United States v. Appolon

United States Court of Appeals
For the First Circuit

No. 11-1627

UNITED STATES OF AMERICA,

Appellee,

v.

RALPH APPOLON,

Defendant, Appellant.

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

[Hon. George A. O'Toole, District Judge]

Before

Howard, Stahl, and Lipez,
Circuit Judges.

Derege B. Demissie for defendant-appellant.
Ryan M. DiSantis, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

April 29, 2013
 LIPEZ, Circuit Judge. Appellant Ralph Appolon was

charged with one count of conspiring to commit wire fraud in

violation of 18 U.S.C. § 371 and four counts of committing wire

fraud in violation of 18 U.S.C. § 1343. These charges arose out of

his connection to a mortgage fraud scheme. After a lengthy jury

trial, Ralph1 was found guilty of all charges against him, and was

sentenced to a term of imprisonment followed by supervised release.

He raises a number of challenges to the district court's

evidentiary rulings, the sufficiency of the evidence against him,

and the loss calculation used to establish his sentence. Upon

careful consideration, we affirm his convictions and sentence.

I.

A. The Mortgage Fraud Scheme

The companion case to this appeal, United States v.

Appolon, 695 F.3d 44, 51-53 (1st Cir. 2012) ["Daniel Appolon"],

lays forth the basic facts of the mortgage fraud scheme at issue in

great detail, and we assume the reader's familiarity with that

opinion.2 As we described,

[t]he scheme itself was uncomplicated:
appellants and their coconspirators arranged

1
A number of the conspirators in this scheme are related and
therefore share the same surname. For clarity's sake, we refer to
the Appolons by their first names throughout the opinion.
2
Ralph's case was originally joined to that of his
codefendants, but he was tried separately after his attorney
withdrew shortly before the joint trial. Daniel Appolon, 695 F.3d
at 52 n.1.

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 for straw buyers to purchase real property at
the asking price, falsified mortgage loan
applications for the straw buyers to obtain
financing for an artificially-inflated
purchase price, and pocketed the difference.
The loans secured by each of the properties
involved in appellants' scheme eventually went
into default, and most of the properties were
forced into foreclosure at huge losses for the
lenders.

Id. at 51. Twenty-one properties were sold as part of this scheme.

Id. at 53. The conspiracy involved a number of individuals,

including: Eric Levine, a real estate lawyer who had been suspended

from the practice of law; Daniel Lindley, another real estate

attorney; Latoya Haltiwanger, a residential mortgage broker; and

Ernst Appolon, a realtor. Id. at 52. Ernst Appolon's brothers,

Daniel and Ralph, also participated in the scheme. Id.

The trial record discloses the following facts, described

in the light most favorable to the jury's verdict. See United

States v. Mubayyid, 658 F.3d 35, 41 (1st Cir. 2011). Ralph was a

loan originator with New England Merchants, a real estate company

where he worked with Ernst and Daniel. His main responsibility was

to recruit and cultivate straw buyers to participate in the

fraudulent property deals. These buyers typically provided their

names and credit histories for the purchase in exchange for various

benefits, including having mortgage payments made on their behalf

or receiving remuneration for their participation. Ralph also

created and processed loan applications for the property deals,

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which contained various representations regarding the straw buyers

who were purportedly applying for the loans.

Ralph's wire fraud charges arose from his involvement

with transactions surrounding two properties located at 586 East

Third Street, South Boston, MA ("the Third Street property") and

3231 Washington Street, Jamaica Plain, MA ("the Washington Street

property").

B. The Third Street Property

The Third Street property's purchase took place in June

2005. Ralph's coconspirators recruited him to find a purchaser,

telling him that he could write the mortgage documents and would

obtain a commission on the loan. When Ralph was unable to secure

a purchaser, Levine and the seller, Robert Odimegwu, asked Ralph to

buy the property himself, on the conditions that Ralph would

receive a portion of the realtor commission as well as a hefty

referral fee, and that Levine and Odimegwu would pay the mortgage

for a year.

Ralph assented, but put the property in the name of his

mother-in-law, Violetha Clemendore. Clemendore agreed to assist

Ralph and sign loan documents at his request, believing that her

participation would help Ralph and her daughter with their real

estate ventures. He prepared and submitted a mortgage loan

application on Clemendore's behalf to Long Beach Mortgage. This

application contained a number of false statements concerning,

-4-
inter alia, the purchase price, Clemendore's intent to maintain her

primary residence at the property, and her monthly income. Based

on the application and related paperwork, Long Beach Mortgage

approved 100 percent financing for the purchase and wired loan

proceeds to Lindley's account. The proceeds were transferred to

Levine's account after the closing, and Levine in turn paid Ralph

$60,000, as well as a loan origination commission of almost $6,000.

