United States v. Saccoccia

1 F.4th 64

• Court: Court of Appeals for the First Circuit
• Decided: June 10, 2021
• Docket: 20-1042P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 20-1042, 20-1095

UNITED STATES OF AMERICA,

Appellee,

v.

DONNA L. SACCOCCIA; VINCENT HURLEY,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Lipez, and Barron, Circuit Judges.

J. Allen Roth, Esq. for appellants. Zachary A. Cunha, Assistant United States Attorney, with whom Aaron L. Weisman, United States Attorney, was on brief, for appellee.

June 10, 2021 LIPEZ, Circuit Judge. Donna Saccoccia and her brother,

Vincent Hurley, were convicted in 1993 for their role in a money

laundering conspiracy controlled by Donna's husband Stephen

Saccoccia.1 Donna and Hurley appeal the district court's denial

of Donna's Petition for a Writ of Error Coram Nobis, a petition

that Hurley sought to adopt, seeking vacatur of a forfeiture

judgment of approximately $136,000,000 in proceeds from the

conspiracy.2 Donna and Hurley contend that the Supreme Court's

decision in Honeycutt v. United States, 137 S. Ct. 1626 (2017),

should be applied retroactively to invalidate the forfeiture

judgments against them.

We recently rejected Stephen's attempt to apply

Honeycutt retroactively to vacate the forfeiture judgment against

him. Saccoccia v. United States (Stephen's Honeycutt Appeal), 955

F.3d 171 (1st Cir. 2020). We reject the efforts of Donna on

essentially the same grounds applicable to Stephen. We reject the

efforts of Hurley on different grounds.

Because Donna and Stephen Saccoccia share the same last 1

name, we refer to them by their first names for clarity. Technically, the district court denied Hurley's motion to 2

adopt Donna's petition when it denied Donna's petition. The court clarified, however, that it assumed Hurley adopted all of Donna's substantive arguments and addressed the application of those arguments to Hurley in denying both the petition and the motion.

- 2 - I.

The facts of this case are fully set forth in our several

opinions affirming appellants' convictions, sentences, and

forfeiture judgments on direct appeal as well as Stephen's

Honeycutt Appeal. See United States v. Hurley (Appellants' Direct

Appeal), 63 F.3d 1 (1st Cir. 1995); United States v. Saccoccia

(Stephen's Direct Appeal), 58 F.3d 754 (1st Cir. 1995); United

States v. Saccoccia (Defendants' Forfeiture Order), 823 F. Supp.

994 (D.R.I. 1993). Here, we restate only those facts necessary to

address the issues raised in Donna and Hurley's petition.

A. The Money Laundering Conspiracy

Prior to 1992, Stephen owned and operated a network of

precious metals businesses, including Saccoccia Coin Company

("Saccoccia Coin") in Rhode Island, Trend Precious Metals

("Trend") in New York and Rhode Island, and two similar companies

in California. Appellants' Direct Appeal, 63 F.3d at 6. Beginning

in the late 1980s, Stephen laundered drug money on behalf of a

Colombian drug cartel through his businesses. Id. Upon receiving

funds from a cartel courier, "in accordance with instructions

received from [Stephen] or his wife, Donna," associates of Stephen

would purchase money orders, gold, or cashier checks, most of which

were payable to a Trend account at Citizens Bank jointly owned by

Stephen and Donna, and then the Saccoccias would wire the funds to

- 3 - foreign bank accounts. Stephen's Direct Appeal, 58 F.3d at 762;

see also Appellants' Direct Appeal, 63 F.3d at 6-7.

B. Trial and Sentencing

In 1991, a federal grand jury returned an indictment

charging Stephen, Donna, Hurley, and several associates with

conspiracy under the Racketeer Influenced and Corrupt

Organizations ("RICO") Act, 18 U.S.C. § 1962(d), as well as several

substantive offenses.3 All defendants were convicted of

participation in a RICO conspiracy. Donna was also convicted of

thirteen counts of money laundering, in violation of 18 U.S.C.

