United States v. Ponzo

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.
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
 THOMPSON, Circuit Judge. Enrico Ponzo operated as a

member of the northeast crime syndicate known as the Patriarca

Family of La Cosa Nostra ("LCN"). After being charged with

multiple criminal offenses, he absconded to Arizona (and later to

Idaho), changed his identity, and joined a marijuana-shipping

conspiracy. A jury later convicted him on a bevy of charges,

including conspiracy to commit racketeering, conspiracy to commit

murder in aid of racketeering, conspiracy to distribute cocaine,

extortion, flight from justice, and conspiracy to distribute

marijuana. And in this appeal, he complains of an assortment of

supposed errors -- ranging from the prosecution's use of the grand

jury to the court's sentence selection, and almost everything in

between -- but none persuades. Before explaining why that is, we

briefly state the background facts, reserving additional detail

for inclusion in our discussion of the relevant issues.

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 LCN membership formed the basis for the

Racketeer Influenced and Corrupt Organizations Act ("RICO")

conspiracy for which he was convicted. Following his activities

with LCN, Ponzo fled Massachusetts with multiple criminal charges

pending and established himself in a marijuana-shipping business

in Arizona. Later, he met his then-girlfriend and left Arizona

and the marijuana business. And he eventually settled down in

Idaho as a cattle rancher.

We begin with LCN. As a member of LCN, Ponzo's duties

included "collecting envelopes" -- that is, using threats and

intimidation to extort money from bookies and drug dealers. He

also collected debts owed from loan sharking.2

In addition to his "collecting business," Ponzo was also

involved in drug dealing. He bought cocaine from a man named John

Mele and frequently rode with Vinny Marino (a/k/a Gigi Portalla)

during the transactions with Mele. In turn, Ponzo sold this

cocaine on the street.

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 anti-

Salemme faction. In 1989, Salemme, leader of the Salemme faction,

was shot multiple times at an IHOP restaurant but survived. Trial

testimony revealed that Ponzo, along with Marino, shot at Salemme.

The attempt on Salemme's life and wayward leadership created a

powder keg within LCN.

In the summer of 1994, the intra-LCN conflict came to

the fore. Ponzo and another LCN member, Michael Romano Jr., got

arrested for possession of cocaine with the intent to distribute.

Ponzo posted bail and was released. About a month later, Ponzo

and Romano Jr. were driving to "collect an envelope" from Joseph

Cirame when their car got a flat tire. Ponzo left the car and

walked away to make a phone call. At this point, a car pulled up,

and someone inside shot and killed Romano Jr. Trial testimony

conflicted as to whether Ponzo was the target of the murder;

however, testimony did show that Anthony Ciampi and Michael Romano

Sr., also members of the anti-Salemme faction, questioned Ponzo's

loyalty and blamed him for Romano Jr.'s death. Ponzo asserts that

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

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instead. Anyway, about a month after the Romano Jr. murder, Ponzo

(along with Sean Cote) shot Cirame, a member of the Salemme faction

believed to be responsible for Romano Jr.'s death.

Meanwhile, in September 1994, the Commonwealth of

Massachusetts charged Ponzo with assault with intent to murder in

an unrelated case. Roughly two months later, in November 1994,

Ponzo failed to appear in state court on the possession of cocaine

charges; accordingly, the court issued a warrant for his arrest.

Ponzo hid from the arrest warrant at the home of his drug supplier,

Mele. While in hiding, Ponzo implored Mele to set him up with a

marijuana-trafficking business in Arizona. Obliging the request,

Mele, after helping Ponzo move to Arizona, introduced him to the

marijuana-shipping business, where these logisticians packaged the

marijuana in Arizona and shipped the marijuana to Massachusetts.

In Arizona, Mele taught Ponzo how to package the

marijuana and introduced him to Jesus Quintero and Steve Stoico,

members of the marijuana conspiracy. Ponzo also began using a

false identity at that time -- Jeffrey Shaw. Through the

conspiracy, Ponzo and his co-conspirators purchased and shipped

between 1,000 and 1,500 pounds of marijuana a year to the Bay

State.

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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. Ponzo argued

unsuccessfully in the district court that the government

subpoenaed Annette Gestwicki and Leonard Senibaldi to testify

before the subsequent grand jury for the purpose of preparing for

trial on an offense for which he was already indicted -- the 1994

attempted murder of Cirame.

As for the law, all agree that the government cannot use

a grand jury "principally to prepare pending charges for trial."

Id. (emphasis added). All agree too that "when the new indictment

charges new crimes . . . , it adequately evinces the propriety of

the prosecutor's purpose" and so undercuts the grand-jury-abuse

claim. Id. at 30. And because the superseding indictment here

added additional charges, Ponzo cannot meet his "heavy burden" of

showing grand jury abuse. See id. at 28.

II. Joinder of Charges and Severance

Ponzo criticizes the government for improperly joining

the Arizona marijuana and money-laundering charges with the

Massachusetts LCN charges in a single indictment. See Fed. R.

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

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defendant only if the offenses "are of the same or similar

character, or are based on the same act or transaction, or are

connected with or constitute parts of a common scheme or plan").

