          United States Court of Appeals
                      For the First Circuit


No. 15-1620

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     JORGE RIVERA-IZQUIERDO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                              Before

                    Barron, Stahl, and Lipez,
                         Circuit Judges.


     David Shaughnessy for appellant.
     James I. Pearce, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Leslie R. Caldwell,
Assistant Attorney General, Criminal Division, Sung-Hee Suh,
Deputy Assistant Attorney General, Criminal Division, Wifredo A.
Ferrer, United States Attorney, Southern District of Florida,
Charles R. Walsh, Trial Attorney, Criminal Division, and Luke Cass,
Trial Attorney, Criminal Division, were on brief, for appellee.


                          March 6, 2017
             BARRON, Circuit Judge.           In 2014, a jury convicted Jorge

Rivera-Izquierdo ("Rivera") of two counts of money laundering, in

violation of 18 U.S.C. §§ 1957 and 2.                He now appeals.    Finding no

reversible error, we affirm.

                                         I.

             18 U.S.C. § 1957 makes it a felony to "knowingly engage[]

or attempt[] to engage in a monetary transaction in criminally

derived property of a value greater than $10,000 and is derived

from specified unlawful activity."                 18 U.S.C. § 1957(a) (emphasis

added).      The    statute    goes   on      to    define   "criminally   derived

property" as follows: "any property constituting, or derived from,

proceeds obtained from a criminal offense."                  Id. § 1957(f)(2).

             In    2010,   a   federal     indictment        charged   Rivera   with

violating 18 U.S.C. § 1957 and 18 U.S.C. § 2, which punishes aiders

and abettors as though they were principals.                     According to the

indictment, Rivera and several co-defendants, "aiding and abetting

each other, did knowingly engage or attempt to engage in" two

transactions to purchase cars with "criminally derived property of

a value greater than $10,000 and is derived from specified unlawful

activity."

             The indictment alleged that the two vehicle purchases

occurred in September 2008 and May 2009, respectively.                           The

"specified unlawful activity" was a fraudulent scheme perpetrated




                                      - 2 -
by   Rosa      Castrillon-Sanchez      ("Castrillon"),        the   daughter   of

Rivera's common-law wife.1

               According to the indictment, in September 2008, Rivera

and Castrillon used "criminally derived" funds from Castrillon's

fraudulent scheme to make a down payment of $20,000 for a 2008

Toyota Sequoia sport utility vehicle.            In addition, several months

later, Rivera again helped Castrillon purchase a sport utility

vehicle -- this time, a BMW -- by making a "[p]ayment toward" the

vehicle's purchase price of approximately $63,418 with funds in

excess of $10,000 that were "criminally derived" from Castrillon's

fraudulent scheme.

               The indictment described Castrillon's fraudulent scheme

as follows.       Castrillon would tell her victims, most of whom were

friends and family members, that a large sum of money -- for which

she was the ostensible beneficiary -- had been "frozen" in a local

bank.       Castrillon would then request money to help "release" these

"frozen" funds.          The victims could not afford the large sums of

money       Castrillon    requested.   She     thus   would    either   complete

fraudulent loan applications on behalf of her victims or instruct


        1
       Subsection (f)(3) provides that the term "specified unlawful
activity" is to be given the meaning that term has in 18 U.S.C.
§ 1956(c)(7). The parties do not dispute that Castrillon's scheme
-- for which she was charged with violating 18 U.S.C. § 1028, the
federal identity fraud statute, 18 U.S.C. § 1343, the federal wire
fraud statute, and 18 U.S.C. § 1344, the federal bank fraud statute
-- qualifies as specified unlawful activity under § 1957. See 18
U.S.C. §§ 1957(f)(3), 1956(c)(7), 1961.


                                       - 3 -
them to take out loans themselves.     Castrillon would then take the

cash from those loans.   All told, Castrillon defrauded her victims

out of millions of dollars.

          At trial, Rivera introduced evidence that Castrillon

gambled extensively and that she used money taken from her gambling

winnings -- rather than from the money that she had taken from the

fraud victims -- to supply the funds that Rivera then used to make

the car purchases.   Rivera thus contended that, because the money

that he used in buying the cars came from the gambling winnings,

it was not "criminally derived property."     Rivera also argued that

he did not know that the funds that he received from Castrillon

and that he then used in buying the cars constituted "criminally

derived property," even if those funds somehow were so derived.

Instead, he argued, he thought that the funds that Castrillon gave

him were just funds that she took from her gambling winnings.

          In response, the government sought to show at trial that

the money from the gambling winnings actually did constitute

"criminally derived property."    The government did so by putting

in evidence that Castrillon had used the money that she took from

her fraud victims to fund her gambling.      The government also put

forward evidence to show that Rivera knew that Castrillon had done

so.

