United States of America v. FRANCISCO OSCAR GRULLON, a/k/a Frank

Boston, MA - Criminal defense lawyer represented defendant with participating in a massive scheme to defraud the federal government by falsifying tax returns charge.

The Scheme



Beginning in October 2011, Grullon, a native of the

Dominican Republic who immigrated to the United States when he was

nine, conspired with a Massachusetts lawyer named David Cohen and

others to defraud the United States. The conspiracy, labeled a

Stolen Identity Refund Fraud scheme by IRS agents, was relatively

simple. In the first step, coconspirators stole personal

identification information, such as social security numbers,

names, and birthdates. With the stolen data in hand, other

1 For details about another coconspirator (who is not

relevant to this appeal), see generally United States v. FleteGarcia, 925 F.3d 17 (1st Cir. 2019).

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conspirators executed the second stage, using the information to

file fraudulent tax returns such that the IRS sent refund checks

to addresses in Massachusetts.2

With checks in hand, the third stage began. And this is

where Grullon and Cohen became useful by laundering the checks

into cold hard cash through bank accounts at various banks in

Massachusetts.3 The government put forward circumstantial evidence

that, starting in October 2011, Cohen and Grullon conspired to

deposit some of the checks into Cohen's Interest on Lawyers Trust

Accounts, known as IOLTAs, which are accounts that lawyers arrange

to hold onto their clients' funds. See Mass. R. Prof. C. 1.15(e).

To suspicious tellers, Cohen insisted the money came from his legal

clients, but bank employees observed Cohen writing himself checks

from the IOLTA account into which he had just deposited the alleged

client funds. The checks' amounts approximated what he had just

put into the bank.

2 The scheme primarily targeted people in Puerto Rico because

the IRS does not require the Commonwealth's residents to file

yearly tax returns. Because fewer Puerto Rico citizens file

returns, the conspirators expected the IRS would flag fewer of

their fraudulent returns as suspicious given the lesser chance the

IRS would have multiple returns with the same personal

identification information.

3 The banks included Century Bank, Brookline Bank, Citizens

Bank, Bank of America, and People's United Bank.

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Other times, Cohen established accounts in the name of

Grullon's business, American Dominican Professional Association,

Inc. ("AD Professional") (Grullon only once went with Cohen to

open an account and even then he kept his name off of the account).4

AD Professional purported to be a legitimate business, and indeed

it sometimes operated a function hall. When Cohen opened the AD

Professional accounts, he variously claimed the business was a

commercial real estate company or a check-cashing company.

For one AD Professional account, Cohen told bank

employees that Grullon had the necessary check-cashing license

from the Commonwealth of Massachusetts to operate a check-cashing

business. If he were telling the truth, the pair could have

deposited the fraudulent third-party tax refund checks with less

scrutiny from the bank because the nature of a check-cashing

business is to take checks from third parties. Grullon also later

told one bank teller that he had a check-cashing license that

allowed him to deposit the third-party tax refund checks (he did

not). When the license never materialized, the bank closed the

account because of the suspicious check-cashing activity.

Cohen alternatively claimed that the third-party tax

refund checks came from AD Professional. In this telling, Cohen

4 The business also went by variations of the name AD

Professional Association, Inc., but we will refer to it as AD

Professional for clarity.

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deposited tax refund checks for members of the association into

the AD Professional accounts to hold onto the money for future

real estate or land purchases the association might want to make.

When a bank asked for a signed contract to verify the arrangement

-- the IRS had issued reclamation notices to the bank for some of

the tax refund checks Cohen had deposited5 -- Cohen could not

produce one. The bank thereafter closed the account based on the

suspicious check-cashing activity.

Sometimes banks hesitated before opening accounts in the

name of AD Professional. Wanting to ensure the AD Professional

accounts were legitimate, employees from a couple of the banks

independently investigated the company's listed address and found

a nearly empty building with some sort of function space on the

second floor, and very little resembling either the check-cashing

or real estate businesses Cohen purported it to be. The banks

thereafter either refused to open AD Professional accounts or

closed ones they had opened before looking into the company.

Although eyewitness testimony and security camera

footage only placed Grullon in one of the target banks in January

2013 at the earliest, bank employees at some of those banks

testified to Grullon thereafter depositing multiple fraudulent tax

5 A reclamation notice from the IRS occurs when the payee of

a tax refund check alleges that she did not receive the benefit of

that check. The IRS then seeks to reclaim the funds from the bank

that processed the check.

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return checks into the AD Professional and IOLTA accounts multiple

times a week (Grullon, though not a signatory on the accounts,

could still deposit checks). The jury also heard about bank

tellers confronting Grullon regarding the validity of the thirdparty checks he was depositing, which Grullon sometimes claimed he

was handling for friends. At least one bank official examined the

checks and noticed that many of Grullon's "friends" happened to

live at the same address.

Additionally, Cohen's officemate, a fellow lawyer who

had known Cohen for around 40 years, testified to having met

Grullon about five times when Grullon showed up at the office to

discuss business ventures he and Cohen were arranging. The

officemate recounted several heated conversations between Grullon

and Cohen about whether they were setting up too many accounts and

depositing too many checks too quickly, especially because Grullon

had not yet received the check-cashing license he had promised to

obtain.

