Petition for Writ of Certiorari — Christopher Ponzo, Petitioner v. United States
Supreme Court briefAug 31, 2026
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No. 26-___
IN THE
CHRISTOPHER ANTHONY PONZO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
Max D. Stern
Counsel of Record
Christian G. Kiely
Samuel M. Myers
TODD & WELD LLP
One Federal Street
27th Floor
Boston, MA 02110
(617) 720-2626
mdstern@toddweld.com
Counsel for Petitioner
QUESTION PRESENTED
Whether under this Court’s decision in McIntosh
v. United States, 601 U.S. 330 (2024), a district court
has authority to enter a final order of forfeiture
against a defendant where, in violation of Fed. R.
Crim. P. 32.2(b)(4)(B):
(1) the first time the government specified the
amount it sought to forfeit was at the sentencing
hearing;
(2) the order of forfeiture was not orally
pronounced “at sentencing”;
(3) the district court granted the government’s
post-sentencing motion for forfeiture without allowing
the defendant to respond;
(4) the defendant had no opportunity to present
evidence or be heard before $13.2 million was ordered
forfeited; and
(5) the forfeiture order entered outside of the
defendant’s presence?
ii
PARTIES TO THE PROCEEDINGS
The parties are petitioner Christopher Anthony
Ponzo and respondent the United States of America.
In the district court and at the First Circuit Court of
Appeals, Christopher Ponzo’s case was consolidated
with his brother Joseph Ponzo’s case. However, only
Christopher’s forfeiture claims are at issue in this
Court. Joseph Ponzo is not a party to this proceeding.
iii
RELATED PROCEEDINGS
United States of America v. Ponzo et al., No. 1:22cr-100094-CMG-2, 772 F. Supp. 3d 101 (D. Mass. Mar.
19, 2025)
United States of America v. Christopher Ponzo;
Joseph Ponzo, Nos. 25-1203, 25-1259, 25-1327, 171
F.4th 507 (1st Cir. Apr. 1, 2026)
iv
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDINGS .......................... ii
RELATED PROCEEDINGS ...................................... iii
TABLE OF AUTHORITIES ....................................... vi
PETITION FOR A WRIT OF CERTIORARI.............. 1
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
RELEVANT PROVISIONS OF RULE 32.2 ............... 1
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE .................................... 4
I.
Factual background ............................................. 4
A. Mr. Ponzo’s business ........................................ 5
B. Payments to CLEAResult employees.............. 6
II.
Procedural background ....................................... 7
A. Mr. Ponzo is charged and pleads guilty .......... 7
B. The forfeiture process ...................................... 8
C. The forfeiture decision ................................... 10
D. The First Circuit affirms ............................... 11
REASONS FOR GRANTING THE WRIT ................ 13
I.
The question this Court left open in McIntosh
can only be resolved by this Court. ................... 14
v
II.
There is an entrenched circuit split over
whether Rule 32.2(b)(4)(B) is a mandatory
claim-processing rule and a newly developing
circuit split over how harmless error should
be measured. ...................................................... 19
III. This case provides an excellent vehicle for
reviewing the question presented. .................... 30
IV. Whichever way Rule 32.2(b)(4)(B) violations
are treated, the First Circuit’s decision is
egregiously wrong and has sanctioned a
forfeiture of $13.2 million with no process
at all. .................................................................. 32
CONCLUSION .......................................................... 36
TABLE OF APPENDICES
Page
APPENDIX A – OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, FILED APRIL 1, 2026 ............. 1a
APPENDIX B – JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, FILED APRIL 1, 2026 ........... 27a
APPENDIX C – MEMORANDUM & ORDER OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS,
FILED MARCH 19, 2025 .................................... 28a
APPENDIX D – ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS, FILED
FEBRUARY 13, 2025 .......................................... 36a
vi
TABLE OF AUTHORITIES
Page(s)
Armstrong v. Manzo,
380 U.S. 545 (1965) ........................................... 15
Henderson v. Shinseki,
562 U.S. 428 (2011) ........................................... 33
Kaley v. United States,
571 U.S. 320 (2014) ........................................... 13
Maryland v. King,
567 U.S. 1301 (2012) ......................................... 17
Mathews v. Eldridge,
424 U.S. 319 (1976) ........................................... 15
McIntosh v. United States,
601 U.S. 330 (2024)
............................. 3-4, 13-14, 18-21, 23-26, 31-33
Stor/Gard, Inc. v. Strathmore Insurance
Co.,
717 F.3d 242 (1st Cir. 2013).............................. 29
United States v. Alexander,
170 F.4th 1303 (11th Cir. 2026)........................ 28
United States v. Berry,
795 F. App’x 229 (5th Cir. 2019) .................. 29-30
United States v. Brooks,
804 F. App’x 219 (5th Cir. 2020) ....................... 23
vii
United States v. Brooks,
78 F.4th 138 (5th Cir. 2023) ............................. 23
United States v. Cammarata,
145 F. 4th 345 (3d Cir. 2025) ............................ 26
United States v. Cereceres,
771 F. App’x 803 (9th Cir. 2019) ....... 23-24, 28-29
United States v. Dahda,
852 F.3d 1282 (10th Cir. 2017) ......................... 29
United States v. Harrell,
180 F.4th 888 (6th Cir. 2026)
............................................4, 16-17, 26-28, 30-31
United States v. James Daniel Good Real
Property,
510 U.S. 43 (1993) ............................................. 14
United States v. Lee,
77 F.4th 565 (7th Cir. 2023) ............................. 21
United States v. Maiorana,
153 F.4th 306 (2d Cir. 2025) ............................. 23
United States v. Marquez,
685 F.3d 501 (5h Cir. 2012) .............................. 23
United States v. Martin,
662 F.3d 301 (4th Cir. 2011) ............................. 29
United States v. Mincey,
800 F. App’x 714 (11th Cir. 2020) ..................... 27
viii
United States v. Montoya,
82 F.4th 640 (9th Cir. 2023) ............ 24, 31-32, 33
United States v. Parrish,
427 F.3d 1345 (11th Cir. 2005) ......................... 17
United States v. Petix,
767 F. App’x 119 (2d Cir. 2019) ....... 17, 22-23, 34
United States v. Ponzo,
171 F.4th 507 (1st Cir. 2026) )
.......................................... 1, 11, 25, 27, 29-30, 35
United States v. Ponzo,
772 F. Supp. 3d 101 (D. Mass. 2025) .................. 1
United States v. Rivera-Figueroa,
No. 24-431, 2025 WL 3749826 (2d Cir.
Dec. 29, 2025) .................................................... 16
United States v. Shakur,
691 F.3d 979 (8th Cir. 2012) ........................ 24-25
United States v. Skaggs,
78 F.4th 188 (3d Cir. 2018) ......................... 22, 27
United States v. Songer,
842 F.2d 240 (10th Cir. 1988) ........................... 16
Statutes
18 U.S.C. § 2 ............................................................. 7
18 U.S.C. § 981(a)(1)(C) .......................................... 10
18 U.S.C. § 1001(a)(2) ............................................... 7
ix
18 U.S.C. § 1343 ....................................................... 7
18 U.S.C. § 1346 ....................................................... 7
18 U.S.C. § 1349 ....................................................... 9
18 U.S.C. § 3742(f)(1) ....................................... 24, 34
21 U.S.C. § 853 ....................................................... 16
28 U.S.C. § 1254(1) ................................................... 1
28 U.S.C. § 2461 ..................................................... 10
Rules
D. Mass Local R. 7.1(b)(2) ...................................... 11
Fed. R. Crim. P. 32.2 .................1-4, 12-28, 31-34, 36
Fed. R. Crim. P. 43(a)(3).............................. 15-16, 33
PETITION FOR A WRIT OF CERTIORARI
Petitioner
Christopher
Ponzo
respectfully
petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the First
Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the First Circuit is available at 171 F.4th 507. The
opinion of the United States District Court for the
District of Massachusetts is available at 772 F. Supp.
3d 101.
JURISDICTION
The First Circuit entered judgment on April 1,
2026. Pet. App. 1a. On June 4, 2026, Justice Jackson
extended the time to file this petition for a writ of
certiorari to and including August 31, 2026. See No.
25A1338. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
RELEVANT PROVISIONS OF RULE 32.2
Federal Rule of Criminal Procedure 32.2 provides:
(b) Entering a
Forfeiture.
Preliminary
Order
of
(1) Forfeiture Phase of the Trial.
(A) Forfeiture Determinations. As soon as
practical after a verdict or finding of guilty, or
after a plea of guilty or nolo contendere is
accepted, on any count in an indictment or
information
regarding
which
criminal
forfeiture is sought, the court must determine
what property is subject to forfeiture under the
applicable statute.
2
…
(2) Preliminary Order.
…
(B) Timing. Unless doing so is impractical, the
court must enter the preliminary order
sufficiently in advance of sentencing to allow
the parties to suggest revisions or
modifications before the order becomes final as
to the defendant under Rule 32.2(b)(4).
…
(4) Sentence and Judgment.
(A) When Final. At sentencing--or at any time
before sentencing if the defendant consents-the preliminary forfeiture order becomes final
as to the defendant.
…
(B) Notice and Inclusion in the Judgment. The
court must include the forfeiture when orally
announcing the sentence or must otherwise
ensure that the defendant knows of the
forfeiture at sentencing.
INTRODUCTION
Federal Rule of Criminal Procedure 32.2 governs
the procedure district courts must adhere to before the
government can deprive a criminal defendant of his
property. The Rule sets forth a multistep process that
encodes the Due Process Clause’s mandate that an
individual must receive notice and an opportunity to
be heard before the government takes his property
away.
3
In Christopher Ponzo’s case, as the Court of
Appeals for the First Circuit acknowledged, almost
every step in this process was skipped. In the end, the
district court ordered forfeiture of $13.2 million of
Ponzo’s property after he had already been sentenced,
outside of his presence, and without allowing him an
opportunity to be heard. Among other parts of Fed. R.
Crim. P. 32.2, the district court violated Rule
32.2(b)(4)(B), which states that “[t]he court must
include the forfeiture when orally announcing the
sentence[.]”
The First Circuit acknowledged that these
“process-based errors” were “all true,” but nonetheless
affirmed the district court’s ruling, holding that the
errors did not “matter” and were “harmless.” Pet. App.
21a. But this Court only recently suggested that these
errors do matter and that harmless error review may
not apply in the context of these violations.
In McIntosh v. United States, 601 U.S. 330, 340-41
& n.5 (2024), this Court held that violations of Rule
32.2(b)(2)(B)—concerning
the
procedural
prerequisites for entering a preliminary forfeiture
order—could be reviewed for harmless error. But the
Court reserved judgment on the requirements for
entry of a final forfeiture order under Rule
32.2(b)(4)(B)—at issue here—noting the Government’s
concession that “Rule 32.2(b)(4)(B)’s requirement that
forfeiture be imposed at sentencing” raised “a harder
set of issues.” Id. (quoting Tr. of Oral Arg. 34-36).
That harder set of issues is squarely presented by
this petition. The First Circuit’s decision resolves the
question this Court reserved in highly cursory fashion,
and, in doing so, deepens an existing circuit split
concerning how courts should deal with violations of
4
Rule 32.2(b)(4)(B). The discord among the circuits is
longstanding and growing. Shortly after the First
Circuit decided this case, in July of 2026, the Sixth
Circuit in United States v. Harrell, 180 F.4th 888 (6th
Cir. 2026), explicitly recognized the existing split on
violations of Rule 32.2(b)(4)(B). As discussed below,
the First and Sixth Circuits agree on one aspect of
Rule 32.2(b)(4)(B) violations, contrary to five other
circuits, but disagree on yet another, indicating a
compounding and growing number of points of
disagreement and confusion among the circuits.
The confusion and disagreement that exist in the
absence of an answer to the question McIntosh
reserved causes enormous uncertainty and, at least in
Mr. Ponzo’s case, due process violations for criminal
defendants. This Court should grant review, reverse
the First Circuit’s judgment, and determine that Rule
32.2(b)(4)(B) is a claim-processing rule. Even if the
Court determines that Rule 32.2(b)(4)(B) is a timerelated directive, violations of which are subject to
harmless error review, it should clarify that an error
that deprives a defendant of a meaningful opportunity
to be heard and present evidence is not harmless, and
thus reversal is warranted here in any case.
STATEMENT OF THE CASE
I. Factual background
This case centers on Christopher Ponzo’s
involvement in the “Mass Save” program, a statefacilitated program that supports energy efficiency
projects throughout Massachusetts. Pet. App. 2a.
Under the program, utilities exact monthly energy
efficiency surcharges from rate payers and redirect the
monies collected through “lead vendors” who offer
5
energy efficiency upgrades to participating customers
at no or virtually no cost. First Circuit Appendix filed
by Christopher Ponzo (“CA1A”) at 0093.
The lead vendor, in this case CLEAResult, a forprofit company that markets and sells energy
efficiency
services,
then
finds
and
pays
subcontractors—such as Ponzo—to perform those
energy-efficiency
upgrades
at
participating
commercial and residential properties. CA1A0093.
What was unusual about the program was
CLEAResult’s
policy
that
a
participating
subcontractor such as Ponzo was allowed, entitled,
and indeed strongly encouraged to find and produce
his own customers. CA1A0479-81. Under this policy,
the more customers a subcontractor “self-generated,”
the more CLEAResult earned, without having to
generate any customers itself. CA1A0480-81.
A. Mr. Ponzo’s business
Ponzo was first approved as a Mass Save
contractor in 2011, and partnered with a master
electrician to start his own company, CAP Electric,
Inc., in 2016. CA1A0478. Ponzo, acting through CAP
Electric, installed energy-efficient lighting fixtures.
Id.
Ponzo would cold-call property managers at large
development companies in Massachusetts about Mass
Save.
He sold these property managers and
eventually many of the largest property management
companies in the state on the benefits of using the
Mass Save program to outfit some, many, or all of their
properties with energy-efficient lighting that would
save them money on their monthly electric bills.
CA1A0478-79. Ponzo established strong relationships
6
with many of these companies, many of which insisted
on using Ponzo exclusively for all Mass Save-related
work at their properties.
This was the typical model for CLEAResult: a
subcontractor like Ponzo “self-generated” customers,
and CLEAResult would review, price, and approve the
project, with the originating subcontractor entitled to
work the resulting job as a matter of CLEAResult
policy. CA1A0480-81. The contractor would be paid
according to a schedule included in CLEAResult’s
contracts with the utility companies for each lighting
fixture installed. CA1A0480. CLEAResult would then
be paid an “audit fee” of between $60 to $70 for each
unit in which improvements were made, plus a project
management fee on either a monthly or percentage
basis. Id.
