United States Court of Appeals

For the First Circuit

No. 19-1780

UNITED STATES,

Appellee,

v.

FRANCISCO OSCAR GRULLON, a/k/a Frank,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Lynch, Lipez, and Thompson,

Circuit Judges.

Andrew S. Dulberg, with whom Russell Spivak, Felicia H. 

Ellsworth, and Wilmer Cutler Pickering Hale and Dorr LLP were on 

brief, for appellant.

Elysa Q. Wan, Assistant United States Attorney, with whom 

Andrew E. Lelling, United States Attorney, was on brief, for 

appellee.

April 27, 2021
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THOMPSON, Circuit Judge. Francisco Oscar Grullon is one 

of at least several coconspirators the government has prosecuted 

for participating in a massive scheme to defraud the federal 

government by falsifying tax returns.1 Once arrested, Grullon 

faced charges commensurate with his coconspirators, some of whom 

had already pleaded guilty or had been convicted. Grullon 

proceeded to trial where a jury convicted him of multiple counts. 

Now, he appeals several evidentiary rulings by the district court 

as well as the district court's application of two sentencing 

enhancements. Discovering no errors, we affirm.

Background

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)).
- 19 -

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 
- 20 -

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.
- 22 -

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 
- 24 -

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 
- 28 -

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.

Conclusion

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.