United States Court of Appeals

For the First Circuit

No. 11-1996

UNITED STATES,

Appellee,

v.

ROCCO P. DESIMONE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Before

Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Kenneth Seiger for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Peter F. Neronha, United States Attorney, was on brief, for

appellee.

November 9, 2012
LYNCH, Chief Judge. Rocco DeSimone, a persuasive con man

operating in Rhode Island, defrauded a number of investors, most

neither wealthy nor experienced in investing, in a series of

schemes which used the mails. He also laundered money he received

from the fraud by buying himself a $180,000 sports car. He freely

lied to his victims about three supposedly sizzling new inventions

with purportedly huge market potential, well aware that his

statements were false -- and then covered his lies with more lies. 

DeSimone's scheme involved the "DrinkStik," through which people in

protective suits supposedly could drink; the "SONG Tube," intended

for feeding patients unable to eat; and the "Disk Shield," which

was supposed to protect CDs and DVDs. All told, investors lost

about six million dollars.

A federal jury convicted DeSimone of seven counts of mail

fraud and one count of money laundering. He was sentenced to 192

months imprisonment and ordered to pay $6,030,145 in restitution

and to forfeit certain property. At the time he was 58 years old.

On appeal DeSimone challenges his conviction, arguing he

must be given a new trial because of errors in evidentiary rulings

and a failure by the court to declare a mistrial after the

admission of evidence of his escape from prison following a

separate conviction on tax charges. As to his sentence, DeSimone

argues the district court incorrectly calculated the number of

-2-
victims and the amounts of forfeiture and of restitution. His

arguments lack merit.

We affirm DeSimone's convictions, deny his request for a

new trial, and affirm his sentence.

I.

DeSimone wisely does not argue the evidence was

insufficient to support his conviction. We lay out the general

story to provide a context for evaluating his claims. We describe

the evidence presented at trial in the light most favorable to the

jury's guilty verdict. See United States v. Manor, 633 F.3d 11, 12

(1st Cir. 2011).

A. Victim McKittrick and the DrinkStik and SONG Tube Frauds

In 2005, a medical doctor named Robert McKittrick

invented and patented the "DrinkStik," a device meant to allow

people wearing protective suits in contaminated areas to stay

hydrated. His efforts to sell the invention failed.1

One of McKittrick's friends, David Lindsay, was a martial

arts instructor who taught private lessons to DeSimone. Lindsay

introduced McKittrick to DeSimone in 2005. McKittrick had

described the Drinkstik to Lindsay, who mentioned it to DeSimone. 

McKittrick then described the invention to DeSimone during their

first meeting, at DeSimone's prompting.

Jonathan Denker, director of sales for a military and 1

emergency equipment supplier, testified at trial that the DrinkStik

could not have worked in practice.

-3-
In the spring of 2006, DeSimone, McKittrick, and Lindsay 2

met again, and DeSimone told McKittrick that he would like to take

on selling the DrinkStik. DeSimone explained that his career

involved selling high-value items, including paintings, to people

of means to whom he had special access.

DeSimone falsely told McKittrick that he knew a man named

Jimmy or Ned Johnson who was the owner of Fidelity Investments,

that he and Johnson had done many art deals in the past, and that

"they were very, very friendly, first name basis, you know, they

went to dinner and knew each other very, very intimately." Several

times, when McKittrick visited DeSimone's home, DeSimone received

phone calls and told McKittrick that it was Johnson who was on the

phone. DeSimone's wife, Gail DeSimone, also "[o]n more than one

occasion" told McKittrick that Johnson "had been [to their house],

that he was a nice guy. He was very interested in the project." 

None of this was true. Edward Johnson, III, is a real person who

In 2005, DeSimone was convicted of filing a false tax return 2

in the United States District Court for the District of Rhode

Island, receiving a sentence of 27 months imprisonment. United

States v. DeSimone, No. 04-80S (D.R.I. Mar. 22, 2005). He began

serving his sentence that year and served six months before he was

granted bail pending appeal in March of 2006. United States v.

DeSimone, 424 F. Supp. 2d 344 (D.R.I. 2006). DeSimone told

McKittrick and Lindsay that he had been released from prison

because he had been exonerated, and that his conviction was

actually his accountant's fault. DeSimone had not in fact been

exonerated, and his appeal was later denied. United States v.

DeSimone, 488 F.3d 561 (1st Cir. 2007). After DeSimone's return to

prison, he escaped in March of 2008 for several days. The escape

is discussed later.

-4-
is head of Fidelity Investments, but DeSimone had never met Johnson

and Johnson knew nothing of DeSimone or the DrinkStik.