B. Payments to CLEAResult employees
Every new customer had to be processed by a
CLEAResult project manager before the subcontractor
could begin work. The project manager would tally
and report how many and what type of electrical
fixtures were needed. Paid modestly, neither Eric
Darlington nor Peter Marra, the two managers whom
Ponzo paid, was compensated by CLEAResult for the
time and work needed to cope with the deluge of new
customers that Ponzo’s success brought. Ponzo began
to pay them generously to resolve the “red tape” he
needed to get through in order to begin working on the
projects he brought in. Id.
Apart from a small number of jobs that came to
CLEAResult through other means, all of the contracts
which Darlington and Marra approved were contracts
which Ponzo himself generated and which he was
7
entitled as a matter of CLEAResult policy to work.
CA1A0483. Overwhelmingly, Ponzo brought in his
own customers and primarily paid Darlington and
Marra to work harder and process paperwork faster.
Ultimately, over a decade, CLEAResult paid CAP
Electric $36 million for work performed between 2013
and 2022, with about $13 million of that amount
representing income to CAP Electric. CA1A0102. As
the district court judge found, there was “no calculable
loss amount” for purposes of the sentencing guidelines
because all involved parties, including the victim,
CLEAResult, profited from the conduct for which
Ponzo was convicted. CA1A1167. As found by the
Probation Officer, whose findings the district court
accepted, “[t]here is no evidence to indicate that
CLEAResult, Eversource, National Grid, consumers,
or any other individual or entity, suffered an actual
financial loss.” Sealed Supplemental Appendix filed
by Christopher Ponzo (“SCA1A”) at SA015. Indeed,
CLEAResult, the only victim identified by the
government in this case, made considerable profits
over this period thanks to Ponzo’s work. CA1A0729.
II. Procedural background
A. Mr. Ponzo is charged and pleads guilty
Ponzo was charged on April 28, 2022. The
operative indictment charged Ponzo with one count of
“Conspiracy to Commit Honest Services Wire Fraud,
18 U.S.C. § 1349”; twenty-four counts of “Honest
Services Wire Fraud; Aiding and Abetting, 18 U.S.C.
§§ 1343, 1346, and 2”; and one count of “False
Statements, 18 U.S.C. § 1001(a)(2)”. CA1A0001.
The indictment set forth the “Object and Purpose
of the Conspiracy and Scheme to Defraud” specifically,
8
alleging that Ponzo and his brother “pa[id] bribes and
kickbacks to [Darlington] and [Marra] in exchange
for [their] assistance … in obtaining Mass
Save contracts and receiving [CLEAResult’s]
payments[.]” CA1A0005 (emphasis added). The
indictment also contained a “Forfeiture Allegation” that
stated both Ponzo brothers “shall forfeit … any property,
real or personal, which constitutes or is derived from
proceeds traceable to the offenses.” CA1A0035.
On November 6, 2024, Ponzo pleaded guilty on all
counts. CA1A0041. There was no plea agreement.
CA1A0048.
B. The forfeiture process
After Ponzo pleaded guilty, the government had
the burden to prove by a preponderance of the
evidence that any property it sought to forfeit was
directly traceable to Ponzo’s unlawful conduct and
would not have been obtained but for that conduct.
See Pet. App. 18a.
No preliminary forfeiture order was entered or
requested. While the government included a general
forfeiture allegation in the indictment and stated at
the Rule 11 hearing that “[t]here is forfeiture as set
forth in the indictment,” the issue was not raised again
until Ponzo’s sentencing hearing. CA1A0049. In its
sentencing memorandum, the government requested
“forfeiture” but specified no property or dollar amount
or explained how any monies sought to be forfeited
were traceable to the offense. CA1A0123.
At the sentencing hearing, Ponzo conceded that he
had committed honest services fraud by providing
managers with money and gifts in order to incentivize
them to work faster and process the contracts he was
9
bringing to CLEAResult more efficiently, in violation
of company rules. However, he pointed out that only
a very small number of contracts were ever assigned
to him by any CLEAResult employee. Indeed, in his
sentencing
memorandum
Ponzo
produced
uncontroverted evidence that he had personally
procured 93 percent of the contracts, measured by
revenue, that he worked. CA1A1048.
In response to this evidence, the government put
aside its central theory that Ponzo’s object and
purpose was to pay bribes in exchange for contracts.
Instead, at the sentencing hearing the government
claimed that even if Ponzo had legally obtained
contracts, he had paid for the CLEAResult project
managers to “manipulate” the contracts in ways that
deceived the company to increase their value.
CA1A1170-72. Although this theory comprised the
vast majority of the government’s argument at
sentencing, the prosecutor marshaled virtually no
evidence in support. Id. The government failed to cite
any corroborating testimony from the managers who
were immunized government witnesses and available
to the prosecution.
Even in its sentencing
memorandum, almost all evidence ushered to support
a contract manipulation theory pertained to Joseph
Ponzo, while as to Chris, the government only
surmised that it was “likely that similar contract
adjustments were being made for CAP Electric.”
CA1A0110 (emphasis added). At the same time, the
government explicitly noted that “it is impossible now
to determine exactly when and to what degree such
contract manipulation occurred.” CA1A0111.
Throughout the sentencing hearing, the
government made no mention of forfeiture nor any
10
argument about what monies were and were not
traceable to unlawful payments. Until the close of the
sentencing proceeding, Ponzo therefore had no reason
to anticipate that the government would seek, or that
the district court would authorize, forfeiture of
everything he had earned in ten years of work as a
contractor. The government did not address Ponzo’s
evidence that he had personally garnered 93 percent
of his revenue.
By the end of the hearing, the district court had
not addressed forfeiture or ordered forfeiture of any
property in any amount, so Ponzo had nothing to
object to or argue against. Nothing happened until the
district court asked if there was any reason why the
sentence should not be imposed. The prosecutor then
recalled she had “a couple of points that [she] forgot to
make earlier.” CA1A1215. The second of those points
was that, “for the record, the government does move
for forfeiture pursuant to 18 U.S.C 981(a)(1)(C) and 28
U.S.C. 2461 as set forth in the indictment and as
raised at the Rule 11 hearing. We would ask that the
Court defer ruling on forfeiture until our Asset
Recovery Unit has time to make a motion, and the
defendant obviously would have time to respond
to that.” Id. (emphasis added). Then, at the very end
after imposing the sentence, the court asked the
government if it had anything to add, at which point
the government announced for the first time that it
“would seek approximately 13.2 million in forfeiture.”
CA1A1222.
C. The forfeiture decision
After the sentencing hearing, Ponzo awaited the
government’s forfeiture motion, which was filed on
February 7, 2025. CA1A1228. Under the local rules
11
for the District of Massachusetts, Ponzo had fourteen
days to respond. D. Mass. Local R. 7.1(b)(2). Yet, just
six days later, on February 13, the district court
granted the government’s motion. CA1A1241.
Caught unawares, Ponzo filed an objection and
opposition on February 19, 2025, still prior to the
fourteen-day response period to which he was entitled.
Ponzo explicitly stated that the district court had
“failed to announce the amount of the forfeiture
judgment to be imposed either at or before the
defendant’s sentencing” and “failed to afford the
defendant a proper opportunity to respond to the
proposed forfeiture.” CA1A1256-79. The district court
did not act on Ponzo’s objection or opposition. No
hearing was held. The government produced no
evidence
contradicting
Ponzo’s
sentencing
memorandum.
The district court paid no attention to the
defendant’s objection until he sought a stay of the
forfeiture order pending appeal. The court denied the
request and, in a total of four sentences, disregarded
Ponzo’s assertion “that he self-generated 93% of the
revenue that he earned” and referred to his objection
as “ludicrous.” CA1A1317.
D. The First Circuit affirms
The First Circuit affirmed in the precedential
opinion United States v. Ponzo, 171 F.4th 507 (2026).
Most importantly, the First Circuit found it was of
no consequence that Ponzo never had an opportunity
to challenge the forfeiture or be heard. The court
readily acknowledged that “(1) The government didn’t
file a forfeiture motion before sentencing. (2) The
government didn’t specify until sentencing the exact
12
amount he should forfeit. (3) The judge didn’t enter a
preliminary forfeiture order before sentencing. And
(4) Chris didn’t get to oppose the government’s postsentencing hearing forfeiture motion until after the
forfeiture order entered.” Pet. App. 21a. As the court
of appeals put it, “That’s all true.” Id.
But, the court reasoned, “we excuse any error as
harmless,” because, in its view, an opportunity to
contest forfeiture prior to entry of the order “wouldn’t
have mattered.” Id. at 21a-22a. Its reasoning,
applying a circular logic, was that because the district
court found Ponzo’s arguments against forfeiture
“unconvincing,” actually ludicrous, in denying his
motion for stay of the order pending appeal, a hearing
or any of the additional procedural steps required by
Rule 32.2 would have changed nothing. Id. at 22a.
Indeed, the First Circuit simply held that, despite
not having a chance to present them to the district
court or develop any relevant evidence, Ponzo’s
forfeiture arguments “ha[d] no oomph.” Pet. App.
19a. In so ruling, the court discarded (as had the
government at the sentencing hearing) the original
underlying theory of the prosecution—money for
contracts—and chose to ignore the significance of
Ponzo’s self-generation of 93 percent of the revenue he
took in. Instead, the court relied on the prosecutor’s
conjectural statements made at the sentencing
hearing that Ponzo and the CLEAResult employees he
paid had inflated and manipulated numbers, reports,
or job approvals—arguments made for the first time at
the sentencing hearing, which were unsupported by
evidence and not even cited in the government’s
motion for forfeiture. To the extent that this theory of
contract
manipulation—and
not
contract
13
attainment—was the basis for forfeiture, Ponzo never
had an opportunity to address it or provide contrary
evidence. Nonetheless, the First Circuit refused to
reverse, because, in its mind, “holding otherwise
would turn the crime-doesn’t-pay principle on its
head.” Pet. App. 20a (citing Kaley v. United States,
571 U.S. 320, 323 (2014)).
REASONS FOR GRANTING THE WRIT
There are four overlapping reasons why this
Court should grant certiorari in this case.
First, the question presented here can only be
answered by this Court, where it is precisely the one
this Court left open in McIntosh. Specifically, this case
centers on, among other clear violations of Fed. R.
Crim. P. 32.2, the requirement that a forfeiture order
be orally announced at sentencing under Rule
32.2(b)(4)(B). Rule 32.2(b)(4)(B) protects a criminal
defendant’s rights, under the Due Process Clause and
Federal Rules, to be present for, notified in advance of,
and afforded a chance to defend against a forfeiture
order that deprives him of his property. Because these
rights and this rule are of the highest importance and
a source of constant violations for district courts, this
Court’s intervention is needed.
Second, the subpart of Rule 32.2 most implicated
by Ponzo’s case, Rule 32.2(b)(4)(B) has created at least
two circuit splits as to how courts should deal with
violations of it.
Third, this case presents an excellent vehicle for
resolution of the question this Court left open, as
Ponzo only challenges his forfeiture and there is no
dispute about the procedural deficiencies that
occurred.
14
Fourth, the First Circuit’s decision is egregiously
wrong under any rational view of the applicable law,
and resulted in the deprivation of $13.2 million in
property without Ponzo receiving a shred of
meaningful process.
I. The question this Court left open in
McIntosh can only be resolved by this
Court.
A. Rule 32.2(b)(4)(B) protects fundamental
constitutional rights. Rule 32.2(b)(4)(B) has clear
requirements: “The court must include the forfeiture
when orally announcing the sentence or must
otherwise ensure that the defendant knows of the
forfeiture at sentencing.” But why, and if it fails to do
so, what happens?
The right to due process before being
deprived of property. Answering this question
necessarily begins with understanding Rule 32.2’s
fundamental purpose: to protect criminal defendants’
due process rights. See McIntosh, 601 U.S. at 344.
Indeed, the rule is not simply a complicated series of
formalities or boxes for the government and district
court to check off; it is a constellation of requirements
that guarantees, per the Fifth Amendment of the
United States Constitution, that a criminal defendant
receive a meaningful opportunity to contest any
attempt to deprive him of his property.
“The right to prior notice and a hearing is central
to the Constitution’s command of due process.” United
States v. James Daniel Good Real Prop., 510 U.S. 43,
53 (1993). “The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v.
15
Eldridge, 424 U.S. 319, 333 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Rule 32.2 protects this right by mandating a strict
sequence of events, beginning with notice of forfeiture
in the indictment—32.2(a)—a preliminary order of
forfeiture immediately after a verdict or plea—
32.2(b)(1)(A)—an evidentiary hearing if that order is
contested—32.2(b)(1)(B)—and
then,
of
crucial
importance here, oral pronouncement of the final
forfeiture “at sentencing”—32.2(b)(4)(B). These steps
combine to afford the defendant the meaningful
opportunity to be heard that the Constitution affords
him.
If a court determines that Rule 32.2 guarantees
less than what due process itself does, that decision
cannot stand, as the rule must yield to clear
constitutional commands. That is precisely what the
First Circuit did here, however, when it agreed with
Ponzo that he received no prior notice or opportunity
to be heard but still permitted forfeiture. In the
absence of this Court’s decree as to what Rule
32.2(b)(4)(B) requires, lower courts will continue to
permit due process violations on the assumption that
the rule’s procedures are flexible, rather than to be
strictly followed as a constitutional safeguard.
The right to be present at sentencing.
Clearly, the Rule also relates to the right—under both
the United States Constitution and Fed. R. Crim. P.
43(a)(3)—that a defendant has to be present when he
is sentenced. 1 See, e.g., United States v. RiveraFed. R. Crim. P. 43(a)(3) states, in relevant part, “Unless
this rule, Rule 5, or Rule 10 provides otherwise, the defendant
must be present at: … sentencing.”
1
16
Figueroa, No. 24-431, 2025 WL 3749826, at *1 (2d Cir.
Dec. 29, 2025) (“Federal Rule of Criminal Procedure
32.2(b)(4)(B) expands on that general right of presence
at sentencing [under Rule 43(a)(3)], by requiring that
the sentencing court ‘include the forfeiture when
orally announcing the sentence or must otherwise
ensure that the defendant knows of the forfeiture at
sentencing.’”); United States v. Songer, 842 F.2d 240,
244 (10th Cir. 1988) (“We hold that the district court’s
imposition of the sentence of forfeiture under 21
U.S.C. § 853 in Mr. Songer’s absence violates Rule
43(a) of the Federal Rules of Criminal Procedure.”).