§ 1956, and forty-seven counts of unlawful transactions, in

violation of 18 U.S.C. § 1957. She was sentenced to fourteen years

in prison followed by two years of supervised release. Appellants'

Direct Appeal, 63 F.3d at 7. Hurley was convicted of one count of

structuring transactions to evade reporting requirements, in

violation of 31 U.S.C. § 5324(3), and one count of interstate

travel in aid of racketeering, in violation of 18 U.S.C. § 1952,

and was sentenced to eighteen years in prison followed by three

years of supervised release.4 Appellants' Direct Appeal, 63 F.3d

3 Stephen was tried separately "due to the illness of his counsel." Appellants' Direct Appeal, 63 F.3d at 6. 4 Stephen was convicted of one count of conspiracy under RICO, thirty-six counts of engaging in monetary transactions with criminally derived property, in violation of 18 U.S.C. § 1957, thirteen counts of money laundering, in violation of 18 U.S.C. § 1956, and four counts of violating the Travel Act, 18 U.S.C. § 1952. Stephen's Honeycutt Appeal, 955 F.3d at 173. He was

- 4 - at 7. The jury, by special verdict, also imposed a forfeiture

judgment on Hurley in the amount of $136,344,231.86. Id. at 20.

No other defendants elected to have the jury decide their

forfeiture liability, thereby leaving that determination to the

district court.

C. Donna's Role in the Conspiracy

We have previously stated that Donna "assisted her

husband [Stephen] in most aspects of the [money laundering]

operation."5 Id. at 7. She "relayed his instructions to the

others [involved in the conspiracy]." Id. Stephen and Donna wired

over $136 million out of the jointly owned Trend account to an

assortment of foreign banks.6 Defendants' Forfeiture Order, 823

sentenced to 660 years in prison. Stephen's Direct Appeal, 58 F.3d at 762. 5 Appellants do not challenge the underlying facts. 6There is some confusion in the record as to whether the full $136 million was wired to foreign accounts from the Trend account or whether a portion was wired from other accounts. On direct appeal, we stated that "[the Saccoccias] wired over $136 million to foreign bank accounts primarily in Colombia" but that only approximately "$97 million of th[at] amount was wired from the Trend account." Appellants' Direct Appeal, 63 F.3d at 7. That statement contradicts the district court's finding in affirming Donna's forfeiture judgment that the full $136 million was wired out of the jointly controlled Trend account. Defendants' Forfeiture Order, 823 F. Supp. at 999 ("Between January 1, 1990 and April 2, 1991, Stephen and Donna Saccoccia wired $136,344,231.86 from Trend's account at Citizens to various Colombian and other foreign bank accounts . . . thereby completing the money laundering cycle."). On appeal in this case, the government relies on the district court's finding to contend that the full $136 million was wired from the Trend account. Appellants do not challenge that conclusion or otherwise argue that the result

- 5 - F. Supp. at 999; see also Stephen's Direct Appeal, 58 F.3d at 762-

63. Donna also "helped count money, [] personally authorized the

wire transfer of more than $38 million from the Trend account to

foreign bank accounts," Appellants' Direct Appeal, 63 F.3d at 11,

and "caused phony invoices to be issued," Defendants' Forfeiture

Order, 823 F. Supp. at 998.

At sentencing, the district court found it "extremely

difficult" to characterize Donna's role in the conspiracy. On the

one hand, the court found that Donna was "involved in almost the

entire spectrum of money-laundering activities that were engaged

in by the conspiracy." She "helped count money," "helped keep the

books," and "wired laundered money out of the country." The court

concluded that, given those activities, "[Donna's] role was

significant. It may not [have] be[en] major but it can hardly be

characterized as minimal."

The court clarified, however, that it viewed Donna as

"appreciably less culpable than some of the other defendants." It

emphasized that she "performed tasks that were primarily clerical

and ministerial in nature" and that she "acted pursuant to

relatively narrow and explicit instructions principally from

Stephen Saccoccia." The court concluded that Donna "exercised

would be different if we were to assume some portion of the $136 million was transferred from another account. Given that failure, we proceed on the assumption that the full $136 million was transferred out of the Trend account.

- 6 - very little discretion and . . . exerted no authority over others."

The court also recognized the unique influence Stephen had over

Donna as her husband but concluded it was "disingenuous at best"

to suggest that Donna did not know that her actions were illegal.

Ultimately, the court concluded that Donna's level of

culpability was "somewhat below th[e] level [of the conspiracy's

lieutenants] and . . . somewhat above the level occupied by

[others in the conspiracy]." The court viewed Donna's

participation "in terms of the entire one hundred thirty-seven

million dollar conspiracy," and concluded that she was a "smaller

fish in a larger pond than she would [have] be[en] if her

responsibility were calculated on the basis of a lesser amount."

