United States Court of Appeals 

For the First Circuit 

Nos. 16-1682, 16-1703 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

R. DAVID COHEN, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

 [Hon. Leo T. Sorokin, U.S. District Judge] 

Before 

Lynch, Stahl, and Barron, 

Circuit Judges. 

James B. Kransoo, with whom Krasnoo, Klehm & Falkner LLP was 

on brief, for appellant. 

Ryan M. DiSantis, Assistant United States Attorney, with whom 

William D. Weinreb, Acting United States Attorney, was on brief, 

for appellee. 

April 6, 2018 
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BARRON, Circuit Judge. R. David Cohen ("Cohen") appeals 

his convictions for one count of conspiracy to convert government 

property, in violation of 18 U.S.C. § 371; fourteen counts of 

conversion of government property, in violation of 18 U.S.C. § 641; 

and one count of conspiracy to commit money laundering, in 

violation of 18 U.S.C. § 1956(h). He also challenges his sentence. 

The convictions stem from his role in using bank accounts that he 

owned or controlled in order to negotiate fraudulently-obtained 

federal tax refund checks. We affirm the convictions and the 

sentence.

I. 

Cohen and his co-conspirators, both indicted and 

unindicted, were alleged to have engaged in a scheme in 

Massachusetts that, beginning in October 2011 and continuing 

through December 2014, involved the use of stolen identities to 

obtain fraudulent tax refunds from the United States Internal 

Revenue Service ("IRS"). The alleged scheme worked as follows. 

The conspirators (though not Cohen) obtained tax refund 

checks by using stolen identities. Cohen, who was a real estate 

attorney in Massachusetts, deposited the refund checks into his 

existing Interest on Lawyers' Trust Accounts ("IOLTA")1 bank 

 1 As explained in the trial testimony of the executive 

director of the IOLTA Committee of the Massachusetts Supreme 

Judicial Court, an IOLTA account is a "pooled, interest bearing 
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account, subsequently-opened IOLTA accounts, and conventional 

business accounts (opened by himself or by a co-conspirator) at 

various banks. Cohen and his co-conspirators then wrote checks 

from those accounts that were cashed, made cash withdrawals from 

those accounts, and engaged in other transactions in order to 

launder the tax refunds. When questioned by various bank officials 

about the deposits being made to the various IOLTA and business 

accounts, Cohen often stated that he was depositing checks in these 

accounts for clients who were involved in real estate closing 

transactions for which he was their attorney. 

About a year and a half into the alleged scheme, on or 

about May 22, 2013, Cohen entered into an agreement with the 

Massachusetts Attorney General's Office (the "AG Settlement") to 

settle a lawsuit alleging that Cohen provided his advice for, and 

consent to, unlawful conduct by a client whom Cohen represented. 

In the AG Settlement, Cohen agreed to pay a $40,000 fine and not 

to conduct real estate closings for a period of six months. The 

government alleges that, after entering into the AG Settlement, 

Cohen stopped using his IOLTA accounts to launder the fraudulently-

 

account" that a Massachusetts attorney uses to hold "client funds" 

and keep that money "separate from the attorney's operating or 

. . . business account." As the witness explained, Massachusetts 

Rule of Professional Conduct 1.15, promulgated by the 

Massachusetts Supreme Judicial Court for attorneys admitted to the 

bar in Massachusetts, requires Massachusetts attorneys to "keep[] 

client funds separate from attorney's [operating or business] 

funds." 
 - 4 - 

obtained checks, at which time the conspiracy switched to using 

conventional business bank accounts for such activities. 

At trial, Cohen testified in his own defense. He 

asserted that he was not a "crook," but a "fool" who "was do[ing] 

favors for people who he knows, who are friends," and that he 

failed to look closely at documents or ask enough questions. After 

a ten-day trial, however, the jury convicted him of each of the 

sixteen counts that were given to the jury. 