In his mind, the two sets of charges involve different statutes,

locations, modes of operation, and (for the most part)

participants. And he blasts the district court for refusing to

sever the allegedly incompatible charges. See Fed. R. Crim. P.

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

appears to prejudice a defendant"). The government sees no error

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

"find both misjoinder and actual prejudice, we must vacate the

[judgment of] conviction." See United States v. Natanel, 938 F.3d

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

438, 449 (1986)). But bearing in mind our standards of review --

de novo for the joinder issue and abuse of the discretion for the

severance issue, see United States v. Meléndez, 301 F.3d 27, 35

(1st Cir. 2002) -- we see no reason to reverse.

Our reasoning is straightforward. Even assuming

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

was harmless. Cf. United States v. Edgar, 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.
- 10 -
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. United States v. Taylor, 54 F.3d 967, 974 (1st

Cir. 1995). 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." But he fails to explain how or why

this is so. And an "unexplained assertion" like this "is not

enough to establish prejudicial joinder." Id. at 504 n.5

(quotation marks omitted). Well, then, writes Ponzo, prejudice

there certainly was because "he was forced to decide between

testifying as to all sets of charges or testifying as to none."

To get anywhere, he had to "make[] a convincing showing that he

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has both important testimony to give concerning one count and

strong need to refrain from testifying on the other." See

Meléndez, 301 F.3d at 36. 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. See 18

U.S.C. § 3282(a). Alluding to that proviso, Ponzo argues that the

government did not bring the following charges against him within

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that five-year period: (a) "the Arizona marijuana and money

laundering charges"4 and (b) the "new charges" of conspiracy and

use of extortionate means to collect debt added by "the superseding

indictment."5 But another statute provides an exception to

§ 3282(a), saying that "[n]o statute of limitations shall extend

to any person fleeing from justice." Id. § 3290. Emphasizing

that he fled from "state charges," Ponzo argues that the "natural

reading" of this exception is that "flight from state charges [does

not] toll[] the statute [of limitations] for federal charges for

different conduct." For support, he relies on a dissenting opinion

in a Tenth Circuit case,6 while conceding that "[s]everal circuits"

-- the Second, Sixth, Ninth, and, of course, Tenth -- reject his

view.7 Yet he still believes that the "charges should have been

barred by the statute of limitations" and "dismissed with

prejudice." The government disagrees with Ponzo, unsurprisingly,

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.
- 13 -
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. So we are

miles away from a plain error, to put it bluntly.8 See, e.g.,

8 Ponzo says in one short sentence that "[t]he Government at
least agreed in theory that 'It's true that the old Indictment did
not toll anything because the new counts are new counts." We have
no idea what this means, however. And Ponzo offers no explanation.
So whatever the point is he is trying to make, we hold it waived.
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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-of-
limitations section of his initial brief escapes us. Anyhow, any
defect or error here -- to the extent one existed at all -- was
harmless because it in no way prejudiced Ponzo. And that is
because the government gave him the victim's name months before
trial -- something the lower court relied on in denying his motion
for a bill of particulars (a ruling he does not contest on appeal).
Cf. generally United States v. Olano, 507 U.S. 725, 734-35 (1993)
(emphasizing the centrality of prejudice to the harmless-error
analysis).
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 A. Background

In January 2011, the FBI got a tip that a man calling

himself "Jay Shaw" who looked an awful lot like Ponzo lived at

6107 Hogg Road, Marsing, Idaho.9 After investigating the matter,

the FBI believed it "highly likely" that the two men were one and

the same. On February 7, federal and state officers apprehended

Ponzo on his way to see a neighbor. He asked to speak with his

attorney, though he did say he had two children and later said

they were not home. Concerned that the kids were home and would

be all alone with him in custody, agents decided to see for

themselves whether they were there or not. So they knocked on the

front door. No one answered. But they did hear a radio or

television, so they peered through the window and saw what appeared

to be a rifle (later determined to be an air rifle) and a security

camera. Satisfied that no one was in the house, agents left the

property. A fingerprint analysis done at the jail confirmed Shaw

was Ponzo.

That very day, agents also talked to some of Ponzo's

neighbors, a bunch of whom had known him as Jay Shaw and confirmed

he lived at the Hogg Road address. One of them added that Ponzo

said that he owned guns. The neighbor also remembered that Ponzo

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 false

identifications, as well as an identification-making kit. Agents

also found multiple computers.

Agents then sought and obtained a second warrant to

search the computers, discs, and flash drives in the house for

information relating to (among other things) Ponzo's false

identities and financial support during his time on the lam.

Returning to the house on March 28, they noticed that someone had

pulled up the carpet in the master bedroom closet, revealing an

empty floor safe that looked like it had been broken into. Agents

called the person now leasing Ponzo's home, Kelly Verceles.

Returning to 6107 Hogg Road, Verceles took the agents to see the

safe's contents -- which included over $100,000 in cash, gold coins

worth about $65,000, and more fake identification cards and

driver's licenses with Ponzo's picture. Agents later learned that

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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. The district court

denied his motion without holding an evidentiary hearing,

concluding that even if the agents' initial intrusion onto his

property was unlawful, they had seized the challenged evidence

through an "independent source" untainted by the supposedly

illegal encroachment.

