          United States Court of Appeals
                     For the First Circuit


No. 19-1361

                      STEPHEN A. SACCOCCIA,

                      Plaintiff, Appellant,

                               v.

UNITED STATES of America; Attorney General of the United States;
  United States Attorney for the District of Rhode Island; and
                 Treasurer of the United States,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

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


                             Before

                  Thompson, Stahl, and Barron,
                         Circuit Judges.


     J. Allen Roth for appellant.
     Zachary A. Cunha, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney, was on brief, for
appellees.



                          April 2, 2020
           STAHL,       Circuit    Judge.     Plaintiff-Appellant       Stephen

Saccoccia, who controlled a money-laundering ring and in 1993 was

ordered   to    forfeit    over    $136,000,000      in   proceeds    from   the

conspiracy, appeals the district court's dismissal of his 2018

complaint seeking vacatur of the forfeiture order and return of

his forfeited property.         Saccoccia's complaint, asserting various

purported rights of action including, inter alia, writs of error

coram nobis, audita querela, and mandamus, contends that the

Supreme Court's decision in Honeycutt v. United States, 137 S. Ct.

1626 (2017), should be applied retroactively to invalidate the

forfeiture judgment against him.             Defendants-Appellees moved to

dismiss the complaint.          The district court granted the motion on

the grounds that Saccoccia had failed to state a claim as to each

purported avenue of relief, taking no position as to whether

Honeycutt applied to Saccoccia's claims.             We affirm.    However, as

we are free to affirm on any grounds made manifest by the record,

see Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st

Cir. 2007), we adopt a reasoning different from the district

court's and while we reach the Honeycutt issue, we find it not

viable.

           I.     Background

           We    draw     the    facts   primarily    from   the     complaint,

"accepting as true well-pleaded factual allegations and drawing

all reasonable inferences" in Saccoccia's favor.               SBT Holdings,


                                     - 2 -
LLC v. Town of Westminster, 547 F.3d 28, 30 (1st Cir. 2008).            We

may also consider facts from "documents incorporated by reference

into the complaint, matters of public record, and facts susceptible

to judicial notice."      Butler v. Balolia, 736 F.3d 609, 611 (1st

Cir. 2013) (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011)).     Thus, we rely upon undisputed facts found by the

district court at sentencing, as well as those recited by the

district court in United States v. Saccoccia, 823 F. Supp. 994

(D.R.I. 1993), issuing Saccoccia's forfeiture order, and by this

court in United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995),

affirming his conviction, sentence and forfeiture judgments.1

            Saccoccia formerly controlled a network of precious

metals    businesses   located   in   several   states,   including   Rhode

Island.    For a period of years from the 1980s to the early 1990s,

Saccoccia used these businesses to launder money on behalf of a

Colombian drug cartel.     Between January 1, 1990 and April 2, 1991,

Saccoccia and his wife wired $136,344,231.86 from a bank account

belonging to one of Saccoccia's businesses to various Colombian

and other foreign bank accounts.




     1  The complaint explicitly references both the district
court's opinion issuing the forfeiture order and this court's
affirmance of the conviction, sentence and forfeiture. Saccoccia
does not now collaterally attack, nor does his complaint set forth
facts challenging factual determinations essential to his criminal
conviction and sentence.


                                  - 3 -
             In 1991, a federal grand jury returned an indictment

charging     Saccoccia,   his     wife,     and        eleven   associates    with

conspiracy under the Racketeer Influenced and Corrupt Organization

("RICO") Act, 18 U.S.C. § 1962(d). In 1993, following a jury trial

in the United States District Court for the District of Rhode

Island,2 Saccoccia was convicted of one count of conspiracy under

the   RICO    Act,   thirty-six     counts        of     engaging   in    monetary

transactions with criminally derived property in violation of 18

U.S.C. § 1957, thirteen counts of money laundering in violation of

18 U.S.C. § 1956, and four counts of violations of the Travel Act,

18 U.S.C. § 1952.     The district court observed at sentencing that

Saccoccia personally wired some two-thirds of the nearly $137

million sent to Colombian and other foreign-based accounts and

that his wife had sent the remainder at his direction.                   The court

sentenced Saccoccia to twenty years' imprisonment on the RICO count

and sentences of varying lengths on the other counts, to be served

consecutively, resulting in a total sentence of 660 years.

             At the forfeiture phase, the district court ordered

Saccoccia to forfeit the sum of $136,344,231.86 pursuant to 18

U.S.C. § 1963(a)(3) and (m), the forfeiture and substitute asset

provisions of the RICO statute.           Saccoccia does not dispute on

appeal that he exercised control over and oversaw distribution of


      2The district court bifurcated Saccoccia's trial, separating
the substantive criminal charges from the forfeiture claims.