DeSimone told McKittrick that: (1) Johnson had

"guaranteed him [the DrinkStik] would be sold"; (2) "Mr. Johnson

was purchasing it. It was already worked out. The lawyers were

already putting papers together"; and (3) "the deal was done. He

had shaken hands with Johnson." DeSimone said the sale would occur

by September of 2006. Though McKittrick only wanted to give

DeSimone a sales commission, DeSimone insisted that he needed a

one-third ownership interest in the DrinkStik to show Johnson that

the project was credible.

DeSimone convinced McKittrick that he knew Johnson, and

that Johnson had offered to buy the DrinkStik. On May 29, 2006,

McKittrick and DeSimone entered into an agreement giving DeSimone

a one-third ownership interest in the parent company holding the

patent rights to the DrinkStik. DeSimone set up a company --

Falcon, Limited -- that controlled his stake in the DrinkStik. 

This gave DeSimone a platform to fraudulently market the DrinkStik

to other "investors." DeSimone later persuaded McKittrick to

transfer an additional two percent interest in the DrinkStik to

DeSimone in furtherance of his scheme to sell stock in the

DrinkStik, purportedly to raise operating capital.

McKittrick had also received a patent for a second

invention, called the SONG Tube, that was designed to make it

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easier to insert a feeding tube into patients' stomachs through

their noses or mouths. After McKittrick transferred a one-third

interest in the DrinkStik to DeSimone, DeSimone told him that he

was also negotiating with Tyco Corporation to sell the SONG Tube. 

This was not true. McKittrick transferred a one-third interest in

the SONG Tube to DeSimone, in reliance on this representation.

DeSimone told McKittrick that Johnson had offered $264

million for the DrinkStik and that the deal would take place in

September of 2006. Just before September, DeSimone told McKittrick

that the deal would be delayed because they needed to change the

structure of the entities holding interests in the DrinkStik. 

DeSimone then told McKittrick that he had set up several meetings

with Johnson. When none of these meetings took place, DeSimone

claimed it was because of business that took Johnson abroad. 

Around Thanksgiving of 2006, DeSimone told McKittrick that a deal

with Johnson was imminent, and that McKittrick needed to quit his

medical residency in New Jersey and return to Rhode Island so he

could sign the papers immediately if needed. Believing DeSimone,

McKittrick did exactly that, to his regret.

DeSimone then informed McKittrick that the deal would

close by February of 2007. But in February DeSimone said that the

deal would once again be delayed because Johnson's daughter,

Abigail, had been admitted to the hospital, and because of

-6-
McKittrick's failure to obtain international patent protection for

the DrinkStik.

DeSimone had McKittrick make presentations about the

DrinkStik to Raytheon Corporation, purportedly to bid up the price

by creating competition with Johnson. Raytheon never offered to

purchase the Drinkstik.

DeSimone conceded at trial that Edward Johnson, III, the

chief executive officer of Fidelity Investments, had never met

DeSimone, did not know who DeSimone was, and had never socialized

or spoken with DeSimone or been to DeSimone's house. DeSimone also

stipulated that he never spoke with anyone at Fidelity Investments

concerning the DrinkStik.

B. The DrinkStik Fraud and Victims Lindsay and His Circle

After DeSimone acquired his one-third interest in the

DrinkStik, he asked Lindsay -- who was struggling financially and

caring for a disabled daughter -- to speak to his friends and

family about investing in the DrinkStik. DeSimone told Lindsay

that a sale of the DrinkStik to Johnson was imminent, likely by

September of 2006. Lindsay told his family and friends about "Mr.

DeSimone's connections" and that "this was a very, very good

opportunity." Most of these friends and family told Lindsay that

they could not afford to invest. When Lindsay reported to DeSimone

that "a lot of these people, because they're all blue collar

workers, they just don't have the money to go and invest in

-7-
something of this sort," DeSimone suggested that they purchase a

painting and set it aside so that if the Drinkstik "doesn't sell,

we'll sell the painting and then we can reimburse your friends." 

Based on this, some of Lindsay's friends eventually invested. 

DeSimone then persuaded Lindsay to take $10,000 out of his home

equity line of credit to provide DeSimone with cash to purchase a

Georgia O'Keefe painting that DeSimone had allegedly found in

Newport. DeSimone then told Lindsay that the painting had been

sent to be cared for, and later claimed that the painting had sold

for $900,000. None of this was true.

Lindsay reported to his friends and family that he had

purchased a painting which would protect their investments in the

DrinkStik. He also relayed that DeSimone had told him that

Raytheon, Tyco, and Fidelity were interested in the DrinkStik and

that Johnson was a good friend of DeSimone. Based on these lies by

DeSimone, Lindsay collected $100,000 from his family and friends,

took out another $25,000 from his own home equity line of credit,

and wrote a check for $125,000 to DeSimone. Lindsay's sister

separately invested $5,000.