B. Parties' Arguments

After criticizing the court for deciding the suppression

motion "without the benefit of any testimony at all," Ponzo argues

as follows against the court's ruling: (a) Agents acted illegally

when they peered through the window and spotted the air rifle and

surveillance camera -- and excising that unlawfully obtained

visual evidence from the February search warrant affidavit means

no probable cause supported the February search warrant.

(b) Agents noticed the computers during the illegal February

search, which, again, flowed from the initial illegal entry onto

his property -- and excising that unlawfully obtained visual

evidence from the March search warrant affidavit means no probable

cause supported the March search warrant either. Also, (c) the

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court should have suppressed the evidence Verceles produced

because he had no actual or apparent authority to consent and

because his consent was not voluntary.

The government has a markedly different view from

Ponzo's: (a) The court assumed disputed facts in Ponzo's favor

and decided the motion on purely legal grounds, eliminating any

need for an evidentiary hearing. (b) Seeing the air rifle and

surveillance camera through the window neither affected law

enforcement's decision to seek any warrant nor influenced the

magistrate's decision to issue a warrant -- plus the remaining

portions of the affidavits were sufficient to establish probable

cause. And (c) Ponzo waived the argument about the evidence

obtained from the floor safe by not raising it below -- moreover,

the argument clearly has no merit because Verceles voluntarily

gave the items to the agents.

We agree with the government, for reasons we will get to

after identifying the applicable standards of review.

C. Standards of Review

We review the district court's decision to deny an

evidentiary hearing only for abuse of discretion. See, e.g.,

United States v. Francois, 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. 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 relief."

Francois, 715 F.3d at 32 (quotation marks omitted). Ponzo has not

satisfied this burden. The district court (don't forget) decided

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

favorably to Ponzo -- that agents saw the air rifle and

surveillance camera during an illegal search. 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. 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 months later, because individuals who possess

firearms tend to keep them for long periods of 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

- 23 -
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 warrant-

backed search in March were the fruit of the poisonous tree.

That brings us to Ponzo's charge that the district court

stumbled by "fail[ing] to address the illegality of the so-called

'consent search'" of the floor safe that Verceles had broken into.

The problem here is that Ponzo did not argue in his suppression

motion that the court should exclude the evidence Verceles had

handed over, making the claim untimely. See United States v.

Albertelli, 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. Santiago-

González, 825 F.3d 41, 46 n.7 (1st Cir. 2016). Ponzo makes no

effort to show this. And he also makes no effort to explain why,

in the absence of any such showing, he is entitled to review even

- 24 -
under the demanding plain-error standard. 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 conflict comes from Cunha's prior appellate

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

him. The second potential conflict involves Cunha's prior

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

government witness -- Bobby Luisi Jr. -- in Ponzo's case.

Reviewing de novo, see United States v. Martínez-Hernández, 818

F.3d 39, 46 (1st Cir. 2016), we reject Ponzo's conflict-of-interest

contentions.

A. Guiding Principles

The Sixth Amendment guarantees the right to conflict-

free counsel. See, e.g., Yeboah-Sefah v. Ficco, 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"

- 25 -
raises a potential conflict of interest. Mickens v. Taylor, 535

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

475, 489-90 (1978)). That being so, the Supreme Court has

"create[d] an automatic reversal rule" for situations "where

defense counsel is forced to represent codefendants over his timely

objection, unless the trial court has determined there is no

conflict." Id. (discussing Holloway, 435 U.S. at 488).

Simplifying our task, Ponzo's appellate lawyer told us at oral

argument that he is not relying on the automatic-reversal rule --

which means we need say no more about that subject.

Turning, then, to situations where the automatic-

reversal rule does not apply, we see that the high Court has

required defendants there to show that "a conflict of interest

actually affected" the lawyer's "performance -- as opposed to a

mere theoretical division of loyalties." Id. at 168, 171 (emphasis

removed). Unlike ineffective assistance claims governed by

Strickland v. Washington, 466 U.S. 668, 687 (1984) -- a case

requiring the defendant to show that counsel's performance was

deficient and that this defective representation prejudiced the

case's outcome -- prejudice is presumed if a defendant meets this

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

DeCologero, 530 F.3d 36, 76-77 (1st Cir. 2008) (noting that adverse

effect is much easier to show than the actual prejudice required

- 26 -
for "ineffective assistance of counsel claims"). 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 United States v. Colón-Torres,

382 F.3d 76, 88 (1st Cir. 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. 535

U.S. at 174–75. But Mickens did not decide whether this standard

applied in the successive-representation context, saying the

question remained "open." Id. at 176. We too have not said

whether the actual-conflict standard applies to cases of

10
Prong one of this "test acts as a check on the possibility
of a defendant twisting a mere conflict of opinion as to what is
in the client's best interests into a 'conflict of interest'
between client and attorney." Cody v. United States, 249 F.3d 47,
54 n.7 (1st Cir. 2001).
- 27 -
successive representation. 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. The magistrate judge denied

