United States v. Cohen

United States Court of Appeals
For the First Circuit

Nos. 16-1682, 16-1703

UNITED STATES OF AMERICA,

Appellee,

v.

R. DAVID COHEN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

James B. Kransoo, with whom Krasnoo, Klehm & Falkner LLP was
on brief, for appellant.
Ryan M. DiSantis, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on brief,
for appellee.

April 6, 2018
 BARRON, Circuit Judge. R. David Cohen ("Cohen") appeals

his convictions for one count of conspiracy to convert government

property, in violation of 18 U.S.C. § 371; fourteen counts of

conversion of government property, in violation of 18 U.S.C. § 641;

and one count of conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h). He also challenges his sentence.

The convictions stem from his role in using bank accounts that he

owned or controlled in order to negotiate fraudulently-obtained

federal tax refund checks. We affirm the convictions and the

sentence.

I.

Cohen and his co-conspirators, both indicted and

unindicted, were alleged to have engaged in a scheme in

Massachusetts that, beginning in October 2011 and continuing

through December 2014, involved the use of stolen identities to

obtain fraudulent tax refunds from the United States Internal

Revenue Service ("IRS"). The alleged scheme worked as follows.

The conspirators (though not Cohen) obtained tax refund

checks by using stolen identities. Cohen, who was a real estate

attorney in Massachusetts, deposited the refund checks into his

existing Interest on Lawyers' Trust Accounts ("IOLTA")1 bank

1As explained in the trial testimony of the executive
director of the IOLTA Committee of the Massachusetts Supreme
Judicial Court, an IOLTA account is a "pooled, interest bearing

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account, subsequently-opened IOLTA accounts, and conventional

business accounts (opened by himself or by a co-conspirator) at

various banks. Cohen and his co-conspirators then wrote checks

from those accounts that were cashed, made cash withdrawals from

those accounts, and engaged in other transactions in order to

launder the tax refunds. When questioned by various bank officials

about the deposits being made to the various IOLTA and business

accounts, Cohen often stated that he was depositing checks in these

accounts for clients who were involved in real estate closing

transactions for which he was their attorney.

About a year and a half into the alleged scheme, on or

about May 22, 2013, Cohen entered into an agreement with the

Massachusetts Attorney General's Office (the "AG Settlement") to

settle a lawsuit alleging that Cohen provided his advice for, and

consent to, unlawful conduct by a client whom Cohen represented.

In the AG Settlement, Cohen agreed to pay a $40,000 fine and not

to conduct real estate closings for a period of six months. The

government alleges that, after entering into the AG Settlement,

Cohen stopped using his IOLTA accounts to launder the fraudulently-

account" that a Massachusetts attorney uses to hold "client funds"
and keep that money "separate from the attorney's operating or
. . . business account." As the witness explained, Massachusetts
Rule of Professional Conduct 1.15, promulgated by the
Massachusetts Supreme Judicial Court for attorneys admitted to the
bar in Massachusetts, requires Massachusetts attorneys to "keep[]
client funds separate from attorney's [operating or business]
funds."

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obtained checks, at which time the conspiracy switched to using

conventional business bank accounts for such activities.

At trial, Cohen testified in his own defense. He

asserted that he was not a "crook," but a "fool" who "was do[ing]

favors for people who he knows, who are friends," and that he

failed to look closely at documents or ask enough questions. After

a ten-day trial, however, the jury convicted him of each of the

sixteen counts that were given to the jury.

At sentencing, Cohen disputed the sentencing range that

the Pre-sentence Report ("PSR") set forth under the United States

Sentencing Guidelines (the "Sentencing Guidelines"). Cohen

contended that the PSR wrongly calculated that range by attributing

too large a loss from the conspiracy to him and, therefore, by

applying too large an enhancement to his base offense level, see

U.S.S.G. § 2B1.1(b)(1)(I) (2015); by wrongly applying to his base

offense level the enhancement that applies for an offense that

involves ten or more victims, see id. § 2B1.1(b)(2)(A)(i); and by

wrongly applying to his base offense level the enhancement that

applies for obstruction of justice, see id. § 3C1.1. Cohen argued

that, without these wrongly applied enhancements, he should have

been assigned a total offense level of twenty-two, which, given

his criminal history, would appear to have resulted in a sentencing

range of forty-one to fifty-one months imprisonment under the

Sentencing Guidelines.