D. Hurley's Role in the Conspiracy

At sentencing, the district court concluded that Hurley

"st[ood] a little higher in the pecking order than some of the

other defendants."7 The court found that Hurley "pretty much ran

[Saccoccia Coin] and [] had a closer relationship with the true

leader of th[e] organization, Stephen Saccoccia, than others did,"

which the court speculated was an "unfortunate incident of

marriage," referring to the fact that Hurley is Stephen's brother-

in-law. The court emphasized Hurley's lengthy participation in

the conspiracy and concluded that he was "involved in more facets

When sentencing Donna, the court classified Hurley as a 7

lieutenant.

- 7 - of th[e] organization" than his codefendants, because he "went to

New York on several occasions, both to count money and help pick

it up. [He was] not just a courier like some of the other

defendants were."

The court recognized, however, that the primary reason

Hurley was facing a high offense level was "the amount of money

for which [he] ha[d] been held responsible." The Court explained

that Hurley "did not have a large stake in th[at] money or the

profits made from [it]." The court concluded that it was "pretty

clear" that "most of that money went to one person and one person

only and that was Stephen Saccoccia."

E. The Forfeiture Judgments

Shortly after sentencing, the government sought a

forfeiture judgment against each defendant pursuant to the

forfeiture provision of the RICO statute, 18 U.S.C. § 1963(a),

arguing that "each defendant should forfeit . . . $136,344,231.86,

which the government [argued was] the amount 'constituting or

derived from [the] proceeds' obtained by the defendants from

racketeering activity." Defendants' Forfeiture Order, 823 F.

Supp. at 1000.

The district court initially stated that each defendant

was required to forfeit only property obtained "directly or

indirectly" by that defendant pursuant to § 1963(a). Id. at 1004.

It clarified, however, that "it is well established that, for

- 8 - sentencing purposes, a defendant is accountable for the acts of

co-conspirators that were committed in furtherance of the

conspiracy and were reasonably foreseeable by the defendant." Id.

at 1004. Indeed, the Guidelines "expressly require that . . .

adjustments for specific offense characteristics be determined on

the basis of 'all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal

activity.'" Id. In a money laundering conspiracy, the court

reasoned, "one of the specific offense characteristic adjustments

is a function of the amount of money involved" and is therefore

calculated for each defendant by "includ[ing] the reasonably

foreseeable amounts laundered by co-conspirators in furtherance of

the conspiracy." Id.

Criminal forfeiture, the court explained, "is a form of

punishment" and, hence, "it follows that the same principles of

sentencing accountability should apply." Id. For that reason,

the court concluded that, for purposes of § 1963(a)(3), "a

defendant should be deemed to have 'obtained' amounts 'obtained'

by co-conspirators in furtherance of the conspiracy to the extent

that receipt of those amounts was reasonably foreseeable." Id.

Applying those principles, the court concluded that

several of the low-level participants in the conspiracy had limited

perceptions of the amounts of money being laundered and, hence,

could have reasonably foreseen only a percentage of the total

- 9 - forfeitable amount. Id. at 1006. As for Donna and Hurley, the

court concluded that they both "reasonably could have foreseen the

receipt of $136,344,231.86 in proceeds," reflecting the total

amount laundered. Id. In support of that conclusion, the court

explained that the evidence "establishe[d] that the Saccoccias'

activities spanned the entire spectrum of the conspiracy's

operation from receiving of the cash in New York to wiring

laundered proceeds back to Colombia." Id. Hurley "also

participated directly in most facets of the overall scheme

including collecting cash from couriers, transporting it to Rhode

Island, counting it and dividing it into smaller lots so that it

could be taken to banks to purchase cashier's checks." Id.

On direct appeal, this court affirmed the convictions,

sentences, and forfeiture judgments of Stephen, Donna, and Hurley.

Appellants' Direct Appeal, 63 F.3d at 21-24; Stephen's Direct

Appeal, 58 F.3d at 782-86. As to forfeiture, we relied on the

reasoning of the district court and concluded that a defendant may

be held liable for "funds obtained by other members of the

conspiracy . . . only to the extent that [those funds] were

reasonably foreseeable to the particular defendant." Appellants'

Direct Appeal, 63 F.3d at 22.