          After a month-long trial, the jury convicted Rivera of

two counts of money laundering, in violation of 18 U.S.C. §§ 1957


                               - 4 -
and 2.       The jury acquitted him, however, of the two other counts

that    he    faced:   conspiracy     to    commit     bank    and   wire    fraud   in

violation of 18 U.S.C. § 1349, and wire fraud, in violation of 18

U.S.C. § 1343.

               The District Court sentenced Rivera to 42 months of

imprisonment.       On appeal, Rivera makes a number of challenges to

his convictions.        We consider each one in turn.

                                           II.

               We start with the challenge that is the primary focus of

the parties: Rivera's contention that the District Court erred in

instructing the jury regarding one part of § 1957.                     We find that

this challenge has no merit.

                                           A.

               The District Court instructed the jury that, just as

§ 1957(f)(2) provides, the term "'criminally derived property'

means    any     property    constituting,        or   derived       from,    proceeds

obtained from a criminal offense."               Rivera does not challenge this

instruction.           He   instead    challenges        the    instruction        that

immediately       followed,    which       purported     to     define       the   term

"proceeds" in the statute's definition of "criminally derived

property."

               That instruction informed the jury that "proceeds" were:

"any property derived from or obtained or retained, directly or

indirectly, through some form of unlawful activity, including the


                                       - 5 -
gross receipts of such activity."      Rivera points out that this

instruction tracked, word for word, the definition of "proceeds"

that Congress set forth in an amendment to § 1957, which became

law in 2009 as part of the Fraud Enforcement and Recovery Act of

2009 ("FERA"), Pub. L. 111-21, 123 Stat. 1617.      Rivera contends

that, under the Ex Post Facto Clause, this definition of "proceeds"

could not lawfully have been applied to his case because the

"specified   unlawful   activity"     --   Castrillon's   fraudulent

scheme -- had begun years before FERA's passage.2


     2 Among other things, FERA defined "proceeds" in the companion
money-laundering statute, 18 U.S.C. § 1956, to encompass "any
property derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity, including the
gross receipts of such activity."      18 U.S.C. § 1956(c)(9) (as
amended).    FERA then also expressly provided that the term
"proceeds" used in the definition of "criminally derived property"
in § 1957 "shall have the meaning given ['proceeds'] in section
1956." 18 U.S.C. § 1957(f)(3) (as amended). The definition of
"criminally derived property" in subsection (f)(2) of § 1957,
however, has not been modified since the statute's passage in 1986.
See Anti-Drug Abuse Act of 1986, Pub. L. 99-570, § 1352, 100 Stat.
3207.
     We note that the simple insertion of the new, post-FERA,
definition of "proceeds" from § 1956(c)(9) into § 1957(f)(2)
appears to lead to a strange result: "The term 'criminally derived
property' means any property constituting, or derived from, any
property derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity, including the
gross receipts of such activity, obtained from a criminal offense."
Thus, we think Congress likely intended for the definition of
"criminally derived property" in subsection (f)(2) to read
something like the following: "the term 'criminally derived
property' means any property constituting or derived from,
proceeds, obtained from a criminal offense, including the gross
receipts of such activity." See S. Rep. No. 111-10, at 8 (2009)
(explaining that because Santos "mistakenly limited the term
'proceeds' to the 'profits' of a crime," FERA was designed to


                              - 6 -
            Rivera goes on to argue that the instruction was more

"expansive and elastic" than the pre-FERA definition of "proceeds"

that the District Court should have used.          To make this argument,

Rivera    first   directs   our   attention   to   the    companion   money-

laundering statute to § 1957, which is 18 U.S.C. § 1956.3

            Prior to FERA's passage, Rivera notes, that statute --

like § 1957 -- did not define the word "proceeds."           There was thus

no reason to conclude that "proceeds" in § 1956 meant anything

other than what that word meant in § 1957.               This fact matters,

Rivera argues, because, in 2008, in United States v. Santos, 553

U.S. 507 (2008), the Supreme Court narrowly construed the word




"amend the criminal money laundering statutes . . . to make clear
that the proceeds of specified unlawful activity include the gross
receipts of the illegal activity, not just the profits from the
illegal activity"); see also 155 Cong. Rec. S4774-02 (daily ed.
Apr. 28, 2009) (statement of Sen. Levin) ("[R]ecent court decisions
have misdefined the term 'proceeds' from the money laundering
statute   to   mean   only   the   net   receipts   from   unlawful
activities . . . This act will fix these decisions and explicitly
define 'proceeds' to include not only net but gross receipts from
unlawful activities.").
     3   Prior to 2009, § 1956 provided:
     Whoever, knowing that the property involved in a
     financial transaction represents the proceeds of some
     form of unlawful activity, conducts or attempts to
     conduct such a financial transaction which in fact
     involves the proceeds of specified unlawful activity--
     (A) with the intent to promote the carrying on of
     specified unlawful activity . . . shall be sentenced to
     . . . imprisonment for not more than twenty years.
Anti-Drug Abuse Act § 1352 (emphasis added).