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 The District Court disagreed, applied the enhancements,

and calculated Cohen's total offense level to be twenty-eight,

which corresponded to a recommended guideline sentencing range of

seventy-eight to ninety-seven months imprisonment. However, after

considering the sentencing factors set forth in 18 U.S.C. § 3553,

the District Court found the guideline range to be "too high" and

sentenced Cohen to a below-guideline term of imprisonment of fifty-

four months.2

Cohen now appeals both his convictions and his sentence.

II.

We start with Cohen's challenge to his convictions. He

argues first that they must be vacated because the District Court

erred in "permit[ting the AG Settlement]" to be used at trial. He

also argues that the convictions must be vacated because the

District Court erred in allowing an expert witness for the

government to testify regarding the Massachusetts "rules about

IOLTA accounts" for attorneys. We find neither argument

persuasive.

A.

The facts that bear on Cohen's challenge regarding the

AG Settlement are as follows. Prior to trial, the government

2
The District Court also sentenced Cohen to thirty-six months
of supervised release upon the completion of his term of
imprisonment.

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informed Cohen and the District Court that if Cohen presented any

character witnesses to testify to his reputation for truthfulness

and honesty, the government intended to cross-examine those

witnesses about the AG Settlement. During trial, but prior to the

close of the government's case, the government also made clear

that if Cohen decided to testify in his own defense, the government

would cross-examine Cohen about the AG Settlement pursuant to

Federal Rule of Evidence 608(b).3

In light of the government's stated intentions, Cohen

requested the District Court "rule . . . in advance of [Cohen's]

testimony, to exclude completely any cross-examination of him

arising out of the [AG Settlement]." United States v. Cohen, No.

1:15-cr-10008-LTS (D. Mass. Jan. 17, 2016). Cohen's counsel told

the District Court that he had been under the impression that

evidence concerning the AG Settlement "wasn't going to see the

light of day, if [his] reputation evidence wasn't going to come

[in]." He explained, however, that if evidence of the AG

Settlement would be used to cross-examine Cohen, then Cohen "might

3Federal Rule of Evidence 608(b) states, in relevant part,
that though "extrinsic evidence is not admissible to prove specific
instances of a witness's conduct in order to attack or support the
witness's character for truthfulness . . . the court may, on
cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of:
(1) the witness; or (2) another witness whose character the witness
being cross-examined has testified about."

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as well" introduce "a fair number of reputation witnesses" "because

[he was] foiled."

After hearing argument by both parties, the District

Court, in a January 17, 2016 order, ruled as follows:

This request is DENIED without prejudice to
the defendant challenging specific questions
posed by the government on cross-examination.
The Court notes that permissible cross-
examination of the defendant and permissible
cross-examination of possible defense
character witnesses is not identical. For
example, as to the latter the government may
challenge the basis for the witness'[s]
opinion or reputation testimony regarding the
defendant's character. Thus, while asking the
character witness whether he or she is aware
of the fact of the lawsuit may well be a
permissible challenge to the basis of the
witness'[s] testimony that same question of
the defendant, at least standing alone, does
not appear to bear on truthfulness or
untruthfulness.

The parties then informed the District Court that they

had "reached an agreement." If Cohen testified and the government

chose to cross-examine him about the AG Settlement, the government

agreed that it would only ask Cohen "of the date of the [AG

Settlement], when [Cohen] agreed with the Attorney General's

[O]ffice not to engage in real estate transactions for six months."

In return, Cohen agreed that he would not "present[] any reputation

evidence witness[es] at all." At trial, the government limited

its cross-examination to the agreed-upon scope and, thereafter,

Cohen did not call any character witnesses.