Around August of 2006, DeSimone falsely informed Lindsay

that Johnson had agreed to buy the DrinkStik for $260 million.

Lindsay then told an acquaintance, Michael Malone, that DeSimone

had stated that the DrinkStik "was going to be sold shortly" for

-8-
$300 million. Based on this, Malone invested $25,000 in the DrinkStik.

In September of 2006, DeSimone persuaded John Agostini --

who had already contributed $50,000 of the $125,000 Lindsay

previously entrusted to DeSimone -- to invest another $25,000 in

the DrinkStik "because it's sold" and "the more money you get in,

the more money you're going to make." DeSimone falsely told

another friend of Lindsay's, Paul Gregson, that Raytheon was "very

interested in purchasing" the DrinkStik and that "they had

purchased the item"; he also told Gregson that he personally knew

Johnson and that Johnson was interested in the DrinkStik. DeSimone

added that any investment would be covered by the purchase or

acquisition of a painting. Based on this, Gregson invested $25,000

in the DrinkStik with DeSimone. The total sum of the investments

that DeSimone fraudulently procured from Lindsay and his friends

and family for the DrinkStik was $205,000.

In late 2006 or early 2007, DeSimone told Lindsay that

Raytheon had offered to buy the DrinkStik for $280 million and that

the closing date was February 15, 2007. DeSimone also told

Gregson, Agostini, and Malone that Raytheon had bought the

DrinkStik, and that they were millionaires. None of this was true. 

Lindsay called his friends and family and related these reports of

good news. When the purported closing date of February 15, 2007

came and went, DeSimone told Lindsay, Gregson, Agostini, Malone,

-9-
and another investor, John Kilday, that Raytheon had passed on the

deal at the last minute but that Tyco was now interested.

In reality, though DeSimone organized one meeting with

Raytheon, no Raytheon representative ever offered to purchase the

Drinkstik or discussed dollar amounts relating to a possible

purchase. Similarly, though DeSimone had a phone call with a Tyco

representative, Tyco never expressed interest in buying the

DrinkStik or SONG Tube.

C. The Disk Shield Fraud and Lindsay Group Victims

In May or June of 2006, DeSimone told Lindsay that, along

with his accountant, Ronald Rodrigues, he owned the "Disk Shield,"

an invention that purportedly protected CDs and DVDs from

scratching. DeSimone falsely told Lindsay that Nintendo and Sony

were interested in buying the Disk Shield. DeSimone also told

Gregson that he, DeSimone, was part owner of the Disk Shield, and

that Sony had already purchased it. DeSimone asked both Lindsay

and Gregson if they would be interested in investing in the Disk

Shield; each agreed and transferred $10,000 to DeSimone.

DeSimone falsely told Lindsay that the Disk Shield had

sold to Nintendo for $11 million and that the deal would close in

January of 2007. DeSimone then claimed that complications with the

corporate structure holding the interest in the Disk Shield had

delayed the closing, and that the "money was in OFAC [U.S. Office

of Foreign Assets Control]." Ultimately, DeSimone told Lindsay

-10-
that the Nintendo deal did not close because "Ron Rodrigues messed

up the paperwork."

In reality, DeSimone had no stake in the Disk Shield; it

was wholly owned by Rodrigues and its inventor, Paul F. Schwab. 

Nintendo had no record of any communications with DeSimone,

Rodrigues, or Schwab regarding the Disk Shield, and neither

Nintendo nor Sony ever offered to purchase the Disk Shield. In

fact, no company ever offered money for the Disk Shield.

D. Other Victims of the DrinkStik and SONG Tube Frauds

In September of 2006, DeSimone described the DrinkStik

and the SONG Tube to Frederick Weissberg, a California dealer in

ancient Japanese swords. DeSimone falsely said that Raytheon was

"ready to buy [the DrinkStik], it was a done deal," and that

Raytheon would pay more than $400 million for the invention at a

closing date in early 2007. DeSimone said he was also "very good

friends" with "Jimmy Johnson, who was the head of Fidelity," and 3

that Johnson was "ready at a moment's notice to write a check for

$160 million." DeSimone falsely told Weissberg that he was in

talks with Tyco about the SONG Tube, and later stated that though

In 2004 or 2005, DeSimone had set up a three-way telephone 3

conversation between Weissberg, DeSimone, and "Mr. Johnson of

Fidelity" wherein "Johnson" discussed purchasing a $500,000 sword

from Weissberg. The phone number that Weissberg used to contact

"Johnson" actually belonged to Florian "Al" Monday, a friend of

DeSimone's.

