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United States v. Ponzo

United States Court of Appeals, First Circuit

April 7, 2017

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]

          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 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.

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

          THOMPSON, Circuit Judge.

         Enrico Ponzo operated as a member of the northeast crime syndicate known as the Patriarca Family of La Cosa Nostra ("LCN"). After being charged with multiple criminal offenses, he absconded to Arizona (and later to Idaho), changed his identity, and joined a marijuana-shipping conspiracy. A jury later convicted him on a bevy of charges, including conspiracy to commit racketeering, conspiracy to commit murder in aid of racketeering, conspiracy to distribute cocaine, extortion, flight from justice, and conspiracy to distribute marijuana. And in this appeal, he complains of an assortment of supposed errors -- ranging from the prosecution's use of the grand jury to the court's sentence selection, and almost everything in between -- but none persuades. Before explaining why that is, we briefly state the background facts, reserving additional detail for inclusion in our discussion of the relevant issues.

         BACKGROUND[1]

         This case centers on Ponzo's affiliation with LCN, a crime network with a "boss, " "soldiers, " and "associates" -- an affiliation that began in the late 1980s and ended in the mid 1990s, give or take. LCN operated its organized crime network 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.

         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. instead. Anyway, about a month after the Romano Jr. murder, Ponzo (along with Sean Cote) shot Cirame, a member of the Salemme faction believed to be responsible for Romano Jr.'s death.

         Meanwhile, in September 1994, the Commonwealth of Massachusetts charged Ponzo with assault with intent to murder in an unrelated case. Roughly two months later, in November 1994, Ponzo failed to appear in state court on the possession of cocaine charges; accordingly, the court issued a warrant for his arrest. Ponzo hid from the arrest warrant at the home of his drug supplier, Mele. While in hiding, Ponzo implored Mele to set him up with a marijuana-trafficking business in Arizona. Obliging the request, Mele, after helping Ponzo move to Arizona, introduced him to the marijuana-shipping business, where these logisticians packaged the marijuana in Arizona and shipped the marijuana to Massachusetts.

         In Arizona, Mele taught Ponzo how to package the marijuana and introduced him to Jesus Quintero and Steve Stoico, members of the marijuana conspiracy. Ponzo also began using a false identity at that time -- Jeffrey Shaw. Through the conspiracy, Ponzo and his co-conspirators purchased and shipped between 1, 000 and 1, 500 pounds of marijuana a year to the Bay State.

         Several years after Ponzo departed Massachusetts, on April, 4, 1997, a federal grand jury indicted him and 14 others on charges stemming from their LCN-related conduct in Massachusetts.

         In 1998, Cara Pace began a relationship with Ponzo --that is, Jeffery Shaw, as she knew him. And in March 1999, Ponzo left Arizona with Pace and settled down in Marsing, Idaho, where they had two children.

         Acting upon a tip, the FBI learned of Ponzo's location about 17 years after he fled Massachusetts. They investigated Ponzo for about a month after learning of his whereabouts. And on February 7, 2011, law enforcement arrested him at his Idaho home. The authorities confirmed his identity through fingerprint identification.

         Following his arrest in Idaho, a federal grand jury in Massachusetts issued a superseding indictment against Ponzo, which included charges for his conduct in Arizona and two new charges for his activity in Massachusetts. After a 26-day trial, a jury convicted him of conspiracy to commit racketeering, in violation of 18 U.S.C. § 1962(d); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c); conspiracy to distribute and to possess with the intent to distribute 500 grams or more of cocaine, in violation of 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. 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 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). 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 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 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, 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 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., 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.

         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 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 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 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 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 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 ...

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