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
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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. 

1 Because Donna and Stephen Saccoccia share the same last 

name, we refer to them by their first names for clarity.

2 Technically, the district court denied Hurley's motion to 

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. 
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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 
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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 
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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. 

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

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

7 When sentencing Donna, the court classified Hurley as a 

lieutenant. 
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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 
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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 
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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 
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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 
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[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 coconspirators. 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. 
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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 coconspirator 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 
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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. 
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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.
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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 coconspirator 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 
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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. 
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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 
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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 
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pre-Honeycutt standard -- also known as Pinkerton12 liability --

that a defendant is liable for funds obtained by his coconspirators 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 multimillion-dollar criminal conspiracy. Honeycutt, 137 S. Ct. at 1631-

12 Pinkerton v. United States, 328 U.S. 640 (1946). 
- 21 -

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. 

13 We 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 coconspirator. 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. 
- 22 -

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 
- 23 -

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.

14 Hurley 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.