          United States Court of Appeals
                      For the First Circuit


Nos. 17-1331, 17-1332, 17-1353

                    UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                   DORIS MOREL; ERIKA TOMASINO;

                     Defendants, Appellants.


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

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


                              Before

                       Lynch, Circuit Judge,
                    Souter, Associate Justice,*
                     and Stahl, Circuit Judge.


     Virginia G. Villa for appellant Doris Morel.
     Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender Office, District of Massachusetts, with whom
Christine DeMaso, Assistant Federal Public Defender, Federal Public
Defender Office, District of Massachusetts, was on brief, for
appellant Erika Tomasino.
     Donald C. Lockhart, Assistant United States Attorney, with whom
Stephen G. Dambruch, Acting United States Attorney, was on brief,
for appellee.



     *Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
March 16, 2018
             LYNCH, Circuit Judge.      After a six-day trial, a federal

jury convicted co-defendants Doris Morel and Erika Tomasino of

conspiracy    and    multiple    fraud-related     counts   based    on    their

participation in a multi-year tax-return fraud scheme.               Each was

sentenced to three years in prison.          On appeal, Morel challenges her

conviction with only a Batson jury claim. Tomasino adopts Morel's

Batson claim and raises four claims of her own, described later.

We affirm both defendants' convictions.

                                       I.

             On September 17, 2015 a grand jury indicted Juan Vasquez,

Belkis Vasquez, Doris Morel, and Erika Tomasino for conspiracy, theft

of government property, mail fraud, money laundering, and aggravated

identity theft, for their participation in an extensive scheme

primarily run from a grocery store in Pawtucket, Rhode Island called

the "Dominican Market."         We provide an overview of the scheme and

specify Morel's and Tomasino's alleged roles, reciting the evidence

in the light most favorable to the verdict. United States v. Van Horn,

277 F.3d 48, 50 (1st Cir. 2002) (citing United States v. Escobar-de

Jesus, 187 F.3d 148, 157 (1st Cir. 1999)).

             Between 2010 and 2014, about 450 fraudulent or stolen U.S.

Treasury tax refund checks, amounting to over $2.6 million, were

deposited     into   bank   accounts    under     Juan   Vasquez's    or     his

co-conspirators' control.         The vast majority of the refunds were

procured from bogus federal tax returns, which used the names and

                                     - 3 -
social security numbers of real U.S. citizens residing in Puerto Rico.

The returns listed false addresses in the Northeast, from which the

conspirators would retrieve the refund checks once delivered. The

conspirators then endorsed the checks by forging the payees'

signatures, and deposited them into shell bank accounts.           To

camouflage their illicit activity, the conspirators concurrently

deposited legitimate paychecks from customers of the Dominican

Market, Juan Vasquez's grocery store.

          Tomasino was employed at the Dominican Market for over ten

years in a variety of positions, including secretary, bookkeeper,

and cashier. At work, Tomasino would receive faxes with the names,

social security numbers, and dates of birth of other persons, and

would send the information to Juan Vasquez's office.         In 2011,

multiple tax refund checks were mailed to Tomasino's residence and

an adjacent mailbox. Between 2013 and 2014, Tomasino deposited and

paid others to deposit twenty refunds, totaling almost $150,000,

alongside legitimate Dominican Market customer checks, into bank

accounts under her control. Then, again both personally and through

others, Tomasino made withdrawals from those accounts, as well as

transfers to an account under Vasquez's control.   Tomasino received

a one-percent cut from Vasquez for cashing the Treasury checks.

          Morel's involvement in the scheme was similar.         Like

Tomasino, Morel was a longstanding Dominican Market employee.     She

worked at the cash register and also cashed customer checks. Morel

                                - 4 -
used her own residence and nearby addresses to pick up the tax refund

checks generated by the fraudulent scheme. She then deposited the

refunds alongside legitimate Dominican Market checks into accounts

under her control, and later withdrew the funds.

          Juan Vasquez, the head of the operation, and his sister

Belkis, pled guilty. Juan was sentenced to six years in prison, and

Belkis to three years of probation. Neither of them testified at Morel

and Tomasino's trial.