                                   - 7 -
"proceeds" in § 1956 and thus, according to Rivera, necessarily

also set forth the same narrow construction of that word in § 1957.4

               Specifically, according to Rivera, Santos made clear

that "proceeds" meant only the net receipts (or, put otherwise,

the profits) of specified unlawful activity and not the gross

receipts of that activity.         Rivera also contends that Santos made

clear that, in any event, "proceeds" (whether gross or net) never

means       "more   than   the   receipts   from   the   specified   criminal

activity."5



        4
       In Santos, the Court considered whether the expenses of
operating the defendant's "illegal lottery" -- including "payments
to runners, winners, and collectors" -- constituted "proceeds"
under 8 U.S.C. § 1956. 553 U.S. at 510. A four-justice plurality
concluded that they did not. Because, on the plurality's view,
the meaning of the term "proceeds" was ambiguous, the plurality
applied the rule of lenity to hold that the term "proceeds" means
the "net profits" of criminal activity, and thus did not encompass
the illegal lottery's expenses. Id. at 514. Concurring in the
judgment, Justice Stevens declined to adopt a categorical
definition, instead suggesting that the "Court need not pick a
single definition of 'proceeds' applicable to every unlawful
activity."   Id. at 525.    Like the plurality, however, Justice
Stevens was concerned that applying a "gross receipts" definition
to the specific facts of Santos would lead to the so-called
"merger" problem," whereby the defendant would be convicted of the
substantive offense of "operating a gambling business," and then
convicted again, under § 1956, of money laundering for "the mere
payment of the expense of operating an illegal gambling business."
Id. at 527.    This possibility, Justice Stevens noted, was "in
practical effect tantamount to double jeopardy." Id. Applying
the rule of Marks v. United States, 430 U.S. 188 (1977), we held
in United States v. Adorno-Molina, 774 F.3d 116, 123 (1st Cir.
2014), that "Justice Stevens's concurrence is the controlling
law."
        5
       Although Castrillon's fraud began several years before
Santos was decided, Rivera does not contend that the definition of


                                      - 8 -
           From this premise, Rivera contends that the District

Court's instruction, by relying on FERA's later-enacted definition

of "proceeds," expanded the scope that Santos had given to that

term in § 1956 in two key respects.            Unlike the definition of

"proceeds" set forth in Santos, Rivera points out, the instruction

-- tracking FERA -- expressly stated both that "proceeds" includes

"gross   receipts"   and   that   "proceeds"   includes:   "any   property

derived from or obtained or retained, directly or indirectly,

through some form of unlawful activity."         18 U.S.C. § 1956(c)(9)

(as amended) (emphasis added).

           In pressing this challenge, Rivera emphasizes that the

government first proposed this instruction as to the meaning of

"proceeds" only after Castrillon had testified for the defense

about her gambling activity.      During that testimony, Rivera notes,

Castrillon stated that the money that she gave to Rivera to

purchase the cars came from her gambling winnings. Rivera contends

that the government proposed the FERA-based instruction defining

"proceeds" in order to argue to the jury that it was "simply

irrelevant whether the money" used to buy the cars was "gambling

winnings or fraud proceeds because Rivera was guilty either way."

As a result, he argues, the instructional error "went to the very

heart of the case."        It impermissibly enabled the jury, Rivera


the term should be anything other than one that he contends that
Santos provided.


                                   - 9 -
contends, to find that Castrillon's gambling winnings constituted

the "proceeds" of "specified unlawful activity," even though those

winnings were not the actual funds taken from Castrillon's fraud

victims and thus were not (in Rivera's view) the "proceeds" of

that fraud under Santos.

                                 B.

          Rivera concedes that he did not object at trial to the

jury instruction that he now challenges on appeal.     Our review,

therefore, is only for plain error.

          Under this standard, Rivera "faces the 'heavy burden of

showing (1) that an error occurred; (2) that the error was clear

or obvious; (3) that the error affected his substantial rights;

and (4) that the error also seriously impaired the fairness,

integrity, or public reputation of judicial proceedings.'"   United

States v. Prieto, 812 F.3d 6, 17 (1st Cir. 2016) (quoting United

States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008)).     Assuming a

clear or obvious instructional error, Rivera need not, under the

third prong of the plain-error review standard, "prove by a

preponderance of the evidence that but for [the] error things would

have been different."   United States v. Rodríguez, 735 F.3d 1, 11-

12 (1st Cir. 2013) (quoting United States v. Dominguez Benitez,

542 U.S. 74, 84 n.9 (2004) (insertion in original)).         But, a

showing of "mere possibilities [is] not enough" to prove that an

instructional error affected a defendant's substantial rights.