As for direct evidence of Grullon's involvement, the

prosecution enlisted one of his coconspirators, Dubin Eduardo

Gonzalez-Pabon, as their star witness. In early 2013, Cohen

recruited Gonzalez-Pabon, an attorney from Venezuela and a friend

of Cohen's girlfriend (she and Cohen even attended GonzalezPabon's wedding), to participate in the conspiracy. GonzalezPabon lived at and worked from Cohen's house.

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According to Gonzalez-Pabon, Grullon instructed the new

coconspirator to become a treasurer and secretary of AD

Professional, purportedly to help the company with investments.

On the day Gonzalez-Pabon signed the paperwork to officially join

the company in those roles, Grullon and Cohen directed him to open

multiple accounts at multiple banks in the name of AD Professional,

and to deposit checks into those accounts. Gonzalez-Pabon

complied. Grullon gave Gonzalez-Pabon the majority of checks he

was to deposit. Grullon also provided Gonzalez-Pabon money to

deliver to the unknown coconspirators who procured the fraudulent

refund checks for the scheme. At some point later in 2013, a bank

official confronted Gonzalez-Pabon about the third-party checks he

was depositing into the AD Professional accounts, telling

Gonzalez-Pabon that the checks were made out to "fictitious

people." Grullon and Cohen thereafter told Gonzalez-Pabon to close

the accounts. A jury could easily have found they did so because

the duo knew the checks were fraudulent and because they worried

the IRS would reclaim the money they had deposited now that the

bank had discovered the scam.

The conspiracy lasted until December 2014, but Grullon

stopped participating in November 2013 when he fled to the

Dominican Republic, allegedly to begin a fruit and vegetable export

business. Between October 2011 and November 2013, the trio

defrauded the U.S. Government of at least $1,604,000.28 across

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five banks in Massachusetts using 246 fraudulent checks, cashing

around $400,000 in October 2013 alone.

The Investigation

Grullon's departure was not necessarily coincidental.

After banks voiced suspicions about Grullon and Cohen depositing

United States Treasury checks in other people's names and after

the IRS issued a number of reclamation notices to those banks, the

IRS's Criminal Investigations Division began investigating the

conspiracy in July 2013. Special agents Ryan J. Talbot and James

Clarke conducted most of the on-the-ground investigation,

gathering evidence from the banks and interviewing witnesses.

Towards the end of 2014, Gonzalez-Pabon was arrested and almost

immediately began to cooperate. He participated in three

interviews, the first of which the special agents recorded. In

the latter two, at which special agent Clarke took notes, GonzalezPabon contradicted earlier statements. He had initially admitted

to knowing the scheme was criminal when he deposited the checks,

but in the subsequent interviews Gonzalez-Pabon claimed he found

out about the illegality only upon his arrest.

On May 5, 2015, a federal grand jury indicted Grullon

and Cohen, charging them with conspiracy to commit "theft,

conversion, or embezzlement of government property" starting in

October 2011 (18 U.S.C. § 371), with seventeen counts of conversion

of government property (18 U.S.C. § 641), and with one count of

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conspiracy to commit money laundering starting in October 2011 (18

U.S.C. § 1956(h)).6 Grullon was apprehended in the Dominican

Republic on March 20, 2018, and extradited to the United States in

June.

Events Before Grullon's Trial

In between Grullon's indictment and his arrest, several

events germane to his appeal occurred. First, by the time Grullon

unwillingly returned to the United States, the government had

already successfully tried Cohen and convicted him. For his role

in the crimes, Cohen received fifty-four months imprisonment, with

three years of supervised release, and a restitution order for

$1,672,958.74.

Second, special agent Clarke got into his own hot water.

A grand jury indicted him on March 7, 2018, for sexually assaulting

an intern on July 26, 2017.7 A jury eventually convicted Clarke

(he received 7 to 8 years), but at the time of Grullon's trial,

the government (wisely) decided not to call Clarke to testify.

6 Gonzalez-Pabon was also indicted, but he pled guilty to

one count of conspiracy under 18 U.S.C. § 371. He received 12

months and 1-day imprisonment with 2 years of supervised release

and he was ordered to pay $780,682.54 in restitution.

7 Clarke had taken the intern to a bar after work and then

offered her a ride to the bus station. Once in the car, he

handcuffed her, shoved his gun in her mouth, and digitally raped

her.

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Grullon's Trial & Sentencing

Prior to trial, Grullon submitted several motions.

First, Grullon filed a motion in limine seeking to introduce

evidence concerning Clarke's criminal behavior pursuant to Federal

Rule of Evidence 404(b)(2), which permits certain evidence of a

person's prior bad actions to be introduced for specific purposes.8

Second, Grullon filed a motion for discovery because he wanted the

government to provide him with Gonzalez-Pabon's unredacted

presentence report (PSR) so that he could uncover additional

evidence to impeach the credibility of the government's star

witness. Such reports are generally unavailable to third parties

and contain information about a defendant's personal life that

helps the judge figure out an appropriate sentence.9 Both the

government and Grullon agree Grullon had already been provided

with Gonzalez-Pabon's redacted PSR.