As the Sixth Circuit recently pointed out,
violations of Rule 32.2(b)(4)(B) for failure to announce
or impose forfeiture at sentencing are violations of
both a defendant’s “Fifth Amendment Due Process
right to be present at sentencing” and Fed. R. Crim. P.
43(a), which is even more strict than the Due Process
Clause and “requires presence,” even when the
defendant’s “absence [does not] frustrate the fairness
of the proceedings.” United States v. Harrell, 180
F.4th 888, 904-06 (6th Cir. 2026) (quotations and
citations omitted). See also United States v. Parrish,
427 F.3d 1345, 1348 (11th Cir. 2005) (“other circuits
have noted that the right to be present under the Due
Process Clause is narrower than the right to be
present under Rule 43”).
And yet the Rule also states that a district court
may fail to announce forfeiture so long as it “otherwise
ensure[s] that the defendant knows of the forfeiture at
sentencing.” Courts have routinely concluded that
what 32.2(b)(4)(B) requires a defendant to “know” at
sentencing is different from what a defendant is
entitled to know about his potential forfeiture before
17
sentencing, and that knowledge of the precise amount
to be forfeited is what Rule 32.2(b)(4)(B) demands.
See, e.g., Harrell, 180 F.4th at 898 (“It would
contravene logic and the presumption against
surplusage to find that Rule 32.2(b)(4)(B) requires
only notice of the possibility of forfeiture when such
notice is already required by Rule 32.2(a).”); United
States v. Petix, 767 F. App’x 119, 121 (2d Cir. 2019)
(“There would be no need for Rule 32.2(b)(4)(B) if those
previous warnings sufficed to ensure notice at
sentencing.”). In other words, the defendant must
walk away from his sentencing hearing knowing what
he has lost and why. Here, Ponzo walked away from
his sentencing without knowing either.
The constitutional dimensions of Rule 32.2
make this case cert-worthy.
Constitutional
questions which cause discord among the circuits are
the best candidates for this Court’s review. See
Maryland v. King, 567 U.S. 1301, 1302-03 (2012). This
case exemplifies why. The widespread confusion that
plagues lower courts in addressing Rule 32.2(b)(4)(B)
procedure and violations originates, in part, because
of the rule’s unclear relationship with the Due Process
Clause and a total absence of clarity as to which parts
of Rule 32.2 are and are not indispensable in order to
ensure a defendant receives due process. The First
Circuit’s
decision
magnifies
this
confusion
substantially and, along with other circuits with which
its decision accords, threatens to turn Rule 32.2 and,
with it, the Due Process Clause, into a dead letter.
B. This case was predicted by this Court in
McIntosh and lower courts need guidance on the
question this Court reserved. The Court’s decision
in McIntosh provided sorely needed certainty with
18
respect to one critical component of Rule 32.2.
Specifically, the Court clarified that the requirement
that a district court enter a preliminary forfeiture
order “sufficiently in advance of sentencing to allow
the parties to suggest revisions or modifications before
the order becomes final” is “a time-related directive,”
noncompliance with which “is a procedural error
subject to harmlessness review.” Id. at 344-45. See
Fed. R. Crim. P. 32.2(b)(2)(B).
Of particular salience here, however, the Court
announced what it was not doing: it was not deciding
anything that was not “implicate[d]” by McIntosh’s
case, namely “Rule 32.2(b)(4)(B)’s requirement that
forfeiture be imposed at sentencing.” Id. at 341 n.5.
The government acknowledged during the
McIntosh oral argument that that case had no bearing
on Rule 32.2(b)(4)(B) and that “the requirements
relating to the final order’s entry raise ‘a harder set of
issues.’” See 601 U.S. at 341 n.5. Indeed, the issues
have proven extremely difficult to resolve.
As set forth in greater detail below, district and
circuit courts have been left to navigate the
complicated forfeiture process, have often committed
or been faced with errors in that process, and have
come up with widely different responses to those
errors.
Resolving the confusion about Rule
32.2(b)(4)(B)’s requirements, and how to deal with
violations thereof, will greatly enhance judicial
economy by giving district and circuit courts clear
guidance on the procedure that forfeiture requires and
on how violations should be treated.
The cases that comprise the circuit splits outlined
below are as varied as they are messy. Almost
19
uniformly, though, they involve both the government
and district court missing deadlines and belated
attempts to forfeit property weeks, months, or years
after a defendant has been found guilty. There is often
total confusion about how forfeiture must proceed,
with numerous steps at which errors might and do
occur. As in McIntosh, this can result in preliminary
forfeiture orders entering years after a defendant has
been sentenced, or, as in Ponzo’s case, final forfeiture
orders entering in the total absence of preliminary
forfeiture orders and days after forfeiture was raised
for the first time at the sentencing hearing, without
any chance to be heard. Courts of appeals are then
tasked with disentangling numerous rule violations,
and often come to differing results.
These complicated and protracted cases will
continue to bog down district and circuit courts if not
resolved by this Court.
II. There is an entrenched circuit split over
whether Rule 32.2(b)(4)(B) is a mandatory
claim-processing rule and a newly
developing circuit split over how harmless
error should be measured.
The importance and complexity of the questions
presented by Ponzo’s case are not an abstract matter,
but have been revealed by the intense confusion and
division courts have created in applying Rule 32.2.
Indeed, the operative part of Rule 32.2(b)(4)(B) is short
and strongly worded: “The court must include the
forfeiture when orally announcing the sentence or
must otherwise ensure that the defendant knows of
the forfeiture at sentencing.” There is no consensus on
what it means, however.
20
The primary point of confusion in the Rule is the
meaning and import of the word “must.” There is no
doubt that this means oral announcement of forfeiture
is required at a defendant’s sentencing hearing. The
problem is what happens when that requirement is
not met. Some courts treat this failure as requiring
automatic reversal, because 32.2(b)(4)(B) is a
mandatory claim-processing rule, and others conduct
a harmless error analysis, because they deem the Rule
a time-related directive. It was this question that this
Court resolved with respect to Rule 32.2(b)(2)(B) in
McIntosh, 601 U.S. at 337-38, but for which there is no
clear answer and, instead, pronounced circuit discord
in the context of 32.2(b)(4)(B).
Further, there is another emergent split
concerning how a court should measure whether Rule
32.2 violations were harmless, particularly because of
the First Circuit’s decision in this case, which sharply
conflicts with other circuits’ existing law.
The situation is now untenable. There is no
predictability or uniformity in handling violations of
Rule 32.2(b)(4)(B), and this Court’s intervention is
needed.
A. Mandatory claim-processing rule, i.e.,
automatic reversal. A mandatory claim-processing
rule, while not jurisdictional, provides for automatic
reversal on appeal if a party brings the rule to the
attention of the district court, and the rule is
nonetheless not followed. As this Court has explained,
“If the affected party alerts the court to the deadline
and invokes its protection, the relevant action cannot
be taken after the deadline has passed.” McIntosh,
601 U.S. at 337. Five circuits treat Rule 32.2(b)(4)(B)
as one such rule.
21
The Seventh Circuit. This Court recognized in
footnote 5 of McIntosh that the Seventh Circuit has
taken the most explicit position concerning Rule
32.2(b)(4)(B)’s character as a “claim-processing rule.”
In United States v. Lee, 77 F.4th 565, 576-77 (7th Cir.
2023), the district court failed to enter a preliminary
forfeiture order, but subsequently held two separate
sentencing hearings that dealt with forfeiture—the
second of which was wholly dedicated to it and “was a
thorough airing of the parties’ positions regarding the
applicable forfeiture amount.” Still, at the second
hearing, the court orally ruled on the forfeiture but
“failed to mention forfeiture” in “the written
judgment.” Id. at 576. Because “the court orally
announced the forfeiture as part of its judgment,” Lee
concerned only the preliminary order requirement,
which the Seventh Circuit deemed a time-related
directive and thus subject to harmless error review.
Id. at 583.
Crucially, the Seventh Circuit concluded that
“[t]he final order is another matter” and that “[t]he
requirement that it must be included in the oral
judgment of the court has the character of a claimsprocessing rule. In other words, if the defendant
objects to the failure to include forfeiture in the
judgment, the court must enforce the rule.” Id. at 58283.
The Seventh Circuit reiterated this rule in a case
extremely similar to Ponzo’s, United States v. Skaggs,
78 F.4th 990, 993 (7th Cir. 2023), holding again in
vacating a forfeiture order that on direct appeal “the
lack of a preliminary order d[oes] not deprive the court
of the power to enter forfeiture against [a defendant],
22
but, [where a defendant] objected, the lack of an oral
pronouncement at sentencing d[oes].”
The Second Circuit. The Second Circuit has
also enforced Rule 32.2(b)(4)(B) as a mandatory claimprocessing rule. In Petix, 767 F. App’x at 120, the
district court entered a preliminary order of forfeiture,
ordered briefing and held two sentencing hearings
that dealt with the forfeiture dispute, but concluded
the second sentencing hearing without announcing an
oral order of monetary forfeiture. Id. Two days later,
the district court entered a final order of monetary
forfeiture equal to the amount in the preliminary
forfeiture order previously entered. Id.
The Second Circuit reversed. “Simply put, Petix
did not receive notice of monetary forfeiture at his
November 1, 2017, sentencing[.] … That failure
violated Rule 32.2(b)(4)(B).” Id. at 122. This was true
even though the district court entered a preliminary
forfeiture order and the court had adjourned the
original sentencing hearing specifically “to permit the
Government and Petix to brief several issues,
including both the correct “‘loss amount’ and whether
Petix’s failure to object to the preliminary forfeiture
order should bar him from a later challenge.” Id. at
120. Notwithstanding ample notice of forfeiture and
opportunity to contest it, the Second Circuit held that
the oral pronouncement of forfeiture controlled, and
therefore the court remanded “for entry of a
corrected judgment that removes monetary forfeiture
altogether from Petix’s sentence.” Id. at 123. The
court’s holding was unambiguous: noncompliance with
Rule 32.2(b)(4)(B) precluded entry of a forfeiture
order.
23
Post-McIntosh decisions in the Second Circuit
have not called the rule into question and have
actually reinforced it, including recently where the
court determined that where an oral pronouncement
of supervised condition terms differs from the final
judgment, the former controls. See, e.g., United States
v. Maiorana, 153 F.4th 306, 310 (2d Cir. 2025).
The Fifth Circuit. In United States v. Brooks,
804 F. App’x 219, 221 (5th Cir. 2020), “[t]he district
court never orally pronounced forfeiture, but the
written judgment ordered forfeiture consistent with
the superseding indictment.” The court concluded
that the sentence must be vacated, because Rule
32.2(b)(4)(B) is “mandatory.” Id. at 224 (quoting
United States v. Marquez, 685 F.3d 501, 509 (5th Cir.
2012)). This was true even though the defendant had
already “stipulated in his plea agreement that the
property [at issue] was forfeitable.” United States v.
Brooks, 78 F.4th 138, 141 (5th Cir. 2023).
The Ninth Circuit. In United States v. Cereceres,
771 F. App’x 803, 803-04 (9th Cir. 2019), the court held
that a district court’s failure to enter a preliminary
forfeiture order “was completely harmless” and
rejected the defendant’s argument that a statement
made by the district court at sentencing as to what
assets would be forfeited should control over the
written judgment ordering forfeiture, which included
additional property to forfeit. The court was clear,
however, that “as a general matter [] an oral ruling on
forfeiture at the sentencing hearing would control over
a later written forfeiture order,” but nonetheless
concluded that the statement the defendant focused on
“did not constitute a final order of forfeiture” because
“the district court revised its statement and requested
24
that the government file a written order of forfeiture
that would be subject to objection from [the defendant]
and final approval by the court.” Id. at 803.
More recently, the Ninth Circuit reiterated the
primacy of the oral pronouncement in determining
that “a defendant has a due process right to be present
for sentencing” whenever that condition is not
mandatory and automatically imposed. United States
v. Montoya, 82 F.4th 640, 651 (9th Cir. 2023). Because
“the defendant has a due process right to be present to
defend against” any sentence term that is ultimately
imposed on him, failure to pronounce that term orally,
or incorporate it by reference if previously disclosed,
means “we must remand to the district court.” Id. at
650, 655 (emphasis added). This is true not only
because due process requires that the defendant have
an opportunity to object to a term of sentence that is
imposed, but because 18 U.S.C. § 3742(f)(1) clearly
states that “if the court of appeals determines that …
the sentence was imposed in violation of law …, the
court shall remand the case.” Montoya, 82 F.4th at
655 (emphasis added).
The Eight Circuit. The Eighth Circuit has not
had occasion to rule on Rule 32.2(b)(4)(B) since
McIntosh was decided. The last case that addressed
the requirement included, as many others do,
“wholesale violations of Rule 32.2(b),” including both
failure to enter a preliminary forfeiture order and “no
judicial pronouncement of what specific property
would be forfeited.” United States v. Shakur, 691 F.3d
979, 988 (8th Cir. 2012). There, the court determined
that these “violations were prejudicial legal errors, not
clerical errors,” such as failure to include properly
imposed forfeiture in the written judgment, which can
25
be amended at any time, and that therefore there
“c[ould] be no criminal forfeiture in this case.” Id. at
989.
While McIntosh abrogated so much of Shakur that
determined that preliminary forfeiture order
violations automatically necessitated reversal, see
McIntosh, 601 U.S. at 336 n.3, it clearly did not affect
Shakur’s ruling with respect to Rule 32.2(b)(4)(B), and
no subsequent case in the Eighth Circuit has either.
As it stands, the Eighth Circuit’s mandatory view of
Rule 32.2(b)(4)(B) still applies.
B.
Time-related directive, i.e., harmless
error. Five circuits have determined that Rule
32.2(b)(4)(B) is a time-related directive, violation of
which is subject, on appeal, to harmless error review.
The First and Sixth Circuits. The First and
Sixth Circuits are the only to address violations of
Rule 32.2(b)(4)(B) post-McIntosh. And while this
Court affirmatively stated that it was not deciding
anything regarding this subpart to Rule 32.2 in the
McIntosh decision, both of these circuits have
determined that this Court’s decision necessarily
means Rule 32.2(b)(4)(B) violations are subject to
harmless error review. The First Circuit took this for
granted, simply “excus[ing] any error as harmless”
and citing McIntosh as “discussing harmless error in a
similar situation.” Ponzo, 171 F.4th at 519. The court
offered no explanation as to why this standard applied
or whether it considered any other.