11
Offering no legal authority supporting his point, Ponzo
spends two sentences suggesting that because he raised the
conflict-of-interest issue pre-trial, he "only" had to show "a
division of loyalties" on Cunha's part, not "a conflict that
affected" Cunha's "performance." But his suggestion is so little
developed that it is waived. See, e.g., Muñiz v. Rovi, 373 F.3d
1, 8 (1st Cir. 2004) (deeming waived skeletal argument
unaccompanied by "citation to any pertinent authority").
- 28 -
this motion, which led to Duncan's withdrawal as counsel. Later,

the court appointed Cunha to represent Ponzo. On the first day of

trial, 13 months into his representation, Ponzo moved pro se for

a new attorney because, 12 years prior, Cunha had represented

Clark, whom Ponzo claims tried to kill him but killed his friend

-- Romano Jr. -- instead.

According to Ponzo, a key incident giving rise to the

supposed conflict occurred in September 1994, when Romano Jr. was

shot and killed. Trial testimony conflicted as to who shot Romano

Jr. One account, however, placed Clark at the scene, with Ponzo

as the intended target. The same day that Romano Jr. was murdered,

Clark killed a state trooper during a traffic stop. And Cunha

represented Clark on appeal after Clark's state-court conviction

for the trooper's murder. Later, toward the end of 1994, Ponzo

fled from Massachusetts to Arizona.

Ponzo brought this alleged conflict to the district

court's attention on the first day of trial. In response, Cunha

explained that "[t]here have been allegations sort of floating

about, if you will, that Mr. Clark may have been one of the ones

who shot at Michael Romano, Junior." Cunha went on to say that he

did not see a conflict. The court agreed and denied Ponzo's pro

se motion.

- 29 -
 Ponzo asks us to reverse and remand for a new trial,

arguing that Cunha "had no interest in painting Clark, his former

client, as a killer or accusing him of uncharged conduct." Noting

that 18 U.S.C. § 3290 tolls the statute of limitations if the

accused "fle[d] from justice," Ponzo adds that the evidence he

asked Cunha to introduce would have shown that he fled

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

that evidence would have removed his case from § 3290's reach,

meaning some of the charges against him "would have been barred by

the statute of limitations" -- or so he contends. Like the

government, we disagree.

Admittedly, a lawyer faced with the prospect of accusing

a former client of a murder -- one that occurred the same day as

the murder for which the attorney previously defended that client

-- may feel trapped between a rock and hard place. But Ponzo's

contention -- that he hightailed it to Arizona not to duck

prosecution but because he feared for his life -- is hard to

reconcile with the fact that instead of leaving Massachusetts

immediately after the threat to his life, he stayed and tried to

kill Cirame two weeks later. Anyhow, Cunha's actions are easily

12
As we noted many pages ago, § 3290 provides that "[n]o
statute of limitations shall extend to any person fleeing from
justice."
- 30 -
explained as a strategic attempt to distance Ponzo from LCN:

Presenting the evidence advocated by Ponzo would have placed him

right in the middle of the intra-LCN conflicts -- remember, the

charges against him included RICO charges involving a crime

syndicate, and so evidence suggesting participation in the

organization would have inculpated him. Consistent with Supreme

Court precedent holding that an actual conflict entails a conflict

"that adversely affects counsel's performance," Mickens, 535 U.S.

at 172 n.5, our caselaw says that forgoing an implausible strategy

or a strategy that could inculpate the defendant does not

constitute an actual conflict. See Cody, 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,"

- 31 -
Cunha did tell the court that Luisi Jr. had separate counsel and

that no joint-defense agreement existed. Stressing that he "never

really represented [Carrozza Jr.]," Cunha added that he withdrew

from representing Carrozza Jr. after another lawyer began

negotiating a plea agreement for him. The court concluded that no

conflict existed. We agree. Ponzo speculates that Cunha's "prior

representation . . . could have affected his representation of

Ponzo." But he offers nothing to back up that speculation. And

mere speculation does not suffice to show a Sixth Amendment

infraction. See, e.g., Cardona-Vicenty, 842 F.3d at 773.

Consequently, Ponzo's second conflict argument is no more

convincing than the first.13

VI. Sixth Amendment Right to Participate in One's Defense

We now address Ponzo's preserved claim that the district

court violated his Sixth Amendment right to participate in his own

defense by not giving him hearing aids costing $2,000. What the

Sixth Amendment requires for hearing-impaired defendants is

apparently a question of first impression in our court. Following

13
Ponzo floats the idea that the district court wrongly denied
him the right to use "seized, untainted funds to retain counsel,"
without showing that the funds were indeed untainted. And this
lack of developed argumentation dooms his claim. See United States
v. Zannino, 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").
- 32 -
the parties' lead, we look to caselaw involving non-English

speaking defendants for guidance, knowing that this sort of inquiry

is inherently fact-intensive and thus receives abuse-of-discretion

review. See United States v. Carrion, 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

- 33 -
"consult[ing] with his attorney during the trial," apparently

because they made him "unable to speak and listen at the same

time." But as the government asserts (without contradiction),

Ponzo never claimed below that he could not communicate with

counsel by passing notes while wearing the headphones. And he

advances no persuasive argument here suggesting that hearing aids

costing $2,000 were the only reasonable accommodation for his

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

district court had to give him the hearing aids "under the

Americans with Disabilities Act." But he makes no convincing

argument that "public entity" includes the federal courts. Cf.

generally Roman v. Jefferson, 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).
- 34 -
 Discerning no hint of abused discretion in this

situation, we trudge on.