C. The Washington Street Property

Ralph also participated in the September 2005 sale of the

Washington Street property. A man named Peter Robinson served as

the straw buyer for this purchase. Robinson testified that he

spoke with Ralph at least once during the purchasing process, and

on one occasion another conspirator witnessed Robinson, Ernst, and

Ralph meet together at the New England Mortgage office. Robinson's

loan application listed Ralph as the loan interviewer, and Ralph

also acted as the broker representative for the purchase.

Robinson's purported loan application was submitted to a

company called WMC Mortgage Corporation ("WMC Mortgage"). The

application contained various false statements, including

information about his employment at a second job,

misrepresentations regarding his monthly income, and a $29,000 bank

account balance he did not actually have. The closing for the

Washington Street property took place in September 2005, with

Robinson, Ernst, and an attorney present. Ralph was at the closing

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for a short period of time. After the closing, Ralph received

$8,320 in excess funds from one of Levine's accounts, as well as a

broker fee in a similar amount.

After a nine-day trial, the jury returned guilty verdicts

on the conspiracy count as well as all four wire fraud counts. The

district court sentenced Ralph to 60 months' imprisonment on the

conspiracy count and 70 months' imprisonment on each wire fraud

count, all to run concurrently. Ralph was also sentenced to two

years of supervised release, and ordered to forfeit approximately

$1.9 million that he had gained from his participation in the

conspiracy. This timely appeal followed.

II.

Ralph raises various challenges to his conviction and

sentence, some of which coincide with arguments raised by his

coconspirators in Daniel Appolon. We begin by addressing the

arguments unique to Ralph's appeal.

A. Sufficiency of the Evidence

Ralph moved for a judgment of acquittal on all of the

charges against him under Federal Rule of Criminal Procedure 29.

The district court denied Ralph's motion, and he appeals from that

ruling. We review a challenge based on insufficiency of the

evidence de novo, viewing the evidence in the light most favorable

to the jury's verdict. United States v. Rodríguez–Vélez, 597 F.3d

32, 38 (1st Cir. 2010). We give equal weight to direct and

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circumstantial evidence. See United States v. Ortiz, 447 F.3d 28,

32 (1st Cir. 2006). The inquiry focuses on whether "'a rational

jury could have found that the government proved each element of

the crime beyond a reasonable doubt.'" United States v.

Mardirosian, 602 F.3d 1, 7 (1st Cir. 2010) (quoting United States

v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993)). We begin with

Ralph's arguments as to the substantive wire fraud counts before

turning to his conviction on the conspiracy count.

1. The Wire Fraud Counts

The elements of a wire fraud conviction under 18 U.S.C.

§ 1343 are: (1) a scheme or artifice to defraud using false or

fraudulent pretenses; (2) the defendant's knowing and willing

participation in the scheme or artifice with the intent to defraud;

and (3) the use of the interstate wires in furtherance of the

scheme. See United States v. Sawyer, 85 F.3d 713, 723 (1st Cir.

1996); United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir.

1993). The false or fraudulent representation must be material.

Neder v. United States, 527 U.S. 1, 25 (1999); United States v.

Blastos, 258 F.3d 25, 27 (1st Cir. 2001).

a. Counts Two and Three (Third Street
Transaction)

Counts Two and Three arose from Ralph's participation in

the sale of the East Third Street property to Ralph's mother-in-

law, Clemendore. Appellant's challenge to these counts concerns

the materiality of his misrepresentations. A material statement

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"has a natural tendency to influence, or [is] capable of

influencing, the decision of the decisionmaking body to which it

was addressed." Neder, 527 U.S. at 16 (quoting United States v.

Gaudin, 515 U.S. 506, 509 (1995)) (internal quotation marks

omitted) (alteration in original). The government need not prove

that the decisionmaker actually relied on the falsehood or that the

falsehood led to actual damages. See id. at 24-25 ("The common-law

requirements of justifiable reliance and damages . . . plainly have

no place in the federal fraud statutes." (internal quotation marks

omitted)).