At sentencing, Cohen disputed the sentencing range that 

the Pre-sentence Report ("PSR") set forth under the United States 

Sentencing Guidelines (the "Sentencing Guidelines"). Cohen 

contended that the PSR wrongly calculated that range by attributing 

too large a loss from the conspiracy to him and, therefore, by 

applying too large an enhancement to his base offense level, see 

U.S.S.G. § 2B1.1(b)(1)(I) (2015); by wrongly applying to his base 

offense level the enhancement that applies for an offense that 

involves ten or more victims, see id. § 2B1.1(b)(2)(A)(i); and by 

wrongly applying to his base offense level the enhancement that 

applies for obstruction of justice, see id. § 3C1.1. Cohen argued 

that, without these wrongly applied enhancements, he should have 

been assigned a total offense level of twenty-two, which, given 

his criminal history, would appear to have resulted in a sentencing 

range of forty-one to fifty-one months imprisonment under the 

Sentencing Guidelines. 
 - 5 - 

The District Court disagreed, applied the enhancements, 

and calculated Cohen's total offense level to be twenty-eight, 

which corresponded to a recommended guideline sentencing range of 

seventy-eight to ninety-seven months imprisonment. However, after 

considering the sentencing factors set forth in 18 U.S.C. § 3553, 

the District Court found the guideline range to be "too high" and 

sentenced Cohen to a below-guideline term of imprisonment of fiftyfour months.2

Cohen now appeals both his convictions and his sentence. 

II. 

We start with Cohen's challenge to his convictions. He 

argues first that they must be vacated because the District Court 

erred in "permit[ting the AG Settlement]" to be used at trial. He 

also argues that the convictions must be vacated because the 

District Court erred in allowing an expert witness for the 

government to testify regarding the Massachusetts "rules about 

IOLTA accounts" for attorneys. We find neither argument 

persuasive. 

A. 

The facts that bear on Cohen's challenge regarding the 

AG Settlement are as follows. Prior to trial, the government 

 2 The District Court also sentenced Cohen to thirty-six months 

of supervised release upon the completion of his term of 

imprisonment. 
 - 6 - 

informed Cohen and the District Court that if Cohen presented any 

character witnesses to testify to his reputation for truthfulness 

and honesty, the government intended to cross-examine those 

witnesses about the AG Settlement. During trial, but prior to the 

close of the government's case, the government also made clear 

that if Cohen decided to testify in his own defense, the government 

would cross-examine Cohen about the AG Settlement pursuant to 

Federal Rule of Evidence 608(b).3

In light of the government's stated intentions, Cohen 

requested the District Court "rule . . . in advance of [Cohen's] 

testimony, to exclude completely any cross-examination of him 

arising out of the [AG Settlement]." United States v. Cohen, No. 

1:15-cr-10008-LTS (D. Mass. Jan. 17, 2016). Cohen's counsel told 

the District Court that he had been under the impression that 

evidence concerning the AG Settlement "wasn't going to see the 

light of day, if [his] reputation evidence wasn't going to come 

[in]." He explained, however, that if evidence of the AG 

Settlement would be used to cross-examine Cohen, then Cohen "might 

 3 Federal Rule of Evidence 608(b) states, in relevant part, 

that though "extrinsic evidence is not admissible to prove specific 

instances of a witness's conduct in order to attack or support the 

witness's character for truthfulness . . . the court may, on 

cross-examination, allow them to be inquired into if they are 

probative of the character for truthfulness or untruthfulness of: 

(1) the witness; or (2) another witness whose character the witness 

being cross-examined has testified about." 
 - 7 - 

as well" introduce "a fair number of reputation witnesses" "because 

[he was] foiled." 

After hearing argument by both parties, the District 

Court, in a January 17, 2016 order, ruled as follows: 

This request is DENIED without prejudice to 

the defendant challenging specific questions 

posed by the government on cross-examination. 

The Court notes that permissible crossexamination of the defendant and permissible 

cross-examination of possible defense 

character witnesses is not identical. For 

example, as to the latter the government may 

challenge the basis for the witness'[s] 

opinion or reputation testimony regarding the 

defendant's character. Thus, while asking the 

character witness whether he or she is aware 

of the fact of the lawsuit may well be a 

permissible challenge to the basis of the 

witness'[s] testimony that same question of 

the defendant, at least standing alone, does 

not appear to bear on truthfulness or 

untruthfulness. 

The parties then informed the District Court that they 

had "reached an agreement." If Cohen testified and the government 

chose to cross-examine him about the AG Settlement, the government 

agreed that it would only ask Cohen "of the date of the [AG 

Settlement], when [Cohen] agreed with the Attorney General's 

[O]ffice not to engage in real estate transactions for six months." 