          Morel and Tomasino pled not guilty. In September 2016, at

the close of their six-day joint trial, they were each convicted of

all but one of the charges against them. In March 2017, they were

each sentenced to three years in prison.         Morel and Tomasino

separately appealed their convictions, and their appeals were

consolidated.

                                 II.

A.   The Batson Challenges

          Morel seeks reversal of her convictions on the basis of

a Batson challenge, see Batson v. Kentucky, 476 U.S. 79 (1986), which

Tomasino adopts and incorporates into her own brief.   Morel does not

otherwise challenge her convictions.

          We provide the background to the challenge.     During voir

dire, the magistrate judge asked whether any of the prospective jurors

were familiar with, or had frequented, the Dominican Market. Juror

15 disclosed that his grandmother lived near the store and frequented

                                - 5 -
it, and that he himself had occasionally been there to purchase

groceries. He stated that he had seen the owners of the store, was

"familiar with who they were," and had "spoke[n] on friendly terms"

with them, but added upon further questioning that he believed he

could serve as an impartial juror.        The government exercised a

peremptory strike against Juror 15.       Tomasino's counsel, but not

Morel's counsel, challenged the strike as racially discriminatory,

invoking Batson, and pointed out that Juror 15 was the sole black

male on the jury panel and was qualified to serve. The government

justified its strike on the basis that Juror 15 had personal knowledge

of the Dominican Market, the "epicenter" of the alleged fraudulent

scheme.    The   magistrate   judge   rejected   Tomasino's   challenge,

emphasizing that the entire case "revolve[d] around the Dominican

Market" and that some of the defendants were employed there. The court

found     the    government's     justification      legitimate     and

nondiscriminatory.   On appeal, Morel contends that the government's

peremptory strike was racially motivated, in violation of Batson.

           "We review a district court's factual determination that

the government was not motivated by race for clear error, and may

reverse only where we arrive at a 'definite and firm conviction that

a mistake has been committed.'" United States v. Casey, 825 F.3d 1,

11 (1st Cir. 2016) (quoting United States v. Gonzalez-Melendez, 594

F.3d 28, 35 (1st Cir. 2010)).



                                 - 6 -
            The government raises several procedural challenges. We

need not resolve them, because the Batson challenge patently lacks

merit. See United States v. Aranjo, 603 F.3d 112, 115 (1st Cir. 2010).

The government's basis for its strike was plainly race-neutral and

legitimate. It was eminently reasonable to fear that a juror who had

been a customer at the store around which the alleged conspiracy

revolved, and had directly interacted with the alleged leaders of

that conspiracy, might be biased or harbor preconceived views about

the case.

            Morel argues that because the neighborhood of the Dominican

Market has a higher percentage of African American residents than

other parts of Rhode Island, striking a juror for having frequented

the Dominican Market and being familiar and friendly with its owners

is a proxy for striking that juror on the basis of his or her race.

That is plainly wrong. A "statistical fact alone cannot convert a

facially race-neutral explanation into one based on race." Richard

v. Relentless, Inc., 341 F.3d 35, 45 (1st Cir. 2003); see also Caldwell

v. Maloney, 159 F.3d 639, 654 (1st Cir. 1998).

            Morel's theory of discriminatory intent is all the more

patently without merit considering that her repeated representation

that the government struck the "sole black venire member" is wrong.

As the record shows, another black juror, a woman, was on the panel

and served through the verdict.



                                 - 7 -
B.   Tomasino's Other Claims

          Tomasino raises four claims of her own: (1) that the

government produced insufficient evidence to support her conviction

for aggravated identity theft; (2) that the district court provided

an erroneous and prejudicial Pinkerton instruction to the jury;

(3) that the district court erred in admitting against Tomasino

incriminating statements made by Morel; and (4) that the district

court admitted improper summary witness testimony.