The Sixth Circuit conducted a lengthier analysis
and concluded “the reasoning of McIntosh”
commanded the same result. Harrell, No. 25-5556,
2026 WL 1906437, at *6.
26
The Third, Fourth, and Eleventh Circuits. As
the Sixth Circuit pointed out in Harrell, these three
circuits have suggested, both prior to and after
McIntosh, that Rule 32.2’s requirements are timerelated directives. Harrell, 180 F.4th at 901-02
(collecting cases). While the Sixth Circuit’s invocation of
United States v. Cammarata, 145 F.4th 345, 382 (3d Cir.
2025), is arguably inapposite, where that case involved
application of Rule 32.2(b)(5)(A), it is undeniable that
these courts view Rule 32.2 requirements with more
leniency than the circuits reviewed above.
C. The First Circuit has created new conflict
among the circuits in evaluating harmless error.
In addition to crystallizing a longstanding split on
what type of rule 32.2(b)(4)(B) is, the First Circuit’s
decision creates conflict where little previously
existed: what harmless error means when Rule 32.2
has been violated. Indeed, the first two post-McIntosh
decisions, Harrell and Ponzo, are in deep conflict with
one another on this question, further underscoring the
need for this Court’s intervention.
The new split created by the First Circuit’s
decision concerns whether the harmlessness of Rule
32.2 violations should be evaluated according to
whether an appellate court simply believes,
notwithstanding the violations, that the challenged
forfeiture was merited, or whether an appellate court
must first determine, irrespective of its views on the
merits of forfeiture, if the minimum process
guaranteed by due process and Rule 32.2 to oppose and
adjudicate forfeiture was afforded to a criminal
defendant.
In Harrell, the Sixth Circuit took the latter
approach, which is almost universally accepted by
27
other circuits. Indeed, the court was confident that its
ruling would not widely jeopardize due process
because harmless error would nonetheless be
measured by whether “(1) the defendant had fair
notice that the government would seek forfeiture and
in what amount and (2) the defendant had the full
opportunity to contest the forfeiture.” 180 F.4th at 903
(quoting United States v. Mincey, 800 F. App’x 714, 728
(11th Cir. 2020)).
The First Circuit’s decision treats harmless error
in the opposite way. The court excused as harmless
that “[t]he government didn’t specify until sentencing
the exact among [Ponzo] should forfeit” and that he
“didn’t get to oppose the government’s post-sentencing
hearing forfeiture motion until after the forfeiture
order entered.” Ponzo, 171 F.4th at 519. These are
precisely what the Sixth Circuit held were necessary
components of Rule 32.2 that, when missing, are never
viewed as harmless: advance, i.e., fair, notice of what
the government sought to forfeit and in a specific
amount and a full, not after-the-fact, opportunity to
contest that request.
In almost any other circuit, the government and
district court’s combined disregard for Rule 32.2 here
would have been considered harmful and reversible
error. In the Seventh Circuit, “[a] key inquiry when
evaluating a Rule 32.2 violation is whether the
proceedings were marred by minor hiccups or a
wholesale disregard of the Rule.” Skaggs, 78 F.4th at
994. Error cannot be harmless in the latter instance,
including where a defendant “otherwise never
received a chance to contest forfeiture” and “[t]he court
exchanged only a few words with [the defendant] on
the matter at his sentencing hearing and later granted
28
the government’s motion for a preliminary order
without waiting for a written response from [the
defendant].” Id.
The Eleventh Circuit recently affirmed its
harmless error test in a case where a district court had
“erred by failing to enter a preliminary order of
forfeiture in advance of sentencing.” United States v.
Alexander, 170 F.4th 1303, 1317 (11th Cir. 2026).
There, the government moved for a preliminary order
on April 19, 2023, the day before sentencing, and the
defendant’s counsel asked the court to postpone the
forfeiture portion of the hearing. Id. at 1316. The
defendant filed a response to the government’s motion
on May 3, 2023, and “the forfeiture and restitution
hearing was held on June 27, 2023.” Id. Because the
defendant “had specific notice of the forfeiture
amount,” which was elicited earlier during trial, and
“was given a full opportunity to contest this amount at
the hearing” the court subsequently held, the
“procedural error was harmless.” Id. at 1317.
In addition to the Seventh and Eleventh, this twoprong test for measuring harmless error is accepted
and applied in the Sixth, Ninth, Fifth, Tenth, and
Fourth Circuits: when the defendant has presentencing notice of the amount that is to be forfeited
and a full opportunity to contest it, the error is
harmless.
See, e.g., Harrell, 180 F.4th at 903;
Cereceres, 771 F. App’x at 803-04 (failure to enter
preliminary forfeiture order “was completely
harmless” where defendant did not object in district
court, indictment specified property to be forfeited,
and prior to district court’s order forfeiting $3,939.99
as substitute property defendant “was given the
opportunity to brief any objections”); United States v.
29
Berry, 795 F. App’x 229, 233, 241 (5th Cir. 2019) (error
harmless where government moved on July 31 for a
preliminary forfeiture order and sentencing held on
August 23, at which “the court … considered argument
concerning forfeiture”); United States v. Dahda, 852
F.3d 1282, 1297 (10th Cir. 2017) (failure to enter a
preliminary forfeiture order harmless because
defendant “had notice of a potential forfeiture in the
amount” ultimately ordered, “he objected before the
hearing,” and his “only objection was addressed to his
satisfaction at the sentencing”); United States v.
Martin, 662 F.3d 301, 309 (4th Cir. 2011) (errors
harmless where “there is no dispute that Appellants
were fully aware of both the pending forfeiture itself
and … the exact amount” and “district court held
multiple, comprehensive hearings on forfeiture”).
The First Circuit has adopted a radical approach
by contrast. Its decision was guided not by the
safeguards uniformly used in other circuits, but by the
maxim “‘[t]he simplest way’ to handle an issue ‘is often
the best’ way.” Ponzo, 171 F.4th at 519 (citing
Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242,
248 (1st Cir. 2013)). The court thus concluded, simply,
that even though Ponzo did not have any presentencing knowledge of the amount the government
sought to forfeit, and even though his first opportunity
to be heard came after the district court had already
granted the government’s post-sentencing forfeiture
motion, an opportunity to know or be heard “sooner
wouldn’t have mattered.” Ponzo, 171 F.4th at 520.
The only “reason” the First Circuit had for this
conclusion was the district court’s four-sentence ruling
on Ponzo’s motion for stay of forfeiture pending
appeal. Id.
30
The First Circuit thus completely upended
harmless error analysis in the context of Rule 32.2
violations: it begins with the district court’s decision
not to alter its erroneously entered order of forfeiture
as evidence that the error was harmless, regardless of
how the court arrived at that decision. All other courts
do the opposite: they look to the process that unfolded
in the case and ask whether the defendant had what
due process entitles him to—at bottom, sufficient
notice of what he stands to forfeit and an opportunity
to be heard on it. See, e.g., Harrell, 180 F.4th at 903
(“Harrell also had a full and fair opportunity to contest
the government’s forfeiture request. … Thus, the
district court’s failure to impose forfeiture at
sentencing or include forfeiture in the judgment was
harmless.”); Berry, 795 F. App’x at 239 (“Error is
prejudicial if there is a reasonable probability that the
[outcome] would have been different but for the error.
… In that regard, “[p]rocedural due process requires
that an individual receive adequate notice and
procedures to contest the deprivation of property
rights.”). Here, Ponzo had neither, which the First
Circuit recognized but disregarded, in total derogation
of due process’s commands.
III. This case provides an excellent vehicle for
reviewing the question presented.
This case presents a rare opportunity for the
Court to address a discrete legal issue that it raised in
one of its recent opinions and that is the subject of
intense and recent disagreement among lower courts.
This case presents that issue in the cleanest way
possible: only the forfeiture issues remain in this case,
as Ponzo no longer challenges the other parts of his
31
sentence. Moreover, this case involves, as the First
Circuit recognized, violation of almost every part of the
Rule 32.2 procedure, offering a unique opportunity for
this Court to provide comprehensive clarity on a rule
that has been vexing circuit and district courts for
years.
Most importantly, this Court has the opportunity
to resolve the exact questions that McIntosh left open
related to Rule 32.2(b)(4)(B). There are no factual
disputes about when the forfeiture amount was
specified or whether the defendant received an
opportunity to be heard.
Contrary to any possible suggestions by the
government or First Circuit, there are not any issues
concerning waiver or “invited error” either. Courts are
in agreement that a defendant cannot waive or forfeit
his right to be present under Rule 32.2 while being
sentenced where the district court fails to impose a
term of his sentence, such as forfeiture, orally and in
his presence. See Harrell, 180 F.4th at 896 (“invited
error does not apply because the district court itself
caused the error”). By definition, a defendant cannot
object to a term of sentence—such as the $13.2 million
in forfeiture here—that the district court does not
impose. See Montoya, 82 F.4th at 646 (“We reject the
government’s argument that Montoya forfeited her
challenge to the district court’s failure to make an oral
pronouncement of the standard conditions of
supervised release by not objecting during the
sentencing hearing. Because Montoya did not know
that the district court intended to impose the standard
conditions of supervised release until after she
received the written judgment, Montoya did not have
any real opportunity to object to the district court’s
32
failure to make an oral pronouncement of those
conditions during the sentencing proceedings.”)
(quotations omitted).
Further, it was the
government’s assurance that “the defendant obviously
would have time to respond to” its proposed forfeiture
motion that staved off any objection at the hearing
itself. CA1A1215. When the district court entered a
forfeiture order before hearing one word from the
defendant, he promptly objected, including to the
failure to pronounce the forfeiture order in his
presence. CA1A1257. The Rule 32.2(b)(4)(B) violation
is therefore directly and discretely presented.
IV. Whichever
way
Rule
32.2(b)(4)(B)
violations are treated, the First Circuit’s
decision is egregiously wrong and has
sanctioned a forfeiture of $13.2 million
with no process at all.
A. Rule 32.2(b)(4)(B) is a mandatory claimprocessing rule.
The First Circuit offered no
meaningful explanation for its decision to apply
harmless error review, which makes sense, because
McIntosh and this Court’s precedents command the
opposite result.
Unlike Rule 32.2(b)(2)(B), 32.2(b)(4)(B) does not
“contemplate[] flexibility regarding the timing” of the
oral pronouncement. McIntosh, 601 U.S. at 340. “The
court must include the forfeiture when orally
announcing the sentence[.]”
Fed. R. Crim. P.
32.2(b)(4)(B). While the rule does provide that the
court may “otherwise ensure that the defendant knows
of the forfeiture,” that provision is clear with respect
to the prescribed time for doing so: “at sentencing.” Id.
In other words, at sentencing, a defendant must have
33
or be guaranteed a meaningful opportunity to defend
against the government’s forfeiture request, including
advance notice and a meaningful forum to contest it.
Second, while 32.2(b)(4)(B) also does not specify a
consequence for noncompliance, it provides a clue as
to whether such violations are correctable or
mandatory. See McIntosh, 601 U.S. at 341. While the
rule clearly provides that the court must include “the
forfeiture order” in the written judgment, it notes that
“failure to do so may be corrected at any time under
Rule 36.” Notably, however, there is no similar clause
allowing for correction if the requirement that
forfeiture be included in the oral announcement of the
sentence is not met.
Third, although 32.2(b)(4)(B) governs the conduct
of the district court and not the parties, which this
Court has held generally suggests that a rule is a timerelated directive, this general principle does not apply
here. First, Rule 32.2(b)(4)(B) possesses the features
of a mandatory claim-processing rule because, as due
process and Rule 43(a)(3) require, it acts to ensure that
a “certain procedural step[,]” imposition of a sentence
term, is taken at a “certain specified time[,]”
at sentencing and in the defendant’s presence.
McIntosh, 601 U.S. at 341 (quoting Henderson v.
Shinseki, 562 U.S. 428, 435 (2011)).
Moreover, as the Ninth Circuit recognized in
Montoya, 82 F.4th at 655, a sentence that contains a
term that was not orally imposed at sentencing must
be vacated and remanded on appeal under 18 U.S.C.
§ 3742(f)(1), which provides that if a sentence was
“imposed in violation of law,” the court of appeals
“shall remand the case.” There can be no doubt that
the requirements of Rule 32.2 qualify as “law” and that
34
the court of appeals is mandated thus to remand the
case if any part of the sentence, including forfeiture,
was imposed in violation of any law, including Rule
32.2(b)(4)(B). Courts are divided on whether forfeiture
even can be imposed if it was not a part of the oral
sentence. See, e.g., Petix, 767 F. App’x at 123
(remanding “for entry of a corrected judgment that
removes monetary forfeiture altogether from Petix’s
sentence” where oral pronouncement excluded
forfeiture).
B. If harmless error review applies, the
district court’s errors were undoubtedly
harmful. Even if this Court ultimately concludes that
32.2(b)(4)(B) is a time-related directive, which it
should not, this case requires reversal. Simply put,
the First Circuit’s new test for harmless error review
in the context of Rule 32.2 violations would not only
cause, if allowed to stand, a brand-new front for circuit
discord to ensue, but also it would entirely defeat the
purpose of the rule and its encoding of constitutional
protections.
Harmless error can only be measured by whether,
notwithstanding Rule 32.2’s clear directives, a
defendant still received, functionally, the notice,
process, and opportunity to be heard that the rule
meticulously provides. Here, the First Circuit openly
admitted that Ponzo received none but still affirmed.
The failure to provide any meaningful process
ultimately shows up in the superficiality of the First
Circuit’s holding on the merits of Ponzo’s forfeiture
challenge, in which he argued that because he selfgenerated the contracts he worked, the revenue and
profit from those contracts was not obtained but for his
payments to Darlington and Marra. Ponzo, 171 F.4th
35
at 518-19. The First Circuit held this argument “ha[d]
no oomph,” because in any case “a CLEAResult
operative like Darlington or Marra had to scope and
approve the proposal for there to be a contract. And
for another still, the Ponzos kept bribing Darlington
and Marra for special favors even after contracts got
awarded.” Id.