In return, Cohen agreed that he would not "present[] any reputation 

evidence witness[es] at all." At trial, the government limited 

its cross-examination to the agreed-upon scope and, thereafter, 

Cohen did not call any character witnesses. 
 - 8 - 

On appeal, Cohen now characterizes the District Court's 

conditional order as "permitting the [g]overnment to use . . . 

prejudicial, irrelevant evidence to impeach Cohen's [potential] 

witnesses who would have testified to Cohen's reputation for 

truthfulness and honesty." He also contends that the "repeated 

references to the [AG Settlement] during cross-examination of 

Cohen's [potential] reputation-evidence witnesses, . . . would 

have been so prejudicial to [Cohen's] defense . . . Cohen was 

forced to eliminate [the reputation witness] portion of his 

defense." He argues that the District Court therefore abused its 

discretion and, in doing so, violated his Sixth Amendment right to 

present his defense. 

As an initial matter, Cohen's characterization of the 

ruling as "permitting" the use of the AG Settlement is mistaken. 

The District Court never ruled that the AG Settlement could be 

used during cross-examination. The District Court merely ruled 

that it would rule on a question-by-question basis whether 

questions regarding the AG Settlement would be permitted during 

cross-examination. 

In addition, in now arguing that he was prejudiced by 

the conditional ruling because he was deterred from putting on 

character witnesses, Cohen makes a prejudice argument that appears 

to be inconsistent with the representation that he made to the 

District Court. Prior to the conditional ruling Cohen informed 
 - 9 - 

the District Court that if it did permit Cohen to be cross-examined 

about the AG Settlement, then he likely would go ahead and put on 

his character witnesses because the AG Settlement would already 

have been referenced. 

Even apart from these problems with Cohen's challenge to 

the conditional ruling, there is another. We have stated, based 

on Luce v. United States, 469 U.S. 38 (1984), that a party waives 

a challenge to a conditional ruling concerning how crossexamination of a witness may proceed, unless the objecting party 

actually calls the witness to the stand to "give the court a chance 

to perform the required balancing in the concrete context of actual 

question and answer." United States v. Mazza, 792 F.2d 1210, 1222–

23 (1st Cir. 1986); see also United States v. Monell, 801 F.3d 34, 

48 (1st Cir. 2015) (finding defendant waived his challenge that an 

evidentiary ruling violated his Sixth Amendment right to call a 

witness in his defense at trial where defendant did not call the 

witness).4 As we have previously said, "it is too great a handicap 

to bind a trial judge to a ruling on a subtle evidentiary question 

 4 Though Luce considered the balancing of probative value 

versus prejudicial effect with respect to Federal Rule of Evidence 

609, we see no reason why the reasoning of Luce would not apply in 

the context of Rule 608(b), see United States v. Weichert, 783 

F.2d 23, 25 (2d Cir. 1986), and Rule 403, see Monell, 801 F.3d at 

48. Nor does Cohen argue otherwise. 
 - 10 - 

. . . outside a precise factual context." United States v. 

Griffin, 818 F.2d 97, 104 (1st Cir. 1987).5 

Because of the agreement that Cohen reached with the 

government, none of the character witnesses Cohen contends that he 

wanted to testify actually did and his own cross-examination 

concerning the AG Settlement was limited. Thus, it is unclear 

from the record before us what questions or testimony, if any, the 

jury would have been allowed to hear concerning the AG Settlement 

if Cohen's character witnesses had taken the stand, or if Cohen 

himself had been subject to a fuller cross-examination. 

In fact, Cohen's counsel explained to the District Court 

in advance of the conditional ruling that a determination about 

whether the prosecution should be able to ask a question to a 

character witness about the AG Settlement "depend[ed] on what kind 

of question[s] [the government] want[ed] to put to the reputation 

evidence witness[es] on cross-examination." And, in the absence 

of the agreement, the government, based on the apparent strength 

of its case, "might have elected not to risk a reversible appellate 

 5 "This does not mean, of course, that the evidence must 

always be revealed to the jury." Griffin, 818 F.2d at 105. 

"Counsel should cooperate with the district court in exercising 

restraint and in employing the prophylaxis of the sidebar, where 

appropriate," and "[i]n more complex situations, counsel may 

request that the jurors retire, or in exceptional cases, that the 

actual testimony be screened voir dire in the jury's absence." 

Id. 
 - 11 - 

issue," Monell, 801 F.3d at 49, by deciding not to undertake such 

cross-examination at all.6

For these reasons, it is "difficult to evaluate the 

degree of unfair prejudice," id., if any, that flowed from the 

conditional ruling. Accordingly, it is impossible for us to 

conclude on this record that, merely by conditionally denying 

Cohen's motion concerning the AG Settlement, the District Court 

effectively precluded Cohen from mounting what he contends would 

have been an important part of his defense. This challenge to the 

convictions therefore fails. 