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 On appeal, Cohen now characterizes the District Court's

conditional order as "permitting the [g]overnment to use . . .

prejudicial, irrelevant evidence to impeach Cohen's [potential]

witnesses who would have testified to Cohen's reputation for

truthfulness and honesty." He also contends that the "repeated

references to the [AG Settlement] during cross-examination of

Cohen's [potential] reputation-evidence witnesses, . . . would

have been so prejudicial to [Cohen's] defense . . . Cohen was

forced to eliminate [the reputation witness] portion of his

defense." He argues that the District Court therefore abused its

discretion and, in doing so, violated his Sixth Amendment right to

present his defense.

As an initial matter, Cohen's characterization of the

ruling as "permitting" the use of the AG Settlement is mistaken.

The District Court never ruled that the AG Settlement could be

used during cross-examination. The District Court merely ruled

that it would rule on a question-by-question basis whether

questions regarding the AG Settlement would be permitted during

cross-examination.

In addition, in now arguing that he was prejudiced by

the conditional ruling because he was deterred from putting on

character witnesses, Cohen makes a prejudice argument that appears

to be inconsistent with the representation that he made to the

District Court. Prior to the conditional ruling Cohen informed

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the District Court that if it did permit Cohen to be cross-examined

about the AG Settlement, then he likely would go ahead and put on

his character witnesses because the AG Settlement would already

have been referenced.

Even apart from these problems with Cohen's challenge to

the conditional ruling, there is another. We have stated, based

on Luce v. United States, 469 U.S. 38 (1984), that a party waives

a challenge to a conditional ruling concerning how cross-

examination of a witness may proceed, unless the objecting party

actually calls the witness to the stand to "give the court a chance

to perform the required balancing in the concrete context of actual

question and answer." United States v. Mazza, 792 F.2d 1210, 1222–

23 (1st Cir. 1986); see also United States v. Monell, 801 F.3d 34,

48 (1st Cir. 2015) (finding defendant waived his challenge that an

evidentiary ruling violated his Sixth Amendment right to call a

witness in his defense at trial where defendant did not call the

witness).4 As we have previously said, "it is too great a handicap

to bind a trial judge to a ruling on a subtle evidentiary question

4Though Luce considered the balancing of probative value
versus prejudicial effect with respect to Federal Rule of Evidence
609, we see no reason why the reasoning of Luce would not apply in
the context of Rule 608(b), see United States v. Weichert, 783
F.2d 23, 25 (2d Cir. 1986), and Rule 403, see Monell, 801 F.3d at
48. Nor does Cohen argue otherwise.

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. . . outside a precise factual context." United States v.

Griffin, 818 F.2d 97, 104 (1st Cir. 1987).5

Because of the agreement that Cohen reached with the

government, none of the character witnesses Cohen contends that he

wanted to testify actually did and his own cross-examination

concerning the AG Settlement was limited. Thus, it is unclear

from the record before us what questions or testimony, if any, the

jury would have been allowed to hear concerning the AG Settlement

if Cohen's character witnesses had taken the stand, or if Cohen

himself had been subject to a fuller cross-examination.

In fact, Cohen's counsel explained to the District Court

in advance of the conditional ruling that a determination about

whether the prosecution should be able to ask a question to a

character witness about the AG Settlement "depend[ed] on what kind

of question[s] [the government] want[ed] to put to the reputation

evidence witness[es] on cross-examination." And, in the absence

of the agreement, the government, based on the apparent strength

of its case, "might have elected not to risk a reversible appellate

5 "This does not mean, of course, that the evidence must
always be revealed to the jury." Griffin, 818 F.2d at 105.
"Counsel should cooperate with the district court in exercising
restraint and in employing the prophylaxis of the sidebar, where
appropriate," and "[i]n more complex situations, counsel may
request that the jurors retire, or in exceptional cases, that the
actual testimony be screened voir dire in the jury's absence."
Id.

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issue," Monell, 801 F.3d at 49, by deciding not to undertake such

cross-examination at all.6

For these reasons, it is "difficult to evaluate the

degree of unfair prejudice," id., if any, that flowed from the

conditional ruling. Accordingly, it is impossible for us to

conclude on this record that, merely by conditionally denying

Cohen's motion concerning the AG Settlement, the District Court

effectively precluded Cohen from mounting what he contends would

have been an important part of his defense. This challenge to the

convictions therefore fails.

B.