But this analysis does not apply the but-for
causation test that it must, and it cannot, because the
government never provided any evidence that the
contracts Ponzo generated entirely on his own would
not have been scoped or approved without his
payments. Even if there were any evidence of contract
manipulation, which there was not, under the
applicable but-for causation standard, the government
would only be entitled to forfeit those profits which
resulted from manipulation, not every cent of profit
Ponzo made from CLEAResult in a decade. In fact, it
was CLEAResult’s policy to scope and approve and
encourage all contracts that Ponzo brought in. There
is no evidence to support the forfeiture request or
order because the government’s first attempt to
establish that all $13.2 million Ponzo earned through
the Mass Save program was forfeitable came at the
last second of the sentencing hearing, and no
argument or evidence was offered to support the
request. The government’s motion for forfeiture
simply incorporated its sentencing memorandum,
which only generally mentioned forfeiture, and made
no argument as to traceability. CA1A1229.
Where the government offered no evidence to
support its forfeiture theory, and Ponzo had no
opportunity to rebut that theory, or put on his own
evidence, there was simply no plausible basis for the
36
First Circuit to conclude that the district court’s errors
were harmless. Due process was flagrantly violated,
and the conclusion that adhering to proper procedures
“wouldn’t have mattered” anyway is fully
unsupported. Pet. App. 22a.
C. The government deprived Mr. Ponzo of
$13.2 million without even attempting to prove
its claims. At bottom, this case involves a large
deprivation of property, imposed as a criminal
sentence, in violation of clear rules and outside of the
defendant’s presence. While the First Circuit and
district court essentially reduced this disturbing series
of constitutional violations to “harmless” mishaps and
dismissed Ponzo’s protestations as “ludicrous,” the
Constitution guarantees better than that.
Rule 32.2 exists for a reason: to make the
government, before it takes away everything a man
has earned, prove that those earnings were ill-gotten.
The rule requires the government and the court to
provide notice of what a defendant stands to lose, a
forum in which to prove otherwise, and the dignity of
being told to his face that, viewing all the evidence, he
is wrong. Here, that rule was treated as a footnote—a
mere suggestion. That is grievously wrong and unjust.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
37
Max D. Stern
Counsel of Record
Christian G. Kiely
Samuel M. Myers
TODD & WELD LLP
One Federal Street
27th Floor
Boston, MA 02110
(617) 720-2626
mdstern@toddweld.com
Counsel for Petitioner
August 31, 2026
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A – OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, FILED APRIL 1, 2026 . . . . . . . 1a
APPENDIX B – JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, FILED APRIL 1, 2026 . . . . . . 27a
APPENDIX C – MEMORANDUM & ORDER OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS,
FILED MARCH 19, 2025 . . . . . . . . . . . . . . . . . . . . . 28a
APPENDIX D – ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS, FILED
FEBRUARY 13, 2025 . . . . . . . . . . . . . . . . . . . . . . . . 36a
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT, FILED APRIL 1, 2026
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 25-1203, 25-1259, 25-1327
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER PONZO; JOSEPH PONZO,
Defendants, Appellants.
Filed April 1, 2026
OPINION
Appeals from the United States District Court
for the District Of Massachusetts
Hon. Nathaniel M. Gorton, U.S. District Judge
Before Gelpi, Thompson, and Montecalvo, Circuit Judges.
Thompson, Circuit Judge.
OPENING
Meet the Ponzo brothers, Chris and Joe (we use
first names — as their briefs sometimes do — not out of
2a
Appendix A
disrespect but for clarity). A while back they pled guilty
(without plea agreements) to felonies arising from a
bribery scheme involving “Mass Save,” a state-mandated
program (funded by surcharges on utility bills) that
supports energy-conservation projects.1 The coppedto charges covered (for both brothers) conspiracy and
substantive honest-services wire fraud, lying to federal
agents, and (for Joe only) aiding and assisting false tax
returns. See respectively 18 U.S.C. § 1349, §§ 1343 and
1346, and § 1001(a)(2) and 26 U.S.C. § 7206(2). A district
judge then sentenced them each to 27 months in prison (an
above-guidelines term for Chris but a within-guidelines
stint for Joe), and ordered Chris to forfeit $13.2 million
and Joe to forfeit $3.6 million.
How the Ponzos became crooks and what they want
from us is kind of a long story. But here’s the short version
(with more to come soon).
Chris owned CAP Electric, Inc., a business specializing
in energy-conservation work. In 2013 he began bribing
people at CLEAResult, a firm that picked and oversaw
contractors on Mass Save projects. He later pulled Joe
into the scheme, with Chris and CLEAResult employee
Eric Darlington helping Joe (and his wife) set up an
air-sealing company called Air Tight Solutions, LLC
as a Mass Save contractor (air-sealing — as its name
1. As is our practice in guilty-plea appeals, we take the
facts from the operative indictment, the uncontested parts of the
presentence reports, the transcripts of key court hearings, and
the sentencing record. See, e.g., United States v. Diaz-Serrano,
77 F.4th 41, 44 (1st Cir. 2023).
3a
Appendix A
suggests — blocks air, making buildings less drafty).
Doing next to no work for the company (and without
telling CLEAResult), Joe subcontracted the air-sealing
projects to Chinasa Construction Services, Inc. and falsely
claimed Chinasa employees were Air Tight employees
— the Ponzos even created fake email addresses for the
Chinasa staffers to make it look like they worked at Air
Tight. 2 To cover his share of the payola, Joe sent money
from Air Tight to Chris and CAP Electric and labeled it
“subcontractor” business expenses. Chris then bought off
CLEAResult employees. From 2013 to 2017, for example,
he gave Darlington $1,000 cash every week and bought
him expensive things like an Apple MacBook, a John
Deere tractor, bathroom fixtures, and outdoor lights. And
after CLEAResult fired Darlington in 2017, the brothers
began bribing CLEAResult employee Peter Marra —
sending him cash and gift cards for special favors like
getting heads-ups on inspections and audits. All told, CAP
Electric took in about $36 million from CLEAResult and
Air Tight received about $7.4 million.
Life was good for the millionaire brothers. But
the government eventually caught on. And arrests,
indictments, guilty pleas, sentencings, and forfeitures
followed. Which brings us to today’s appeals, where the
Ponzos attack the sentences and the forfeitures from many
angles. Read on to see why we affirm across the board
(credit where credit is due — our basic analysis tracks
that of the government).
2. A brief word about the Chinasa-employees/email stuff.
The government put all that front and center in its brief, piecing
together info from several sentencing exhibits, with no rebuttal
from the Ponzos in their reply briefs.
4a
Appendix A
SENTENCES
Broadly speaking, the Ponzos argue (either individually
or collectively) that the judge procedurally erred — first
by miscalculating the tax loss attributable to Joe in
setting the base-offense level for his tax crimes, then by
misapplying guidelines enhancements to their sentences,
and finally by misstating how much money they made from
their misdoings. 3 But none of their arguments work.4
Base-Offense Level
Joe claims that the judge plainly erred by accepting
the presentence report’s calculation of the tax loss at
$115,528. 5 Because $115,528 is more than $100,000 but
3. A defendant can ask us to review a sentence’s procedural
reasonableness, substantive reasonableness, or both. See, e.g.,
United States v. Denson, 689 F.3d 21, 26 (1st Cir. 2012). Procedural
reasonableness focuses on how the judge arrived at the sentence (for
example, whether the judge improperly calculated the sentencing
range, relied on clearly erroneous facts, or inadequately explained
the sentence). See, e.g., Gall v. United States, 552 U.S. 38, 51, 128
S.Ct. 586, 169 L.Ed.2d 445 (2007). Substantive reasonableness
focuses on the sentence’s length (whether the judge was too harsh
or too lenient, for instance). See, e.g., United States v. RiveraBerríos, 902 F.3d 20, 26 (1st Cir. 2018).
4. The brothers’ briefs could be read as faulting the judge for
not following probation’s “conclusions.” If so, we give that claim
no never mind because the judge wasn’t bound by probation’s
conclusions. See United States v. Robinson, 433 F.3d 31, 36 (1st
Cir. 2005).
5. The judge used the 2024 edition of the sentencing
guidelines (which is also the edition we use in this appeal). See
5a
Appendix A
less than $250,000, the judge then set the base-offense
level at 16 per the tax table at USSG § 2T4.1. Joe thinks
that the government misled the judge by saying in its
sentencing memo that he “and his wife purchased almost
$300,000 in gift cards . . . to disguise their personal
purchases as deductible business expenses” — misled,
because (according to Joe) the exhibit mentioned in
the memo “included only $118,919.83 worth of gift card
purchases” and so “supports a tax loss amount of no more
than $47,092.25,” generating a base-offense level of 14.
Assuming Joe forfeited the argument (as he implies)
rather than waived it (as the government insists), we hold
that he hasn’t shown plain error — an exacting standard
that requires him to prove not just an error but an obvious
error that affected both his substantial rights and the
fairness of the sentencing process. See, e.g., United States
v. Fargas-Reyes, 125 F.4th 264, 270 (1st Cir. 2025). We say
that because the $115,528 tax loss is an “IRS calculated”
number (per the presentence report), a number Joe
didn’t “refute” with “any information” (per probation)
below or here.6 If anything, the judge-accepted tax loss
undervalued the true amount because it included only
gift-card purchases, not other purchases Joe made using
Air Tight accounts (like synthetic turf he bought for his
house) — a point the government made in its brief without
correction from Joe in his reply brief.
United States v. Yoon, 167 F.4th 556, 564 (1st Cir. 2026); United
States v. Mehanna, 735 F.3d 32, 67-68 (1st Cir. 2013).
6. The government’s sentencing memo excerpted lines from
an IRS report explaining the “$296,084.25” in gift-card purchases
and $9,542.60 in gift-card activation fees.
6a
Appendix A
Enhancements
The brothers (sometimes together, sometimes
separately) object to the judge’s use of sentencing
enhancements for sophisticated means under USSG
§ 2B1.1(b)(10)(C) (Chris and Joe) and USSG § 2T1.4(b)(2)
(Joe); obstruction of justice under USSG § 3C1.1 (Chris
and Joe); and aggravating role under USSG § 3B1.1(c)
(Chris).7 They also insist that the judge didn’t adequately
explain the findings supporting these enhancements. All
agree — or at least don’t dispute (and we have no reason to
doubt) — that the brothers preserved these enhancements
below. So we review for abuse of discretion, reversing only
if the brothers show a legal error, a clearly erroneous
factual finding, or an obvious error of judgment. See, e.g.,
United States v. Reyes-Torres, 979 F.3d 1, 7 (1st Cir. 2020);
United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012). See
generally United States v. Rodriguez, 115 F.4th 24, 49
(1st Cir. 2024) (recognizing that “[t]he government bears
the burden of proving any sentencing enhancement by a
preponderance of the evidence”).
Sophisticated Means
The Ponzos first dispute the 5-level sophisticatedmeans enhancements under USSG § 2B1.1(b)(10)(C). 8 This
7. This will all become much clearer shortly.
8. That provision provides for a 2-level enhancement for
sophisticated means — unless “the resulting offense level is less
than level 12,” in which case it calls for an “increase to level 12.”
USSG § 2B1.1(b)(10)(C) (bolding omitted). And because the judge
7a
Appendix A
enhancement applies to “especially complex” or “especially
intricate” efforts to commit or conceal a crime. USSG
§ 2B1.1 cmt. n.9(B). “[H]iding assets or transactions,
or both, through the use of fictitious entities, corporate
shells, or offshore financial accounts” are examples of what
“ordinarily” constitutes “sophisticated means.” Id. This
list isn’t “exhaustive.” United States v. Foley, 783 F.3d 7,
25 (1st Cir. 2015). And “‘the enhancement properly applies
to conduct less sophisticated’ than the examples” given.
Id. (quoting United States v. Jennings, 711 F.3d 1144, 1147
(9th Cir. 2013)).
Arguing in unison, the brothers claim that the judge
could apply the enhancement only if Air Tight was a
“shell company” with no business operations or assets
— something they say Air Tight wasn’t because it “was
engaged in the business of performing air sealing work
under contract with CLEAResult.” But the shell-company
example listed above is just that — an example. Which
the brothers wrongly portray as dispositive. Anyway, the
two formed Air Tight — creating phony email accounts,
falsifying employees, using the enterprise to funnel bribe
money to Chris, wrongly classifying those payments as
business expenses, etc. — to make the “scheme more
effective and difficult to thwart.” See Foley, 783 F.3d at 26
(quoting United States v. Evano, 553 F.3d 109, 113 (1st Cir.
2009)). And those elaborate steps attest to sophisticated
means. See id. (holding that the defendant’s use of
“fraudulent” documents, “fictitious down payments,” and
initially set the Ponzos’ base offense levels at 7, he then hit them
with a 5-level enhancement to put them at level 12.
8a
Appendix A
“fake checks,” taken together, constituted sophisticated
means); see also Evano, 553 F.3d at 113 (stressing that
a “scheme may be sophisticated even if the individual
elements taken alone are not”).
Joe also attacks the 2-level sophisticated-means
enhancement under USSG § 2T1.4(b)(2). As before,
“sophisticat[ion]” signifies “especially complex” or
“especially intricate” efforts to commit or conceal tax
fraud. USSG § 2T1.4 cmt. n.3. This includes, just as
before, conduct like “hiding assets or transactions, or both,
through the use of fictitious entities, corporate shells, or
offshore financial accounts.” Id.
Joe sees “nothing sophisticated about the ways
in which [he] reported personal expenses as business
expenses.” But viewing the scheme in its entirety, we see
his multi-part effort of using Air Tight accounts to buy
hundreds of thousands of dollars’ worth of gift cards
from stores, then using them to make personal purchases,
and then reporting those outlays as business-expense
deductions on his tax returns. Ultimately, this conduct
(which lowered his tax liability while also making it seem
like Air Tight was a legit business incurring regular
business expenses) suffices to sustain the enhancement —
a point the government made in its brief with no comeback
from Joe in his reply brief. See generally United States v.
Thorndike, 563 F. App’x 71, 74 (2d Cir. 2014) (summary
order) (observing that while it’s possible that “each
step in the scheme was not elaborate, the total scheme
was sophisticated in the way all the steps were linked
together” (quoting United States v. Jackson, 346 F.3d 22,
25 (2d Cir. 2003))).
9a
Appendix A
Aggravating Role
Chr is questions the 2 -level agg ravating-role
enhancement under USSG § 3B1.1(c). A defendant qualifies
for that adjustment if “the criminal activity involved at
least two, but fewer than five, complicit individuals (the
defendant included)” and that “in committing the offense,
the defendant exercised control over, managed, organized,
or superintended the activities of at least one other
participant.” United States v. Ilarraza, 963 F.3d 1, 13 (1st
Cir. 2020) (quoting United States v. Al-Rikabi, 606 F.3d 11,
14 (1st Cir. 2010)). The supporting evidence “may be wholly
circumstantial, and need only show that he exercised
authority or control over [one other] participant on one
occasion.” United States v. Grullon, 996 F.3d 21, 34-35 (1st
Cir. 2021) (alteration in original) (quoting United States v.