VII. Prior Testimony of an Unavailable Witness

Ponzo argues further that the district court violated

his rights under the Confrontation Clause by admitting the

testimony of Mark Hildonen -- a witness who had testified at

Ponzo's co-conspirators' 1998 trial but who had died before

Ponzo's 2013 trial. Because we are dealing with a preserved claim

of error, our review is de novo. See United States v. Liriano,

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

- 35 -
"the rule of forfeiture by wrongdoing (which we accept)

extinguishes confrontation claims on essentially 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. Had

Ponzo been at the 1998 trial, he could have cross-examined

Hildonen. 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 the unavailable witness at his co-defendants'

trial). To hold otherwise would allow Ponzo to profit from his

- 36 -
wrongful conduct and would undermine the "integrity of the

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

Colon, 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)). Ponzo also talks down Barker, saying it is

"pre-Crawford law." But he does not explain why that matters,

particularly since Supreme Court caselaw makes clear that a

defendant's confrontation rights remain subject to the forfeiture-

by-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

- 37 -
-- Mark Weddleton and Paul Piano -- who talked about the marijuana

activities in Arizona after he supposedly "left"; and (b) testimony

about his co-conspirators' doings at Ciampi's club in 1992, given

that he supposedly did not visit the club until 1994. The parties

wrangle over the standard of review. Believing he preserved these

evidentiary arguments, Ponzo says abuse-of-discretion review

applies. The government, meanwhile, thinks Ponzo preserved all

claims except for his challenge to Weddleton's testimony. And the

government asks us to apply plain-error review to that challenge.

Firing back, Ponzo contends he "had a standing objection to co-

conspirator statements," which, he adds, "preserved" the issue for

abuse-of-discretion analysis. We need not referee this tussle,

however: even assuming, favorably to Ponzo, that abuse-of-

discretion scrutiny applies throughout, his claim of error fails.

We start with Ponzo's argument that Weddleton's and

Piano's testimony was inadmissible because he had "withdrawn" from

the Arizona conspiracy before they had joined it. Co-conspirators'

statements "made during the course of the conspiracy and made in

furtherance of the conspiracy are admissible." United States v.

Fields, 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.

- 38 -
2008). To withdraw from a conspiracy, a person must "act

affirmatively either to defeat or disavow the purposes of the

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

(1st Cir. 2015) (quotation marks omitted). Typically, that

requires the accused to come clean with the 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). Ponzo points to no

evidence suggesting he did either. 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. So this contention goes nowhere.

Taking a slightly different tack, Ponzo notes how

Weddleton testified that David Rudolph -- Ponzo's previous

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

- 39 -
"business good." As Ponzo sees things, that evidence was

inadmissible hearsay under Rule 801(d)(2)(E). We think not.

Having already reasoned that Ponzo had not withdrawn from the

conspiracy, we need only consider whether the challenged testimony

furthered the conspiracy. Testimony furthers the conspiracy if it

"tends to advance the objects of the conspiracy as opposed to

thwarting its purpose." United States v. Fogg, 666 F.3d 13, 15

(1st Cir. 2011) (quotation marks omitted). Judged against this

standard, Rudolph's statements satisfy the "in furtherance"

requirement because they showed Ponzo's role in the conspiracy or

alternatively bolstered his standing within the organization since

they characterized him as an experienced marijuana packer. See,

e.g., United States v. Correa-Osorio, 784 F.3d 11, 25 (1st Cir.

2015) (noting that "the 'in furtherance' requirement can be

satisfied (among other ways) by statements identifying other

conspirators, explaining how the conspiracy works, or updating

members on the conspiracy's doings"); Ciresi, 697 F.3d at 29–30

(finding that statements of reassurance further the conspiracy).

That leaves us with Ponzo's argument that the court

erred by admitting evidence about illegal activities at Ciampi's

club in 1992 when he allegedly did not go there until 1994. The

court did not reversibly err for a simple reason: Ponzo joined

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

- 40 -
participation in the conspiracy. Also, Ponzo does not dispute

that the illegal acts, as described in the testimony, furthered

the conspiracy -- so we say no more about that subject.

The bottom line is that the district court did not abuse

its discretion by admitting this testimony.

IX. Sufficiency of Evidence

Ponzo attacks the sufficiency of the evidence on two of

the nine racketeering acts underlying his RICO conspiracy

conviction: the attempted murder of Cirame and the assault with

the attempt to murder Cirame. Ponzo also questions the sufficiency

of the evidence supporting the finding that he had conspired to

distribute 500 grams or more of cocaine. Because he preserved

neither challenge, our review is limited to preventing a "clear

and gross injustice" -- a "stringent standard, which we have

described as a particularly exacting variant of plain error

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

2015). As per usual, we view the evidence in the light most

favorable to the government, taking all reasonable inferences in

its favor. See, e.g., United States v. Rodríguez-Milián, 820 F.3d

26, 31 (1st Cir. 2016). But there is not so much as a whiff of a

clear and gross injustice here, though Ponzo would still be out of

luck "even under traditional plain error." See Foley, 783 F.3d at

13.