The trial judge (who was the same judge who had tried

and sentenced Cohen) denied the first motion without prejudice,

meaning Grullon could raise the point again during trial. As for

8 Motions in limine are a tool for trial lawyers to petition

the court to exclude or to include particular pieces of evidence.

Judges request them before the trial begins so that thorny

evidentiary questions do not interrupt or slow down the

proceedings. See United States v. Agosto-Vega, 731 F.3d 62, 65

(1st Cir. 2013).

9 See In re Bos. Herald, Inc., 321 F.3d 174, 188 (1st Cir.

2003).

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the second, he took the PSR question under advisement, indicating

he would conduct an in camera inspection. But he never issued a

final ruling about it. We will save the details for further along,

but keep the motions in mind because they are central to some of

Grullon's appellate issues.

After a six-day trial concluded on April 29, 2019, a

jury convicted Grullon of conspiracy to commit the various

financial crimes, of conspiracy to commit money laundering, and of

fifteen counts of converting government property.10

The judge sentenced Grullon to 84 months in jail based

on a total offense level (TOL) of 28, plus 3 years of supervised

release, and $1,604,000.28 in restitution.11 Relevant here, the

TOL calculation included a 2-level enhancement for Grullon's

leadership role (U.S.S.G. § 3B1.1(c)), and a 16-level enhancement

because the amount of loss was greater than $1.5 million (U.S.S.G.

§ 2B1.1(b)(1)(I)).12 Grullon objected to both enhancements at

trial for reasons we recount later.

10 The government, mid-trial, moved to dismiss two of the

conversion counts from the original indictment.

11 Federal judges use the United States Sentencing

Guidelines, which has a complex system of offense levels, when

calculating the appropriate punishment for defendants. See

generally United States v. Booker, 543 U.S. 220 (2005).

12 Grullon's TOL started from a base level of 6. From there,

the judge tacked on a 2-level enhancement because the offense

involved ten or more victims (U.S.S.G. § 2B1.1(b)(2)(A)), and a 2-

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Grullon timely appealed his conviction and here we are.

Discussion

On appeal, Grullon advocates for three errors. First,

he contends the judge mistakenly excluded the evidence concerning

special agent Clarke's criminal behavior. Second, Grullon asserts

the judge erred by denying him the opportunity to obtain the

unredacted PSR and by failing to enter a final ruling on the

matter. Third, Grullon challenges the appropriateness of the

sentencing enhancements. Because the first set of claims relate

to evidentiary questions, we will review those together before

turning to the sentencing enhancements.

I. Evidentiary Exclusions

A. Standard of Review

Generally, we review preserved evidentiary rulings for

an abuse of discretion. See United States v. Jimenez, 507 F.3d

13, 16 (1st Cir. 2007); United States v. Hansen, 434 F.3d 92, 101

(1st Cir. 2006). However, the government contends Grullon did not

preserve the arguments because he either waived or forfeited them;

the former would preclude our review while the latter would invite

level enhancement thanks to the conviction for conspiracy to commit

money laundering (U.S.S.G. § 2S1.1(b)(2)(B)). Grullon does not

challenge these enhancements.

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our more skeptical plain error stare.13 See Hansen, 434 F.3d at

101. "Forfeiture is the failure to make the timely assertion of

a right, [whereas] waiver is the 'intentional relinquishment or

abandonment of a known right.'" United States v. Olano, 507 U.S.

725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). Therefore, before tackling Grullon's evidentiary claims,

we will decide for each claim what got preserved and what didn't.

B. Exclusion of the special agent's unrelated crime

To determine whether Grullon preserved his right to

appeal the judge's denial of his motion in limine regarding the

admissibility of Clarke's malfeasance, we need to explain what

happened at the final pretrial conference when the judge made an

initial ruling.

Grullon sought to admit the incriminating evidence in

order to bolster his defense that the government's investigation

was untrustworthy because Clarke, a sexual transgressor, was

"instrumental to the investigation," especially given his

"apparent role as case scribe" for the interviews of GonzalezPabon. Specifically, Grullon contended the evidence was

"probative of Clarke's willingness to lie to accomplish his ends,

13 To establish plain error, Grullon must show (1) an error

(2) that is clear, (3) that affected his substantial rights, and

(4) that seriously undermined the fairness, integrity, or public

perception of his trial. See United States v. Takesian, 945 F.3d

553, 563 (1st Cir. 2019).

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and to abuse his power to subvert justice" and it was "probative

evidence that [] Clarke acted improperly while leading the

investigation" because a person "does not change overnight from an

honorable IRS agent dispassionately investigating tax crimes to

raping office interns at gunpoint in [his] IRS-issued car." The

government filed its own motion to exclude, arguing Clarke had a

"minimal" role in the investigation because he "was not an affiant

on any warrants or complaints, nor did [he] testify in the grand

jury," and, moreover, Clarke did not draft "reports of [witness]

interviews." Therefore, it argued his testimony was not germane.