Cortés-Cabán, 691 F.3d 1, 28 (1st Cir. 2012)). See generally
USSG § 3B1.1 cmt. n.4 (explaining that factors for applying
the enhancement include the defendant’s decision-making
authority, the nature of his participation, his control over
others, his role in recruitment and planning, the scope of
his illegal endeavor, and his share of the crime’s fruits).
Insisting, for instance, that he never “commanded”
Darlington or Marra “to produce customers,” Chris
protests that “no evidence” showed that he “‘exercised
authority or control’ over his co-conspirators” (emphasis
added). Not so, we say. Consider just two record-supported
examples that the government highlighted below. Chris
told Joe to create fake emails for Chinasa employees. And
Joe did. Chris also told Joe to send money to CAP Electric
to cover bribes. And Joe did. The government spotlighted
10a
Appendix A
these enhancement-supporting examples in its brief
without any contradiction from Chris in his reply brief.
On top of all this, it’s not lost on us that Chris recruited
Joe into the scheme in the first place. See United States
v. Savarese, 686 F.3d 1, 20 (1st Cir. 2012) (reiterating
that recruitment, “by itself, constitutes a ‘managerial
function’ under” § 3B1.1, and that recruitment is about
“the demonstration of individual authority necessary to
bring a new member into the fold” (quoting United States
v. Joyce, 70 F.3d 679, 682 (1st Cir. 1995))).
Obstruction of Justice
The brothers next contest the 2-level enhancements
for obstruction of justice under USSG § 3C1.1. That
section applies if a “defendant willfully obstructed or
impeded . . . the administration of justice with respect to
the investigation, prosecution, or sentencing of the instant
offense of conviction.”
The judge hit Chris with this enhancement for
three independent reasons: (1) Because Chris stands
convicted under § 1001 for lying to federal agents, the
enhancement automatically applied. (2) Chris’s lies
impeded the investigation. And (3) Chris tried to get
co-conspirator Darlington to lie. The record indicates
that the judge thought that independent reasons (1) and
(2) also supported the enhancement against Joe (i.e., Joe
stands convicted under § 1001 for lying to federal agents,
and Joe’s lies impeded the investigation) — as Joe and
the government agree. But Chris’s and Joe’s lead briefs
only challenge independent reason (2) (the “lies impeded
11a
Appendix A
the investigation” reason), not the others. Which won’t
secure reversal on this issue. See Oliveras-Villafañe v.
Baxter Healthcare SA, 140 F.4th 29, 33 (1st Cir. 2025)
(holding that we can “affirm the district court’s decision
on an independent ground that Appellants have left
unchallenged”); see also Miller v. Jackson, 152 F.4th 258,
271 (1st Cir. 2025); United States v. Henry, 848 F.3d 1, 7
(1st Cir. 2017).9
9. Joe may think that a sentence in his opening brief — that
Isabel v. United States, 980 F.2d 60, 61 (1st Cir. 1992), holds
“the enhancement . . . does not apply unless the false statement
‘significantly obstructed or impeded the official investigation or
prosecution of the instant offense’” — constitutes engagement
with reason (1). We see this as a possibility because he believes
Isabel “establishe[s] . . . that a conviction for obstructive conduct
alone is insufficient to warrant” the adjustment. An application
note to the guidelines states that “making false statements, not
under oath, to law enforcement officers,” unless such statements
“significantly obstructed or impeded the official investigation,”
“ordinarily” (notice the adverb) won’t merit the enhancement.
See USSG § 3C1.1 cmt. n.5(B) (first quote); id. § 3C1.1 cmt. n.4(G)
(second quote); id. § 3C1.1 cmt. n.5 (third quote). But there’s a
caveat: “if the defendant is convicted of a separate count for such
conduct” — like Chris and Joe were — then the “adjustment will
apply.” See id. § 3C1.1 cmt. n.5 (emphases added). And nothing
in Isabel addresses — let alone bars — the caveat’s application
here. See generally United States v. Figueroa, No. 24-1008, 2025
WL 289426, at *3 (2d Cir. Jan. 24, 2025) (summary order) (holding
that a conviction “for making false statements to federal law
enforcement agents” “mandated” the obstruction enhancement’s
“imposition”); see also generally United States v. Richardson,
732 F. App’x 822, 829-30 (11th Cir. 2018) (per curiam) (similar);
United States v. Davist, 481 F.3d 425, 427 (6th Cir. 2007) (similar).
12a
Appendix A
Explanation
The Ponzos then complain that the judge didn’t
sufficiently explain the enhancement-supporting findings.
Neither Chris nor Joe made this claim below, however —
despite having chances to do so. See generally Puckett
v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173
L.Ed.2d 266 (2009) (noting that timely objections allow
district courts to fix any possible errors as they arise).
Which requires them to show plain error. See, e.g., United
States v. Reda, 787 F.3d 625, 630-31 (1st Cir. 2015). But
they don’t even try to satisfy that tough test, thus waiving
the issue. See, e.g., United States v. Cruz-Ramos, 987 F.3d
27, 40 (1st Cir. 2021); United States v. Rivera-Carrasquillo,
933 F.3d 33, 49 n.15 (1st Cir. 2019).
Even setting waiver aside — and there’s no need to —
we see no obvious error with the judge’s explanations. The
parties fought over the enhancements in their sentencing
memos. The judge read them. Chris and the government
continued the fight at his sentencing. And the judge
“agree[d] with the government[’s]” take. Plus the judge at
Joe’s later-held sentencing “accept[ed]” the government’s
“recommendation” about “the enhancements” that Joe
“vigorously contested.” All this is very important because
controlling precedent lets us infer the judge’s reasoning
from what the parties argued. See, e.g., United States v.
D’Angelo, 110 F.4th 42, 49 (1st Cir. 2024); Ilarraza, 963
F.3d at 12; United States v. Zehrung, 714 F.3d 628, 631
(1st Cir. 2013). Which is precisely what we do here.
13a
Appendix A
Money Made
Chris argues that the judge imposed the aboveguidelines sentence based on a mistaken belief that he
had made “multimillions” from the scheme, “apparently
somewhere around [$]13 million” (he pulled that quote
from the judge’s sentencing analysis). Contending that
“this was not supported by any evidence,” he claims the
“sentencing record establishe[s]” that he “generated
virtually all of the Mass Save jobs which CAP Electric
performed through CLEAResult.”10 Darlington or Marra,
he continues, “assigned” him “only 1.2% of [the] jobs,”
leading to “$164,786 in net income” for him (Chris) — not
multimillions.
Sounding a similar theme, Joe argues that the
judge picked the within-guidelines sentence based on
an incorrect view that he made “in the neighborhood
of $10 million” (a number, he notes, that’s different
from the $3.6 million figure the judge ordered him
to forfeit). To his mind, the $10 million number is off
because almost all “of Air Tights’ revenue during this
period was attributable to contracts originated by”
Chris and not from the bribes. And, he writes, based
on the contracts assigned by Darlington or Marra,
10. By “generate” Chris means he “br[ought] in the potential
customer.” And “[h]ow did Chris generate this work,” counsel
rhetorically asked the judge at sentencing. “He knocked on doors
and he made cold calls selling property managers on [the] benefits
of the Mass Save program. He was persistent and he got people
to listen.”
14a
Appendix A
“the amount of tainted proceeds is limited to approximately
$151,800.”11
The government claims that Chris must run the
plain-error gauntlet because he didn’t “object when
the [judge] stated the finding he now claims” lacked
evidentiary support. We agree. While Chris thinks
that his sentencing memo said enough to preserve this
procedural-reasonableness argument, he didn’t “object
to the alleged error when it occurred at the sentencing
hearing.” See United States v. Rivera-Rivera, 146 F.4th
59, 88 (1st Cir. 2025). Which means plain-error review
applies. See id. But by not attempting to show plain error,
“he has waived our review of this claim.” See id.12
11. We can assume without deciding that the Ponzos are
right that Chris “f[ou]nd[ ] and recruit[ed] virtually all of the
customers.”
12. Quoting Holguin-Hernandez v. United States (but adding
alterations), Chris’s reply brief argues that plain error does
not apply because “where a criminal defendant advocates for a
sentence shorter than the one ultimately imposed . . . [n]othing
more is needed to preserve the claim that a longer sentence is
unreasonable.” See 589 U.S. 169, 173-74, 140 S.Ct. 762, 206 L.Ed.2d
95 (2020). Holguin-Hernandez held that a defendant who argues
for a particular sentence “communicates to the trial judge his
view that a longer sentence is ‘greater than necessary’” and so
preserves a substantive-reasonableness claim. See id. at 174-75,
140 S.Ct. 762. Chris, however, makes a procedural-reasonableness
claim involving a (supposedly) “clearly erroneous” finding —
something he stressed in his lead brief (he quoted Gall’s point
that a sentence based on “clearly erroneous facts” is procedurally
unreasonable). See id. at 175, 140 S.Ct. 762 (clarifying that the
Court wasn’t deciding “what is sufficient to preserve a claim that
15a
Appendix A
As for Joe, he concedes that the plain-error standard
governs. But he’s still out of luck. Echoing Chris’s
argument, his theory rises or falls with the idea that
it matters whether Chris “generated” nearly all the
contracts. It doesn’t, at least not on this record.
But don’t just take our word for it — take Chris’s
and Joe’s. They admitted key facts at their guilty-plea
hearing. Like how Darlington and Marra “participated in
the recommendation, the selection, and [the] oversight of
contractors” — including the Ponzos. Like how Darlington
helped Air Tight become an approved CLEAResult
contractor, a necessary step for Air Tight to get money
from CLEAResult. Like how Darlington and Marra
helped CAP Electric and Air Tight “with pricing, billing,
invoicing and receiving payments from CLEAResult.”
And like how Marra gave the Ponzos other “preferential
treatment” in “assessing properties, creating cost
estimates,” and tipping them off before “inspections
and audits.” Chris also told the judge at sentencing that
he wanted Darlington (and presumably also Marra) “to
work fast and be there whenever” he “needed” help with
“assessments and processing the jobs.”
And there’s more. The evidence shows that Darlington
and Marra jiggered contract specifications to boost the
brothers’ profits. As an example, CLEAResult found that
Darlington had overestimated projects’ costs by about
$2 million. And the evidence proves that the Ponzos had
a trial court used improper procedures in arriving at its chosen
sentence”). So Rivera-Rivera controls the preservation issue
before us.
16a
Appendix A
“worked the majority of” those projects (emphasis added)
— meaning they had worked on lots of “contracts” inflated
by Darlington’s and Marra’s fake numbers (to quote the
prosecutor at sentencing, as she parried the brothers’
claim that “these contracts were not inflated”). As another
example, Marra said in an email that he could “juice“ a
contract price “up” if Joe asked him to (emphasis added).13
Darlington and Marra indisputably did all this (and
more still) while taking the Ponzos’ bribes.14
Ultimately, Joe’s argument is its own undoing. And
that’s because he identifies no binding precedent that the
judge unquestionably erred in the context of this record by
saying that money made from contracts tainted by bribes
13. The prosecutor put it nicely below:
Now, [Chris] makes much of the fact that he
purportedly brought in a bunch of referrals, but once
those referrals are brought in, they still have to be
approved. Somebody has to go to that job site and
say, yeah, this makes sense, we need to do energy
efficiency work here.
That’s where Darlington and Marra came in.
They approved jobs that didn’t need to be approved.
And even if they should have been approved, then they
were creating contracts based on false numbers.
14. The judge observed that it would make zero sense for the
brothers to pay well over a “[m]illion [d]ollars” in bribes (something
they also admitted to at the change-of-plea hearing) if they only
made “less than $200,000” each as they claim (what the judge
meant is that common sense suggests bribers don’t repeatedly
dole out that kind of money to score such relatively low returns).
17a
Appendix A
— regardless of who had generated the jobs — resulted
from the crimes he’d pled guilty to. See, e.g., United States
v. Galíndez, 999 F.3d 60, 71 (1st Cir. 2021) (holding that “a
plain error is an error that is indisputable under current
law” (emphasis added)).
FORFEITURES
We now turn to Chris’s and Joe’s problems with
the orders requiring them to forfeit $13.2 million and
$3.6 million respectively. Sort of borrowing from a justrejected argument, the brothers say that the orders flop
because they’re “comprised almost entirely of untainted
proceeds . . . not derived from the fraudulent activity.”
Chris adds that miscues in the process denied him his
right to contest the forfeiture. And he also argues that the
order is an unconstitutionally excessive fine. Reviewing
any legal questions de novo and any fact issues for clear
error (as the parties agree), we reject each challenge. See
United States v. George, 886 F.3d 31, 39 (1st Cir. 2018)
(charting the standard of review).
Proceeds
“Forfeitures help to ensure that crime does not pay:
[t]hey at once punish wrongdoing, deter future illegality,
and lessen the economic power of criminal enterprises.”
Kaley v. United States, 571 U.S. 320, 323, 134 S.Ct. 1090,
188 L.Ed.2d 46 (2014) (citation modified). The forfeiture
statute here — 18 U.S.C. § 981 (applicable to criminal
offenses via 28 U.S.C. § 2461) — makes property forfeitable
if it “constitutes or is derived from proceeds traceable to”
18a
Appendix A
the crimes. See 18 U.S.C. § 981(a)(1)(C) (mentioning 18
U.S.C. § 1956(c)(7), which in turn mentions crimes listed in
18 U.S.C § 1961(1), which include § 1343 (relating to wire
fraud)). For cases like this one — “involving . . . lawful
services . . . sold or provided in an illegal manner” —
“proceeds” means the “amount of money acquired through
the illegal transactions resulting in the forfeiture, less the
direct costs incurred in providing the goods or services.”
See 18 U.S.C. § 981(a)(2)(B).
Courts use a “but for” test to see if property is
forfeitable. See United States v. Angiulo, 897 F.2d
1169, 1213 (1st Cir. 1990). “But for” means that if one
thing hadn’t occurred then another thing wouldn’t have
occurred. See Bostock v. Clayton Cnty., 590 U.S. 644, 656,
140 S.Ct. 1731, 207 L.Ed.2d 218 (2020). And under “this
test, funds are considered proceeds and therefore deemed
forfeitable if a person would not have the funds but for the
criminal offense.” United States v. Farkas, 474 F. App’x
349, 360 (4th Cir. 2012) (citation modified).