Cohen also argues that the District Court erred in

permitting the government to introduce expert testimony at trial

concerning the rules and regulations relating to Massachusetts

IOLTA accounts. Cohen contends that the admission of this evidence

violated Federal Rule of Evidence 702. That rule required the

District Court to determine whether a "valid connection" existed

"between the expert's testimony and a disputed issue." United

6 Cohen makes no argument that the handful of cross-
examination questions actually asked of him by the government
affected his ability to call his character witnesses or otherwise
prejudiced him. His failure to make any such argument is hardly
surprising, as those questions were within the scope of the
questions Cohen agreed could be asked of him on cross-examination.

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States v. Mehanna, 735 F.3d 32, 66 (1st Cir. 2013) (quoting United

States v. Shay, 57 F.3d 126, 133 n. 5 (1st Cir. 1995)).

Cohen argues that the expert testimony regarding Cohen's

"improper, non-criminal use of his IOLTA accounts . . . did not

assist the jury, . . . as that testimony tended to prove none of

Cohen's crimes." Moreover, Cohen contends, the testimony served

merely to "inflame the jury into thinking that [he wa]s unethical

and therefore must be a bad man and a criminal . . . ."

We review preserved objections to "rulings relating to

the admissibility of expert-witness testimony for clear abuses of

discretion, and will not reverse unless the ruling at issue was

predicated on an incorrect legal standard or we reach a definite

and firm conviction that the court made a clear error of judgment."

United States v. Kantengwa, 781 F.3d 545, 560 (1st Cir. 2015)

(internal quotation marks omitted). The government argues that

Cohen failed to preserve this objection and thus that we should

review his challenge to the evidentiary ruling only for plain

error. But, his challenge fails even under the more favorable

abuse of discretion standard. See Kantengwa, 781 F.3d at 560.

The expert testimony at issue explained to the jury that

the rules governing IOLTA accounts permit transactions involving

third-party funds, and that such third-party transactions are

typical for IOLTA accounts. That testimony assisted the jurors by

informing them of features of the accounts that could have

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facilitated Cohen's ability to negotiate and launder a much higher

volume of tax refund checks by allowing him to conceal his activity

for a period of time, and that could have provided support for

Cohen's cover story that the payees were clients whose funds he

was holding for future property investments. Evidence of the

"IOLTA rules and regulations," coupled with Cohen's "disregard" of

those rules and regulations, also could have been probative of

Cohen's intent and therefore was of assistance to the jury.

Of course, evidence that is admissible under Federal

Rule of Evidence 702 remains subject to Federal Rule of Evidence

403's balancing test. United States v. Tetioukhine, 725 F.3d 1,

6 (1st Cir. 2013). But, "[w]here (as here) a piece of evidence is

determined to be relevant, the district court has wide discretion

in steadying the Rule 403 seesaw." United States v. Pires, 642

F.3d 1, 12–13 (1st Cir. 2011) (quoting Onujiogu v. United States,

817 F.2d 3, 6 (1st Cir. 1987)). "Only rarely -- and in

extraordinarily compelling circumstances -- will we, from the

vista of a cold appellate record, reverse a district court's on-

the-spot judgment concerning the relative weighing of probative

value and unfair effect." Id. (quoting Freeman v. Package Mach.

Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). Because the District

Court's decision to allow the admission of this expert testimony

was "within the universe of reasonable decisions," we find no abuse

of discretion. Id. at 13.

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 III.

We turn, then, to Cohen's challenges to his sentence.

Cohen contends that his sentence must be vacated because the

District Court erred in imposing each of three sentencing

enhancements in calculating his sentencing range under the

Sentencing Guidelines. We do not agree.

We review preserved objections to a district court's

interpretation of the Sentencing Guidelines de novo. United States

v. Jones, 778 F.3d 375, 383 (1st Cir. 2015). We assess related

factual findings for clear error. United States v. Codarcea, 505

F.3d 68, 71 (1st Cir. 2007). "Clear-error review is demanding:

this standard will be satisfied only if, 'upon whole-record review,

an inquiring court form[s] a strong, unyielding belief that a

mistake has been made.'" United States v. Nuñez, 852 F.3d 141,

144 (1st Cir. 2017) (alteration in original) (quoting United States

v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).