The judge preliminarily excluded the evidence of

Clarke's dreadful crime, concluding it would have no relevance to

the trial. However, and importantly, the judge denied Grullon's

motion without prejudice, twice telling Grullon that he could renew

his attempt to introduce the evidence at trial if he ever believed

the trial's development made Clarke's behavior relevant. The judge

articulated that if Grullon "at any point [in the trial wanted] to

bring [Clarke] up, [he could], outside the presence of the jury,"

and that, even though his "preliminary view [was] that I don't see

any basis" for the evidence, he would "hear [Grullon] . . . based

on the evidence at trial, and [he could] press it then, if [he]

wish[ed]." (Emphasis added.) Grullon's attorney affirmed that he

understood the ruling.

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As the trial unfolded, Grullon never availed himself of

the opportunity to bring the Clarke issue back up. After Clarke's

name came up once during Gonzalez-Pabon's cross-examination, the

judge even asked Grullon's counsel if he would be delving further

into the former special agent. Grullon's attorney answered: "No.

No. No. No."

Given what transpired below, the government alleges

Grullon either waived his right to appeal the Clarke ruling or, at

best, forfeited it, garnering plain error review. Grullon contends

he did not need to renew his objections to preserve them because

the judge's ruling was final under Federal Rule of Evidence 103(b),

not preliminary.14 A look at the law suggests the government offers

the better argument.

Where a judge issues an unconditional ruling on a motion

in limine, the defendant need not renew the objection or take

"additional steps to preserve the issue for appeal." United States

v. Almeida, 748 F.3d 41, 50 (1st Cir. 2014) (quoting Rodríguez v.

Señor Frog's de la Isla, Inc., 642 F.3d 28, 35 (1st Cir. 2011));

see also United States v. Agosto-Vega, 731 F.3d 62, 65 n.6 (1st

Cir. 2013) (citing Fed. R. Evid. 103(b)). On the other hand, when

a judge issues a preliminary, conditional, or "tentative" ruling

14 The rule reads: "Once the court rules definitively on the

record -- either before or at trial -- a party need not renew an

objection or offer of proof to preserve a claim of error for

appeal."

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that "clearly invites the party to offer the evidence at trial,"

then the party has an obligation to raise it again to preserve the

claim. Almeida, 748 F.3d at 50 (quoting Señor Frog's, 642 F.3d at

35); see also Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003)).

As the judge announced and as Grullon's attorney

understood, the ruling on the motion in limine was "preliminary,"

not final, and Grullon made no attempt to raise the Clarke evidence

during trial. Accordingly, Federal Rule of Evidence 103(b) gives

him no shield and he has not preserved the claim. See United

States v. Takesian, 945 F.3d 553, 562 (1st Cir. 2019) ("We

emphasize that Rule 103 requires the objecting party (here,

[Grullon]) 'to clarify whether an in limine or other evidentiary

ruling is definitive when there is doubt on that point.'") (quoting

Crowe, 334 F.3d at 133). When Grullon's counsel responded to the

judge's question during trial about whether he would be going

further into Clarke's bad behavior with "No. No. No. No.," he

intentionally relinquished, and thus waived, his right to appeal

the denial of his motion in limine. See Olano, 507 U.S. at 733;

United States v. Mitchell, 85 F.3d 800, 808 (1st Cir. 1996) (noting

a defendant can commit waiver by "unequivocal[ly] assent[ing]" to

a "direct inquiry from the court" about the issue which the

defendant claims as error on appeal (quoting United States v.

Marder, 48 F.3d 564, 571 (1st Cir. 1995))); see also United States

v. Holmquist, 36 F.3d 154, 166 (1st Cir. 1994) ("[W]hen a judge

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issues a provisional in limine pretrial order and clearly invites

the [defendant] to offer evidence at sidebar for the purpose of

reassessing the scope or effect of the order," the argument is

waived unless the defendant "unsuccessfully attempts to offer such

evidence in accordance with the terms specified in the [limine]

order.").15 We decline to consider the merits of Grullon's Clarke

argument. See Hansen, 434 F.3d at 101.

C. The Unredacted PSR

Recall that Grullon tried to access Gonzalez-Pabon's

unredacted PSR and that the judge took the matter under advisement,

but never issued a final ruling, and that neither he nor Grullon

raised the subject again despite Gonzalez-Pabon's extensive

testimony. Before us, Grullon says the district court erred in

not ruling on and not giving him access to the unredacted PSR.

For its part, the government asserts Grullon forfeited his right

to appeal this issue because he never pressed for a ruling on the

PSR request during the trial. Alternatively, the government

contends Grullon waived the claim because he did not engage

expressly with plain error review in his opening brief. See United

States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016) (appellant who

15 Grullon's counter that his counsel was complying with the

judge's final order on the motion in limine and not intentionally

relinquishing his right to bring in evidence of Clarke's misdeed

is of no avail considering counsel stated on the record he

understood the preliminary ruling.

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does "not even attempt[] to meet his four-part burden" waives claim

of plain error). Responding to the government's assertions,

Grullon essentially argues in his reply brief that his opening

brief adequately addresses the plain error factors even if he

didn't structurally describe it as a plain error analysis (he, in

fact, claimed abuse of discretion applied, which we don't buy).

As such, says Grullon, there is no waiver. As to the government's

forfeiture contention, we read Grullon's reply brief as a

concession that he did not preserve the PSR claim below (thus

acknowledging forfeiture) but he argues here that we should apply

plain error review to this portion of his appeal.