Here, the misrepresentations at issue were contained in

the mortgage application Ralph prepared and submitted to Long Beach

Mortgage. Ralph observes that the government presented no evidence

regarding Long Beach Mortgage's loan evaluation process, in

contrast to the Washington Street transaction, where the government

presented witness testimony from a WMC Mortgage representative who

spoke about the types of factors that company used when evaluating

an application. Without any information regarding the types of

information that Long Beach found relevant in deciding whether to

approve a loan, Ralph argues, the government could not establish

that any of the misrepresentations on the application were factors

in the company's decisionmaking.

The record defeats this contention. The Long Beach loan

file for the Third Street transaction included application forms

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that specifically sought information regarding the purchaser's

income, assets, and intent to reside in the property, all of which

were designed to assess the borrower's creditworthiness. Cf.

United States v. Kenrick, 221 F.3d 19, 32 (1st Cir. 2000) (stating,

in context of bank fraud conviction, that "misrepresentation about

a borrower's creditworthiness can certainly be a material falsehood

that supports a []conviction"). Ralph provided responses to these

requests that the trial testimony established as untrue, including

a verification of Clemendore's rent, information regarding her

employment, and an occupancy agreement that certified her intent to

live at the Third Street residence. The fact that Long Beach's

loan application explicitly sought this information from the

applicant indicates that Clemendore's responses were capable of

influencing its decision.

Moreover, the government adduced other evidence regarding

the types of information material to Long Beach's decisionmaking

process. Specifically, the government called Diane Taylor, a

representative of WMC Mortgage, the lender for the Washington

Street transaction, to testify about WMC Mortgage's practices.

Although Taylor could not speak to Long Beach's lending protocols,

she testified about a range of criteria relevant to WMC Mortgage's

lending decisions, including information regarding income and

employment, assets, and residence at the purchased property. As

noted above, Long Beach's mortgage application requested the same

-9-
information. Indeed, the trial testimony establishes that the loan

file for the Third Street transaction contained loan applications

substantially similar to WMC Mortgage's applications, strongly

supporting the inference that the two mortgage companies used the

same types of information in assessing mortgage applications. A

reasonable jury could thus rely on Taylor's testimony, combined

with the similarity between Long Beach's and WMC Mortgage's loan

applications, to conclude that Long Beach would have considered the

same types of factors in assessing Clemendore's loan application.

In light of all this evidence, it is of no moment that

the government did not introduce testimony from a Long Beach

representative regarding the specific types of information it found

material. This challenge therefore fails.

b. Counts Six and Seven (Washington Street
Transaction)

Counts Six and Seven concerned Ralph's engagement with

the Washington Street property transaction, and he asserts two main

challenges to the sufficiency of the evidence supporting these

convictions. First, he argues that the government failed to

present evidence that Ralph knew the representations on the loan

application were false or misleading. Ralph relies heavily on the

notion that Robinson, the property's purchaser, dealt primarily

with Ernst. The government introduced other evidence demonstrating

Ralph's interactions with Robinson, however, including Robinson's

testimony that he spoke with Ralph regarding the transaction on at

-10-
least one occasion, and that Ralph was present briefly at the

closing. Additionally, another conspirator testified that Robinson

came to the office multiple times looking for Ralph, and witnessed

Ralph, Ernst, and Robinson meeting at the office on at least one

occasion. These facts establish that Robinson had at least some

interaction with Ralph regarding the loan transaction. Moreover,

testimony from one of Lindley's employees established that Ralph

acted as the broker representative on the transaction, and that he

put his name on a number of fax transmissions with Lindley's

office. Ralph also listed himself as the interviewer on the loan

applications that contained the false statements, as well as other

forms related to the transaction. The false verification of rent

from the lender file listed Ralph as the requesting party and gave

New England Merchants' address as the location of Robinson's

landlord.3

This compilation of evidence gives rise to the reasonable

inference not only that Ralph was an active participant in the

transaction, but also that he participated with the specific intent

to defraud. See United States v. Alfonzo–Reyes, 592 F.3d 280, 291

(1st Cir. 2010) ("Direct evidence is not required to find [a

defendant] guilty, and juries are entitled to draw reasonable

inferences at trial based on circumstantial evidence."). These

3
Some of the documents described above have not been made
part of the record on appeal. We thus rely on the government's
descriptions of them, which appellant has not disputed in any way.