A.

Cohen first argues that the District Court erred in

applying a sixteen-level enhancement to his base offense level

under U.S.S.G. § 2B1.1(b)(1)(I), which is the enhancement that

applies only if the losses from a fraud that are attributable to

the defendant total "[m]ore than $1,500,000." He contends that he

should at most have been subject to the fourteen-level enhancement

that applies for losses that are attributable to a defendant that

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total more than $550,000, but less than $1,500,000. See id.

§§ 2B1.1(b)(1)(H)-(I).

The District Court applied the sixteen-level enhancement

because it found that the entire amount of loss attributed to Cohen

in the PSR -- $1,672,958.74 -- was, in fact, attributable to Cohen.7

The District Court based this finding on, in combination, the

evidence introduced at trial, the evidence introduced through the

testimony of a co-conspirator at the sentencing hearing, and a DVD

of the co-conspirator's post-arrest interview that Cohen admitted

into evidence at sentencing.

The co-conspirator testified at sentencing as follows.

Shortly after Cohen entered into the AG Settlement, Cohen directed

the co-conspirator to open new bank accounts so that the conspiracy

could, and did, continue to cash the fraudulently-obtained tax

refund checks. In addition, Cohen received checks drawn on and

cash drawn from these new accounts, told the co-conspirator that

the tax refund checks being cashed "belonged to fictitious people,"

gave the co-conspirator tax refund checks to cash, and provided

the co-conspirator with notarized forms and tax returns for payees

7 The conduct outlined in the PSR was derived from a statement
of facts submitted by the United States Attorney's Office ("USAO")
in the instant case, a statement of facts submitted by the USAO in
connection with a related case against a co-conspirator, a criminal
complaint affidavit by an IRS agent involved in the investigation
of the scheme which resulted in Cohen's conviction, Cohen's trial
testimony, and a statement of the offense submitted to the
Probation Office by Cohen.

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on some of the fraudulently-obtained checks to provide to a bank

when one bank asked questions about account activity.

Cohen first contends that the District Court erred in

sentencing him on the basis of the conduct that the co-conspirator

described, because Cohen had not pleaded guilty to it, nor had the

government proved it beyond a reasonable doubt. But, as Cohen

concedes, our precedent forecloses that argument. See United

States v. Constant, 814 F.3d 570, 581 (1st Cir. 2016) (citing

United States v. Leahy, 668 F.3d 18, 22 (1st Cir. 2012)).

Cohen next argues that the District Court erred by

relying on the co-conspirator's testimony because Cohen was not

provided "notice" "in advance of sentencing" that the co-

conspirator would be testifying at the sentencing hearing. See

United States v. Acevedo-López, 873 F.3d 330, 341 (1st Cir. 2017)

(explaining that "[a] sentencing court must allow the parties'

attorneys to comment on . . . matters relating to an appropriate

sentence" (quoting Fed. R. Crim P. 32(i)(1)(C)), and that "a

defendant's right to respond to the information offered against

him at sentencing means very little without a right to notice of

that information" (quoting United States v. Millán-Isaac, 749 F.3d

57, 70 (1st Cir. 2014))). But, even if Cohen had preserved his

lack-of-notice argument before the District Court, it fails

because Cohen has failed to explain how he was unduly prejudiced.

See id. at 342 (finding harmless error where defendant failed to

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show how "any harm or prejudice resulted" from the sentencing

court's use, without notice, of certain documents at sentencing).

Cohen acknowledges that prior to the sentencing hearing

he was aware that the PSR recommended applying the sixteen-level

enhancement on the basis of statements by the co-conspirator

regarding Cohen's post-AG Settlement period conduct.

Additionally, just after the co-conspirator testified, the record

shows that Cohen presented two rebuttal witness solely on the issue

of the co-conspirator's English-speaking abilities, an issue that

appeared to be central to Cohen's cross-examination of the co-

conspirator. And Cohen identifies no other evidence that he would

have introduced had he received more notice. Moreover, when Cohen

argued below that the lack of notice left him unprepared to cross-

examine the co-conspirator about certain account expenditures

which "further tend[ed] to undermine [the co-conspirator's]

testimony," Cohen had no reply to the District Court's response

that the foreseeability of the results of the conspiracy (with

respect to Cohen's role) and whether expenditures were

particularly attributable to a specific co-conspirator were

different questions. Thus, any error with respect to notice

regarding the co-conspirator's testimony at sentencing was

harmless. See id.