B. 

Cohen also argues that the District Court erred in 

permitting the government to introduce expert testimony at trial 

concerning the rules and regulations relating to Massachusetts 

IOLTA accounts. Cohen contends that the admission of this evidence 

violated Federal Rule of Evidence 702. That rule required the 

District Court to determine whether a "valid connection" existed 

"between the expert's testimony and a disputed issue." United 

 6 Cohen makes no argument that the handful of crossexamination questions actually asked of him by the government 

affected his ability to call his character witnesses or otherwise 

prejudiced him. His failure to make any such argument is hardly 

surprising, as those questions were within the scope of the 

questions Cohen agreed could be asked of him on cross-examination. 
 - 12 - 

States v. Mehanna, 735 F.3d 32, 66 (1st Cir. 2013) (quoting United 

States v. Shay, 57 F.3d 126, 133 n. 5 (1st Cir. 1995)). 

Cohen argues that the expert testimony regarding Cohen's 

"improper, non-criminal use of his IOLTA accounts . . . did not 

assist the jury, . . . as that testimony tended to prove none of 

Cohen's crimes." Moreover, Cohen contends, the testimony served 

merely to "inflame the jury into thinking that [he wa]s unethical 

and therefore must be a bad man and a criminal . . . ." 

We review preserved objections to "rulings relating to 

the admissibility of expert-witness testimony for clear abuses of 

discretion, and will not reverse unless the ruling at issue was 

predicated on an incorrect legal standard or we reach a definite 

and firm conviction that the court made a clear error of judgment." 

United States v. Kantengwa, 781 F.3d 545, 560 (1st Cir. 2015) 

(internal quotation marks omitted). The government argues that 

Cohen failed to preserve this objection and thus that we should 

review his challenge to the evidentiary ruling only for plain 

error. But, his challenge fails even under the more favorable 

abuse of discretion standard. See Kantengwa, 781 F.3d at 560. 

The expert testimony at issue explained to the jury that 

the rules governing IOLTA accounts permit transactions involving 

third-party funds, and that such third-party transactions are 

typical for IOLTA accounts. That testimony assisted the jurors by 

informing them of features of the accounts that could have 
 - 13 - 

facilitated Cohen's ability to negotiate and launder a much higher 

volume of tax refund checks by allowing him to conceal his activity 

for a period of time, and that could have provided support for 

Cohen's cover story that the payees were clients whose funds he 

was holding for future property investments. Evidence of the 

"IOLTA rules and regulations," coupled with Cohen's "disregard" of 

those rules and regulations, also could have been probative of 

Cohen's intent and therefore was of assistance to the jury. 

Of course, evidence that is admissible under Federal 

Rule of Evidence 702 remains subject to Federal Rule of Evidence 

403's balancing test. United States v. Tetioukhine, 725 F.3d 1, 

6 (1st Cir. 2013). But, "[w]here (as here) a piece of evidence is 

determined to be relevant, the district court has wide discretion 

in steadying the Rule 403 seesaw." United States v. Pires, 642 

F.3d 1, 12–13 (1st Cir. 2011) (quoting Onujiogu v. United States, 

817 F.2d 3, 6 (1st Cir. 1987)). "Only rarely -- and in 

extraordinarily compelling circumstances -- will we, from the 

vista of a cold appellate record, reverse a district court's onthe-spot judgment concerning the relative weighing of probative 

value and unfair effect." Id. (quoting Freeman v. Package Mach. 

Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). Because the District 

Court's decision to allow the admission of this expert testimony 

was "within the universe of reasonable decisions," we find no abuse 

of discretion. Id. at 13. 
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III. 

We turn, then, to Cohen's challenges to his sentence. 

Cohen contends that his sentence must be vacated because the 

District Court erred in imposing each of three sentencing 

enhancements in calculating his sentencing range under the 

Sentencing Guidelines. We do not agree. 

We review preserved objections to a district court's 

interpretation of the Sentencing Guidelines de novo. United States 

v. Jones, 778 F.3d 375, 383 (1st Cir. 2015). We assess related 

factual findings for clear error. United States v. Codarcea, 505 

F.3d 68, 71 (1st Cir. 2007). "Clear-error review is demanding: 

this standard will be satisfied only if, 'upon whole-record review, 

an inquiring court form[s] a strong, unyielding belief that a 

mistake has been made.'" United States v. Nuñez, 852 F.3d 141, 

144 (1st Cir. 2017) (alteration in original) (quoting United States 

v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). 

