamorati, 996 F.2d 456,

485 (1st Cir. 1993) (finding no prejudice where witness did not
answer the challenged question and the court instructed the jury
that lawyers' statements are not evidence); see also United States
v. Robinson, 473 F.3d 387, 394 (1st Cir. 2007) (noting that
demonstrating prejudice is "more difficult" when questions go
unanswered).

So we cannot say that the complained-of errors rise

to the level of plain error.
B.

Characterizations of the Evidence
Second

up

is

Ponzo's

claim

that

the

government

mischaracterized evidence during closing arguments. It is a truism
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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."
2009).

United States v. Meadows, 571 F.3d 131, 145 (1st Cir.

And after carefully reviewing Ponzo's claims, we can say

that none warrants reversal because the prosecutor confined his
comments to evidence in the record and to reasonable inferences
from that evidence.

Two examples suffice to illustrate the point.

The government mentioned that Quintero had said that Ponzo had
"shot a .223 or an AK rifle in his free time" in Arizona -- a
statement that Ponzo claims implies that he had a hand in shooting
Salemme. But Quintero did testify that he and Ponzo shot "rifles,"
though he could not specifically recall whether "it was a .223."
And the government made no reference to the Salemme shooting in
this context.

The government also said that killing Salemme was

Marino's and Ponzo's "ticket" to getting "made."

But Mele did

testify that Marino would "become a made guy" if "Salemme died."
And the government's statement that Ponzo would get "made" too was
premised on a fair inference from this evidence.

The long and the

short of it is that nothing Ponzo complains about here amounts to
plain error.

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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

.

.

government's
trusted."

.

or

implies

evidence

simply

we

the

because

jury

should

credit

the

government

the

can

be

Robinson, 473 F.3d at 396 (quotation marks omitted)

(alteration in original).
trial

that

are

prosecutor's

not

"[W]hen a defendant fails to object at

inclined

statement

if

to

there

find

improper

is

plausible

a

meaning

in

a

alternative."

United States v. Rodriguez, 675 F.3d 48, 65 (1st Cir. 2012).

The

plausible alternative here -- and the one the record supports -is that the prosecutor used "we" to rehash the evidence heard at
trial, not to throw the weight of the prosecutor's office behind
the evidence to establish credibility.

Also undermining Ponzo's

argument is the fact that he cites no controlling authority finding
prosecutorial misconduct under similar circumstances -- which
means he has not shown plain error.
at 21.

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See, e.g., Morosco, 822 F.3d

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XII.

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Verdict Form
We now address Ponzo's argument that the verdict form

allowed the jury to convict him on the § 924(c) firearm count for
merely possessing a firearm in relation to a crime of violence, as
opposed to using or carrying the firearm.

Because he did not

object to the verdict's form before the jury retired to deliberate,
we review only for plain error.

See United States v. Edelkind,

467 F.3d 791, 795-96 (1st Cir. 2006).

And we see nothing of the

sort here.
The current version of § 924(c) covers "any person who,
during and in relation to any crime of violence . . . , uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm."

See § 924(c)(1)(A) (emphasis added).

But,

both sides tell us, the version in effect at the time of the
offense alleged in the § 924(c) count here covered only the "use
or carry" of a firearm, not possession. Unfortunately, the verdict
form wrongly captioned the § 924(c) firearm count as "firearm
possession in relation to murder conspiracy" -- wrongly, because
(again) the offense charged required using or carrying a firearm,
not mere possession.

Studying "the verdict form as a whole,"

however, "in conjunction with" the jury charge, as we must, United
States v. Rodríguez, 735 F.3d 1, 11 (1st Cir. 2013) (quotation
marks omitted), we see that the court correctly instructed the
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jury,

stating

that

"the

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government

must

prove

the

Entry ID: 6082524

defendant

knowingly used or carried a firearm" -- and then the court went on
to define use and carry.
court's instructions.