Ultimately, we need not decide between waiver and

forfeiture because "[w]here a defendant's claim would fail even if

reviewed for plain error, we have often" simply proceeded to the

merits. United States v. Brake, 904 F.3d 97, 99 (1st Cir. 2018)

(quoting United States v. Acevedo-Sueros, 826 F.3d 21, 24 (1st

Cir. 2016)). And we do so here, jumping to the "simplest way to

decide" Grullon's allegations.16 United States v. McCullock, 991

16 To remind, to establish plain error, Grullon "must show

not just (1) error, but (2) error that is clear, that (3) affected

his substantial rights, and that (4) also seriously undermined the

fairness, integrity, or public perception of his trial." Takesian,

945 F.3d at 562-63 (citing United States v. Rivera-Carrasquillo,

933 F.3d 33, 48 n.14 (1st Cir. 2019)).

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F.3d 313, 322 (1st Cir. 2021) (quoting Stor/Gard, Inc. v.

Strathmore Ins. Co., 717 F.3d 242, 248 (1st Cir. 2013)).

With plain error review comes a checkpoint through which

Grullon does not have the credentials to pass. To survive the

"plainness" part of plain error review, defendants must explain

for each of his claims how the trial judge disregarded some

"controlling precedent": (1) telling judges what to do about the

unredacted PSR; and (2) instructing judges about how to rule on

discovery motions regarding PSRs. Id. (quoting United States v.

Morosco, 822 F.3d 1, 21 (1st Cir. 2016)). For neither issue did

Grullon comply with the requirement. We briefly explain why.

Regarding access to the unredacted PSR, Grullon cites

Supreme Court dicta noting that generally, courts are "very

reluctant to give third parties access to the [PSR] prepared for

some other" defendant because they fear a "chilling effect on the

willingness of individuals to contribute information." U.S. Dep't

of Just. v. Julian, 486 U.S. 1, 12 (1988) (disclosing portions of

defendants' PSRs pursuant to Freedom of Information Act (FOIA)

requests by those defendants). But Julian is not controlling as

it dealt not with third-party requests for PSRs pursuant to a

pretrial discovery motion, but instead with requests by defendants

for their own PSRs pursuant to FOIA. Id. at 12-13. So Julian is

not helpful. Neither is it helpful for Grullon that other circuits

have adopted the dicta as their test for third-party access to

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PSRs because those circuits do not control our law.17 We have not

yet had the opportunity to consider the Julian language, so there

can be no plain error.18 See McCullock, 991 F.3d at 32; United

States v. Romero, 906 F.3d 196, 207 (1st Cir. 2018) ("With no

binding precedent on his side, [defendant] cannot succeed on plainerror review unless he shows" that theory "is compelled" by

constitutional law, statute, regulation, or other legal mandate);

17 See United States v. Schlette, 842 F.2d 1574, 1581 (9th

Cir. 1988), amended, 854 F.2d 359 (9th Cir. 1988); United States

v. Corbitt, 879 F.2d 224, 238 (7th Cir. 1989) (quoting Julian, 486

U.S. at 12-13); United States v. Charmer Indus., Inc., 711 F.2d

1164, 1175 (2d Cir. 1983) (requiring a "compelling demonstration

that disclosure of the report is required to meet the ends of

justice"); United States v. Blanco, 884 F.2d 1577, 1578 (3d Cir.

1989) (requiring "specific showing of the need for disclosure in

the interest of justice"); United States v. Pendleton, 832 F.3d

934, 941 (8th Cir. 2016) (PSRs "should not be disclosed to third

persons absent a demonstration that disclosure is required to meet

the ends of justice") (quoting United States v. McKnight, 771 F.2d

388, 390 (8th Cir. 1985)); United States v. Gomez, 323 F.3d 1305,

1308 (11th Cir. 2003) (assuming "the 'compelling need' test

controls the release of [presentence investigation information] to

third parties"); United States v. Figurski, 545 F.2d 389, 391 (4th

Cir. 1976) (because of the importance of the credibility of the

prosecution's codefendant or coconspirator witness, disclosure of

the PSR may be warranted when "the integrity of the judicial

process [so] requires").

18 Although Grullon points out that we have favorably quoted

Julian regarding third-party access to PSRs, the quotation, as he

alludes, was in dicta. See In re Bos. Herald, Inc., 321 F.3d at

188 (noting, in the context of determining whether to require

disclosure of other criminal justice materials, that PSRs are

presumptively confidential documents and that "the courts have

typically required some showing of special need before they will

allow a third party to obtain a copy of a presentence report."

(quoting Julian, 486 U.S. at 12)).

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United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per

curiam) ("[P]lain error cannot be found . . . absent clear and

binding precedent.").19

As for the claim that the judge abused his discretion by

not exercising his discretion,20 see Brooking v. Branham, 727 F.

App'x 884, 885-86 (7th Cir. 2018) ("[a] judge's failure to exercise

19 We pause to note that Grullon would not have been able to

show error, let alone any error that would have affected his

substantial rights, because he has demonstrated no compelling need

to get additional impeachment evidence from the unredacted PSR.

See United States v. Serrano-Mercado, 784 F.3d 838, 845 (1st Cir.