-11-
facts, joined with Ralph's "general awareness of the mechanics of

appellants' scheme," Daniel Appolon, 695 F.3d at 59, are more than

sufficient to meet the government's burden.

Ralph's second contention is similarly unavailing. He

posits that New England Merchants' offices permitted any employee

to use the computer system to generate and transmit forms, thus

making it possible that his brother Ernst or some other employee

forged Ralph's signature and engaged in the inculpatory wire

communications. But Ralph's ability to construct an alternative

(and rather speculative) reading of the evidence does not

invalidate the jury's conclusion. We ask only whether "a rational

fact finder could find that the government proved the essential

elements of its case beyond a reasonable doubt." United States v.

Marin, 523 F.3d 24, 27 (1st Cir. 2008). As we have explained, the

record bears more than sufficient evidence to support the jury's

conclusion. More fundamentally, a wire fraud conviction does not

require that Ralph "have had any personal involvement in initiating

the wire transfers; instead, the use of the wires need only have

been 'a reasonably foreseeable part of the scheme in which he

participated.'" United States v. Vázquez-Botet, 532 F.3d 37, 63-64

(1st Cir. 2008) (quoting Sawyer, 85 F.3d at 723 n.6). The evidence

described above, particularly Ralph's signatures on the transmitted

documents, his interactions with WMC Mortgage, and his awareness of

the general contours of the fraudulent scheme, was sufficient to

-12-
demonstrate that he should have foreseen the use of wire

transmissions as a result of his involvement in the Washington

Street transaction.

For these reasons, Ralph's conviction on Counts Six and

Seven must stand.

2. The Conspiracy Count

To sustain a conviction of conspiracy, the government

must prove that "1) the defendant agreed to commit an unlawful act,

2) the defendant voluntarily participated in the scheme, and 3) one

of the conspirators took an affirmative step toward achieving the

conspiracy's purpose." Cassiere, 4 F.3d at 1015. The defendant

must have both intended to make the agreement as well as intended

to commit the substantive offense. See United States v. Gonzalez,

570 F.3d 16, 24 (1st Cir. 2009). Where the indictment alleges a

conspiracy to commit multiple offenses, "the charge may be

sustained by sufficient evidence of conspiracy to commit any one of

the offenses." United States v. Muñoz-Franco, 487 F.3d 25, 46 (1st

Cir. 2007).

Ralph claims that the government failed to prove the

existence of an agreement among the conspirators. An agreement is

not proven by demonstrating "'mere knowledge of an illegal activity

. . . , let alone [] mere association with other conspirators or

mere presence at the scene of the conspiratorial deeds.'" United

States v. Dellosantos, 649 F.3d 109, 115 (1st Cir. 2011) (quoting

-13-
United States v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991)).

Rather, the government must prove the existence of an "agreement or

understanding as to each defendant." Id. (quoting United States v.

Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989)) (internal

quotation marks omitted). "[C]onspiratorial agreement need not be

express so long as its existence can plausibly be inferred from the

defendants' words and actions and the interdependence of activities

and persons involved." United States v. Boylan, 898 F.2d 230,

241–42 (1st Cir. 1990); see also Muñoz-Franco, 487 F.3d at 45-46.

As the discussion regarding the substantive wire fraud

counts shows, the record is replete with evidence evincing Ralph's

agreement to commit unlawful acts. He made numerous admissions to

an FBI special agent regarding the Third Street transaction,

including that he agreed to purchase the property in his mother-in-

law's name and that he prepared loan applications that he submitted

to the mortgage company. These admissions are supported by volumes

of documentary evidence and testimony establishing the falsity of

the statements contained in the applications that Ralph prepared.

Similar evidence shows his agreement to participate in the

Washington Street scheme, including testimony showing that Ralph

met with Ernst and Robinson on at least one occasion and appended

his name to a number of documents relevant to the transaction.

Ralph's engagement with the scheme rose far beyond

"simple association with the conspirators." United States v.

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Pérez-González, 445 F.3d 39, 49 (1st Cir. 2006). His conduct

demonstrates both his intent to engage in a common scheme and

specific acts in furtherance of that scheme. Thus, there is no

reason to disturb the jury's verdict.4

B. The Admission of the Lindley Files

Ralph contends that the district court erred in admitting

the files of Lindley, who served as the closing attorney on the

real estate transactions. Although Ralph frames this contention

under the heading of "due process," his brief neither explains why

his due process rights were violated by the documents' admission,

nor identifies with any precision the particular documents to which

this argument is addressed. Ralph's vague allusion to due process

notwithstanding, his argument primarily addresses the documents'

admissibility under the Federal Rules of Evidence and we therefore

treat it as such.