The government must prove the but-for nexus between
the crimes and the forfeitable proceeds by a “preponderance
of the evidence.” United States v. Robertson, 162 F.4th
209, 253 (1st Cir. 2025). “Preponderance” means that the
evidence makes a fact or a conclusion “more likely true
than not.” United States v. Marino, 833 F.3d 1, 8 (1st Cir.
2016). And declining to close our eyes to reality, we add
that calculating forfeiture is hardly “an exact science” —
even in the best of circumstances. See United States v.
Treacy, 639 F.3d 32, 48 (2d Cir. 2011).
19a
Appendix A
Which takes us to the Ponzos’ familiar-sounding
argument that because Chris “self-generated” nearly all of
the contracts their companies performed for CLEAResult,
the money they made from those projects isn’t criminal
“proceeds” — even though they admitted paying
CLEAResult staffers bribes related to the contracts.
Their claim has no oomph. For one, Air Tight wouldn’t have
worked on any contracts without the bribes to Darlington
because without the bribes Air Tight wouldn’t have
become an official CLEAResult contractor. For another,
no matter who generated a job, a CLEAResult operative
like Darlington or Marra had to scope and approve the
proposal for there to be a contract. And for another still,
the Ponzos kept bribing Darlington and Marra for special
favors even after contracts got awarded — recall the audit
and inspection tip-offs, as just two examples.
A judge “shall order” forfeited all proceeds of the
defendant’s criminal scheme. See 28 U.S.C. § 2461(c); see
also United States v. Cox, 851 F.3d 113, 127-28 (1st Cir.
2017) (holding that the judge didn’t err in requiring the
defendant to forfeit “all proceeds [he] received from the
convicted transactions . . . as well as all proceeds [he]
received from uncharged relevant conduct” considered
part of the criminal plot (emphases added)). See generally
United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct.
2657, 105 L.Ed.2d 512 (1989) (noting in a related context
that “Congress could not have chosen stronger words to
express its intent that forfeiture be mandatory in cases
where the statute applied”). The bottom line is that
the government proved a but-for connection between
the Ponzos’ bribery crimes and the forfeited proceeds
20a
Appendix A
by a preponderance of the evidence (a relatively low
standard).15 And holding otherwise would turn the crimedoesn’t-pay principle on its head. See Kaley, 571 U.S. at
323, 134 S.Ct. 1090.16
Process
Fed. R. Crim. P. 32.2 governs criminal forfeiture.
Streamlining things a bit (but without affecting the
analysis), a judge “must determine the amount of money
that the defendant” will pay “[a]s soon as practical after”
a guilty plea “is accepted.” Id. 32.2(b)(1)(A). “Unless
doing so is impracticable, the [judge] must [then] enter
[a] preliminary order [of forfeiture] sufficiently in advance
of sentencing to allow the parties to suggest revisions
or modifications before the order becomes final.” Id.
32.2(b)(2)(B). And “[i]f the forfeiture is contested, on either
party’s request the [judge] must conduct a hearing.” Id.
32.2(b)(1)(B).
15. Joe’s reply brief argues that the forfeiture order can’t
stand because “there was no financial loss in this case” (bolding
and capitalization omitted). We needn’t get into the nitty-gritty of
that argument. It’s enough to say that he waived it by not raising
it until the reply brief. See Lawless v. Steward Health Care Sys.,
LLC, 894 F.3d 9, 25 (1st Cir. 2018) (repeating that an “argument
not advanced in appellant’s opening brief but raised only in reply
brief” is “waived”).
16. If anything, Chris’s $13.2 million forfeiture figure may be
underinclusive because it’s limited to proceeds from 2014 to 2020
and doesn’t include any proceeds from 2013, 2021, or 2022 — even
though the scheme ran during those years too.
21a
Appendix A
After noting these rules, Chris focuses on a series
of process-based errors: (1) The government didn’t file a
forfeiture motion before sentencing. (2) The government
didn’t specify until sentencing the exact amount he
should forfeit. (3) The judge didn’t enter a preliminary
forfeiture order before sentencing. And (4) Chris didn’t
get to oppose the government’s post-sentencing hearing
forfeiture motion until after the forfeiture order entered.
That’s all true. But knowing that “[t]he simplest way” to
handle an issue “is often the best” way, see Stor/Gard, Inc.
v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st Cir. 2013)
(citation modified), we excuse any error as harmless, see
McIntosh v. United States, 601 U.S. 330, 337, 344-45, 144
S.Ct. 980, 218 L.Ed.2d 307 (2024) (discussing harmless
error in a similar situation).
Chris doesn’t dispute that the government made clear
in the indictment and at the guilty-plea hearing that it
sought forfeiture of all proceeds traceable to his crimes.
More (and contrary to what he claims), the government’s
sentencing memo mentioned forfeiture — right after
noting that “the Mass Save program” paid him “to the tune
of over $13 million in personal profit.”17 More still, he didn’t
17. The government’s br ief points to its sentencing
memo, where the prosecutors raised the “over $13 million”
sum in discussing USSG § 2B1.1 — a provision that escalates
the defendants’ “offense level[s] based on the amount of loss
attributable to [their] fraud.” See Robertson, 162 F.4th at 246
(quoting United States v. Kumar, 112 F.4th 30, 36 (1st Cir. 2024));
see also USSG § 2B1.1(b)(1) n.(B) (signaling that “loss” could even
mean “the gain that resulted from the offense” if “there is a loss
but it reasonably cannot be determined”). Forfeiture and loss (by
22a
Appendix A
object when the government orally moved at sentencing
for him to forfeit “approximately [$]13.2 million” or when
the judge asked the government to file a formal forfeiture
motion “[w]ithin one week.”18 Even more, despite his not
getting a chance to contest the government’s motion until
after the forfeiture order entered, the record indicates
that his raising those arguments sooner wouldn’t have
mattered. The reason is that he did file an opposition
with his motion for reconsideration (along with a motion
to stay the forfeiture ruling), an opposition the judge
considered and rejected as unconvincing — as we do
today as well. Tellingly, the government identified these
signs of harmlessness in its answering brief without any
persuasive pushback from Chris in his reply brief.19
and large) share some similarities, though (importantly) the two
require distinct calculations. See Robertson, 162 F.4th at 255. But
Chris makes no argument that we can’t use the sentencing memo’s
“over $13 million” statement for harmless-error purposes.
18. Chris writes that the prosecutor told the judge “that
she ‘forgot’ about forfeiture” (only the part in single quotation
marks is from her remarks). But what the prosecutor said is that
she wanted “to make a couple of points that [she] forgot to make
earlier” (meaning earlier in the hearing), one of which concerned
moving for forfeiture.
19. Speaking of his reply brief, Chris writes there that “the
government [hasn’t] agreed to this day that [he] was entitled to
a hearing on traceability” (emphasis added). But this isn’t an
argument that the judge erred on this score (his opposition (filed
with his reconsideration motion) didn’t say — in Rule 32.2(b)(1)(B)
lingo — that he “request[ed]” a forfeiture hearing and that the
judge denied that request). And if he thinks it is, he waived the
argument for at least two reasons: first, by not raising it “squarely
23a
Appendix A
Fine
Chris lastly argues that the $13.2 million forfeiture
order is an excessive fine under the Eighth Amendment
to our Constitution. 20 But to get anywhere, he must
show that the forfeiture “is grossly disproportional to
the gravity of [his] offense.” See Bajakajian, 524 U.S.
at 334, 118 S.Ct. 2028. And the factors that go into the
proportionality analysis are: “(1) whether the defendant
falls into the class of persons at whom the criminal statute
was principally directed; (2) other penalties authorized
by the legislature (or the Sentencing Commission);
and (3) the harm caused by the defendant.” Heldeman,
and distinctly,” see Alston v. Town of Brookline, 997 F.3d 23, 41 (1st
Cir. 2021) (citation modified); see also Rodríguez v. Mun. of San
Juan, 659 F.3d 168, 175 (1st Cir. 2011) (holding that “we consider
waived arguments confusingly constructed” (citation modified));
and second, by debuting it in his reply brief, see Braintree Lab’ys,
Inc. v. Citigroup Glob. Mkts. Inc., 622 F.3d 36, 43-44 (1st Cir.
2010) (holding that claims cursorily made in an opening brief are
waived, adding that “[t]he slight development in [a] reply brief does
nothing to help matters” because claims “raised there for the first
time come too late to be preserved on appeal”).
20. “Forfeitures are subject to the Eighth Amendment’s
excessive fines clause ‘if they constitute punishment for an
offense.’” United States v. Heldeman, 402 F.3d 220, 223 (1st Cir.
2005) (quoting United States v. Bajakajian, 524 U.S. 321, 328, 118
S.Ct. 2028, 141 L.Ed.2d 314 (1998)). And “[h]ere, forfeiture was
‘imposed at the culmination of a criminal proceeding and requires
conviction of an underlying felony’” and so “was punishment for the
offense.” Id. (quoting Bajakajian, 524 U.S. at 328, 118 S.Ct. 2028).
24a
Appendix A
402 F.3d at 223 (citing Bajakajian, 524 U.S. at 337-40,
118 S.Ct. 2028). 21
For starters, Chris’s conduct places him at the dead
center of the class of persons at whom the honest-services
statutes he pled guilty to are directed (factor (1)) — given
how he paid bribes for special treatment that led to his
making millions (and we do mean millions) in profits. And
that’s so regardless of how (to quote his brief) “generous”
he was with “people in need” after “he began to do very
well.”
What’s more (as we consider factor (2)), “judgments
about the appropriate punishment for an offense belong
21. The government argues that this circuit’s rule is that
forfeiture of all proceeds “is never excessive” (emphasis added).
Quoting United States v. Candelaria-Silva, 166 F.3d 19, 44 (1st
Cir. 1999), the government writes: “[F]orfeiture of the full amount
of the proceeds of their criminal offense . . . does not constitute an
unconstitutionally excessive fine” (alterations by the government).
But the actual quote reads: “It is well-established that criminal
defendants are jointly and severally liable for forfeiture of the
full amount of the proceeds of their criminal offense, and that the
imposition of such a forfeiture judgment does not constitute an
unconstitutionally excessive fine.” Id. (emphasis added to highlight
language the government omitted). See generally United States v.
Elias, 154 F.4th 56, 68-69 (2d Cir. 2025) (discussing whether the
reasoning of Honeycutt v. United States, 581 U.S. 443, 137 S.Ct.
1626, 198 L.Ed.2d 73 (2017) (holding that 21 U.S.C. § 853(a)(1)
bars joint and several liability for forfeiture judgments), applies
to 18 U.S.C. § 981(a)(1)(C)). Context always matters. See United
States v. Torres-Meléndez, 28 F.4th 339, 342 (1st Cir. 2022).
And Candelaria-Silva’s context undermines the government’s
Candelaria-Silva-centric argument.
25a
Appendix A
in the first instance to the legislature.” See Bajakajian,
524 U.S. at 336, 118 S.Ct. 2028; see also United States v.
Carpenter, 941 F.3d 1, 11 (1st Cir. 2019). And pertinently,
the top fine for Chris’s crimes is “not more than . . . twice
the gross gain.” See 18 U.S.C. § 3571(d) (emphasis added).
Doubling the roughly $36 million in gross proceeds
produces a $72 million ceiling. See Carpenter, 941 F.3d at
11 (repeating that “[w]e give great weight to this statutory
judgment by Congress”). And the challenged $13.2 million
forfeiture — capturing Chris’s net gains for some of the
years the scheme lasted — is well below the $72 million
ceiling. 22 See generally United States v. Segal, 495 F.3d
22. As Chris points out, a footnote in United States v.
Beras says “that the maximum penalties provided under the
[g]uidelines should be given greater weight than the statute
because the [g]uidelines take into consideration the culpability of
the individual defendant.” See 183 F.3d 22, 29 n.5 (1st Cir. 1999).
And he tells us with no disagreement from the government that
“the maximum guidelines fine” for him “is $75,000.” See USSG
§ 5E1.2(c)(3). But Beras’s “caution does not mean that any fine
exceeding the [g]uidelines, yet within the statutory maximum,
becomes per se unconstitutional.” United States v. Facteau, 89
F.4th 1, 45 (1st Cir. 2023). The guidelines say that the Sentencing
“Commission envisions that for most defendants, the maximum
of the guideline fine range . . . will be at least twice the amount of
the gain . . . resulting from the offense.” USSG § 5E1.2 cmt. n.4
(emphasis added). And when that’s “not the case, the [g]uidelines
state that ‘an upward departure from the fine guideline may be
warranted.’” Carpenter, 941 F.3d at 11 n.8 (quoting USSG § 5E1.2
cmt. n.4). Relying on this language, Carpenter “ultimately upheld a
forfeiture of $14 million, which dwarfed the maximum guideline[s]
[fine] of $100,000.” Facteau, 89 F.4th at 45 (discussing Carpenter).
And just like in Carpenter, “the statutory scheme is a better guide
to whether the forfeiture order is excessive.” See 941 F.3d at 11 n.8.
26a
Appendix A
826, 840 (7th Cir. 2007) (applying Bajakajian and holding
that “[w]hen a defendant commits a multimillion-dollar
crime, he can be required to forfeit assets also running
into the millions”).
Chris claims (on the factor-(3) front) that “[e]veryone
affected by” his crimes “was enriched” by his work (or to
use his alternative phrasing, no one suffered “financial
loss”) — especially “CLEAResult, the supposed victim.”
But (without opining one way or the other on the
enrichment issue) his crimes corrupted the Mass Save
program in at least three ways: by damaging the utilities’
confidence in the companies approving and overseeing the
projects; by corroding CLEAResult’s faith in its workers;
and by eroding the public’s trust in the program — points
the government makes in its brief without any denial from
Chris in his reply brief.
CLOSING
We affirm the sentences and the forfeitures.
27a
Appendix B OF THE UNITED
APPENDIX B — JUDGMENT
STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT, FILED APRIL 1, 2026
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 25-1203
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER PONZO,
Defendant, Appellant.
Filed April 1, 2026
JUDGMENT
This cause came on to be heard on appeal from
the United States District Court for the District of
Massachusetts and was argued by counsel.
Upon consideration whereof, it is now here ordered,
adjudged and decreed as follows: The district court’s
sentence and forfeiture order are affirmed.
By the Court:
Anastasia Dubrovsky, Clerk
28a
Appendix C
APPENDIX C — MEMORANDUM
& ORDER
OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS,
FILED MARCH 19, 2025
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Criminal Action No. 22-10094
UNITED STATES OF AMERICA,
v.