We of course presume that jurors obey a

See, e.g., United States v. Gemma, 818 F.3d

23, 37 (1st Cir. 2016).

And based on the correct, in-depth

instruction and the presumption that jurors follow instructions,
we cannot find that the error affected Ponzo's substantial rights
because we cannot say that it likely affected the jury verdict.
So

the

error

does

not

qualify

as

plain

error.

See,

e.g.,

Rodríguez, 735 F.3d at 11-12 (finding that a jury-verdict form
that

mischaracterized

the

burden

of

proof

did

not

affect

a

defendant's substantial rights where the court properly instructed
the jury and the defendant advanced nothing to suggest prejudice).
Undaunted, Ponzo argues that the jury's answers to the
§ 924(c) count's special-verdict questions suggests that it "did
not find that he had 'used'" a firearm.

These questions covered

certain weapons -- like machine guns and shot guns -- that the
government says (without contradiction) would have increased the
mandatory-minimum sentence under the relevant version of § 924(c).
Ponzo cites no authority holding that leaving this section blank
shows

that

the

jury

convicted

him

for

less

than

"using"

or

"carrying" a gun. Thus, we stand by our no-plain-error conclusion.
See Morosco, 822 F.3d at 21.
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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).

"force clause."

Subsection (A) is known as the

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
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vague in Johnson v. United States, 135 S. Ct. 2551, 2556
(2015).

And, he points out, § 924(c)'s risk-of-force clause

is identical to a risk-of-force clause in 18 U.S.C. § 16(b),
which some circuits have held to be unconstitutional under
Johnson.


Ergo -- and to quote again from his brief -- he "cannot be
guilty of carrying/using a firearm in connection with a crime
of violence because the underlying crime was not a crime of
violence."

Because Ponzo did not raise this argument below, we again review
for plain error only.

And we again find no plain error exists.

We jump to § 924(c)'s risk-of-force clause, because that
is the simplest way to deal with this issue.

See generally

Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st
Cir. 2013) (noting that "[t]he simplest way to decide a case is
often the best" (quoting Chambers v. Bowersox, 157 F.3d 560, 564
n.4
§

(8th

Cir.

924(c)'s

1998))).

The

risk-of-force

question

clause

is

presented

invalid

reasoning -- is an open one in our circuit.

under

--

whether

Johnson's

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.
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Hill, 832 F.3d 135, 145-50 (2d Cir. 2016); United States v. Taylor,
814 F.3d 340, 375-79 (6th Cir. 2016); United States v. Prickett,
839 F.3d 697, 699-700 (8th Cir. 2016). True too, the Third, Sixth,
Seventh, Ninth, and Tenth Circuits said Johnson nullifies § 16(b)'s
risk-of-force clause -- a clause worded identically to § 924(c)'s
risk-of-force clause, as Ponzo notes.

See Baptiste v. Attorney

Gen., 841 F.3d 601, 615-21 (3d Cir. 2016); Shuti v. Lynch, 828
F.3d 440, 445-51 (6th Cir. 2016); United States v. Vivas-Ceja, 808
F.3d 719, 721-23 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110,
1114-20 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (2016) (oral
argument Jan. 17, 2017); Golicov v. Lynch, 837 F.3d 1065, 1069-75
(10th Cir. 2016). But the Fifth Circuit, sitting en banc, rejected
that view.

See United States v. Gonzalez-Longoria, 831 F.3d 670,

674-78 (5th Cir. 2016) (en banc); see also Hill, 832 F.3d at 149
(noting that while some circuits used Johnson to nix § 16(b), these
decisions are "unpersuasive" and so did not change the court's
view

that

§

924(c)'s

risk-of-force

clause

is

unconstitutionally vague); Taylor, 814 F.3d at 379 (same).

not
And

given the conflicting precedents on the question at hand, any error
here (if error there was) was not plain.

See, e.g., United States

v. Pabon, 819 F.3d 26, 34 (1st Cir.), cert. denied, 127 S. Ct. 345
(2016); United States v. Goodhue, 486 F.3d 52, 57 (1st Cir. 2007).