When the defendant has preserved his objections, the

district court's evidentiary rulings are reviewed for abuse of

discretion. United States v. Jiménez, 419 F.3d 34, 43 (1st Cir.

2005). The government contends that Ralph forfeited this claim

below, thereby rendering it subject to plain error review. See

4
Ralph contends that the government did not prove the
existence of an agreement between Levine and Ralph, but it is a
well-settled proposition that "each coconspirator need not know of
or have contact with all other members, nor must they know all of
the details of the conspiracy or participate in every act in
furtherance of it." United States v. Martínez–Medina, 279 F.3d
105, 113 (1st Cir. 2002); see also Pérez-González, 445 F.3d at 49.

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United States v. Chaney, 647 F.3d 401, 406 n.6 (1st Cir. 2011)

(observing that "failure to raise an argument or right due to

inattention or neglect constitutes forfeiture" and issue is

reviewed for plain error). We need not resolve this question,

however, since the district court's admission of these documents

was not an abuse of discretion.

Ralph's first challenge goes to the authenticity of the

Lindley files. To introduce a piece of evidence, the proponent

must demonstrate "that the item is what the proponent claims it

is." Fed. R. Evid. 901(a). This relatively undemanding rule

"requires the trial court to determine if there is a reasonable

probability that the evidence is what it is purported to be."

United States v. Carlos Cruz, 352 F.3d 499, 506 (1st Cir. 2003)

(quoting United States v. Neal, 36 F.3d 1190, 1210 (1st Cir. 1994))

(quotation marks omitted). The proponent "need not rule out all

possibilities inconsistent with authenticity" in order to meet this

burden. Asociación De Periodistas De P.R. v. Mueller, 680 F.3d

70, 79 (1st Cir. 2012) (quoting United States v. Alicea-Cardoza,

132 F.3d 1, 4 (1st Cir. 1997)) (quotation marks omitted). Evidence

can be authenticated in numerous ways, including through the

testimony of a witness with knowledge "that an item is what it is

claimed to be." Fed. R. Evid. 901(b)(1).

The record shows that the government laid a sufficient

foundation for the admission of the Lindley files. On the second

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day of trial, before testimony began, the parties had a colloquy

with the district court regarding the files. When the government

sought to have them admitted provisionally before their

authentication, Ralph objected to "the use of documents that are

not testified to by anybody and . . . the authenticity of which is

in dispute, at least from coming in without a witness." The

government responded that MacPhee, one of its witnesses and

Lindley's former employee, could serve as such a witness. In light

of this representation, the district court gave the government

permission to "use them," but with the caveat that they would not

be "formally in evidence until they're qualified for admission."

MacPhee later gave the promised testimony. She stated

that she was responsible for the filing system at Lindley's office,

and kept files for "real estate matters." She also discussed her

role in updating and maintaining the records, and identified the

files when they were presented to her. After the government moved

to admit the files into evidence, the court concluded during a

brief sidebar that "there's an adequate foundation for the

admission," but clarified that the files would not be admitted for

the truth of their contents.5 As someone who maintained, reviewed

and worked with the files, MacPhee was well-positioned to recognize

5
The court gave a limiting instruction after the sidebar
concluded, and another instruction at the close of evidence.
Ralph's counsel asserted no further objections to the admissibility
of the files, suggesting that he did indeed forfeit this argument.

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and verify the documents in question. Her testimony was more than

sufficient to establish a reasonable probability that the Lindley

files were what they purported to be.

Ralph also suggests that the Lindley files are

inadmissible hearsay because, despite the court's statement to the

contrary, they were admitted for their truth and do not fall under

any exception to the hearsay rule. Fed. R. Evid. 801. This

objection misapprehends the files' probative significance. The

files in question contained numerous records, including

correspondence with lenders and other participants in the

transactions, copies of the loan applications, and documents

related to the transactions' closings. These files were not

introduced for the purpose of establishing the truth of the

assertions contained therein, but rather, as instrumentalities of

the crimes in question. To the extent that the government relied

on any representations contained within these documents, the

representations' probative value was not for their truth. Indeed,

the government sought to admit them for a wholly different purpose

-- "to prove that the statements were made," and to later

demonstrate "through other admissible evidence[] that [the

statements] were false." United States v. Munson, 819 F.2d 337,

340 (1st Cir. 1987) (citation omitted) (quotation marks omitted).