CHRISTOPHER PONZO, ET AL.,
Defendants.
Filed March 19, 2025
MEMORANDUM & ORDER
Gorton, United States District Judge
Pending before the Court are two motions related to
sentencing in this case: 1) the government’s motion for
forfeiture against defendant Joseph Ponzo (“Joseph”) and
the motion of defendant Christopher Ponzo (“Christoper”)
for release and a stay of forfeiture pending appeal. For
the reasons that follow, the government’s motion will be
allowed, and Christopher’s motion will be denied.
29a
Appendix C
I.
Background
In November, 2024, brothers Christopher and Joseph
Ponzo (collectively, “defendants”) pled guilty to multiple
fraud charges in connection with a bribery and kickback
scheme involving the “Mass Save” program, which collects
surcharges on Massachusetts utility bills to fund energy
conservation projects.
Christopher was the owner of CAP Electric, Inc.,
(“CAP Electric”) an electrical contracting company
that performed energy conservation work. Beginning
in 2013, he engaged in a scheme to secure Mass Save
contracts by paying bribes to employees at CLEAResult,
a company that administered the Mass Save program by
approving, selecting and overseeing contractors to work
on the energy conservation projects. In 2014, Christopher
entangled his brother, Joseph, in the scheme. Christopher
and Eric Darlington (“Darlington”), a CLEAResult
employee whom Christoper was bribing, helped Joseph
establish Air Tight Solutions, LLC (“Air Tight”) as a Mass
Save contractor despite Joseph’s lack of experience in air
sealing work.
Both Christopher and Joseph bribed CLEAResult
employees in return for Mass Save contracts and favorable
treatment. To cover his portion of the bribes, Joseph
made payments from Air Tight to Christopher and
CAP Electric and categorized them as “subcontractor”
business expenses. Christopher would then coordinate
the payments to the CLEAResult employees. From 2013
to 2017, Christopher made weekly $1,000 cash payments
30a
Appendix C
and provided additional high-value items, including a John
Deere tractor, bathroom fixtures, outdoor light fixtures
and electrical work at Darlington’s home. After Darlington
was fired from CLEAResult in 2017, defendants moved
on to bribe another CLEAResult employee, Peter Marra
(“Marra”). Defendants bribed Marra with cash and gift
cards in exchange for preferential treatment, such as
advance notice of inspections and audits.
In total, CAP Electric and Air Tight received
approximately $36 million and $7.4 million in Mass Save
contract revenue, respectively.
II. Motion for Forfeiture
The government moves that this Court enter a
forfeiture money judgment order, pursuant to 18 U.S.C.
§ 981(a)(1)(C), 28 U.S.C. § 2461(c) and Fed. R. Crim. P.
32.2(b), in the amount of $3,600,000. That amount was
determined to constitute the net profit earned by Joseph
Ponzo’s company, Air Tight, between 2015 and 2019.
The subject statute renders real or personal property
subject to forfeiture if it “constitutes or is derived from
proceeds traceable to” a defendant’s crimes. The First
Circuit Court of Appeals (“First Circuit”), like other
circuits, applies a “but-for” test to determine if property
constitutes forfeitable “proceeds” of a defendant’s crimes.
United States v. Anguilo, 897 F.2d 1169, 1213 (1st 1990)
(“[F]orfeitures are limited to property interests that
would not have been acquired or maintained but for the
defendant’s [criminal] activities.”). Like other factors at
31a
Appendix C
sentencing, the government must prove the but-for nexus
between defendant’s crimes and the forfeitable assets by
a preponderance of the evidence. United States v. Keene,
341 F.3d 78, 85-86 (1st Cir. 2003).
Defendant contends that the government has not
met its burden of proving that all of Air Tight’s net
income represents “proceeds” of unlawful activity. He
also argues that the large size of the forfeiture money
order requested violates the Excessive Fines clause of
the Eighth Amendment.
The Court concludes that the government has
more than satisfied the low threshold of proving, by a
preponderance of the evidence, that Air Tight would
not have generated those proceeds but for defendants’
unlawful activity.
At his Rule 11 hearing, defendant agreed that the
government would have been able to prove certain facts
if the case had proceeded to trial, including that he had
bribed CLEAResult employees in exchange for their
“assist[ance] in having CLEAResult select Air Tight as
an approved contractor for Mass Save projects.” Docket
No. 133 at 16. But for the bribes, Air Tight would not have
won any Mass Save contracts because without the bribes,
Air Tight would not have been approved as a CLEAResult
contractor. The bribes did not stop after Air Tight was
approved: CLEAResult continued to award Mass Save
contracts to Air Tight and, in return, Joseph continued
to send money to Christopher to contribute his portion
of the bribes. As such, the government has shown, by
32a
Appendix C
a preponderance of the evidence, that but for Joseph’s
bribing of Darlington and Marra, Air Tight would not have
been selected for the Mass Save projects that brought in
$7.4 million in revenue.
With respect to defendant’s Eighth Amendment
claim, he contends that the $3.6 million sought is “grossly
disproportional to the gravity of [his] offense.” United
States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028,
141 L.Ed.2d 314 (1998). This Circuit, in agreement with its
sister circuits, has held that forfeiture of the proceeds of
criminal activity does not constitute an unconstitutionally
excessive fine. United States v. Candelaria-Silva, 166 F.3d
19, 44 (1st Cir. 1999); see, e.g., United States v. Sum of
$185,336.07, 731 F.3d 189, 194 (2d Cir. 2013); United States
v. Jamal, 499 F.3d 347, 354-55 (4th Cir. 2010); United
States v. Betancourt, 422 F.3d 240, 250-51 (5th Cir. 2005);
United States v. 22 Santa Barbara Drive, 264 F.3d 860,
874 (9th Cir. 2001); United States v. Funds on Deposit
at Bank One, 393 F. App’x 391, 392 (7th Cir. 2010). That
is because an order of forfeiture of the proceeds of one’s
crimes is not punitive but rather simply “parts the owner
from the fruits of the criminal activity.” United States v.
Alexander, 32 F.3d 1231, 1236 (8th Cir. 1994). The money
judgment sought is directly proportional to defendant’s
crimes. There is no Eighth Amendment violation.
III. Motion for Release and Stay of Forfeiture Pending
Appeal
Defendant. Christopher Ponzo seeks release pending
appeal pursuant to 18 U.S.C. § 3143(b). That provision
33a
Appendix C
requires a defendant to establish, inter alia, that his
appeal “raises a substantial question of law or fact” likely
to result in reversal or a more favorable sentence. The
relevant provision of § 3143(b)
breaks down into two distinct requirements:
(1) that the appeal raise a substantial question
of law or fact and (2) that if the substantial
question is determined favorably to defendant
on appeal, that decision is likely to result in
reversal or [a more favorable sentence].
United States v. Bayko, 774 F.2d 516, 522-23 (1st Cir. 1985).
Christopher identifies legal questions sufficient to satisfy
the first requirement but not the second.
Defendant challenges this Court’s findings at his
sentencing that certain specific offense characteristics
apply, thereby increasing his total offense level and his
guideline range. Even an erroneous guidelines calculation,
however, does not constitute reversable error if “the
district court or the record make clear that the court
found the sentence appropriate despite the Guidelines
range.” United States v. D’Angelo, 110 F.4th 42, 53 (1st
Cir. 2024) (citing United States v. Monson, 72 F.4th 1, 14
(1st Cir. 2023)).
Here, the Court found on the record that even if
specific offense characteristics were not applicable, an
upward variance would be warranted because the crimes
committed were more egregious than what was reflected
in defendant’s calculated total offense level.
34a
Appendix C
Defendant maintains that the Court’s decision to
upwardly vary was grounded solely in its erroneous belief
that defendant accrued more than $13 million from his
scheme. His mistaken reading of the sentencing transcript
ignores the Court’s expressed reasoning for what would
justify an upward variance, i.e., defendant’s central role
in orchestrating the bribery scheme, his lies to federal
investigators, the duration of the scheme and, finally, the
extraordinary amount of ill-gotten gains. Even if those
gains were less than calculated by the district judge,
an upward variance would have been warranted under
the circumstances. See United States v. Martin, 520
F.3d 87, 91 (1st Cir. 2008) (A federal court’s explanation
for a variance must be “rooted either in the nature and
circumstances of the offense or the characteristics of the
offender; . . . add up to a plausible rationale; and . . . justify
a variance of the magnitude in question.”).
Finally, defendant argues that this Court should
stay the forfeiture order pursuant to Fed. R. Crim. P.
32.2(d). One factor that would justify such a stay would
be a likelihood of success on appeal but, for the reasons
elaborated herein, the Court finds no such likelihood.
Defendant asserts that he self-generated 93% of the
revenue that he earned from the Mass Save projects
and is therefore entitled to it, notwithstanding the fact
that he paid the bribes. He admits he paid bribes of over
One Million Dollars but would have the Court believe
that it was in exchange for less than $200,000 worth of
contracts. That is ludicrous. A stay of the forfeiture order
is unwarranted.
35a
Appendix C
ORDER
For the foregoing reasons,
–
the government’s motion for forfeiture (Docket
No. 164) is ALLOWED; and
–
the motion of defendant Christopher Ponzo for
release and stay of forfeiture pending appeal
(Docket No. 172) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Court
Dated: March 19, 2025
36a
D OF THE
APPENDIXAppendix
D — ORDER
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS,
FILED FEBRUARY 13, 2025
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Case 22-cr-10094-NMG
UNITED STATES OF AMERICA
s.
2.
CHRISTOPHER PONZO,
Defendant.
Filed February 13, 2025
ORDER OF FORFEITURE (MONEY JUDGMENT)
GORTON, D.J.
WHEREAS, on January 26, 2023, a federal grand
jury sitting in the District of Massachusetts returned
a thirty-one-count Superseding Indictment, charging
defendant Christopher Ponzo (the “Defendant’’), and
another, with Conspiracy to Commit Honest Service Wire
Fraud, in violation of 18 U.S.C. § 1349 (Count One), Honest
Services Wire Fraud, Aiding and Abetting in violation of
18 U.S.C. §§ 1343, 1346, 1349 and 2 (Counts Two through
Twenty-Five), and False Statements in violation of 18
U.S.C. 1001(a)(2) (County Thirty-One);
37a
Appendix D
WHEREAS, the Superseding Indictment also
included a forfeiture allegation, pursuant to U.S.C. §
981(a)(1)(C) and 28 U.S.C. § 2461(c), which provided notice
that the United States intended to seek the forfeiture,
upon conviction of the Defendant of one or more of the
offenses alleged in Counts One and Two through Twenty
Five of the Superseding Indictment, of any property, real
or personal, that constitutes, or is derived from, proceeds
traceable to the commission of the offense;
WHEREAS, the Superseding Indictment further
provided that, if any of the above-described forfeitable
property, as a result of any act or omission by the
Defendant, (a) cannot be located upon the exercise of
due diligence; (b) has been transferred or sold to, or
deposited with, a third party; (c) has been placed beyond
the jurisdiction of the Court; (d) has been substantially
diminished in value; or (e) has been commingled with other
property which cannot be divided without difficulty, the
United States is entitled to seek forfeiture of any other
property of the Defendant, up to the value of such assets,
pursuant to 21 U.S.C. § 853(p), as incorporated by 28
U.S.C. § 2461(c);
WHEREAS, on November 6, 2024, at a hearing
pursuant to Rule 11 of the Federal Rules of Criminal
Procedure, the Defendant pled guilty to Counts One, Two
through Twenty-Five, and Thirty-One of the Superseding
Indictment;
WHEREAS, the Court accepted the Defendant’s
guilty plea;
38a
Appendix D
WHEREAS, during the hearing, the United States
gave a recitation of the facts, to which the Defendant did
not object, and advised the Defendant of the forfeiture as
set forth in the Superseding Indictment;
WHEREAS, as stated by the government in its
factual recitation during the Rule 11 hearing, and as
reflected in the Defendant’s Pre-Sentence Investigation
Report (“PSR”), the Defendant’s company obtained
approximately $36 million in connection with the offenses
of conviction;
WHEREAS, as set forth in the government’s
sentencing memorandum at pp. 26 -27 & n. 8, the
government determined that the Defendant’s company’s
net income from the scheme was approximately $13.2
million from 2014 to 2020;
WHEREAS, this is the amount that the government
seeks as a forfeiture money judgment;
WHEREAS, based on the Defendant’s guilty plea
on November 6, 2024, the United States is entitled to
an Order of Forfeiture consisting of a personal money
judgment against the Defendant, in an amount up to the
proceeds related to his violations of U.S.C. §§ 1343, 1346
and 1349, pursuant to 18 U.S.C. § 981(a)(1)(C) and 28
U.S.C. § 2461(c);
WHEREAS, this amount represents the proceeds of
the Defendant’s crimes;
39a
Appendix D
WHEREAS, on February 5, 2025, the Defendant
was sentenced to 27 months incarceration, two years
supervised release, a fine in the amount of $300,000, and
a special assessment in the amount of $2,600;
WHEREAS, at the hearing, the Court deferred the
issue of forfeiture;
WHEREAS, the government hereby seeks a forfeiture
money judgment against the Defendant in the amount of
$13,200,000.00;
WHEREAS, this amount represents the proceeds of
the Defendant’s offenses.
AC C OR DI NGLY, i t i s h e r e by OR DER ED,
ADJUDGED, and DECREED:
1. The Defendant shall forfeit to the United States
the sum of $13,200,000.00 pursuant to 18 U.S.C. § 981(a)
(1)(C) and 28 U.S.C. § 2461(c).
2. This Court shall retain jurisdiction in the case for
the purpose of enforcing this Order.
3. The United States may, at any time, move pursuant
to Rule 32.2(e) of the Federal Rules of Criminal Procedure
to amend this Order to substitute property having a value
not to exceed the amount set forth in Paragraph | to
satisfy the money judgment in whole or in part.
40a
Appendix D
4. The United States may, at any time, conduct
pursuant to Rule 32.2(b)(3) of the Federal Rules of
Criminal Procedure and U.S.C. § 853(m) , as incorporated
by 28 U.S.C. 2461, any discovery to identify, locate or
dispose of forfeitable property or substitute assets,
including, but not limited to, depositions and requests
for documents, electronically stored information, and
tangible things.
5. Pursuant to Rule 32.2(b)(4), this Order shall
be included and imposed by the Court in the criminal
judgment entered by this Court against the Defendant.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: February 13, 2025
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