F. Honeycutt and Stephen's Honeycutt Appeal

In 2018, more than twenty years after his forfeiture

judgment became final, Stephen sought its vacatur based on the

- 10 - Supreme Court's 2017 decision in Honeycutt. Stephen's Honeycutt

Appeal, 955 F.3d at 172. In Honeycutt, the Supreme Court

considered whether a "defendant may be held jointly and severally

liable for property that his co-conspirator derived from the crime

but that the defendant himself did not acquire." 137 S. Ct. at

1630. Honeycutt involved a conspiracy to sell an "iodine-based

water-purification product," which can be used to manufacture

methamphetamine, from a hardware store at which the defendant,

Honeycutt, managed sales and inventory. Id. The government sought

a forfeiture judgment against Honeycutt for the amount of the

conspiracy profits outstanding after his co-conspirator's

forfeiture payment pursuant to 21 U.S.C. § 853(a), which governs

forfeiture of the proceeds derived from drug crimes. Id. at 1631.

The district court declined to enter a forfeiture judgment because

Honeycutt was a salaried employee who had "no controlling interest

in the store" and "did not stand to benefit personally" from the

conspiracy. Id. The Sixth Circuit reversed, holding that the

defendant, as a co-conspirator, was "jointly and severally liable

for the proceeds of the conspiracy." Id. (quoting United States

v. Honeycutt, 816 F.3d 362, 380 (6th Cir. 2016)).

The Supreme Court reversed the decision of the Sixth

Circuit. Id. at 1635. It held that a defendant could not be

ordered to forfeit property pursuant to § 853(a) based on a theory

of joint and several liability where he never "actually acquired

- 11 - [the property] as a result of the crime." Id. at 1635. It reasoned

that § 853(a) limits forfeiture to "property the defendant himself

obtained," which precludes joint and several liability for all co-

conspirators. Id. at 1633. Hence, the Court concluded, because

Honeycutt never obtained the tainted property as a result of the

crime, he could not be ordered to forfeit that property under

§ 853(a). Id. at 1635.

Relying on Honeycutt, Stephen filed a complaint in

federal district court seeking relief under various procedural

mechanisms, including 28 U.S.C. § 1355,8 writs of coram nobis,

audita querela,9 and mandamus, return of property pursuant to Fed.

R. Crim. P. 41(g), and declaratory and injunctive relief pursuant

to 28 U.S.C. §§ 2201, 2202. Stephen's Honeycutt Appeal, 955 F.3d.

at 173-74. The government moved to dismiss for lack of subject

matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and for

failure to state a claim upon which relief could be granted

8 Pursuant to 18 U.S.C. § 1355(a), the "district courts shall have original jurisdiction . . . of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture . . . incurred under any Act of Congress." 9 Audita querela is "[t]he name of a common law writ constituting the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not be taken advantage of otherwise," United States v. Holder, 936 F.2d 1, 2 (1st Cir. 1991) (quoting Audita Querela, Black's Law Dictionary 120 (5th ed. 1979)), and was "expressly abolished by amendments to Fed. R. Civ. P. 60(b), effective in 1948," id.

- 12 - pursuant Fed. R. Civ. P. 12(b)(6). Id. at 174. The district court

granted the government's motion, based on its conclusion that

Stephen failed to identify a procedural avenue for relief and did

not reach the Honeycutt issue. Id.

We affirmed the district court, but on different

grounds, concluding that even if Stephen had identified a

procedural route for relief, which we did not decide, Honeycutt

did not require vacatur of his forfeiture judgment. Id. at 175-

76. Stephen, we explained, neglected a "critical part of

Honeycutt's holding: that any bar against joint and several co-

conspirator liability articulated there applies only to defendants

who did not actually possess or control the funds at issue." Id.

at 175. Stephen failed to proffer any facts that contradicted the

district court's finding that all the funds involved in the

conspiracy passed through a bank account that he controlled. Id.

We concluded that there was ample evidence in the record that

Stephen obtained the proceeds of the scheme and, therefore, even

if Honeycutt applied and Stephen could identify a proper procedural

mechanism to support its application, he failed to demonstrate

that his conduct fell within Honeycutt's ambit such that it would

require vacatur of his forfeiture judgment. Id. at 175-76.