2015) (quoting United States v. Padilla, 415 F.3d 211, 218 (1st

Cir. 2005)). Grullon provided no specific reasoning why the

possible additional impeachment evidence would have altered or

assisted his cross examination of Gonzalez-Pabon. See United

States v. Allen, 716 F.3d 98, 105 (4th Cir. 2013) (defendant must

provide specific information about PSR's exculpatory information

to prevent a "fishing expedition every time a codefendant pleads

guilty"). As Grullon admits, he had "other means of challenging

[] Gonzalez-Pabon's credibility." And he could have obtained at

least some of "the information in the [PSR] . . . from other

sources," United States v. Molina, 356 F.3d 269, 275 (2d Cir.

2004), such as through cross examination or Gonzalez-Pabon's

asylum applications, which the government provided, and which

contained "a very long narrative about [Gonzalez-Pabon's] history

in Venezuela." While it is true that Grullon could not know

precisely what information was unredacted, Grullon has not

"show[n] that the . . . available sources of information were not

adequate" to challenge Gonzalez-Pabon's credibility, especially

considering Grullon attacked Gonzalez-Pabon's credibility at

length. United States v. Jewell, 614 F.3d 911, 922 (8th Cir.

2010); Blanco, 884 F.2d at 1577 (denying disclosure of third-party

PSR because appellant's "motion advanced no reason why information

in those reports would add significantly to what [appellant]

already knew.").

20 The government does not address this contention, but

Grullon makes nothing of its failure to do so.

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discretion is an abuse of discretion"), Grullon once more commits

a fatal error by not pointing us to any controlling precedent

holding that a judge must consider or must rule on a pretrial

discovery motion. His citation to Seventh Circuit decisions (like

the one just noted) do not discuss defendants, like Grullon, who

received redacted versions of a cooperating coconspirator's PSR.

They cannot therefore help him demonstrate plain error.21 See

McCullock, 991 F.3d at 32; Romero, 906 F.3d at 207; Marcano, 525

F.3d at 74.

II. Sentencing Enhancements

Grullon finally alleges the judge improperly applied two

sentencing enhancements. First, he disputes the 2-level

enhancement for being a leader in the conspiracy pursuant to

U.S.S.G. § 3B1.1(c). Second, he asserts that the judge improperly

calculated the amount of loss attributable to Grullon's

participation in the conspiracy, which, in turn, led the judge to

21 Our decision that Grullon cannot demonstrate plain error

should not be misconstrued as this court having a position on the

merits of his claim. That being said, we want to be clear that it

would have been the better practice for the trial court to have

issued a ruling on Grullon's pretrial discovery motion after

explicitly taking it under advisement given Grullon's assertion

that he needed material in the unredacted PSR for impeachment

purposes. But even assuming error, Grullon has not demonstrated

how such error affected his substantial rights (as is necessary to

get relief) for the same reasons as discussed in note 19,

especially considering he abandoned the issue at trial by not

raising it. See Serrano-Mercado, 784 F.3d 838, 845.

- 23 -

enhance the TOL too heavily pursuant to U.S.S.G. § 2B1.1(b)(1)(I).

Neither claim has merit.

A. Standard of Review

Unlike his evidentiary appeals, Grullon preserved his

claims regarding the sentencing enhancements by objecting to them

at the time of sentencing. Where a defendant has preserved an

error for appeal, we review a sentencing court's decision for an

abuse of discretion. See United States v. Rivera-Morales, 961

F.3d 1, 15 (1st Cir. 2020). Within that standard, we deploy a

multifaceted analysis, but here the one important facet is that we

review the court's findings of fact, such as Grullon's role in the

offense and the amount of loss attributable to his actions, for

clear error. See id.; United States v. Innarelli, 524 F.3d 286,

290 (1st Cir. 2008) (reviewing sentencing court's amount of loss

calculation for clear error); United States v. Cadavid, 192 F.3d

230, 237 (1st Cir. 1999) (reviewing sentencing court's role-inthe-offense enhancement determination for clear error). "Given

this algorithm, factbound battles over a defendant's role in an

offense 'will almost always be won or lost in the district court.'"

United States v. Vargas, 560 F.3d 45, 49 (1st Cir. 2009) (quoting

United States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995)). We

"[d]raw[] all reasonable inferences in the light most favorable to

the challenged finding" when analyzing challenges to sentencing

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enhancements. United States v. Al-Rikabi, 606 F.3d 11, 14 (1st

Cir. 2010).

B. Role-in-the-offense enhancement

The U.S.S.G. provides an enhancement for any defendant

who is "an organizer, leader, manager, or supervisor in any

criminal activity." U.S.S.G. § 3B1.1(c). Grullon argues the judge

clearly erred by finding that he was an organizer or leader in the

conspiracy because, in Grullon's words, Cohen was the "ringleader"

who devised the laundering scheme and who recruited and controlled

Gonzalez-Pabon.22

i. Leadership over Gonzalez-Pabon

To earn the enhancement, the government must show by a

preponderance of the evidence that the defendant did more than

participate in shared criminal activity; he must have led or

facilitated that criminal activity. See Al-Rikabi, 606 F.3d at

14-15; United States v. Cortés-Cabán, 691 F.3d 1, 28 (1st Cir.