Cohen also argues that the District Court clearly erred

in finding that the post-AG Settlement conduct about which the co-

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conspirator testified was attributable to Cohen. But, Cohen does

not challenge the District Court's finding that the co-

conspirator's testimony was credible. And we have rejected Cohen's

argument that he was not given proper notice that the co-

conspirator would be testifying at sentencing. Accordingly, this

aspect of his challenge fails.

Finally, as the government contends, Cohen's passing

assertion on appeal that the District Court "never considered . . .

[Cohen's] financial resources, his financial needs and his earning

ability and other appropriate factors" is undeveloped and is

therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). We thus reject Cohen's arguments alleging error in

the application of a sixteen-level enhancement to his base offense

level pursuant to U.S.S.G. § 2B1.1(b)(1)(I).

B.

Cohen next argues that the District Court erred in

applying the two-level sentencing enhancement for an offense

involving ten or more victims, U.S.S.G. § 2B1.1(b)(2)(A). Cohen

does so because he contends that "only the Government, not the

payees on erroneously issued [federal] tax refund checks, is a

victim because . . . the payees, never having been entitled to

these checks, suffered no financial hardship."

Cohen's argument rests in part on his apparent

contention that the payees do not meet the definition of "victim"

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laid out in U.S.S.G. § 2B1.1 Application Note 1. That Application

Note defines a victim as: "(A) any person who sustained any part

of the actual loss determined under [U.S.S.G. § 2B1.1](b)(1); or

(B) any individual who sustained bodily injury as a result of the

offense."8 The District Court did not rely, however, on the

definition of "victim" in U.S.S.G. § 2B1.1 Application Note 1.

Rather, the District Court found the payees to be victims in light

of U.S.S.G. § 2B1.1 Application Note 4(E), which states:

Cases Involving Means of Identification. For
purposes of subsection (b)(2) [concerning
multi-victim sentencing enhancements], in a
case involving means of identification
"victim" means (i) any victim as defined in
Application Note 1; or (ii) any individual
whose means of identification was used
unlawfully or without authority.

With respect to Application Note 4(E), Cohen argues that

he "never 'used' means of identification" in the commission of his

offenses of conviction. To support this contention, he relies on

our decision in United States v. Berroa, 856 F.3d 141 (1st Cir.),

cert. denied sub nom. Davila v. United States, 138 S. Ct. 488

(2017), where we construed the meaning of "use" in the context of

the federal aggravated identity theft statute, 18 U.S.C. § 1028A.

8 In U.S.S.G. § 2B1.1(b)(1), "actual loss" is defined as "the
reasonably foreseeable pecuniary harm that resulted from the
offense." U.S.S.G. § 2B1.1 cmt. n.3(A)(i). And within that
definition "pecuniary harm" is defined as "harm that is monetary
or that otherwise is readily measurable in money," and "does not
include emotional distress, harm to reputation, or other non-
economic harm." Id. § 2B1.1(b)(1) cmt. n.3(A)(iii).

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 But, even if we apply our precedent construing the term

"use" in § 1028A to construe the term "used" in Application Note

4(E), his argument fails. Berroa determined that a defendant's

conduct with respect to another's means of identification

constituted a "use" of that means of identification so long as

"the defendant attempt[ed] to pass him or herself off as another

person or purport[ed] to take some other action on another person's

behalf." 856 F.3d at 156 (emphasis added); see also United States

v. Morel, Nos. 17-1331, 17-1332, 17-1353 (1st Cir. Mar. 16, 2018)

(relying on Berroa to hold that a defendant "purported to act on

[payee's] behalf" by depositing a fraudulently-obtained tax refund

check bearing the payee's forged signature as an endorsement and

that such an act constituted "use" of that payee's means of

identification under 18 U.S.C. § 1028A)). And there is no dispute

that Cohen, in depositing the fraudulently-obtained tax refund

checks, was purporting to do so on behalf of the payees. Further,

while § 1028A includes a mens rea requirement, see United States

v. Godin, 534 F.3d 51 (1st Cir. 2008) (concluding that the scienter

requirement in § 1028A extends to "of another person"), the record

supports, and Cohen does not dispute, that he knew that the tax

refund checks that he was depositing bore a means of identification

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of another -- specifically the names of the payees.9 Accordingly,

we affirm the District Court's application of the two-level

enhancement under U.S.S.G. § 2B1.1.10

C.