                                    - 4 -
these sums, nor does he allege any facts in his complaint that

contradict the district court's finding that all of the money at

issue passed through a bank account he controlled.3

             In 1995, Saccoccia appealed his conviction, sentence and

forfeiture to this court, and we affirmed each judgment.              From

1995 to 2010, Saccoccia mounted a series of additional challenges

to his conviction, sentence and forfeiture judgments, all of which

were denied.4     In 2018, Saccoccia applied for leave to file a

successive     motion   under   28    U.S.C.   § 2255,   contending   that

Honeycutt imposed a per se bar on joint and several forfeiture

liability and as such invalidated his forfeiture order.          On March

29, 2018, this court denied the § 2255 application on the grounds

that he had not made "a prima facie showing of a tenable Honeycutt

claim."

          On May 11, 2018, Saccoccia filed a "Verified Petition

and Complaint" with the district court.             In this complaint,

Saccoccia again argued that Honeycutt retroactively applied to his


     3 This point was conceded at oral argument by Saccoccia's
counsel.
     4 These included a challenge to his conviction under 28 U.S.C.
§ 2255, Saccoccia v. United States, 69 F. Supp. 2d 297 (D.R.I.
1999), certificate of appealability denied, 42 F. App'x 476 (1st
Cir. 2002), cert. denied, 537 U.S. 1031 (2002) and 540 U.S. 974
(2003); a motion for relief from judgment pursuant to Federal Rule
of Civil Procedure 60(b), United States v. Saccoccia, No. 91-cr-
115, 2004 WL 1764556 (D.R.I. Aug. 2, 2004); and a motion to modify
his sentence under 18 U.S.C. § 3582, United States v. Saccoccia,
No. 91-cr-115 (D.R.I. Nov. 12, 2010).


                                     - 5 -
case, rendering his forfeiture judgment invalid and depriving the

district court of jurisdiction to impose the forfeiture.                     The

complaint sought relief under a series of procedural mechanisms,

including requests to vacate the forfeiture under 28 U.S.C. § 1355,

grant writs of error coram nobis, audita querela, and mandamus,

return property pursuant to Federal Rule of Criminal Procedure

41(g), and grant declaratory and injunctive relief pursuant to 28

U.S.C. §§ 2201 and 2202, each of which requests substantively

relied on the retroactive application of Honeycutt.

            The government moved to dismiss the complaint pursuant

to Federal Rules of Civil Procedure 12(b)(1), for lack of subject-

matter jurisdiction, and 12(b)(6), for failure to state a claim

upon which relief could be granted.              The district court granted

the motion to dismiss, ruling Saccoccia had failed to state a

plausible claim as to each purported procedural avenue of relief,

but   in   doing    so   the   court   declined    to    rule   on   Honeycutt's

applicability.       Saccoccia v. United States, C.A. No. 18-266, 2019

WL 1382280, at *1-9 (D.R.I. Mar. 27, 2019).                This timely appeal

followed.

            II.     Analysis

                    A.      Standard of Review

            We     review    the   district    court's   dismissal     de   novo.

O'Brien v. Deutsche Bank Nat'l Tr. Co., 948 F.3d 31, 35 (1st Cir.

2020).     In undertaking this review, we "accept[] as true well-


                                       - 6 -
pleaded factual allegations and draw[] all reasonable inferences"

in Saccoccia's favor.      SBT Holdings, LLC, 547 F.3d at 30.         We "set

aside legal conclusions and those factual allegations 'too meager,

vague, or conclusory to remove the possibility of relief from the

realm of mere conjecture.'"           Starr Surplus Lines Ins. Co. v.

Mountaire Farms Inc., 920 F.3d 111, 114 (1st Cir. 2019) (quoting

In re Curran, 855 F.3d 19, 25 (1st Cir. 2017)).               We "may affirm

the decision below on any ground made manifest by the record."

Ruiz, 496 F.3d at 5.

            The parties invite us to decide a host of issues in this

appeal, such as whether Saccoccia has successfully asserted a valid

procedural vehicle to challenge his forfeiture judgment, whether

Honeycutt    is   retroactive   on    collateral    review,     and   whether

Honeycutt applies to 18 U.S.C. § 1963(a), the RICO statute under

which Saccoccia's forfeiture judgment arose.          But we need not now

answer these questions, as we conclude that even if we resolved

them in Saccoccia's favor, Honeycutt does not apply as a matter of

fact to Saccoccia's case given his control over the funds at issue.

               B.   Honeycutt        Does    Not   Preclude    Liability   in
     Saccoccia's Case

            Honeycutt concerned a low-level defendant in a criminal

conspiracy who was responsible for the sale of large quantities of

iodine-based      water,   which     could    be   used   to     manufacture

methamphetamines, from the hardware store he managed sales and



                                     - 7 -
inventory for.       137 S. Ct. at 1630.     The defendant, Honeycutt, had

no controlling interest in the criminal organization nor stood to

personally benefit from the enterprise's criminal activity.                 Id.

at 1631.