2012). One way to demonstrate leadership is by "the degree of

control and authority exercised over" at least one other person.

United States v. Picano, 333 F.3d 21, 23 (1st Cir. 2003) (quoting

U.S.S.G § 3B1.1, cmt. n.4). A defendant can, however, play an

essential role in the overall conduct without having any managerial

22 The enhancement also requires that there were "one to

three other participants." Al-Rikabi, 606 F.3d at 14 (citing

U.S.S.G. § 3B1.1(c)). Grullon smartly concedes that there were

enough participants.

- 25 -

or supervisory capacity necessary to trigger the enhancement. See

United States v. Ramos-Paulino, 488 F.3d 459, 464 (1st Cir. 2007);

United States v. Sostre, 967 F.2d 728, 733 (1st Cir. 1992). Yet,

it is not particularly difficult for the government to meet its

burden. The "[e]vidence of the defendant's role in the conspiracy

may be wholly circumstantial, and need only show that he exercised

authority or control over [one other] participant on one occasion."

Cortés-Cabán, 691 F.3d at 28 (first alteration in original)

(quoting United States v. Flores–de–Jesús, 569 F.3d 8, 34 (1st

Cir. 2009)) (internal quotation marks omitted).

Unfortunately for Grullon, his reply brief all-butadmits he deserved the enhancement by citing to portions of the

record where Gonzalez-Pabon testified multiple times to Grullon

giving him "orders" and to Grullon making Gonzalez-Pabon further

the conspiracy by joining his company, AD Professional. See United

States v. Cruz-Ramos, 987 F.3d 27, 44-45 (1st Cir. 2021) (ordering

one other coconspirator enough for enhancement); Cortés-Cabán, 691

F.3d at 28 ("issu[ing] instructions" sufficient for role in offense

enhancement). Although Grullon is on better ground arguing that

he did not control Cohen (as the government's brief argues),

remember that the enhancement applies so long as Grullon, by a

preponderance of the evidence, controlled at least one other person

(Gonzalez-Pabon); whether Grullon controlled Cohen is therefore

inconsequential. See United States v. Prange, 771 F.3d 17, 34

- 26 -

(1st Cir. 2014). The trial record and the PSR, upon which judges

can rest sentencing decisions, had more than sufficient evidence

for the enhancement, and we defer to the judge's view of the "raw

facts" over ours. See Picano, 333 F.3d at 24-25.

ii. Enhancement disparity relative to Cohen

Perhaps because of the weakness of that argument,

Grullon pivots, contending the enhancement was undeserved because

the judge did not apply it to Cohen a few years earlier (recall

that Cohen received fifty-four months imprisonment whereas Grullon

received eighty-four).23 As we have said, we will "examine[]

arguments . . . that a sentence was substantively unreasonable

because of the disparity with the sentence given to a codefendant." United States v. Galindo-Serrano, 925 F.3d 40, 52

(1st Cir. 2019) (alteration and omission in original) (quoting

United States v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015))

(modification in original), cert. denied, 140 S. Ct. 2646 (2020).

Although Congress drafted the criteria primarily with "national

[sentencing] disparities" in mind, we also scrutinize whether "a

sentence was substantively unreasonable because of the disparity

with the sentence given to a co-defendant."24 Galindo-Serrano, 925

23 The government also neglects to engage directly with this

argument, but Grullon once more makes nothing of it in his reply

brief and neither will we.

24 Although tried separately, the grand jury indicted Cohen

and Grullon together as codefendants.

- 27 -

F.3d at 52 (quoting Reverol-Rivera, 778 F.3d at 366). As the

sentencing guidelines point out, the role-in-the-offense

enhancement exists so as to allocate punishment appropriately

based on "relative responsibility." U.S.S.G. § 3B1.1 (comment).

We turn down disparity claims when "material differences

between" the defendant's "'circumstances and those of the more

leniently punished confederates,'" justify the divergence,

including the more severe criminal history of the more severely

punished codefendant. Galindo-Serrano, 925 F.3d at 52 (quoting

United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir.

2015)). To succeed, the "defendant must compare apples to apples,"

which means we pay close attention to "two identically situated

defendants receiv[ing] different sentences from the same judge."

Reyes-Santiago, 804 F.3d at 467 (quoting United States v. Rivera–

Gonzalez, 626 F.3d 639, 648 (1st Cir. 2010)). Such cases, however,

are unusual to say the least. See id.

The judge (who, recall, was the trial and sentencing

judge for Cohen) explained at length why he found Grullon more

culpable than Cohen, including that: (1) Grullon was an

"architect" who "dr[ew] some people into" the scheme; (2) Grullon

had a much lengthier criminal history than Cohen, who had none,

which mattered for the judge's assessment of relative culpability

even if the history did not alone add any offense levels under the

sentencing guidelines; (3) Grullon, unlike Cohen, kept himself "in

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the background" to "tak[e] advantage and us[e] the others" as

fronts; and (4) unlike Cohen, Grullon would not be subject to the

restitution order because Grullon would be deported to the

Dominican Republic following his release from prison, and

probation had no jurisdiction over him there.25 Overall, the judge

found Grullon "more culpable than Mr. Cohen" and without the

"lifetime of good works" Cohen had apparently accumulated, which

is why he felt comfortable giving Grullon a tougher sentence.