A. 

Cohen first argues that the District Court erred in 

applying a sixteen-level enhancement to his base offense level 

under U.S.S.G. § 2B1.1(b)(1)(I), which is the enhancement that 

applies only if the losses from a fraud that are attributable to 

the defendant total "[m]ore than $1,500,000." He contends that he 

should at most have been subject to the fourteen-level enhancement 

that applies for losses that are attributable to a defendant that 
 - 15 - 

total more than $550,000, but less than $1,500,000. See id. 

§§ 2B1.1(b)(1)(H)-(I). 

The District Court applied the sixteen-level enhancement 

because it found that the entire amount of loss attributed to Cohen 

in the PSR -- $1,672,958.74 -- was, in fact, attributable to Cohen.7 

The District Court based this finding on, in combination, the 

evidence introduced at trial, the evidence introduced through the 

testimony of a co-conspirator at the sentencing hearing, and a DVD 

of the co-conspirator's post-arrest interview that Cohen admitted 

into evidence at sentencing. 

The co-conspirator testified at sentencing as follows. 

Shortly after Cohen entered into the AG Settlement, Cohen directed 

the co-conspirator to open new bank accounts so that the conspiracy 

could, and did, continue to cash the fraudulently-obtained tax 

refund checks. In addition, Cohen received checks drawn on and 

cash drawn from these new accounts, told the co-conspirator that 

the tax refund checks being cashed "belonged to fictitious people,"

gave the co-conspirator tax refund checks to cash, and provided 

the co-conspirator with notarized forms and tax returns for payees 

 7 The conduct outlined in the PSR was derived from a statement 

of facts submitted by the United States Attorney's Office ("USAO") 

in the instant case, a statement of facts submitted by the USAO in 

connection with a related case against a co-conspirator, a criminal 

complaint affidavit by an IRS agent involved in the investigation 

of the scheme which resulted in Cohen's conviction, Cohen's trial 

testimony, and a statement of the offense submitted to the 

Probation Office by Cohen. 
 - 16 - 

on some of the fraudulently-obtained checks to provide to a bank 

when one bank asked questions about account activity. 

Cohen first contends that the District Court erred in 

sentencing him on the basis of the conduct that the co-conspirator 

described, because Cohen had not pleaded guilty to it, nor had the 

government proved it beyond a reasonable doubt. But, as Cohen 

concedes, our precedent forecloses that argument. See United 

States v. Constant, 814 F.3d 570, 581 (1st Cir. 2016) (citing 

United States v. Leahy, 668 F.3d 18, 22 (1st Cir. 2012)). 

Cohen next argues that the District Court erred by 

relying on the co-conspirator's testimony because Cohen was not 

provided "notice" "in advance of sentencing" that the coconspirator would be testifying at the sentencing hearing. See

United States v. Acevedo-López, 873 F.3d 330, 341 (1st Cir. 2017) 

(explaining that "[a] sentencing court must allow the parties' 

attorneys to comment on . . . matters relating to an appropriate 

sentence" (quoting Fed. R. Crim P. 32(i)(1)(C)), and that "a 

defendant's right to respond to the information offered against 

him at sentencing means very little without a right to notice of 

that information" (quoting United States v. Millán-Isaac, 749 F.3d 

57, 70 (1st Cir. 2014))). But, even if Cohen had preserved his 

lack-of-notice argument before the District Court, it fails 

because Cohen has failed to explain how he was unduly prejudiced. 

See id. at 342 (finding harmless error where defendant failed to 
 - 17 - 

show how "any harm or prejudice resulted" from the sentencing 

court's use, without notice, of certain documents at sentencing). 

Cohen acknowledges that prior to the sentencing hearing 

he was aware that the PSR recommended applying the sixteen-level 

enhancement on the basis of statements by the co-conspirator 

regarding Cohen's post-AG Settlement period conduct. 