             After Honeycutt was indicted for various federal crimes

related to the sale of the iodine water, the government sought

forfeiture money judgments under 21 U.S.C. § 853(a)(1)5 against

Honeycutt in the amount of the store's profits from the illegal

sales.      Id. at 1630-31.       The district court declined to enter a

forfeiture judgment against Honeycutt on the ground that he had

not personally received any profits from the enterprise.              Id. at

1631.       The Court of Appeals for the Sixth Circuit reversed,

concluding that Honeycutt could be held jointly and severally

liable under § 853(a)(1) for any proceeds from the conspiracy.

Id.

             The Supreme Court reversed the Sixth Circuit's decision,

holding that a co-conspirator cannot be ordered to forfeit property

under § 853(a)(1) based on a theory of joint and several liability

where he never "actually acquired [the property] as the result of

the crime."        Id. at 1635.     The Court interpreted the statute to

limit forfeiture to "property the defendant himself obtained,"

holding     that   "[s]ection     853(a)'s   limitation   of   forfeiture    to


        5
       Forfeiture under § 853 applies to "[a]ny person" convicted
of certain drug crimes.


                                     - 8 -
tainted property acquired or used by the defendant, together with

the   plain     text    of   § 853(a)(1),      foreclose     joint    and   several

liability for co-conspirators."             Id. at 1633.        Thus, the Court

determined      that    "[b]ecause     Honeycutt     never    obtained      tainted

property as a result of the crime, § 853 does not require any

forfeiture."      Id. at 1635.

              Saccoccia      principally    relies    on     the     statement     in

Honeycutt that § 853(a) "foreclose[s] joint and several liability

for co-conspirators" to argue that his forfeiture order is "void

ab initio" under these principles and that Honeycutt provides a

valid foundation for his various purported procedural avenues of

relief.     Id. at 1633.       This argument is unavailing.            While this

court     has    yet    to    define    the     parameters      of     Honeycutt's

applicability, we find it clear that Saccoccia's interpretation in

any event neglects a critical part of Honeycutt's holding:                       that

any   bar     against    joint   and    several    co-conspirator        liability

articulated there applies only to defendants who did not actually

possess or control the funds at issue.                See id. at 1630 ("[A]

defendant may [not] be held jointly and severally liable for

property that his co-conspirator derived from the crime but that

the defendant himself did not acquire."); United States v. Tanner,

942 F.3d 60, 67-68 (2d Cir. 2019).

              Here, Saccoccia does not offer any facts in his complaint

to contradict the district court's findings that all of the funds


                                       - 9 -
in question passed through a bank account Saccoccia controlled.

Though we have not yet ruled on this issue, we agree with many of

our sister courts' conclusions that where a defendant controlled

the full proceeds as a result of the crime, Honeycutt does not

preclude him from being held liable for the value of such funds.

See, e.g., Tanner, 942 F.3d at 67-68; United States v. Potts, 765

F. App'x 638, 640 (3d Cir. 2019) (declining to apply Honeycutt

where the defendant did "not rebut[] the record evidence showing

that he, a co-owner of the organization, received . . . proceeds

as a result of his participation in the organization"); United

States     v.   Bane,     948   F.3d    1290,     1297-98      (11th    Cir.   2020)

(distinguishing the case from Honeycutt because of the defendant's

position as "owner and operator" of companies involved in the

enterprise); United States v. Bangiyev, 359 F. Supp. 3d 435, 440

(E.D. Va.) (concluding that a defendant "at the center of" the

conspiracy could be held jointly and severally liable for the

forfeiture because Honeycutt does not apply "where the defendant

held a position of control in the criminal operation"), aff'd, 771

F. App'x 328 (4th Cir. 2019).

            Unlike the defendant in Honeycutt, Saccoccia has "failed

to prove that he was not responsible for the entire proceeds of

the fraud."         Bane, 948 F.3d at 1297.           Further, there is in the

instant    case     "ample   evidence      in   the   record    that    [Saccoccia]

obtained    .   .    .   proceeds   from    the   scheme,"     United    States   v.


                                       - 10 -
Georgiou, Nos. 18-2498, 18-2762, 2020 WL 428766, at *2 (3d Cir.

Jan. 28, 2020), including in particular the undisputed facts that

Saccoccia controlled the bank account from which the funds at issue

flowed and that he oversaw the distribution of those funds.    See

United States v. Jergensen, Nos. 18-642, 18-1118, 2019 WL 6587680,

at *3 (2d Cir. Dec. 5, 2019) (rejecting defendants' Honeycutt

argument because defendants had "approved every transfer" of the

relevant monies and "thus each acquired or used the tainted

funds"); SEC v. Metter, 706 F. App'x 699, 702 n.2 (2d Cir. 2017)

(finding Honeycutt did not apply because the defendant "ha[d]

control of [the criminal organization] . . . and thus could control

the distribution of proceeds").    We thus conclude that because

Saccoccia has failed to prove that his conduct falls within

Honeycutt's factual ambit, Honeycutt does not preclude liability

in his case.6

          III. Conclusion

          For the foregoing reasons, the judgment of the district

court is AFFIRMED.




     6 Accordingly, as earlier stated, we do not reach the question
of whether Honeycutt applies retroactively or to the statute in
question, 18 U.S.C. § 1963(a).


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