G. The District Court's Decision in this Case

Similarly seeking to apply Honeycutt to vacate her

forfeiture judgment, Donna filed a "Petition for Writ of Error

- 13 - Coram Nobis to Vacate Forfeiture Judgment and Motion for Refund,"

pursuant to 28 U.S.C. §§ 1355, 1651(a). Shortly thereafter, Hurley

filed a motion seeking to adopt the arguments in Donna's petition.

Taking an approach similar to ours in rejecting

Stephen's Honeycutt arguments, the district court assumed that the

writ of coram nobis is a proper procedural vehicle, that the

holding of Honeycutt applies to the statutes at issue in this case,

and that Honeycutt applies retroactively, and concluded that

appellants' claims fail on their substance. The court explained

that the sentencing judge found that Donna was "deeply involved in

the conspiracy" and that "both Donna and Stephen controlled the

account through which the $136,344,231.86 was laundered." With

respect to Hurley, the court explained that he "chose to have the

jury determine, by special verdict form, that he was liable for

the same amount of money." For those reasons, the court concluded

that "there is no legal merit to the[] argument that the forfeiture

judgments against Donna and [Hurley] should be vacated because

they were based on joint and several liability." In any event,

the court concluded that the alleged errors were not "fundamental

to the underlying convictions," and thus were insufficient to state

a plausible claim for coram nobis relief. For the same reasons,

the court rejected appellants' motion for refund pursuant to 28

U.S.C. § 1355.

- 14 - II.

Appellants invite us to decide several issues, including

whether coram nobis or 28 U.S.C. § 1355 is a proper procedural

vehicle for the relief requested, whether Honeycutt is

retroactively applicable in these circumstances, and whether

Honeycutt applies to the statutes under which appellants'

forfeiture judgments arose. We decline to answer those questions

because we conclude, as we did in Stephen's Honeycutt appeal, that

even if we resolved those questions in favor of appellants, their

claims fail. See Stephen's Honeycutt Appeal, 955 F.3d at 174.

Assuming then that coram nobis is a proper procedural

mechanism for relief -- without making any judgment as to whether

that is the case -- we review the legal conclusions of the district

court de novo.10 Appellants contend that their forfeiture

judgments must be vacated because the district court found at

sentencing that neither appellant was "actually responsible for

10 As noted, appellants also sought relief pursuant to 28 U.S.C. § 1355(a), which provides that the "district courts shall have original jurisdiction . . . of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress." We have not yet held whether this general jurisdictional provision provides a cause of action for a defendant to challenge a final criminal forfeiture judgment, and appellants proffer no cases in which a court has similarly held. We need not confront this issue here, however, because we have assumed without deciding that a writ of coram nobis is procedurally proper and we proceed to reject appellants' claims on that basis. If we were to conclude that § 1355 provided an appropriate avenue for relief, we would similarly conclude that appellants lose.

- 15 - the $136 million." Donna contends that the district court's

statements demonstrate that she was merely a "little fish." Hurley

says those statements mean that he was responsible for no more

than $50,000. Appellants further contend that our affirmance of

Stephen's forfeiture judgment for the full $136 million

"necessarily precludes any forfeiture for the same funds against

any other person since the Supreme Court found no jurisdiction for

'joint and several' liability forfeiture."

As we explained in affirming the district court's denial

of Stephen's attempt to apply Honeycutt to vacate his forfeiture

judgment, Honeycutt's "bar against joint and several co-

conspirator liability . . . applies only to defendants who did not

actually possess or control the funds at issue." Stephen's

Honeycutt Appeal, 955 F.3d at 175. Thus, where two individuals,

each through their own actions "obtain" the funds at issue, each

may be held liable for forfeiting the amount of funds he or she

personally "obtained." See id.; see also Honeycutt, 137 S. Ct. at

1630, 1635. The government agrees that its total recovery from

all defendants is capped at the amount of $136,344,231.36 -- the

total amount of tainted proceeds derived from the RICO conspiracy.

So long as there is an individualized finding that a defendant

"obtained" the tainted proceeds subject to the government's

forfeiture claim, the government may, without running afoul of

- 16 - Honeycutt, collect the amount of those obtained proceeds11 from

that defendant subject to the constraint that the government agrees

applies here -- it "can collect [the] $136 million only once."

A. Application of Honeycutt to Donna

The key question is whether Donna and Hurley each

"obtained, directly or indirectly" the proceeds of the conspiracy.