     1.   Sufficiency of the Evidence of Aggravated Identity Theft

          Tomasino challenges the sufficiency of the evidence

supporting her conviction for aggravated identity theft, in violation

of 18 U.S.C. § 1028A (Count 39).   Section 1028A prohibits "knowingly

transfer[ing], possess[ing], or us[ing], without lawful authority,

a means of identification of another person" in relation to an

enumerated felony. The government alleged and the jury found that

Tomasino violated § 1028A when she deposited a Treasury check bearing

the name and forged endorsement signature of a U.S. citizen whom the

parties refer to as "JRM." Tomasino challenges her conviction on the

grounds that the government failed to prove (1) that JRM's name on

a Treasury check was a "means of identification"; (2) that Tomasino

"used" JRM's means of identification; (3) that JRM was a real person;

and (4) that Tomasino knew that JRM was a real person.

          This court reviews preserved sufficiency challenges "de

novo, albeit taking the evidence in the light most favorable to the

                               - 8 -
verdict," and unpreserved challenges "only for clear and gross

injustice." United States v. Marston, 694 F.3d 131, 134 (1st Cir.

2012) (quoting United States v. Upham, 168 F.3d 532, 537 (1st Cir.

1999) (internal quotation marks omitted)). Tomasino preserved her

last three challenges (but not the first) by contemporaneously raising

them before the district court, in her oral motion for judgment of

acquittal and/or in her timely post-trial written motion. As to those

claims, we "examin[e] 'whether the total evidence, taken in the light

most amicable to the prosecution, together with all reasonable

inferences favorable to it, would allow a rational factfinder to

conclude beyond a reasonable doubt that the defendant was guilty as

charged.'" United States v. Castro-Lara, 970 F.2d 976, 979 (1st Cir.

1992) (quoting United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.

1991)).

          As to her first claim, Tomasino asserts that even though

she failed to argue before the district court that JRM's signature

did not constitute a "means of identification," her written motion

for acquittal made a "general" sufficiency-of-the-evidence challenge

that preserved for appeal all possible sufficiency challenges to the

aggravated identity theft count. This court has held that "a general

sufficiency-of-the-evidence    objection   preserves   all   possible

sufficiency arguments," whereas "a motion raising only specific

sufficiency arguments waives unenumerated arguments." United States

v. Foley, 783 F.3d 7, 12 (1st Cir. 2015).

                                - 9 -
             Marston opined in dictum that when a sufficiency objection

is ambiguous -- i.e., where specific objections accompanying a

seemingly "general" objection could be construed either as examples

or as an exhaustive list -- "[t]here is good reason in case of doubt

to treat [the] ambiguous motion . . . as 'general' in the sense that

it preserves all grounds."      694 F.3d at 135.     In that case, the

language counsel used to introduce specific objections implied the

existence of other unenumerated objections. See id. at 134. Here,

by contrast, Tomasino's motion for acquittal gave the district court

no reason to doubt that her three enumerated objections represented

her entire sufficiency challenge.         And unlike in Marston, the

district court did not treat Tomasino's motion as a general one: it

addressed her three specific objections, and went no further.             We

conclude that Tomasino has not preserved her "means of identification"

challenge, and accordingly review that issue only for clear or gross

injustice.

             The district court committed no injustice, or even error,

in allowing the jury to consider whether JRM's name and forged

signature on a Treasury check were a "means of identification."          The

statute,   §   1028(d)(7),   broadly   construes   the   term   "means    of

identification" to mean "any name or number that may be used, alone

or in conjunction with other information, to identify a specific

individual . . . ."     This court has found a name, alongside other

information, to qualify as a "means of identification." See, e.g.,

                                 - 10 -
United States v. De La Cruz, 835 F.3d 1, 9-11 (1st Cir. 2016) (name

and date of birth); United States v. Kuc, 737 F.3d 129, 134-35

(1st Cir. 2013) (name and company name). Tomasino attempts to argue

that we have not previously found the use of a name alone to suffice

under § 1028A. But Tomasino did not invoke JRM's name in a vacuum:

she cashed a tax refund check that was issued to a unique individual

identified by a unique social security number.         The check she

deposited bore JRM's full name as well as his (forged) signature on

the endorsement line.   We have no difficulty finding that a name

together with a forged endorsement signature placed on a tax refund

check constitute a "means of identification" for purposes of § 1028A.