Additionally, just after the co-conspirator testified, the record 

shows that Cohen presented two rebuttal witness solely on the issue 

of the co-conspirator's English-speaking abilities, an issue that 

appeared to be central to Cohen's cross-examination of the coconspirator. And Cohen identifies no other evidence that he would 

have introduced had he received more notice. Moreover, when Cohen 

argued below that the lack of notice left him unprepared to crossexamine the co-conspirator about certain account expenditures 

which "further tend[ed] to undermine [the co-conspirator's] 

testimony," Cohen had no reply to the District Court's response 

that the foreseeability of the results of the conspiracy (with 

respect to Cohen's role) and whether expenditures were 

particularly attributable to a specific co-conspirator were 

different questions. Thus, any error with respect to notice 

regarding the co-conspirator's testimony at sentencing was 

harmless. See id. 

Cohen also argues that the District Court clearly erred 

in finding that the post-AG Settlement conduct about which the co-
 - 18 - 

conspirator testified was attributable to Cohen. But, Cohen does 

not challenge the District Court's finding that the coconspirator's testimony was credible. And we have rejected Cohen's 

argument that he was not given proper notice that the coconspirator would be testifying at sentencing. Accordingly, this 

aspect of his challenge fails. 

Finally, as the government contends, Cohen's passing 

assertion on appeal that the District Court "never considered . . . 

[Cohen's] financial resources, his financial needs and his earning 

ability and other appropriate factors" is undeveloped and is 

therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st 

Cir. 1990). We thus reject Cohen's arguments alleging error in 

the application of a sixteen-level enhancement to his base offense 

level pursuant to U.S.S.G. § 2B1.1(b)(1)(I). 

B. 

Cohen next argues that the District Court erred in 

applying the two-level sentencing enhancement for an offense 

involving ten or more victims, U.S.S.G. § 2B1.1(b)(2)(A). Cohen 

does so because he contends that "only the Government, not the 

payees on erroneously issued [federal] tax refund checks, is a 

victim because . . . the payees, never having been entitled to 

these checks, suffered no financial hardship." 

Cohen's argument rests in part on his apparent 

contention that the payees do not meet the definition of "victim" 
 - 19 - 

laid out in U.S.S.G. § 2B1.1 Application Note 1. That Application 

Note defines a victim as: "(A) any person who sustained any part 

of the actual loss determined under [U.S.S.G. § 2B1.1](b)(1); or 

(B) any individual who sustained bodily injury as a result of the 

offense."8 The District Court did not rely, however, on the 

definition of "victim" in U.S.S.G. § 2B1.1 Application Note 1. 

Rather, the District Court found the payees to be victims in light 

of U.S.S.G. § 2B1.1 Application Note 4(E), which states: 

Cases Involving Means of Identification. For 

purposes of subsection (b)(2) [concerning 

multi-victim sentencing enhancements], in a 

case involving means of identification 

"victim" means (i) any victim as defined in 

Application Note 1; or (ii) any individual 

whose means of identification was used 

unlawfully or without authority. 

With respect to Application Note 4(E), Cohen argues that 

he "never 'used' means of identification" in the commission of his 

offenses of conviction. To support this contention, he relies on 

our decision in United States v. Berroa, 856 F.3d 141 (1st Cir.), 

cert. denied sub nom. Davila v. United States, 138 S. Ct. 488 

(2017), where we construed the meaning of "use" in the context of 

the federal aggravated identity theft statute, 18 U.S.C. § 1028A. 

 8 In U.S.S.G. § 2B1.1(b)(1), "actual loss" is defined as "the 

reasonably foreseeable pecuniary harm that resulted from the 

offense." U.S.S.G. § 2B1.1 cmt. n.3(A)(i). And within that 

definition "pecuniary harm" is defined as "harm that is monetary 

or that otherwise is readily measurable in money," and "does not 

include emotional distress, harm to reputation, or other noneconomic harm." Id. § 2B1.1(b)(1) cmt. n.3(A)(iii). 
 - 20 - 

But, even if we apply our precedent construing the term 

"use" in § 1028A to construe the term "used" in Application Note 

4(E), his argument fails. Berroa determined that a defendant's 

conduct with respect to another's means of identification 

constituted a "use" of that means of identification so long as 

"the defendant attempt[ed] to pass him or herself off as another 

person or purport[ed] to take some other action on another person's 

behalf." 856 F.3d at 156 (emphasis added); see also United States 

v. Morel, Nos. 17-1331, 17-1332, 17-1353 (1st Cir. Mar. 16, 2018) 