- 41 -
 A. The Cirame Shooting

The jury found that Ponzo had committed nine predicate

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

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

racketeering activity requires only two predicate acts committed

within 10 years of each other); see also United States v. Marino,

277 F.3d 11, 18-19 (1st Cir. 2002). He, again, only challenges

the jury's findings on the two having to do with the Cirame

shooting -- to be precise, he is contesting the legal (rather than

the factual) sufficiency of the government's proof, given he

questions the lawfulness of certain rulings admitting certain

evidence. But because he does not show any defects with the other

seven predicate acts, his first sufficiency claim is a nonstarter.

See generally United States v. Dhinsa, 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

- 42 -
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. And Ponzo helped

Marino deliver the cocaine. Mele also sold Ponzo "eight balls"

(1/8 ounce, or about 3.5 grams each). Ponzo was still distributing

cocaine with Marino in the early to mid-1990s, delivering cocaine

to one of Marino's customers "a couple of times" a week. Around

this time, Ponzo hooked up with Romano Sr. -- a distributor buying

up to six ounces (170 grams) per transaction from a supplier -- as

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.
- 43 -
evidenced by Ponzo's presence at a meeting where the participants

discussed the cocaine-distribution business and divvyed up

distribution shifts. The government need have proved only that it

was reasonably foreseeable by Ponzo that conspiracy members would

handle over 500 grams of cocaine. See United States v. Sepulveda,

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 "cross-

examine[]" him on charges pending against him in Idaho? And

second, could the prosecution use his "prior convictions" to

"cross-examine" him? Saying "I'm not in a position to advise you,"

the court directed Ponzo to discuss the matter with his attorney

-- which Ponzo did before waiving his right to testify. Noting

that he had a constitutional right to testify, Ponzo argues for

- 44 -
the first time on appeal that his waiver was not knowing and

voluntary because the court did not answer his questions. Our

review is for plain error. And we find none.

We begin with the obvious: "The defendant's lawyer,

rather than the trial judge, bears the primary responsibility of

informing and advising the defendant of this right, including its

strategic ramifications," Casiano-Jiménez v. United States, 817

F.3d 816, 820 (1st Cir. 2016) -- hence "a trial judge is not

required to apprise a defendant of his right to testify or inquire

whether he has waived it," Owens v. United States, 483 F.3d 48, 58

(1st Cir. 2007). And Ponzo offers no convincing argument for how

the court 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 instances of

prosecutorial misconduct require a new trial. Because he did not

preserve the points below, he is stuck with having to show plain

error -- something he has not done.

- 45 -
 A. Examination of Ponzo's Former Attorney

First up is Ponzo's claim that the government improperly

questioned his former attorney, James Costello, about the Arizona

marijuana conspiracy. This is what you need to know.

Costello had represented Ponzo in 1994 on the state

cocaine and assault charges. The government called Costello to

establish that Ponzo had failed to appear in state court in

November 1994, causing that court to issue a warrant. Costello

moved to quash the subpoena, saying that "[w]ithout a waiver from

Ponzo, [he] is duty bound to assert the attorney-client privilege

to the questions he anticipates the government will ask. The

district court ruled that Costello could testify about Ponzo's

failure to appear in state court in 1994 but could "not testify

about anything else," believing that that would infringe upon the

attorney-client privilege.

At trial, after Costello testified that he had been

suspended from the practice of law from 1997 to 2007, the

government asked him if he knew Piano. Costello replied, "I

believe I do, yes, sir. I don't know him, but he's an

acquaintance." The government then asked Costello whether Piano

had "pick[ed] up any packages from you[.]" Ponzo's lawyer objected

before Costello could answer. "What time frame are we talking

about?" the court asked. "In approximately 1998 or 1999," the

- 46 -
government's lawyer responded. And after a sidebar conference to

discuss the matter, the government decided to ask Costello no

further questions.

Despite Ponzo's arguments, we have some doubts whether

the government's queries violated the district court's ruling on

the motion to quash, since we question whether the questions

touched on privileged attorney-client communications. But putting

that aside, we fail to see how either question prejudiced Ponzo.

Ponzo spends no time explaining how he suffered prejudice. And

although the second question may have suggested that Costello was

somehow involved in marijuana trafficking, the query went

unanswered, plus the court told the jury that lawyers' questions

are not evidence. See United States v. Innamorati, 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

- 47 -
that prosecutors cannot refer to facts not in evidence. See, e.g.,

United States v. Auch, 187 F.3d 125, 129 (1st Cir. 1999). But

they can "ask jurors to draw reasonable inferences from the

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

2009). 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.