See 18 U.S.C. § 1963(a)(3); see also Honeycutt, 137 S. Ct. at 1632.

The Supreme Court has explained that "obtained," in the context of

§ 1963(a), means "'to come into possession of' or to 'get or

acquire.'" Honeycutt, 137 S. Ct. at 1632 (quoting Random House

Dictionary of the English Language 995 (1966)). We recently

clarified in United States v. Cadden that a person "obtains"

property for purposes of § 1963(a) "even when the property is

merely 'held in custody' before being 'passed along to its true

owner.'" 965 F.3d 1, 39 (1st Cir. 2020) (quoting Appellants'

Direct Appeal, 63 F.3d at 21). We also explained there that an

individual "obtains" all funds that are held, even temporarily, in

11 Because the funds that were originally subject to forfeiture evidently are no longer available -- the $136 million was apparently transferred to foreign bank accounts during the course of the conspiracy -- the government must file a motion for substitute asset forfeiture each time it seeks to collect on the forfeiture judgments against the various defendants in this case. See 18 U.S.C. § 1963(m) ("If any of the [tainted property] . . . cannot be located . . . [or] has been transferred or sold . . . the court shall order the forfeiture of any other property of the defendant up to the value of [the tainted property]."). According to the record, the government has not filed such a motion in over a decade.

- 17 - an account jointly owned with another because, as joint owners,

both individuals have "'the right to withdraw all the funds' from

the account, 'or any portion of them,' and therefore could

'effectively exercise control over the entire interest, or any

part of it, and divest totally or partially, the interest of'" the

other account owner. Id. (quoting United States v. U.S. Currency,

$81,000.00, 189 F.3d 28, 34 (1st Cir. 1999)).

Applying the rule in Cadden to this case is

straightforward. Donna was a joint owner of the Trend account.

As a joint owner, she had control over the account and the right

to withdraw and wire funds. Indeed, the district court concluded

at sentencing that Donna "personally authorized the wire transfer

of more than $38 million from the Trend account to foreign bank

accounts." Appellants' Direct Appeal, 63 F.3d at 11. The

sentencing court also found that "Stephen and Donna Saccoccia wired

$136,344,231.86" from the jointly controlled Trend account to

various foreign bank accounts, "thereby completing the money

laundering cycle," Defendants' Forfeiture Order, 823 F. Supp. at

999, 1006, rendering that entire amount tainted as proceeds from

racketeering activity. Donna does not challenge either of those

findings. As we concluded in Cadden, ownership over an account

that contains tainted funds, regardless of who originally earned

the money or deposited it into the account, is "more than

- 18 - sufficient for acquisition purposes" under § 1963(a)(3). Cadden,

965 F.3d at 39.

The conclusion that Donna "obtained" the tainted funds

in the Trend account is not undermined by the sentencing court's

finding that she acted primarily at the behest of Stephen and had

a lesser level of culpability in the grand scheme of the

conspiracy. Although she may have chosen not to take any action

with respect to the Trend account without Stephen's approval, she

was nonetheless a joint account owner and, as such, had the legal

authority to do so. Moreover, the sentencing court's determination

that Donna's role in the conspiracy was minor says nothing about

whether she "obtained" the funds of the conspiracy. As we

explained in Cadden, her ownership over the account through which

the tainted money flowed is enough to demonstrate she obtained the

funds for purposes of forfeiture even after Honeycutt. Id. at 39.

B. Application of Honeycutt to Hurley

Assuming it could reach the merits, the district court

denied Hurley's coram nobis petition because it concluded that

Hurley's forfeiture judgment could be justified on the basis of

the jury's special verdict concluding that the full $136 million

in proceeds from the conspiracy was attributable to Hurley. That

ruling was an error. Although Hurley elected to have his

forfeiture liability decided by the jury, the jury applied the

- 19 - pre-Honeycutt standard -- also known as Pinkerton12 liability --

that a defendant is liable for funds obtained by his co-

conspirators in furtherance of the conspiracy to the extent that

receipt of those amounts was reasonably foreseeable. Defendants'

Forfeiture Order, 823 F. Supp. at 999. As we have explained,

Honeycutt rejects Pinkerton for purposes of forfeiture liability

under § 853(a)(1) (and, we are assuming, under § 1963(a)(3)) and

instead requires a court to consider whether Hurley "obtained,

directly or indirectly" the proceeds of the conspiracy. See

Honeycutt, 137 S. Ct. at 1634-35. Hence, Hurley's forfeiture

judgment cannot be justified by relying on the jury verdict, and

we must ask instead whether he "obtained" the full $136 million,

such that any error in relying on the jury verdict was harmless.