-11-
discussions with Raytheon about the DrinkStik had "stalled because

of patent problems," Tyco was "very interested" in the DrinkStik. 

DeSimone told Weissberg that a one-percent interest in

the DrinkStik would cost $200,000, but that the pay-out would be $4

million. Weissberg, his brother, and a friend of his ultimately

invested $600,000 in cash in the DrinkStik, after Weissberg told

his brother and the friend that this was "a done deal," that it was

"going to fund," and that "it was a fantastic, wonderful deal." 

Weissberg also sent DeSimone three swords worth more than $600,000

and forgave two sword-related debts on the understanding that these

objects and debts would be credited to his investment in the

DrinkStik. Weissberg believed that his investment also gave him an

interest in the SONG Tube.

In late May or early June of 2007, DeSimone told Andrew

Quirt, a Minnesota dealer who sold Japanese swords and art, "that

there were several exciting inventions that he was going to make a

great deal of money on." DeSimone told Quirt that he had a

controlling interest in the DrinkStik and that an agreement with

Raytheon to purchase the DrinkStik was in the works, that the sale

of the DrinkStik was imminent, and that it was already in the hands

of Raytheon's attorneys. DeSimone invited Quirt to invest in the

DrinkStik, and Quirt, based on DeSimone's false representation,

decided to invest by sending DeSimone three swords worth roughly

-12-
$500,000. DeSimone told him that this investment would net him a

return of $4.4 million.

In October of 2006, DeSimone told Allan H. Dyer, a

retired businessman from Indianapolis, about the DrinkStik. 

DeSimone said that Raytheon "was highly interested in purchasing

it" and that he expected a deal with Raytheon to close in January

of 2007, making each percentage of stock in Falcon, Limited -- the

entity holding DeSimone's interest in the DrinkStik -- worth $2.5

million. When DeSimone asked Dyer to invest money in the

DrinkStik, Dyer refused. However, Dyer agreed to exchange an oil

painting by Pierre-Auguste Renoir, "Paysage a Cagnes," for one

percent of Falcon, Limited, and to forgive debts amounting to

$2.415 million for another two and a half percent of Falcon,

Limited.

In early 2007, DeSimone told his chiropractor, Robert

Marzilli, about the DrinkStik; he said that Tyco and Raytheon were

interested in the invention, and that "it was going to be sold very

quickly." DeSimone asked Marzilli to invest in the DrinkStik at a

price of $50,000 per share, but Marzilli could not afford this

amount. DeSimone then brought the price down to $25,000 per share,

and Marzilli told his mother about the invention and she agreed to

invest. When Marzilli expressed reservations about investing to

DeSimone, stating that the money was not coming from him but from

his mother, DeSimone assured him that "it was a done deal" and that

-13-
he was "a hundred percent sure." Marzilli agreed to invest in the

DrinkStik and gave DeSimone a check for $25,000.

E. DeSimone's Use of the Mails

DeSimone sent investor questionnaires and subscription

agreements through the mail to many of the investors in the

DrinkStik. Many of these investors returned these documents to

Rodrigues, DeSimone's accountant, by mail. The subscription

agreement explained that any investment in the DrinkStik carried a

high degree of risk; when Agostini hesitated to sign the

subscription agreement, DeSimone told him that if he did not sign,

he would not "get [his] money."

F. DeSimone's Re-Incarceration and Escape

In July of 2007, DeSimone returned to prison to complete

the remainder of his sentence for filing false tax returns. In

August of 2007, suspecting that DeSimone was orchestrating a scam,

McKittrick and Lindsay went to the FBI to offer cooperation in

investigating DeSimone. On March 13, 2008, FBI agents executed a

search warrant at DeSimone's home, searching for items relating to

the DrinkStik and Disk Shield. DeSimone's wife, Gail, was home

during the search. As the search was going on DeSimone called her

on the phone. Gail explained to him that FBI agents were at the

house, searching for materials relating to the DrinkStik and Disk

Shield.

-14-
Two days later, Gail visited DeSimone at prison. 

DeSimone used this visit to escape. He "left with her," though he

understood that he was "not allowed to do that." At that time, 4

DeSimone had nine months remaining on his sentence. DeSimone

traveled from New Jersey, where he had been incarcerated, to Rhode

Island, Connecticut, Massachusetts, and New York before turning

himself in; he spent three-and-a-half days at large. DeSimone

testified that he escaped from prison because he feared for his

family's safety based on threats purportedly made by McKittrick and

Lindsay. DeSimone admitted, however, that McKittrick and Lindsay 5

had not spoken to Gail since November 9, 2007. Moreover, in the

course of his flight DeSimone had Gail return to their home, though

McKittrick and Lindsay knew its location. DeSimone also testified

that during his flight, he traveled to New York to inquire about

whether some of his paintings had been sold and whether he could

obtain the proceeds. DeSimone turned himself in after he learned

that the paintings had not been sold. He was returned to prison

and was prosecuted on a charge of escape in the District of New

Jersey, where he pled guilty on July 29, 2008.