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Perhaps it is possible for there to be plain error in a
case where many other circuits make the same mistake, so long as
it is clear that they are clearly wrong.

But Ponzo attempts no

argument along these lines, even though he bears the burden of
showing plain error.

See, e.g., United States v. Rodríguez-Soler,

773 F.3d 289, 293 (1st Cir. 2014).

So we say no more about that

point.
XIV.

Sentencing Calculations
Turning to sentencing, Ponzo makes three broad claims:

that the court violated the Constitution's Ex Post Facto Clause by
using the 2013 version of the federal sentencing guidelines; that
the court miscalculated his criminal history; and that the court
wrongly labeled him a career offender.

Ponzo preserved the ex

post facto issue -- so our review is de novo.
v. Goergen, 683 F.3d 1, 3 (1st Cir. 2012).

See United States

He preserved some but

not all of his criminal-history arguments -- preserved issues
involve

different

standards,

e.g.,

clear

error

for

factual

findings and de novo for questions of law, see United States v.
Maldonado, 614 F.3d 14, 17 & n.2 (1st Cir. 2010); an unpreserved
contention

receives

plain-error

review,

naturally.

And

he

preserved the career-offender issue -- so our review is de novo.
See United States v. Velázquez, 777 F.3d 91, 94 (1st Cir. 2015).
When all is said and done, though, we leave his sentence intact.
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A.

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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,

calculations."

not

count-by-count,

sentencing

United States v. Bivens, 811 F.3d 840, 842 (6th

Cir. 2016) (citing U.S.S.G. §§ 3D1.3, 3D1.4).

At the risk of

oversimplification, here is how that ordinarily works:

the court

computes "the offense level for each count within each group,
attributes to each group the highest offense level of any count
within it" after factoring in certain adjustments for those counts,
"compares the groups to ascertain which has the highest offense
level, considers certain further adjustments . . . , and sentences
the

defendant

based

on

that

triage."

See

United

States

v.

Florence, 143 F.3d 11, 14 (1st Cir. 1998); see also U.S.S.G.
§ 3D1.3 cmt. n.2.
At sentencing, Ponzo -- appearing pro se (with his trial
attorney as standby counsel) -- argued that to avoid an ex post
facto problem, the court should not use the guidelines in effect
at the time of sentencing but should instead use those in vogue
when the crimes were committed.

See generally United States v.

Mehanna, 735 F.3d 32, 67 (1st Cir. 2013) (emphasizing the "general
rule" that absent ex post facto problems, a sentencer "should use
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the version of the guidelines in effect at the time of the
disposition hearing").

The court thought Ponzo had a point but

said it "need not decide that question because applying the earlier
versions of the guidelines to certain count groups" would produce
"the same guideline range of 360 months to life as would result
from applying" the current guidelines -- though the court, having
concluded that it made no difference which guidelines applied,
stated it was applying the newer guidelines (i.e., the 2013
version).

So the court grouped the convictions into eight groups

and

used

then

the

older

guidelines

to

do

the

calculations.

Skipping over details not relevant here, the court concluded that
Group 3 -- comprised of the racketeering conspiracy, the drug
conspiracies, and the money-laundering counts -- had the highest
adjusted offense level.
"multiple

count

And after applying what is called a

adjustment,"

the

court

pegged

Ponzo's

total

offense level at 38 -- which, when paired with a criminal history
category of V or VI (the court said it did not matter which),
yielded a guidelines range of 360 months to life.

The court

ultimately gave him 336 months, a sentence that included the 60
months the court had to impose for his § 924(c) conviction.16

16

Given the court's approach, Ponzo's challenges to groups
other than Group 3 are irrelevant.
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Ponzo basically rehashes the ex post facto argument he
made

below,

telling

us

that

the

court's

use

guidelines" infracted his constitutional rights.

of

the

"newer

But we see no

violation because, as the district court showed, the guidelines
range was the same under both the older and newer versions.
persistent,

Ponzo

faults

the

court

livelihood enhancement for Group 3.

for

applying

a

Ever

criminal-

The court agreed that this

enhancement was not around when the relevant crimes occurred "and,
therefore, . . . would not be applied."