Hurley's forfeiture liability potentially presents a

more complicated picture than that of Donna. Unlike Donna, Hurley

did not have an ownership interest in an account through which the

entire proceeds of the conspiracy flowed, although he was deeply

involved in the conspiracy as a lieutenant. In that sense, he was

different from the employee in Honeycutt, compared by the Court to

a student who was recruited to distribute marijuana on a college

campus for a salary amounting to a mere fraction of a multi-

million-dollar criminal conspiracy. Honeycutt, 137 S. Ct. at 1631-

12 Pinkerton v. United States, 328 U.S. 640 (1946).

- 20 - 32. Hurley was essentially Stephen's right-hand man. He played

a significant role in facilitating racketeering activities by, on

several occasions, controlling the transportation, counting,

packaging, and funneling of tainted property.13 Such detailed and

prolonged involvement demonstrates that Hurley is far from the

low-level operative that concerned the Court in Honeycutt.

On the other hand, we have not yet defined the parameters

of Honeycutt and what constitutes "indirectly obtaining" tainted

proceeds. Some courts have held that evidence demonstrating that

an individual held a leadership role and was involved in most

facets of the conspiracy is sufficient to hold that individual

liable for obtaining the tainted proceeds of the conspiracy. See

United States v. Cingari, 952 F.3d 1301, 1306 (11th Cir. 2020)

(explaining that Honeycutt would not bar liability where the

defendant "played a []significant role in the crime, [and] the

evidence demonstrated that he personally worked on [a large portion

of] fraudulent applications"); United States v. Bangiyev, 359 F.

13We previously stated that a portion of the tainted funds was deposited into accounts nominally owned by Hurley. Appellants' Direct Appeal, 63 F.3d at 7. Hurley contends that in doing so we erroneously attributed to him the conduct of another co- conspirator. Although the record is unclear, there is some support for Hurley's objection; the district court's forfeiture judgment states that it was co-defendant Anthony DeMarco, not Hurley, who nominally controlled several accounts through which tainted funds passed. Defendants' Forfeiture Order, 823 F. Supp. at 999. However, that uncertainty does not affect our rationale for rejecting Hurley's claim for relief.

- 21 - Supp. 3d 435, 440 (E.D. Va. 2019) ("Honeycutt bases its reasoning

on drawing a distinction between a mastermind who controls the

criminal operation and a lower figure who only has access to and

control over the smaller amount of tainted property directly in

his possession . . . . [L]ower courts have declined to apply

Honeycutt in cases where the defendant held a position of control

in the criminal operation." (citations omitted)).

We need not resolve the issue of whether Hurley is

entitled to a more limited forfeiture judgment here, however,

because Hurley has waived the issue by failing to provide us with

any factual basis to support his argument that he did not obtain

the tainted funds either directly or indirectly. The government

alleges that any error in Hurley's forfeiture liability

determination was harmless because the evidence shows that Hurley

obtained the funds by "handling and controlling" the cash,

"collecting, packaging, and funneling illicit funds for transfer,"

"transporting [cash] to Rhode Island, [and] counting and dividing

it into smaller lots so that it could be taken to banks to purchase

cashier's checks." In response, Hurley fails to point to any

evidence in the record explaining why or how his personal role in

the conspiracy warrants a reduction in his forfeiture liability

despite the fact that he is in the best position to explain the

extent of his role. Moreover, he failed to request an evidentiary

- 22 - hearing on the issue below.14 Instead, Hurley cherry-picks quotes

from his sentencing hearing in an attempt to show that his role in

the conspiracy was more limited than the government posits.

It is the job of the appellant, not the court, to "ferret

out and articulate the record evidence considered material" to a

legal theory on appeal. See, e.g., Conto v. Concord Hosp., Inc.,

265 F.3d 79, 81 (1st Cir. 2001). Hurley has failed to do so and,

hence, the issue of a more limited forfeiture judgment must be

deemed waived. See id. at 81-82.

Affirmed.

14Hurley did "request[] that the Government's motion to deny [the] petition without a hearing be denied," but acknowledges that he made no affirmative request for a hearing in response.

- 23 -