Other circuits agree. See, e.g., United States v. Wilson, 788 F.3d

1298, 1310-11 (11th Cir. 2015) ("[T]he use of a person's name and

forged signature sufficiently identifies a specific individual to

qualify as a 'means of identification' under the aggravated identity

theft statute."); United States v. Porter, 745 F.3d 1035, 1043 (10th

Cir. 2014); United States v. Blixt, 548 F.3d 882, 888 (9th Cir. 2008).

          Tomasino's next argument is that her knowing act of

depositing the check cannot alone amount to "use" of JRM's means of

identification. After the district court had rejected the claim in

February 2017, this court issued a decision construing the term "use"

under § 1028A "to require that the defendant attempt to pass him or

herself off as another person or purport to take some other action

on another person's behalf."   United States v. Berroa, 856 F.3d 141,

                               - 11 -
156-57 (1st Cir. 2017) (emphasis added).       Tomasino's actions here

easily meet this definition. Tomasino deposited a check made payable

to JRM bearing an endorsement purporting to be JRM's signature,

despite the fact that she knew the signature had been forged. Based

on the evidence presented at trial, the jury could have found beyond

a reasonable doubt either that Tomasino herself forged JRM's signature

or that Tomasino knew one of her co-conspirators had forged his

signature. In this way, Tomasino purported to act on JRM's behalf,

and thus "used" his means of identification.

            Tomasino next argues that the government did not adequately

prove that JRM was a real person.       We disagree: a jury could have

reasonably concluded that this element was proven beyond a reasonable

doubt.    The evidence presented at trial established that the IRS

verifies the name and social security number appearing on a tax return

before it issues a refund.       Tomasino stresses that one of the

government's    witnesses   generally   acknowledged   that   the   IRS's

verification process is not "foolproof," but the jury was not required

to accept that this was an instance of an error in the validation

system.

            Tomasino falls back on the argument that there was

insufficient evidence for the jury to infer that she knew that JRM

was a real person.      This court has previously found sufficient

evidence of a defendant's knowledge that an identity was real where

the defendant repeatedly subjected that identity to scrutiny. See

                                - 12 -
United States v. Soto, 720 F.3d 51, 55 (1st Cir. 2013); United States

v. Valerio, 676 F.3d 237, 244-45 (1st Cir. 2012). Although Tomasino

only cashed a single refund check made out to JRM, the evidence showed

that the scheme in which she participated involved hundreds of

fraudulent tax refund transactions.     Moreover, Tomasino admitted

that she would collect the personal identifying information of other

persons and provide that information to Vasquez.        A jury could

reasonably infer, under these circumstances, that Tomasino knew that

the names appearing on the tax refund checks she was depositing

belonged to real persons.

     2.   Pinkerton Instruction

          Tomasino next attacks the district court's decision to give

the jury a Pinkerton instruction that did not exclude the substantive

charges against her of money laundering, mail fraud, and aggravated

identity theft. She argues that the instruction confused the jury

and lessened the government's burden of proof.          "[U]nder the

Pinkerton doctrine, a defendant can be found liable for the

substantive crime of a coconspirator provided the crime was reasonably

foreseeable and committed in furtherance of the conspiracy." United

States v. Vázquez-Botet, 532 F.3d 37, 62 (1st Cir. 2008).

          As to the objection made, the court had provided the parties

proposed instructions that included a Pinkerton charge previously

proposed by the government. Trial counsel for Tomasino objected that

the Pinkerton instruction was overbroad and could lead to jury

                               - 13 -
confusion as to the counts where she was charged individually and

no other defendant was so charged, while conceding that the

instruction was appropriate for Count 2. Trial counsel specifically

referred to United States v. Sanchez, 917 F.2d 607 (1st Cir. 1990)

and a Second Circuit case referenced in Sanchez. The government

responded that Tomasino seemed to be making some sort of lack of notice

argument, which was unfounded since the government had consistently

given notice of its intended use of Pinkerton liability.       After a

recess, the court said that it had read Sanchez and that the case

did not support defense counsel's position. The court explained:

          [Sanchez] said in the footnote, "We're not
          confronted with the sort of 'marginal case' in
          which the Pinkerton instruction sometimes
          causes concerns," and cited cases. "The Second
          Circuit   appropriately    cautioned    that    a
          Pinkerton charge 'should not be given as a matter
          of course,' particularly where the jury is being
          asked to make the converse inference; that is,
          to infer, on the basis of a series of disparate
          criminal acts, that a conspiracy existed. In
          the present case there was ample evidence that
          Rafael Sanchez was a member of the alleged
          conspiracy     to    possess     cocaine      for
          distribution."