Consequently, they are not hearsay.

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 For these reasons, the district court did not err in

admitting the Lindley files into evidence.

C. Evidence of Uncharged Conduct

Ralph argues that the district court, applying Rule

404(b), improperly admitted evidence related to his involvement in

two real estate transactions that were not the basis of his

indictment. In general, "[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in accordance

with the character," i.e., as propensity evidence. Fed. R. Evid.

404(b)(1). Evidence of other acts may be admissible, however, if

it has "special relevance," United States v. Rodríguez-Berríos, 573

F.3d 55, 64 (1st Cir. 2009), such as proving "motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident," Fed. R. Evid. 404(b)(2). Our circuit employs

a two-part test in evaluating the admissibility of evidence under

Rule 404(b). First, we determine whether the proffered evidence

truly possesses "special relevance." Rodríguez-Berríos, 573 F.3d

at 64. If it does, we then apply Rule 403 to ascertain whether the

evidence's probative value is substantially outweighed by the

danger of unfair prejudice. Id.; see also Fed. R. Evid. 403

(permitting court to exclude relevant evidence if there is danger

of, inter alia, "unfair prejudice, confusing the issues, [or]

misleading the jury"). We review the district court's

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determination for abuse of discretion. United States v. Luna, 649

F.3d 91, 103 (1st Cir. 2011).6

The evidence at issue concerned Ralph's participation in

the purchase of two properties located at 99 Wayland Street and 25

Nelson Street. The Wayland Street and Nelson Street transactions

were markedly similar to those that formed the basis of the

indictment, in terms of both how the transactions were conducted

and the roles of the assorted players. The transactions both

involved the use of two different purchase prices, falsified

information on loan applications, Ralph's involvement as the loan

originator, Levine or Lindley's involvement in the real estate

closing, and Ralph's receipt of commissions after the closing.

This evidence is highly probative for multiple reasons, including

to show Ralph's intent to engage in the conspiracy, to demonstrate

his knowledge of the conspiracy's mechanics, and to eradicate any

doubt that his participation was somehow unintentional. See United

States v. Gonzalez-Sanchez, 825 F.2d 572, 581 (1st Cir. 1987)

(holding that "evidence of [defendant's] involvement with the same

6
The government argues that the evidence of uncharged conduct
is admissible for an independent reason, which is that it provides
proof of the conspirators' modus operandi. We perceive little, if
any, distinction between this argument and the government's Rule
404(b) argument, since both rely on the marked similarities between
the charged conduct and the uncharged conduct. Indeed, our cases
have explicitly noted that such similarities may give the evidence
"special relevance" for Rule 404(b) purposes. See United States v.
Wyatt, 561 F.3d 49, 53 (1st Cir. 2009). Thus, we believe it more
appropriate to analyze the evidence of uncharged conduct in this
case under the rubric of Rule 404(b).

-20-
people in past arson and fraud schemes is especially probative of

[] whether he was an innocent 'tool' of others or a knowing

participant in the conspiracy"). The uncharged transactions also

took place within the same general timeframe as the charged ones,

further supporting the notion that they were part and parcel of the

same scheme. Any minimal variation in certain aspects of the

transactions' execution does not render the uncharged conduct

irrelevant. See Wyatt, 561 F.3d at 53 (holding that even though

evidence of other transaction was not identical to allegedly

criminal transaction at issue, the transactions "bore enough

indicia of similarity" to support admissibility); United States v.

Landrau-López, 444 F.3d 19, 24 (1st Cir. 2006) ("The other bad act

need not be identical to the crime charged so long as it is

sufficiently similar to allow a juror to draw a reasonable

inference probative of knowledge or intent."). Consequently, the

district court did not err in deciding that this evidence was

relevant conduct for the purposes for Rule 404(b).