DeSimone was incarcerated at a minimum security facility at 4

which headcounts were the main mechanism for preventing inmates

from escaping. DeSimone disappeared from the facility between two

of these counts.

McKittrick and Lindsay denied making any physical threats to 5

Gail DeSimone.

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G. Financial Details of the DrinkStik Scheme

At trial, an IRS special agent, Troy Niro, testified that

DeSimone procured (1) $1,236,250 in cash, (2) over $2.7 million in

forgiven debts, and (3) physical assets worth $2,073,500 by selling

stock in the DrinkStik. During the same period, DeSimone's 6

expenditures were $1,451,717, of which only $28,481 were expenses

related to the DrinkStik. Records did not reveal any purchase of

a painting that could have covered investments in the DrinkStik.

DeSimone conceded at trial that "[n]o one's gotten any money back

from the DrinkStik."

II.

On March 11, 2009, a federal grand jury indicted DeSimone

on nine counts of mail fraud in violation of 18 U.S.C. § 1341 and

one count of money laundering in violation of 18 U.S.C. § 1957(a),

(b)(1)-(2). The indictment alleged that DeSimone "knowingly

devised and intended to devise a scheme and artifice to defraud,

and to obtain money and property from individuals interested in

investing in new inventions, including the Drink Stik, Song Tube

and Disk Shield inventions, by means of false and fraudulent

pretenses, representations, and promises."

In its brief the government states that the SONG Tube "was

6

a small aspect of the scheme," and the SONG Tube scheme did not

generate any independent investments. DeSimone raised $20,000 from

the Disk Shield fraud and returned this amount to Lindsay and

Gregson.

-16-
On January 5, 2010, DeSimone pled guilty to the charges

against him, but he then changed his mind. The district court

granted DeSimone's motion to withdraw his plea on September 13,

2010. On March 1, 2011, the day before his trial was to commence,

DeSimone moved to exclude (1) his 2008 conviction for escape; and

(2) "testimony with respect to Disk Shield . . . because there's no

mail fraud. There's no allegation of a mailing involved in any

alleged false pretenses with respect to Disk Shield." The district

court denied both motions.

DeSimone's jury trial lasted from March 2, 2011 until

March 16, 2011, when the jury returned a verdict of guilty on seven

counts of mail fraud and the one count of money laundering. The

jury acquitted DeSimone on two counts of mail fraud relating to

Dennis Mortimer and David Durning.

The district court ordered DeSimone to forfeit a painting

by Renoir that Dyer had transferred to DeSimone in exchange for

DrinkStik stock, though DeSimone argued that he had owned half of

the painting before Dyer's DrinkStik investment, and that he should

only be liable in restitution for the half of the painting that

Dyer transferred in exchange for the DrinkStik stock.

At sentencing, the court adopted the presentence

investigation report without change and found, inter alia, that the

offense involved ten or more victims and thus warranted a two-level

increase to DeSimone's offense level. The court sentenced DeSimone

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to a total term of 192 months imprisonment. The court also ordered

DeSimone to pay restitution in the amount of $6,030,145.00, which

included $3,230,000 in losses suffered by Dyer. DeSimone timely

appealed on July 29, 2011.

III.

DeSimone advances an array of challenges to his

conviction, forfeiture order, sentence, and restitution order. We

start with his claims of evidentiary and trial error. "We

generally review preserved evidentiary errors for abuse of

discretion." United States v. Meises, 645 F.3d 5, 20 (1st Cir.

2011). "[T]o the extent that a claim of evidentiary error has not

been preserved -- that is, when no timely and pointed objection was

advanced below -- our review is only for plain error." United

States v. Sampson, 486 F.3d 13, 42 (1st Cir. 2007).

A. Alleged Evidentiary and Trial Error

1. The Disk Shield Evidence

We quickly dispose of DeSimone's claim that all evidence

as to the Disk Shield was extrinsic to the charges and should have

been excluded as impermissibly prejudicial evidence of other crimes

under Fed. R. Evid. 404(b)(1) and 403. Evidence intrinsic to the

crime for which the defendant is charged and is on trial is not

governed by Rule 404(b). United States v. Epstein, 426 F.3d 431,

439 (1st Cir. 2005). Since the indictment expressly charged that

the Disk Shield scheme gave rise to DeSimone's mail fraud, evidence

-18-
relating to this scheme is not other crimes evidence and it does

not fall within the scope of Rule 404(b).