(relying on Berroa to hold that a defendant "purported to act on 

[payee's] behalf" by depositing a fraudulently-obtained tax refund 

check bearing the payee's forged signature as an endorsement and 

that such an act constituted "use" of that payee's means of 

identification under 18 U.S.C. § 1028A)). And there is no dispute 

that Cohen, in depositing the fraudulently-obtained tax refund 

checks, was purporting to do so on behalf of the payees. Further, 

while § 1028A includes a mens rea requirement, see United States 

v. Godin, 534 F.3d 51 (1st Cir. 2008) (concluding that the scienter 

requirement in § 1028A extends to "of another person"), the record 

supports, and Cohen does not dispute, that he knew that the tax 

refund checks that he was depositing bore a means of identification 
 - 21 - 

of another -- specifically the names of the payees.9 Accordingly, 

we affirm the District Court's application of the two-level 

enhancement under U.S.S.G. § 2B1.1.10 

C. 

Finally, Cohen contends that the District Court erred by 

increasing his offense level under the Sentencing Guidelines by 

two levels pursuant to the obstruction-of-justice enhancement set 

forth in U.S.S.G. § 3C1.1. The obstruction-of-justice enhancement 

applies "[i]f (1) the defendant willfully obstructed or impeded, 

or attempted to obstruct or impede, the administration of justice 

. . ., and (2) the obstructive conduct related to . . . the 

defendant's offense of conviction . . . ." U.S.S.G. § 3C1.1; see 

United States v. Mercer, 834 F.3d 39, 48 (1st Cir. 2016). The 

enhancement "is not intended to punish a defendant for the exercise 

 9 The out-of-circuit authority construing Application Note 

4(E) on which Cohen relies -- United States v. Hall, 704 F.3d 1317 

(11th Cir. 2013) and United States v. Rabiu, 721 F.3d 467 (7th 

Cir. 2013) -- is not to the contrary. By Hall's reasoning, Cohen 

"used" the payees' personal identifying information by depositing 

the checks in order to launder them. See Hall, 704 F.3d at 1322 

(determining that the payees' information was "used" once it is 

"employ[ed] . . . for the purpose for which the conspiracy was 

intended"). And Rabiu expressly approved this reasoning from Hall. 

See Rabiu, 721 F.3d at 472-74. 

10 Cohen also asserts that the enhancement cannot apply 

because "the identify thieves" were never "proven to be [his] coconspirators." But, Cohen cites no authority for the proposition 

that such proof was necessary, as opposed to, for example, mere 

proof that Cohen knew he was using the payee information in the 

checks that he was depositing without authority. 
 - 22 - 

of a constitutional right." U.S.S.G. § 3C1.1 cmt. n.2. The 

enhancement does apply, however, if a defendant exercises his right 

to testify at trial but commits perjury in the process. Id. § 

3C1.1 cmt. n.4. 

"A defendant commits perjury when he intentionally gives 

false testimony under oath on a matter material to the 

proceedings." United States v. Díaz, 670 F.3d 332, 351 (1st Cir. 

2012). A "sentencing court, however, is not required to address 

each element of perjury in a separate and clear finding" in order 

to justify application of the enhancement. Mercer, 834 F.3d at 49 

(quoting United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994)). 

"The district court's determination that enhancement is required 

is sufficient . . . if . . . the court makes a finding of an 

obstruction of, or impediment to, justice that encompasses all of 

the factual predicates for a finding of perjury." United States 

v. Dunnigan, 507 U.S. 87, 94 (1993). 

The District Court found the following parts of Cohen's 

testimony not credible: that he had thirty to forty copies of 

driver's licenses for tax refund check payees at one point, of 

which all but the small number of licenses that were produced at 

trial had been stolen; that he did not know the tax refund checks 

were fraudulently obtained despite there being "no good reason for 

somebody to be paying him a fee for cashing . . . United States 

Treasury checks" that were "as good as gold"; and that he did not 
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recollect any of the phone calls with one bank officer who had 

testified about those calls. Insofar as these findings sufficed 

to show that Cohen had committed perjury in testifying at trial, 

Cohen's contention that he is being "punished" for "exercising his 

constitutional right to testify" is clearly without merit under 

our precedent. See Mercer, 834 F.3d at 49; see also Dunnigan, 507 

U.S. at 96 ("Respondent cannot contend that increasing her 

sentence because of her perjury interferes with her right to 

testify, for we have held on a number of occasions that a 

defendant's right to testify does not include a right to commit 

perjury."). 