But the court added it

could "apply a three-level" enhancement under the older guidelines
based on Ponzo's "role as a manager or supervisor" in the marijuana
conspiracy -- an increase that would help keep the guidelines range
the same under either the older or newer versions of the manual.
Ponzo briefly argues against that enhancement, saying the evidence
below showed that Steven Stoico was "the boss" -- to hear Ponzo
tell it, he (Ponzo) simply "shipped the marijuana."
Stoico

was

the

boss,

making

him

eligible

for

But even if
a

four-level

enhancement for being a leader, Ponzo could still get a threelevel manager or supervisor enhancement.
(b).

See U.S.S.G. § 3B1.1(a),

And the evidence supported the enhancement because Ponzo

trained and paid a guy for packing marijuana.

See United States

v. Garcia-Hernandez, 659 F.3d 108, 114 (1st Cir. 2011) (holding
that the aggravating role adjustment found in § 3B1.1(b) requires
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sentencer

to

find,

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first,

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that

"the

underlying

Entry ID: 6082524

criminal

activity involved more than five participants or was otherwise
extensive," and, second, that the defendant managed or supervised
one or more of the other participants in that activity").
No reversible error happened here.
B.

Criminal History
Ponzo says the court erred by assessing criminal-history

points under the guidelines for convictions listed in paragraphs
160-63 of the probation service's presentence report (like the
parties, we will use these paragraph numbers to refer to the
targeted convictions).

First he argues (as he did in the district

court) that two convictions -- found in ¶¶ 160 and 163 -- should
not have been counted because they were not supported by "official
court records."
claim.

Reviewing this matter de novo, we reject his

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

of

description

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
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must conduct "additional inquiry into the reliability of these
sources."
2009).

United States v. Bryant, 571 F.3d 147, 155 (1st Cir.
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."
(1st Cir. 2004).
however.

See United States v. Barbour, 393 F.3d 82, 93
Ponzo does not try to make either showing,

And even if we accept arguendo that he was uncounseled,

he has not shown that he did not waive his right to counsel.
id.

See

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
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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

1B1.3(a)(1)(B).

criminal

Ponzo

began

activity,"
his

see

participation

U.S.S.G.
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.
does

Ponzo

And nothing leads us to believe -- nor

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.
into that issue.

But we need not delve

And that is because -- as the government says,

and as the court itself noted -- the career-offender designation
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made no difference to his guidelines range: even without it, Ponzo
still faced a guidelines range of 360 months to life.
makes any error (if there was one) harmless.17

And that

See United States

v. Battle, 637 F.3d 44, 50 (1st Cir. 2011).
We have no reason to reverse here, either.
XV.

Forfeiture
The

million.

district

court

ordered

Ponzo

to

forfeit

$2.25

And Ponzo assigns five errors with that award.

The

government sees no problems, we should add. For properly preserved
claims, we review pure "questions of law de novo, but, to the
extent factual issues are intermingled, consider mixed questions
of law and fact under the more deferential clear error standard."
See United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004);
see also United States v. Jose, 499 F.3d 105, 108 (1st Cir. 2007)
(explaining

that

constitutionally

when

a

excessive,

defendant
"[o]ur

claims
review

is

a

forfeiture
de

novo,"

is
with

"deference" given "to the district court's factual findings" under

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).
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the clear-error standard).
error.

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We review unpreserved issues for plain

See, e.g., Jose, 499 F.3d at 108.

Readers should consider

an issue preserved (either because it is preserved or because it
is easier for us to assume it is preserved), unless told otherwise.
Ponzo opens up by claiming (without citation to any
authority) that the judge should have limited the forfeiture to
the amount sought in the superseding indictment -- an unpreserved
claim of error.