Finally, Cohen contends that the District Court erred by

increasing his offense level under the Sentencing Guidelines by

two levels pursuant to the obstruction-of-justice enhancement set

forth in U.S.S.G. § 3C1.1. The obstruction-of-justice enhancement

applies "[i]f (1) the defendant willfully obstructed or impeded,

or attempted to obstruct or impede, the administration of justice

. . ., and (2) the obstructive conduct related to . . . the

defendant's offense of conviction . . . ." U.S.S.G. § 3C1.1; see

United States v. Mercer, 834 F.3d 39, 48 (1st Cir. 2016). The

enhancement "is not intended to punish a defendant for the exercise

9The out-of-circuit authority construing Application Note
4(E) on which Cohen relies -- United States v. Hall, 704 F.3d 1317
(11th Cir. 2013) and United States v. Rabiu, 721 F.3d 467 (7th
Cir. 2013) -- is not to the contrary. By Hall's reasoning, Cohen
"used" the payees' personal identifying information by depositing
the checks in order to launder them. See Hall, 704 F.3d at 1322
(determining that the payees' information was "used" once it is
"employ[ed] . . . for the purpose for which the conspiracy was
intended"). And Rabiu expressly approved this reasoning from Hall.
See Rabiu, 721 F.3d at 472-74.
10Cohen also asserts that the enhancement cannot apply
because "the identify thieves" were never "proven to be [his] co-
conspirators." But, Cohen cites no authority for the proposition
that such proof was necessary, as opposed to, for example, mere
proof that Cohen knew he was using the payee information in the
checks that he was depositing without authority.

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of a constitutional right." U.S.S.G. § 3C1.1 cmt. n.2. The

enhancement does apply, however, if a defendant exercises his right

to testify at trial but commits perjury in the process. Id. §

3C1.1 cmt. n.4.

"A defendant commits perjury when he intentionally gives

false testimony under oath on a matter material to the

proceedings." United States v. Díaz, 670 F.3d 332, 351 (1st Cir.

2012). A "sentencing court, however, is not required to address

each element of perjury in a separate and clear finding" in order

to justify application of the enhancement. Mercer, 834 F.3d at 49

(quoting United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994)).

"The district court's determination that enhancement is required

is sufficient . . . if . . . the court makes a finding of an

obstruction of, or impediment to, justice that encompasses all of

the factual predicates for a finding of perjury." United States

v. Dunnigan, 507 U.S. 87, 94 (1993).

The District Court found the following parts of Cohen's

testimony not credible: that he had thirty to forty copies of

driver's licenses for tax refund check payees at one point, of

which all but the small number of licenses that were produced at

trial had been stolen; that he did not know the tax refund checks

were fraudulently obtained despite there being "no good reason for

somebody to be paying him a fee for cashing . . . United States

Treasury checks" that were "as good as gold"; and that he did not

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recollect any of the phone calls with one bank officer who had

testified about those calls. Insofar as these findings sufficed

to show that Cohen had committed perjury in testifying at trial,

Cohen's contention that he is being "punished" for "exercising his

constitutional right to testify" is clearly without merit under

our precedent. See Mercer, 834 F.3d at 49; see also Dunnigan, 507

U.S. at 96 ("Respondent cannot contend that increasing her

sentence because of her perjury interferes with her right to

testify, for we have held on a number of occasions that a

defendant's right to testify does not include a right to commit

perjury.").