- 48 -
 C. Vouching

Third up is Ponzo's claim that the government's use of

the word "we" (e.g., "We know," "We learned") during closing

argument constituted improper vouching -- which "occurs when the

government place[s] the prestige of the United States behind a

witness by making personal assurances about the credibility of a

witness . . . or implies that the jury should credit the

government's evidence simply because the government can be

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

(alteration in original). "[W]hen a defendant fails to object at

trial we are not inclined to find improper meaning in a

prosecutor's statement if there is a plausible alternative."

United States v. Rodriguez, 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. See, e.g., Morosco, 822 F.3d

at 21.

- 49 -
XII. Verdict Form

We now address Ponzo's argument that the verdict form

allowed the jury to convict him on the § 924(c) firearm count for

merely possessing a firearm in relation to a crime of violence, as

opposed to using or carrying the firearm. Because he did not

object to the verdict's form before the jury retired to deliberate,

we review only for plain error. See United States v. Edelkind,

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

- 50 -
jury, stating that "the government must prove the defendant

knowingly used or carried a firearm" -- and then the court went on

to define use and carry. We of course presume that jurors obey a

court's instructions. See, e.g., United States v. Gemma, 818 F.3d

23, 37 (1st Cir. 2016). And based on the correct, in-depth

instruction and the presumption that jurors follow instructions,

we cannot find that the error affected Ponzo's substantial rights

because we cannot say that it likely affected the jury verdict.

So the error does not qualify as plain error. See, e.g.,

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

that mischaracterized the burden of proof did not affect a

defendant's substantial rights where the court properly instructed

the jury and the defendant advanced nothing to suggest prejudice).

Undaunted, Ponzo argues that the jury's answers to the

§ 924(c) count's special-verdict questions suggests that it "did

not find that he had 'used'" a firearm. These questions covered

certain weapons -- like machine guns and shot guns -- that the

government says (without contradiction) would have increased the

mandatory-minimum sentence under the relevant version of § 924(c).

Ponzo cites no authority holding that leaving this section blank

shows that the jury convicted him for less than "using" or

"carrying" a gun. Thus, we stand by our no-plain-error conclusion.

See Morosco, 822 F.3d at 21.

- 51 -
XIII. Conviction Under § 924(c)

Ponzo argues in a supplemental brief that we should toss

out his § 924(c) firearm conviction. His reasoning runs something

like this:

 The jury convicted him of using or carrying a firearm during

a "crime of violence." See § 924(c)(1)(A).

 A "crime of violence" is an offense that "(A) has as an

element the use, attempted use, or threatened use of physical

force against the person . . . , or (B) that by its nature,

involves a substantial risk that physical force against the

person . . . may be used in the course of committing the

offense." Id. § 924(c)(3). Subsection (A) is known as the

"force clause." And subsection (B) is known as the "risk of

force clause" or the "residual clause."

 The § 924(c) firearm count listed conspiracy to commit murder

under state law as the crime-of-violence predicate for the

§ 924(c) violation.

 But, to his way of thinking, "[a] conspiracy" -- to quote his

brief -- "is an agreement to do something and does not have

as an element the use, attempted use or threatened use of

physical force." Plus, he adds, § 924(c)'s risk-of-force

clause is similar to the Armed Career Criminal Act's residual

clause, which the Supreme Court struck as unconstitutionally
- 52 -
 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. 1998))). The question presented -- whether

§ 924(c)'s risk-of-force clause is invalid under Johnson's

reasoning -- is an open one in our circuit. True, the Seventh

Circuit held § 924(c)'s risk-of-force clause unconstitutional

given Johnson's logic. United States v. Cardena, 842 F.3d 959,

996 (7th Cir. 2016). But the Second, Sixth, and the Eighth

Circuits reached the opposite result. See, e.g., United States v.

- 53 -
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 not

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

- 54 -
 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. See United States

v. Goergen, 683 F.3d 1, 3 (1st Cir. 2012). 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.

- 55 -
 A. Ex Post Facto

Sentencing a defendant convicted of multiple counts is

no picnic. The guidelines tell courts to "group" the counts that

"involv[e] substantially the same harm," U.S.S.G. § 3D1.2, and

then do "group-by-group, not count-by-count, sentencing

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

Cir. 2016) (citing U.S.S.G. §§ 3D1.3, 3D1.4). At the risk of

oversimplification, here is how that ordinarily works: the court

computes "the offense level for each count within each group,

attributes to each group the highest offense level of any count

within it" after factoring in certain adjustments for those counts,

"compares the groups to ascertain which has the highest offense

level, considers certain further adjustments . . . , and sentences

the defendant based on that triage." See United States v.

Florence, 143 F.3d 11, 14 (1st Cir. 1998); see also U.S.S.G.

§ 3D1.3 cmt. n.2.

At sentencing, Ponzo -- appearing pro se (with his trial

attorney as standby counsel) -- argued that to avoid an ex post

facto problem, the court should not use the guidelines in effect

at the time of sentencing but should instead use those in vogue

when the crimes were committed. See generally United States v.