The superseding indictment told Ponzo that the

government sought the "proceeds" of the drug-trafficking crime,
"including but not limited to" a "$1.5 million" judgment.

Rule

32(a) of the Federal Rules of Criminal Procedure provides that the
forfeiture notice in an indictment "need not . . . specify the
amount of any forfeiture money judgment that the government seeks,"
see

Fed.

R.

Crim.

P.

32(a)

--

it

logically

follows

that

a

forfeiture determination need not flow from the indictment, or so
says the government.

Putting aside this theory, we think what

dooms Ponzo's claim is that he has not shown that this alleged
error was plain under controlling precedent -- which means this
challenge flunks plain-error review.

See, e.g., Morosco, 822 F.3d

at 21.
Ponzo next claims the court erred by determining the
forfeiture amount instead of the jury.
traction either.

But that argument has no

The criminal rules provide that either party may
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request "that the jury be retained to determine the forfeitability
of specific property."

Fed. R. Crim. P. 32.2(b)(5)(A).

But the

rules say nothing about the jury determining the forfeiture amount.
Instead the rules declare that "[i]f the government seeks a
personal money judgment, the court must determine the amount of
money that the defendant will be ordered to pay."

Fed. R. Crim.

P. 32.2(b)(1)(A) (emphasis added); cf. generally United States v.
Misla-Aldarondo, 478 F.3d 52, 75 (1st Cir. 2007) (reviewing a
judge-determined forfeiture amount).

And today we follow our

sibling circuits in holding that the criminal rules "do[] not
require a jury determination in the form of a personal money
judgment."

United States v. Christensen, 828 F.3d 763, 822 (9th

Cir. 2015); see also United States v. Jameel, 626 F. App'x 415,
419 (4th Cir. 2015) (per curiam); United States v. Curbelo, 726
F.3d 1260, 1277 (11th Cir. 2013); United States v. Grose, 461 F.
App'x 786, 806 (10th Cir. 2012); United States v. Gregoire, 638
F.3d 962, 972 (8th Cir. 2011).
Shifting gears, Ponzo also claims the court botched
matters by not limiting "[t]he money judgment . . . to the amount
that [he] actually received for his role in shipping the marijuana,
or at most the profits from the conspiracy."

His suggestion that

the forfeiture amount should not include funds received by his coconspirators runs headlong into caselaw establishing that "[s]o
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long as the amount handled by others is foreseeable as to a
defendant, the foreseeable amount represents the sounder measure
of liability."

See United States v. Hurley, 63 F.3d 1, 22 (1st

Cir. 1995).18
Next, quoting 21 U.S.C. § 853(a) -- which says "[i]n
lieu of a fine otherwise authorized by this part, a defendant who
derives profits or other proceeds from an offense may be fined not
more than twice the gross profits or other proceeds" and which he
agrees he "was subject to" -- Ponzo claims "other proceeds" means

18

Hurley dealt with a RICO forfeiture provision in § 1963(a),
rather than the drug-related forfeiture provision in § 853(a).
See 63 F.3d at 22. But the two provisions are similarly worded.
Compare § 1963(a)(3) (calling for the forfeiture of "any property
. . . derived from . . . any proceeds which the person obtained,
directly or indirectly, from racketeering activity or unlawful
debt collection"), with § 853(a)(1) (calling for the forfeiture of
"any property . . . derived from . . . any proceeds the person
obtained, directly or indirectly, as the result of such violation"
of the drug laws). That similarity in wording reflects the fact
that Congress -- as the legislative history of § 853 demonstrates
-- intended these provisions to "closely parallel" one another.
United States v. White, 116 F.3d 948, 950 (1st Cir. 1997). And so
we -- like other courts -- construe them similarly, as White
directs, a case Ponzo does not address.
After oral argument here, the Supreme Court granted
certiorari in a Sixth Circuit case presenting the issue of whether
§ 853(a)(1) mandates joint and several liability among coconspirators for forfeiture of the reasonably foreseeable proceeds
of a drug conspiracy. See United States v. Honeycutt, 816 F.3d
362 (6th Cir), cert. granted, 137 S. Ct. 588 (2016) (oral argument
Mar. 29, 2017).
We forge ahead, however, as we have done in
similar situations. See, e.g., Yaman v. Yaman, 730 F.3d 1, 4 (1st
Cir. 2013); United States v. Volungus, 595 F.3d 1, 4 (1st Cir.
2010).
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"net profits," not "gross proceeds."