Turning to Cohen's challenges to the findings

themselves, we first consider his contention that they were flawed

because the District Court "omitt[ed] necessary findings of intent

and of the claimed falsehoods significant hindrance to the

prosecution." But the findings in fact encompassed, either

expressly or impliedly, each of the elements of perjury -- i.e.,

"that the defendant was untruthful at trial with respect to

material matters in this case . . . [b]y virtue of [the

defendant's] failure to give truthful testimony on material

matters that were designed to substantially affect the outcome of

the case." See Dunnigan, 507 U.S. at 95-96 (emphasis omitted).

We note in this regard that the testimony that the District Court

identified as untruthful was plainly relevant to Cohen's mens rea.

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Accordingly, there was no error due to a lack of completeness in

the findings. See United States v. Fermin, 771 F.3d 71, 82 (1st

Cir. 2014) (affirming district court obstruction-of-justice

enhancement where district court did not make a materiality

finding, but testimony supporting enhancement was "obviously

material" (quoting United States v. Campbell, 61 F.3d 976, 984

(1st Cir. 1995))); Matiz, 14 F.3d at 84 (affirming the district

court's finding of perjury though "the court was not explicit as

to whether [the defendant's] testimony was material" because "the

record demonstrate[d]" that the testimony was material); see also

Mercer, 834 F.3d at 49 (affirming district court's obstruction-

of-justice enhancement even though the court was not explicit with

respect to a "willfulness" finding for perjury).

Cohen also argues that the District Court clearly erred

in making certain findings. Cohen points out that the District

Court had to be "reminded that not all [driver's] licenses were

missing." But the District Court clarified at sentencing that it

deemed Cohen's testimony regarding the licenses untruthful because

it found suspect his testimony that the reason he no longer had

"[thirty] or [forty] licenses" in his possession had to do with a

car being stolen in 2012. As the record adequately supports that

finding, this aspect of Cohen's challenge fails.

Cohen also claims that the District Court erroneously

stated that one bank had informed Cohen that his actions amounted

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to "fraud," when the phrase used by the bank was actually "check-

cashing." But, when Cohen pointed out the precise testimony at

sentencing, the District Court clarified that its "conclusion

. . . was that the inference can be drawn from what each of [the]

banks told [Cohen], when they refused to accept any more of these

[tax refund] checks in his account, . . . that there was a big

problem and it was fraud." Thus, this aspect of his challenge

fails as well.

Finally, we reject Cohen's challenge to the District

Court's finding that Cohen was not truthful in testifying that he

had no recollection of having had phone calls with a particular

bank official. The District Court supportably found the bank

officer to be "very careful, very scrupulous, and [that] his

investigation was very meticulous." Moreover, the official

testified at trial that he had multiple calls with Cohen in which

he made clear to Cohen that the bank was suspicious about atypical

check-cashing activity in his account and that he told Cohen that

the bank's interactions with the IRS and the Massachusetts Division

of Banking indicated that checks in Cohen's account "should not

have been issued" and that Cohen was not licensed to operate a

check-cashing business in Massachusetts. We thus conclude that

the District Court did not clearly err in finding incredible

Cohen's claims to have absolutely no recollection of these calls.

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 That leaves only Cohen's argument that the imposition of

the obstruction-of-justice enhancement, which requires "willful"

obstruction, was erroneous given that the District Court provided

the jury with a willful blindness instruction. In challenging the

application of the obstruction enhancement below, Cohen argued

that, in light of the willful blindness instruction, "his testimony

in the eyes of the jury may have made him a damned fool, but that's

not the same thing as finding that he's a damned lying fool

. . . ." The District Court concluded, however, that a willful

blindness instruction is not preclusive of a finding that the

defendant perjured himself in testifying at trial.

On appeal, Cohen does not develop a challenge to this

conclusion but instead merely asserts that the District Court

"wrongly imposed the enhancement upon one seen by the jury as

willfully blind but not necessarily consciously obstructive." We,

thus, deem this underdeveloped argument waived. Zannino, 895 F.2d

at 17. Moreover, we note that, in any event, there is Circuit

precedent that affirms sentences including such an enhancement in

cases in which a willful blindness instruction was given. See,

e.g., Fermin, 771 F.3d at 79-82; United States v. Camuti, 78 F.3d

738, 744-45 (1st Cir. 1996).

IV.

For the foregoing reasons, Cohen's convictions and

sentences are affirmed.

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