DeSimone also argues the government failed to prove the

Disk Shield scheme used the mails, rendering evidence pertaining to

the scheme inadmissible. He is wrong for a number of reasons. 

First, the Disk Shield was part of an overall fraudulent scheme to

promote investment in new inventions to a group of investors

through a series of lies. It is clear that the mails were used in

the overall scheme, especially as to the DrinkStik. The government

did not need to show as well use of the mails particular to the

Disk Shield. The government need only prove that use of the mails

was "'incident to an essential part of the scheme' or 'a step in

the plot,'" United States v. Stergios, 659 F.3d 127, 133 (1st Cir.

2011) (quoting Schmuck v. United States, 489 U.S. 705, 710–11

(1989)), not that it was involved in every step of a particular

scheme. Further, whether the sum of the evidence showed the Disk

Shield scheme used the mails is unrelated to whether evidence of

this scheme was admissible at trial.

DeSimone finally argues that the Disk Shield evidence was

needlessly cumulative and should have been excluded under Rule 403. 

This argument is without merit. The Disk Shield evidence,

pertaining as it did to a mail fraud scheme expressly charged in

the indictment, was plainly relevant and neither unfairly

prejudicial nor needlessly cumulative. And even if the Disk Shield

-19-
fraud had not been charged, this evidence also demonstrated

DeSimone's modus operandi in duping victims.

2. Evidence of DeSimone's Escape and Conviction for

Escape

DeSimone next challenges the admission of evidence

regarding (1) his 2008 escape from prison and his flight, and (2)

his conviction for that escape.7

"As a precursor to admissibility [of evidence of flight],

the government must present sufficient extrinsic evidence of guilt

to support an inference that a defendant's flight was not merely an

episode of normal travel but, rather, the product of a guilty

conscience related to the crime alleged." United States v.

Benedetti, 433 F.3d 111, 116 (1st Cir. 2005). DeSimone argues that

the government did not present sufficient predicate evidence that

"DeSimone's escape was the product of a guilty conscience"

concerning the mail fraud conduct. He bases his argument on the

fact that he turned himself into the Marshals three and a half days

after his escape, and also asserts that he escaped in order to

defend himself and help his family. The government must present

only "enough extrinsic evidence to furnish circumstantial badges of

After the district court denied DeSimone's pre-trial motion 7

in limine to exclude this evidence, it was DeSimone who brought up

the fact of his prior conviction for escape during his crossexamination of McKittrick, and the fact of his escape in his crossexamination of Lindsay, all in an attempt to cast doubt on these

witnesses' credibility. We need not reach the government's

argument that as a result DeSimone waived this argument under Ohler

v. United States, 529 U.S. 753 (2000).

-20-
guilt." Id. at 117. Given that DeSimone escaped from prison two

days after learning from his wife that FBI agents were searching

his house, attempted to raise money during his flight and turned

himself in only after these attempts failed, the trial court had an

adequate foundation for finding that DeSimone's flight was the

product of a guilty conscience as to these charges. Moreover,

there was overwhelming evidence of DeSimone's guilt.

DeSimone next attacks the admission of evidence of his

escape under Rule 403, saying the escape evidence only went to show

his purported bad character. The district court did not abuse its

discretion in concluding that the prejudice generated by evidence

of DeSimone's escape did not substantially outweigh its probative

value. The court reduced the possibility of unfair prejudice by

instructing the jury that "[i]ntentional flight after a Defendant

is accused of a crime is not alone sufficient to prove that he or

she is guilty. Flight does not create a presumption of guilt." 

See United States v. Fernández-Hernández, 652 F.3d 56, 70 n.11 (1st

Cir. 2011).

There was no abuse of discretion in the district court's

admission of the conviction for escape and determination that the

probative value of this conviction, under Rule 403, outweighed its

prejudicial effect to DeSimone. The government offered the

conviction in its case in chief as evidence of DeSimone's

consciousness of guilt. It added that if DeSimone chose to testify

-21-
the conviction was also admissible under Rule 609. For the same

reasons testimony as to his escape was admissible as consciousness

of guilt, the conviction was properly admitted. See United States

v. Brito 427 F.3d 53, 64 (1st Cir. 2005). Moreover, the court

minimized the prejudice to DeSimone with its instruction as to all

three of DeSimone's prior convictions (including filing a false tax

return and obtaining money under false pretenses) that "[t]he fact

that the Defendant was previously convicted of another crime does

not mean that he committed the crimes for which he is now on

trial."