Turning to Cohen's challenges to the findings 

themselves, we first consider his contention that they were flawed 

because the District Court "omitt[ed] necessary findings of intent 

and of the claimed falsehoods significant hindrance to the 

prosecution." But the findings in fact encompassed, either 

expressly or impliedly, each of the elements of perjury -- i.e., 

"that the defendant was untruthful at trial with respect to 

material matters in this case . . . [b]y virtue of [the 

defendant's] failure to give truthful testimony on material 

matters that were designed to substantially affect the outcome of 

the case." See Dunnigan, 507 U.S. at 95-96 (emphasis omitted). 

We note in this regard that the testimony that the District Court 

identified as untruthful was plainly relevant to Cohen's mens rea. 
 - 24 - 

Accordingly, there was no error due to a lack of completeness in 

the findings. See United States v. Fermin, 771 F.3d 71, 82 (1st 

Cir. 2014) (affirming district court obstruction-of-justice 

enhancement where district court did not make a materiality 

finding, but testimony supporting enhancement was "obviously 

material" (quoting United States v. Campbell, 61 F.3d 976, 984 

(1st Cir. 1995))); Matiz, 14 F.3d at 84 (affirming the district 

court's finding of perjury though "the court was not explicit as 

to whether [the defendant's] testimony was material" because "the 

record demonstrate[d]" that the testimony was material); see also 

Mercer, 834 F.3d at 49 (affirming district court's obstructionof-justice enhancement even though the court was not explicit with 

respect to a "willfulness" finding for perjury). 

Cohen also argues that the District Court clearly erred 

in making certain findings. Cohen points out that the District 

Court had to be "reminded that not all [driver's] licenses were 

missing." But the District Court clarified at sentencing that it 

deemed Cohen's testimony regarding the licenses untruthful because 

it found suspect his testimony that the reason he no longer had 

"[thirty] or [forty] licenses" in his possession had to do with a 

car being stolen in 2012. As the record adequately supports that 

finding, this aspect of Cohen's challenge fails.

Cohen also claims that the District Court erroneously 

stated that one bank had informed Cohen that his actions amounted 
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to "fraud," when the phrase used by the bank was actually "checkcashing." But, when Cohen pointed out the precise testimony at 

sentencing, the District Court clarified that its "conclusion 

. . . was that the inference can be drawn from what each of [the] 

banks told [Cohen], when they refused to accept any more of these 

[tax refund] checks in his account, . . . that there was a big 

problem and it was fraud." Thus, this aspect of his challenge 

fails as well. 

Finally, we reject Cohen's challenge to the District 

Court's finding that Cohen was not truthful in testifying that he 

had no recollection of having had phone calls with a particular 

bank official. The District Court supportably found the bank 

officer to be "very careful, very scrupulous, and [that] his 

investigation was very meticulous." Moreover, the official 

testified at trial that he had multiple calls with Cohen in which 

he made clear to Cohen that the bank was suspicious about atypical 

check-cashing activity in his account and that he told Cohen that 

the bank's interactions with the IRS and the Massachusetts Division 

of Banking indicated that checks in Cohen's account "should not 

have been issued" and that Cohen was not licensed to operate a 

check-cashing business in Massachusetts. We thus conclude that 

the District Court did not clearly err in finding incredible 

Cohen's claims to have absolutely no recollection of these calls. 
 - 26 - 

That leaves only Cohen's argument that the imposition of 

the obstruction-of-justice enhancement, which requires "willful" 

obstruction, was erroneous given that the District Court provided 

the jury with a willful blindness instruction. In challenging the 

application of the obstruction enhancement below, Cohen argued 

that, in light of the willful blindness instruction, "his testimony 

in the eyes of the jury may have made him a damned fool, but that's 

not the same thing as finding that he's a damned lying fool 

. . . ." The District Court concluded, however, that a willful 

blindness instruction is not preclusive of a finding that the 

defendant perjured himself in testifying at trial. 

On appeal, Cohen does not develop a challenge to this 

conclusion but instead merely asserts that the District Court 

"wrongly imposed the enhancement upon one seen by the jury as 

willfully blind but not necessarily consciously obstructive." We, 

thus, deem this underdeveloped argument waived. Zannino, 895 F.2d 

at 17. Moreover, we note that, in any event, there is Circuit 

precedent that affirms sentences including such an enhancement in 

cases in which a willful blindness instruction was given. See, 

e.g., Fermin, 771 F.3d at 79-82; United States v. Camuti, 78 F.3d 

738, 744-45 (1st Cir. 1996). 

IV. 

For the foregoing reasons, Cohen's convictions and 

sentences are affirmed.