There was no abuse of discretion given the judge's thoughtful

reasoning about why he punished Grullon more harshly than Cohen.

See Reverol-Rivera, 778 F.3d at 367; Vargas, 560 F.3d at 49

(trusting the factfinder at sentencing).

C. Loss calculation enhancement

In fraud cases, like Grullon's, that result in financial

losses for the victims, the defendant's sentence depends in part

on the amount of loss incurred. See United States v. Flete-Garcia,

925 F.3d 17, 29 (1st Cir. 2019). The sentencing guidelines provide

for a 16-level sentencing enhancement if the calculated loss is

between $1,500,000.01 and $3,500,000.00. See U.S.S.G.

§ 2B1.1(b)(1). If the loss is instead between $550,000.01 and

25 The judge was not punishing Grullon more harshly than

Cohen because of a relative lack of funds. He noted that Grullon

likely would not have to pay restitution as a "practical"

difference between Grullon's and Cohen's circumstances since Cohen

would remain subject to probation's jurisdiction in the United

States.

- 29 -

$1,500,000.00, the enhancement is 14-levels. See id. The judge

calculated the loss attributable to Grullon at over $1,600,000,

thus subjecting him to the 16-level enhancement.

Grullon argues the enhancement should not apply because

the government put forward insufficient evidence to prove he

entered the conspiracy before September 2012. Thus, he says, he

should not be responsible for losses prior to his moment of

initiation. See U.S.S.G. § 1B1.3 (prohibiting counting conduct

before defendant joined the conspiracy). By that time, Cohen had

deposited about $700,000 in fraudulent checks. If, as Grullon

contends, he is not responsible for that loss, then the judge

should have only applied the 14-level enhancement ($1,600,000 -

$700,000 = $900,000). Once more, we ask whether the judge

committed clear error by finding that Grullon deserved the

enhancement by a preponderance of the evidence, which is no easy

goal for Grullon to accomplish. See United States v. Ramney, 298

F.3d 74, 80 (1st Cir. 2002).

The sentencing judge can, as we briefly mentioned

earlier, base his conclusions on the PSR and on relevant conduct

from the trial record. See Flete-Garcia, 925 F.3d at 28; Vargas,

560 F.3d at 49-50. Relevant conduct "includes acts that were part

of the same course of conduct or common scheme or plan." United

States v. Souza, 749 F.3d 74, 86 (1st Cir. 2014) (internal

quotations and citation omitted), cert. denied, 574 U.S. 966

- 30 -

(2014). "A common scheme or plan involves acts connected by at

least one common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi." Id. at

86-87 (internal quotations and citation omitted). According to

the Guidelines, "[a] defendant in a jointly undertaken criminal

activity is liable for the loss resulting from acts directly

attributable to him and for the loss resulting from the reasonably

foreseeable acts of others taken in furtherance of the jointly

undertaken criminal activity." United States v. Codarcea, 505

F.3d 68, 71 (1st Cir. 2007) (citing U.S.S.G. § 1B1.3(a)(1), (3)).26

The problem for Grullon is the jury's conviction.

Although Grullon correctly notes that the district court cannot

base its calculations on the indictment, see United States v.

Pizarro-Berríos, 448 F.3d 1, 7 (1st Cir. 2006), here the jury

convicted Grullon of participating in the conspiracy starting in

October 2011. The evidence presented by the government thus

demonstrated beyond a reasonable doubt that Grullon had joined in

the conspiracy by October 2011. Because "beyond a reasonable

doubt" is a higher burden of proof than "preponderance of the

26 The government counters that Grullon ignored the

appropriate legal standard by not discussing whether he should be

held accountable for the losses resulting from the reasonably

foreseeable acts of others in the joint criminal undertaking. See

Codarcea, 505 F.3d at 71. Of course, if Grullon was not

participating in the conspiracy before September 2012, then none

of that loss would have been reasonably foreseeable to him. See

U.S.S.G. § 1B1.3.

- 31 -

evidence," United States v. Robinson, 241 F.3d 115, 119 (1st Cir.

2001), evidence sufficient for a jury to convict can meet the mark

for a judge to sentence. See Ramney, 298 F.3d at 80. And,

remember, the judge could rely upon evidence put in front of the

jury and in the PSR when calculating that Grullon caused a loss

over $1,600,000 -- evidence such as Cohen opening accounts in the

name of AD Professional (Grullon's business) into which Grullon

deposited fraudulent checks, and the PSR's calculation of the total

loss from the fraudulent checks going back to October 2011. See

Pizarro-Berríos, 448 F.3d at 7 (evidence presented by government

permissible way for court to calculate loss attributable); United

States v. Newton, 327 F.3d 17, 30 (1st Cir. 2003) ("[I]t was well

within the bounds of the court's discretion to credit evidence

produced at trial and set forth in the government's sentencing

memorandum."). We cannot therefore say that the judge committed

clear error when calculating the amount of loss or abused his

discretion by applying the 16-level enhancement.

For the reasons set out above, none of Grullon's

arguments convince us that he should have a new trial or a lesser

sentence. Affirmed.