Mehanna, 735 F.3d 32, 67 (1st Cir. 2013) (emphasizing the "general

rule" that absent ex post facto problems, a sentencer "should use

- 56 -
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 then used 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. And after applying what is called a

"multiple count 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

16Given the court's approach, Ponzo's challenges to groups
other than Group 3 are irrelevant.
- 57 -
 Ponzo basically rehashes the ex post facto argument he

made below, telling us that the court's use of the "newer

guidelines" infracted his constitutional rights. But we see no

violation because, as the district court showed, the guidelines

range was the same under both the older and newer versions. Ever

persistent, Ponzo faults the court for applying a criminal-

livelihood enhancement for Group 3. 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." But even if

Stoico was the boss, making him eligible for a four-level

enhancement for being a leader, Ponzo could still get a three-

level manager or supervisor enhancement. See U.S.S.G. § 3B1.1(a),

(b). 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

- 58 -
the sentencer to find, first, that "the underlying 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." Reviewing this matter de novo, we reject his

claim. The conviction in ¶ 163 was based on official court

records, despite what Ponzo says. As for the conviction in ¶ 160,

the probation officer noted she had not "yet" received "official

court documentation." When a defendant contests "a presentence

report's description of an alleged prior conviction," the

government must show "that the description in the report is based

on a sufficiently reliable source." United States v. Brown, 510

F.3d 57, 75 (1st Cir. 2007) (quotations omitted). And where the

presentence report cites solely "non-judicial records," the court

- 59 -
must conduct "additional inquiry into the reliability of these

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

2009). The government here attached police records to its

sentencing memo that corroborated the information in ¶ 160 --

which, as the government notes (without being contradicted by

Ponzo) established the information's reliability.

Leaving no stone unturned, Ponzo claims he should have

gotten no criminal-history points for the conviction in ¶ 160 since

probation "could not verify" whether he had legal counsel in that

case -- an unpreserved contention limited to plain-error review.

Because "the government establish[ed]" the conviction's

"existence, the burden shift[ed]" to him "to show that the earlier

conviction was constitutionally infirm or otherwise inappropriate

for consideration." See United States v. Barbour, 393 F.3d 82, 93

(1st Cir. 2004). Ponzo does not try to make either showing,

however. And even if we accept arguendo that he was uncounseled,

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

id. Thus once again he comes up short on the plain-error front.

As a final effort to chip away some criminal-history

points, Ponzo says (as he did below) that the convictions in

¶¶ 161-63 took place "after the commencement of the instant

offense" and so are "not prior convictions" for purposes of

computing criminal history. Approaching this issue de novo, we

- 60 -
see that the guidelines say "[a] sentence imposed after the

defendant's commencement of the instant offense, but prior to

sentencing on the instant offense, is a prior sentence if it was

for conduct other than conduct that was part of the instant

offense." U.S.S.G. § 4A1.2 cmt. n.1 (emphasis added). "Conduct

that is part of the instant offense," the guidelines add, "means

conduct that is relevant conduct to the instant offense," id. --

i.e., conduct that is "within the scope of" and "in furtherance

of" the criminal activity and was "reasonably foreseeable in

connection with that criminal activity," see U.S.S.G.

§ 1B1.3(a)(1)(B). Ponzo began his participation in the

racketeering conspiracy before he was sentenced on the offenses in

¶¶ 161-63. But critically for our purposes, at the time of

sentencing in this case, he had already been sentenced for the

offenses in ¶¶ 161-63. And nothing leads us to believe -- nor

does Ponzo persuasively argue -- that these convictions

constituted relevant conduct to this case.

No reversible error occurred here.

C. Career-Offender Designation

Ponzo believes the district court wrongly classified him

as a career offender under U.S.S.G. § 4B1.1. But we need not delve

into that issue. And that is because -- as the government says,

and as the court itself noted -- the career-offender designation

- 61 -
made no difference to his guidelines range: even without it, Ponzo

still faced a guidelines range of 360 months to life. And that

makes any error (if there was one) harmless.17 See United States

v. Battle, 637 F.3d 44, 50 (1st Cir. 2011).

We have no reason to reverse here, either.

XV. Forfeiture

The district court ordered Ponzo to forfeit $2.25

million. And Ponzo assigns five errors with that award. The

government sees no problems, we should add. For properly preserved

claims, we review pure "questions of law de novo, but, to the

extent factual issues are intermingled, consider mixed questions

of law and fact under the more deferential clear error standard."

See United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004);

see also United States v. Jose, 499 F.3d 105, 108 (1st Cir. 2007)

(explaining that when a defendant claims a forfeiture is

constitutionally excessive, "[o]ur review is de novo," with

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

17To 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).
- 62 -
the clear-error standard). We review unpreserved issues for plain

error. 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. But that argument has no

traction either. The criminal rules provide that either party may

- 63 -
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 co-

conspirators runs headlong into caselaw establishing that "[s]o

- 64 -
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

18Hurley 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 co-
conspirators 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." 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). True, Bucci

analyzed the issue in terms of plain error. Id. But Bucci made

clear that there was no error at all. See id.

Pulling out all the stops, Ponzo claims the money

judgment violated the Eighth Amendment's excessive-fines clause

because (in his view) it will deprive him of the ability to make

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

37 (1st Cir. 2014) ("[a]ssuming, without deciding, that

deprivation of livelihood can constitute a basis for setting aside

a criminal forfeiture judgment"); United States v. Aguasvivas-

Castillo, 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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