Entry ID: 6082524

But we rejected that very

argument in United States v. Bucci, which held that a district
court did not plainly err by instructing a jury that "proceeds" in
§ 853(a) means the "gross proceeds" of drug trafficking, not "net
profits."

See 582 F.3d 108, 121-24 (1st Cir. 2009).

analyzed the issue in terms of plain error.
clear that there was no error at all.
Pulling

out

all

the

Id.

True, Bucci

But Bucci made

See id.

stops,

Ponzo

claims

the

money

judgment violated the Eighth Amendment's excessive-fines clause
because (in his view) it will deprive him of the ability to make
a living.

See United States v. Sepúlveda-Hernández, 752 F.3d 22,

37

Cir.

(1st

2014)

("[a]ssuming,

without

deciding,

that

deprivation of livelihood can constitute a basis for setting aside
a criminal forfeiture judgment"); United States v. AguasvivasCastillo, 668 F.3d 7, 16 (1st Cir. 2012) (holding that a defendant
"may raise whether the forfeiture order is so excessive under the
Eighth Amendment that it would, in extreme cases, effectively
deprive the defendant of his or her future livelihood").

But as

the government points out, "the Attorney General and the Secretary
of the Treasury may remit a forfeiture on the grounds of hardship
to [Ponzo] under 21 U.S.C. §§ 853(j), 881(d), and 19 U.S.C.
§ 1618," if appropriate.

See Aguasvivas-Castillo, 688 F.3d at 16.

And as the district court pointed out, "the value of the specific
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assets found forfeitable" will reduce "the money judgment" -- so
Ponzo "will not be required to earn and re-pay the full" $2.25
million.

The end result is that Ponzo has not met his "burden to

establish a record at the district court level that could sustain
a deprivation of livelihood claim."

See Sepúlveda-Hernández, 752

F.3d at 37.
Ponzo also takes the district court to task for issuing
a September 25, 2015 restraining order on his prison commissary
account without a hearing.19

He says that § 853(e)(2) required the

court to hold a hearing since he asked for one -- this even though
§ 853(e)(2) applies only to temporary restraining orders issued
"when an information or indictment has not yet been filed" and the
restraining order here came after the indictment.

But we need not

deal with his argument because -- as the government is quick to
note -- his pro se notice of appeal from the court's order is
untimely.

Ponzo dated the notice October 9, exactly 14 days after

the district court entered the order.

See generally Fed. R. App.

P. 4(b)(1)(A)(i) (giving a criminal defendant 14 days to file a
notice of appeal).

But the notice was not docketed until October

19, 10 days after the due date.

See generally United States v.

Gonzalez-Rodriguez, 777 F.3d 37, 40 n.4 (1st Cir. 2015) (explaining

19

All dates here are in that year.
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that "[w]e need to decide" whether Rule 4(b)'s time limits are
jurisdictional

"because

the

time

limits,

even

if

not

jurisdictional, are mandatory when raised by the government").
And Ponzo -- represented by counsel on appeal -- does nothing to
establish the timeliness of his notice under the prisoner-mailbox
rule.

See Fed. R. App. P. 4(c)(1).

Enough said about the

restraining-order issue.
CONCLUSION
Here is what this all means:

We dismiss the appeal from

the restraining order (No. 15-2277) as untimely and affirm the
judgments in the other appeals (Nos. 14-1528, 14-1548, 14-1906,
and 15-1878).

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