3. Denial of DeSimone's Motion for a Mistrial

DeSimone argues that the court should have granted his

motion for a mistrial because one of the government's witnesses,

Louis Stein, failed to testify as the government had promised when 8

it opposed DeSimone's motion in limine. DeSimone's theory is that

but for this representation the evidence of his flight would have

been inadmissible, and its admission was so harmful as to require

a mistrial. Our review is for manifest abuse of discretion. 

United States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000). The

district court disagreed with DeSimone's contention that Stein had

The government proffered that Stein would testify that 8

"Rocco DeSimone told him that the reason why he fled, the reason

why he escaped from prison was this case, that he didn't want to go

to jail for the rest of his life." Stein testified, instead, that

DeSimone said he escaped to help his family and that he felt

McKittrick was framing him in the DrinkStik investigation.

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failed to testify as promised and, in any event, correctly noted

that the evidence was admissible because "it's the timing of all

the events that's really the critical connection between the escape

and the consciousness of guilt." Stein's testimony provided no

basis to exclude evidence of DeSimone's flight, much less order a

mistrial.

4. Admission of Evidence Purported to Be Hearsay

DeSimone argues there was error in admitting testimony

about two statements attributed to his wife, Gail DeSimone: (1) FBI

agent Steven Morley's testimony that during the FBI's search of

DeSimone's home, he heard Gail tell DeSimone by telephone that

agents were searching for evidence regarding the Disk Shield and

DrinkStik; and (2) McKittrick's testimony that Gail told him that

Johnson had been to DeSimone's house.

DeSimone incorrectly argues that these statements were

hearsay. The district court admitted Morley's testimony regarding

Gail's statements not for the truth of the matter asserted, but to

show that DeSimone was put on notice of the FBI search. See, e.g.,

United States v. Figueroa, 818 F.2d 1020, 1026 (1st Cir. 1987). As

to McKittrick's report of Gail's (false) statements that Johnson

had visited their house, these statements were not admitted for

their truth and so were not inadmissible hearsay.

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5. Identification of DeSimone's Voice

DeSimone next claims that the court erred in allowing a

witness, Brian DesMarteau, to testify that he spoke with DeSimone

over the telephone when he had no prior familiarity with DeSimone's

voice. Fed. R. Evid. 901 requires only a "reasonable probability,"

United States v. Barrow, 448 F.3d 37, 42 (1st Cir. 2006), that the

speaker in the conversation was DeSimone. DesMarteau testified

that he was an appraiser of businesses, and that the conversation

he described was "an interview to see if I would be able" to

"assess the value of a particular asset that they were considering

for sale." The speaker also identified himself as DeSimone to

DesMarteau. The government introduced into evidence a letter

agreement from DesMarteau to DeSimone and McKittrick "confirm[ing]

that you (Client) have retained Nationwide Valuations (Nationwide)

to provide valuation consulting services." This document, signed

by DeSimone and memorializing an agreement reached in a

conversation, provided adequate grounds for concluding that

DeSimone was party to the conversation.

6. Failure of Court Sua Sponte to Declare Mistrial

After a Witness's Testimony, Elicited by the

Defense, that DeSimone Had Previously Pled Guilty

DeSimone claims error in the district court's failure sua

sponte to declare a mistrial after Malone, on cross-examination by

defense counsel, referred to the fact that "Mr. DeSimone pleaded

guilty." This was a reference to DeSimone's initial guilty plea in

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this case, which he withdrew. DeSimone did not move for a mistrial

before the district court. Instead, after Malone's statement, the

district court sua sponte asked counsel if they had "[a]ny bright

ideas," to which defense counsel responded "[y]ou can certainly

instruct the jury. I had no idea he was going to say that. I

asked those questions I did, but I think you can instruct them." 

The court then, as defense counsel requested, gave a strong

instruction to the jury both to disregard the comment and about the

presumption of innocence. Defense counsel did not object.

We review the district court's failure to declare a

mistrial sua sponte for plain error. United States v. Lopez

Garcia, 672 F.3d 58, 64 (1st Cir. 2012). Here, there was no error

at all. Moreover, the district court minimized any prejudice by

instructing the jury "to disregard the statement that the witness

just made" and artfully implying that it related to DeSimone's

"prior involvements with the criminal justice system." 

7. The Government's Cross-Examination of DeSimone

DeSimone challenges the government's cross-examination of

him in two respects. First, he argues that its cross-examination

"contained numerous improper questions that had no evidentiary

basis, such as asking DeSimone if he told various people, who never

testified, that he knew famous celebrities, had collected

additional investments, or was involved in other inventions,"

though he did not object to these questions at trial. DeSimone

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does not explain why these were errors, much less how he was

harmed, and the record shows that he falsely claimed to have known

prominent people, thus providing a basis for the questions.