(quoting Sanchez, 917 F.2d at 612 n.4). The court went on to conclude

that in this case, as in Sanchez, there was ample evidence from which

the jury could conclude a conspiracy existed. Later, defense counsel

again asked the court to "change the [Pinkerton] instruction . . .

[to] make it less broad and more specific to the particular charges




                                - 14 -
that it should address." The court rejected the request. At no point

did counsel expressly ask for a limiting instruction.

          On   appeal,   Tomasino   reiterates   that   the   Pinkerton

instruction should not have extended to substantive counts for which

the government's primary argument was that she personally engaged

in the prohibited conduct.     She claims prejudice insofar as the

instruction both "confused the jury" and "diminished the government's

burden of proof" because it enabled the jury to convict Tomasino of

crimes "without requiring the government to prove the mens rea

typically required for such convictions."

          Tomasino's arguments fail.    We see no evidence that the

jury was confused by the instruction or that it thought the government

had a lesser standard of proof. There were only two defendants in

this trial, and there was little risk the jury would confuse the

evidence as to each. Tomasino's acquittal on one count of aggravated

identity theft (Count 40) (to which she thought the Pinkerton charge

should not apply) helps prove the point.         The court properly

instructed the jury on the substantive offenses involving Tomasino's

own conduct. Moreover, as the district court found, there was "ample

evidence" of conspiracy, and Tomasino does not appear to challenge

her conspiracy conviction on appeal.     In such circumstances, the




                               - 15 -
instruction    regarding    the   Pinkerton   theory   of    liability   was

harmless.1

     3.      Morel’s Statements to IRS Agents

             Tomasino next challenges the admission of out-of-court

statements Morel made to IRS agents during questioning. At trial,

the agents recounted how Morel described to them how she had deposited

Treasury checks into various bank accounts, including in one instance

into an account under Tomasino's name. Tomasino contends that the

government     introduced    these    admissions   as       "co-conspirator

statements" under Federal Rule of Evidence 802(d)(2)(E), and that

the district court failed to make the requisite Petrozziello finding

that "the declarant and the defendant were members of a conspiracy

when the statement was made, and that the statement was made in

furtherance of the conspiracy." United States v. Ciresi, 697 F.3d

19, 25 (1st Cir. 2012). The government retorts that the statements

were introduced as admissions of a party opponent, under Federal Rule

of Evidence 801(d)(2)(A), and thus did not require Petrozziello

findings.

             Because Tomasino did not contemporaneously object to the

admission of Morel's statements at trial, plain-error review applies.


     1     The concern raised in the Second Circuit case cited by
Sanchez -- United States v. Sperling, 506 F.2d 1323, 1341-42 (2d Cir.
1974) -- does not arise in cases, such as this one, where there was
considerable evidence of the defendant's involvement in the
conspiracy. See United States v. Stackpole, 811 F.2d 689, 696 (1st
Cir. 1987).

                                  - 16 -
See United States v. Rodríguez-Milián, 820 F.3d 26, 33-34 (1st Cir.

2016). To establish plain error, Tomasino must show “(1) that an error

occurred (2) which was clear or obvious and which not only (3) affected

the defendant’s substantial rights, but also (4) seriously impaired

the   fairness,    integrity,   or   public    reputation    of   judicial

proceedings.”     United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

           It is undisputed that Morel's statements were admissible

against Morel as party admissions.            The issue is whether the

government also used Morel's statements to incriminate Tomasino, in

which case they would need to be independently admissible against

Tomasino as "co-conspirator" statements.       See United States v. Vega

Molina, 407 F.3d 511, 518-519 (1st Cir. 2005) ("It is well-established

that the out-of-court statements of a non-testifying defendant, even

if admissible against the declarant, may not be used against a jointly

tried codefendant unless otherwise independently admissible against

that codefendant.").