The evidence survives Rule 403's balancing analysis for

related reasons. We have observed that while "there is always some

danger that the jury will use other bad acts evidence to infer

criminal propensity," Rule 403 demands the exclusion of such

evidence "only when its probative value is substantially outweighed

by its potential unfairly to prejudice the defendant." Landrau-

Lopez, 444 F.3d at 24; Fed. R. Evid. 403. The only specific

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prejudice Ralph identifies comes from the testimony of the Wayland

Street property's ostensible owner, Rose Charles. Charles was the

best friend of Ralph's mother, and testified in some detail about

her interactions with Ralph during the course of the Wayland Street

transaction. Although Ralph contends that her testimony was

unnecessarily inflammatory, the trial record reveals that it was

largely devoted to explaining her participation in the transaction.

Her testimony also addressed the disparity between her beliefs

regarding the nature of the deal and Ralph's representations to the

lender. Charles did testify at several points about the personal

impact the transaction had on her, as well as a subsequent

conversation where she "forgave" Ralph for his misdeeds. Despite

the emotional nature of this testimony, the record does not support

the notion that the government admitted this evidence to "paint[]

Appolon as a bad person," as Ralph contends. Although not every

sentence of Charles's testimony was strictly relevant to facts

disputed at trial, the vast bulk of it was highly probative.

We acknowledge that the similarity of the uncharged

conduct at issue simultaneously establishes its relevance and

heightens the possibility that the jury will draw an unfair

inference of propensity. See United States v. Varoudakis, 233 F.3d

113, 123 (1st Cir. 2000). But given the facts of this case and the

notable similarity between the uncharged conduct and the basis of

Ralph's indictment, we are assured that the district court properly

-22-
evaluated the "risk of an improper criminal propensity inference .

. . in light of the totality of the circumstances." Id. at 122.

For these reasons, we affirm the district court's ruling

as to the uncharged conduct.

D. Summary Evidence

Ralph's remaining arguments are largely foreclosed by our

opinion in Daniel Appolon. He contends that the district court

erred in admitting the testimony of a witness, Thomas Zappala, who

summarized voluminous documentary evidence, as well as certain

charts used during Zappala's testimony.7 Ralph objects that

Zappala's summary testimony addressed evidence not admitted at

trial, but Federal Rule of Evidence 1006 does not require that the

documents being summarized also be admitted. Fed. R. Evid. 1006

(stating that "proponents must make the originals or duplicates

available for examination or copying . . . [a]nd the court may

order the proponent to produce them in court"); United States v.

Milkiewicz, 470 F.3d 390, 396 (1st Cir. 2006) ("[T]he evidence

7
The district court did not explicitly state the rule under
which it admitted the charts into evidence. The government, for
its part, cited "Federal Rule of Evidence 2006" in arguing for the
documents' admissibility, but there is no such rule. The
government was apparently invoking Rule 1006, and the district
court evidently admitted the charts on that basis. We therefore
analyze the admission of this evidence under Rule 1006. In the
future, however, "it would be a better practice if the court
specified which evidentiary rule it was relying upon because []
summaries are subject to different rules with different
requirements and purposes." Daniel Appolon, 695 F.3d at 62 n.7.
The same is true of the government.

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underlying Rule 1006 summaries need not be introduced into

evidence"). Accordingly, whether the documents themselves were

introduced is of no consequence. To the extent that Ralph argues

the district court abused its discretion by admitting Zappala's

testimony, our opinion in Daniel Appolon explains why this argument

lacks merit and we need not repeat ourselves here. See Daniel

Appolon, 695 F.3d at 63 (holding that "[t]here was no abuse of

discretion in permitting [Zappala] to testify").8

E. The Sentence

Ralph's sentencing arguments rehearse those his

coconspirators raised in the companion case. Like his fellows,

Ralph contends that the district court should have used the gain to

him, rather than loss to the victims, as the appropriate measure of

loss at sentencing. We declined to accept this contention in

Daniel Appolon and find it similarly unpersuasive here. 695 F.3d

at 66-70 (discussing why "[t]here is no need to resort to gain" in

calculating loss amount at sentencing). His sentence must

therefore remain undisturbed.

8
Ralph's last evidence-related objection is that the
admission of certain statements by his coconspirators violates the
Confrontation Clause. We have addressed and rejected this
contention numerous times. See, e.g., United States v. Ciresi, 697
F.3d 19, 31 (1st Cir. 2012); United States v. Rivera–Donate, 682
F.3d 120, 132 n.11 (1st Cir. 2012); United States v. De La
Paz–Rentas, 613 F.3d 18, 28 (1st Cir. 2010).

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 III.

We detect no error in the district court's rulings.

Accordingly, Appolon's convictions and sentence are affirmed.

So ordered.

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