DeSimone next asserts that the government "improperly

asked DeSimone to comment on the credibility of other witnesses."

“[I]t is improper for an attorney to ask a witness whether another

witness lied on the stand." United States v. Thiongo, 344 F.3d 55,

61 (1st Cir. 2003). This rule is not read broadly. It is not

improper to ask one witness whether another was "wrong" or

"mistaken," since such questions do not force a witness "to choose

between conceding the point or branding another witness as a liar." 

United States v. Gaines, 170 F.3d 72, 81-82 (1st Cir. 1999). There

is no error in simply asking a witness if he agreed with or

disputed another witness's testimony. United States v. Wallace,

461 F.3d 15, 25 (1st Cir. 2006).

In cross-examining DeSimone, the government asked him

without objection whether other witnesses had offered testimony

that was "untruthful," "not true," or "untrue." The government

asked DeSimone whether witnesses were "giving false testimony" or

testimony that was "inaccurate," and DeSimone's objections to these

questions were overruled. The government correctly concedes that

"[t]he instances of 'untruthful testimony' . . . and 'giving false

testimony' . . . are somewhat closer to the line." Indeed, they

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went over the line. It also correctly argues that "not true" does

not "necessarily imply deliberate falsity."

There was certainly no plain error as to the unobjectedto questions, and no harm from those as to which an objection was

made. Even if the government's questions intruded into the jury's

role, the line of questioning was harmless. There were obvious

inconsistencies between DeSimone's testimony and that of other

witnesses which were apparent to the jury. Any error could not

have "contribute[d] to the verdict," United States v. Cudlitz, 72

F.3d 992, 999 (1st Cir. 1996) (quoting United States v. RullanRivera, 60 F.3d 16, 18 (1st Cir. 1996)). 

The cumulative error doctrine is of no use to DeSimone

because the only identified error was harmless.

B. Attacks on the Forfeiture and Restitution Orders and

Sentencing

DeSimone challenges the district court's orders on

forfeiture and restitution and his sentence. We review factual

findings at forfeiture hearings and sentencing for clear error. 

United States v. Reiner, 500 F.3d 10, 18 (1st Cir. 2007)

(forfeiture); United States v. Shinderman, 515 F.3d 5, 18 (1st Cir.

2008) (sentencing).

1. Forfeiture: The Ownership of the Renoir Painting

The court found that Dyer had been fraudulently induced

to exchange a Renoir painting for one percent of Falcon, Limited,

and ordered DeSimone to forfeit the painting. DeSimone now asserts

-27-
that Dyer owned one-half of the Renoir and that DeSimone owned the

other half, basing his argument on a declaration by Dyer that his

losses included "$1,600,000 Half of Renoir painting." He claims

that he should only have been ordered to forfeit half the painting. 

His argument fails.

Although Dyer's declaration and his testimony created

ambiguity concerning the extent of his ownership of the Renoir, the

district court sensibly relied on DeSimone's own record of the

transaction. It stated that "Allan H. Dyer exchange[d] 'Paysage a

Cagnes' 1915 painting oil on canvas by Pierce-August [sic] Renoir

for 1% of Falcon LTD equal to 100 (one hundred) shares." No more

was needed.

2. Sentencing: Number of Victims

DeSimone perfunctorily argues that the court should not

have increased his offense level at sentencing based on the number

of victims, since "there were only eight victims, because the jury

found DeSimone not guilty on the counts (counts 2 and 5) related to

Dennis Mortimer and David Durning, and the remaining individuals

indicated as victims never testified." There was no error. A

court "may consider acquitted conduct in determining the

applicability vel non of a sentencing enhancement," United States

v. Paneto, 661 F.3d 709, 715 (1st Cir. 2011), and a court's

consideration of evidence at sentencing is not circumscribed by

rules of evidence, United States v. Zapata, 589 F.3d 475, 485 (1st

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Cir. 2009), or the Sixth Amendment right to confrontation, United

States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003).

3. Amount of Restitution

Finally, DeSimone asserts for the first time on appeal

that the district court's restitution order is in error because it 

includes the value of a Monet painting that was "not an actual loss

related to the mail fraud allegations." DeSimone's premise is

wrong. While the district court did not itemize the specific

losses comprising the $3,230,000 in restitution owed to Dyer, this

sum plainly includes the three transactions with Dyer that DeSimone

recorded -- i.e., $2,415,000 in forgiven debt, plus a Renoir that

IRS agent Niro valued at $800,000 -- plus another $15,000 that Dyer

gave to Falcon. The Monet did not factor into the calculation.

IV.

We affirm DeSimone's convictions and his sentence.

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