United States v. Ponzo

• Citation: 853 F.3d 558
• Decision Date: 07 April 2017
• Docket Number: 15-2277,Nos. 14-1528,14-1906,14-1548,15-1878,s. 14-1528
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

853 F.3d 558

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.

Nos. 14-1528

14-1548

14-1906

15-1878

15-2277

United States Court of Appeals, First Circuit.

April 7, 2017

Allison J. Koury , Wayland, MA, 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.

BACKGROUND¹

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