           Tomasino stresses that the district court failed sua sponte

to specifically instruct the jury not to consider Morel's statements

against   Tomasino.     Tellingly,   Tomasino's    trial    counsel   never

requested a limiting instruction, let alone argued that the statements

would be sufficiently incriminating vis-à-vis Tomasino as to warrant

their exclusion or separate trials. Cf. Bruton v. United States, 391

U.S. 123, 135-36 (1968) (proscribing the introduction of statements

                                 - 17 -
that     are      "powerfully   incriminating"      as   to   a   jointly    tried

co-defendant). Tomasino's claim of clear error fails because she has

not shown that the government introduced the statements as evidence

of her (as opposed to Morel's) participation in the scheme, or that

the statements facially incriminated her.                And even if there was

error,      it    neither   affected   Tomasino's    substantive     rights    nor

seriously impaired the fairness of the proceedings, because Morel's

statements were, at worst, only mildly and indirectly incriminating

as to Tomasino.

       4.        Testimony of IRS Agent Matthew Amsden

                 Tomasino’s final argument is that the district court failed

to exclude testimony from IRS Special Agent Matthew Amsden, which

she argues was prejudicial summary witness testimony.                       Amsden

conducted an investigation of the Dominican Market after receiving

a tip from a local detective. As the government’s final witness at

trial, Amsden synthesized, with the help of summary charts, the

evidence uncovered over the course of the investigation, which

included hundreds of tax returns and voluminous records of related

banking transactions. Over the course of Amsden's lengthy testimony,

Tomasino only objected to one instance of alleged hearsay testimony

and one summary chart. The district court overruled both objections.

On appeal, Tomasino sweepingly attacks the agent’s testimony, arguing

that it improperly bolstered the testimony of other witnesses,



                                       - 18 -
"offered opinions as to ultimate issues, and organized and endorsed

the government's case for the jury."

          Although   we   normally   review   the   district   court’s

evidentiary rulings for abuse of discretion, United States v.

Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008), Tomasino did not

contemporaneously object to the bulk of the testimony she now

protests. We review her unpreserved challenges for plain error.    See

United States v. Powers, 702 F.3d 1, 10 (1st Cir. 2012).

          Tomasino's broad attack on Amsden's testimony fails. This

court has held that “summary testimony . . . is permissible to

summarize complex aspects of a case such as the financial dealings

of a defendant.” United States v. Hall, 434 F.3d 42, 57 (1st Cir.

2006). Moreover, the majority of Amsden's testimony consisted of a

description of his own investigation of the Dominican Market and the

evidence of fraud he uncovered. Such testimony, based on personal

knowledge, is plainly admissible. See United States v. Rose, 802 F.3d

114, 121 (1st Cir. 2015) ("Where an officer testifies exclusively

about his or her role in an investigation and speaks only to

information about which he or she has first-hand knowledge, the

testimony is generally . . . permissible.").

          On a few occasions, Amsden briefly referred to testimony

from prior witnesses, but Tomasino did not object, and the testimony

was hardly prejudicial. The one time counsel raised an objection,

the court instructed Amsden to "be careful to describe only what [he]

                               - 19 -
kn[e]w from [his] knowledge, as opposed to . . . what another witness

may have testified to earlier." The court also soundly overruled the

objection because Amsden was describing evidence he had reviewed

himself in the course of his investigation.

          Tomasino's plaint as to Amsden's opinion testimony is also

meritless. Tomasino alleges that Amsden usurped the jury's function

when he opined that the deposit activity for her bank account was

consistent with money laundering and inconsistent with the activity

of a normal convenience store. This inference, which was based on

Amsden's observations of the account activity and his experience with

tax-fraud investigations of small convenience stores, was admissible

lay testimony. See United States v. Maher, 454 F.3d 13, 23 (1st Cir.

2006) (noting that Federal Rule of Evidence 701 allows for "testimony

based on the lay expertise a witness personally acquires through

experience, often on the job").

                                III.

          We affirm each of the defendants' convictions.




                               - 20 -