                              - 10 -
United States v. Procopio, 88 F.3d 21, 31 (1st Cir. 1996).           Rivera

thus must show that the "outcome of the case would likely have

changed" had the erroneous instruction not been given.               United

States v. Colon, 744 F.3d 752, 758 (1st Cir. 2014).

           The government disputes whether Rivera is right that the

District Court erred in basing the "proceeds" instruction on the

definition of the term that FERA set forth, given when FERA became

law.   The government also disputes whether he is right about how

narrowly Santos construed "proceeds."        Cf. Santos, 553 U.S. at 525

(Stevens, J., concurring in judgment). But even if Rivera is right

on both counts, his challenge to the instruction still fails

because he cannot show that the instruction likely affected the

outcome of the case.

           The record makes clear that the part of the instruction

that defined "proceeds" to include "gross receipts" did not likely

affect the outcome of the case. The record shows that Castrillon's

fraud entailed little in the way of expenses.               The record also

shows that the gross receipts from the fraud were extremely large

-- totaling more than $2.5 million.          The expenses of the fraud,

therefore, were simply too paltry for the instruction's definition

of   "proceeds"   to   include   "gross    receipts"   to   have   made   any

difference.   Nor does Rivera point to anything in the record to

suggest otherwise.




                                  - 11 -
            The   record     similarly    shows    that    the    part   of    the

instruction that defined "proceeds" by using what Rivera calls

"expansive and elastic" words -- "any property derived from or

obtained or retained, directly or indirectly" -- did not likely

affect the outcome of the case.           (emphasis added).          As we have

noted, the instructions as a whole made clear that, consistent

with § 1957(f)(2), property "derived from" the "proceeds" of

specified   unlawfully       activity    is    itself   "criminally      derived

property." United States v. Brown, 669 F.3d 10, 29 (1st Cir. 2012)

("When applying the plain error standard in the context of jury

instructions, 'we look at the instructions as a whole to ascertain

the extent to which they adequately explain the law without

confusing or misleading the jury.'"              (quoting United States v.

Troy, 618 F.3d 27, 33 (1st Cir. 2010))).

            Thus,   the    government     did    not    need    to   prove    that

Castrillon's      gambling     winnings       themselves       constituted     the

"proceeds" of her fraud.        To make the case that Rivera, in using

money taken from those winnings to buy the cars, used "criminally

derived property," the government needed to prove only that the

money that he used from the gambling winnings constituted property

"derived from" the fraud's "proceeds."

            This feature of the definition of "criminally derived

property" dooms Rivera's challenge to the instruction.                       As we

explain more fully in addressing Rivera's separate challenge to


                                   - 12 -
the sufficiency of the evidence, the record provides ample support

for a jury to find that Castrillon generated her gambling winnings

exclusively from the funds that she took from the fraud (or, put

otherwise, from the "proceeds" of it).          The record also provides

ample support for a jury to find that the fraudulently obtained

funds that Castrillon used to generate the gambling winnings

totaled at least as much as the amount of money that Castrillon

then gave to Rivera to buy the cars.           Given the strength of the

evidence that Castrillon's gambling winnings were "derived from"

the proceeds of Castrillon's fraud -- and thus that the proceeds

were "criminally derived" -- Rivera fails to show that the outcome

of   the   case   would   likely   have     changed   had   the   challenged

instruction on "proceeds" not been given.6


      6A number of sister circuits, pre-FERA, had construed the
"derived from" portion of the statute's definition of "criminally
derived property" expansively in analogous circumstances.      And
they did so to account for the practical reality that "[m]oney is
fungible," and thus that "when funds obtained from unlawful
activity have been combined with funds from lawful activity into
a single asset, the illicitly-acquired funds and the legitimately-
acquired funds (or the respective portions of the property
purchased with each) cannot be distinguished from each other."
United States v. Moore, 27 F.3d 969, 976-77 (4th Cir. 1994); see
also id. (concluding that, where the defendant obtained the
"overwhelming bulk of the purchase money" for several condominiums
from his bank fraud, "the jury was entitled to conclude . . . that
when the condominiums were eventually sold, the net proceeds of
that sale were in their entirety property derived from . . . [the
defendant's] bank fraud" (emphasis added)); United States v.
Johnson, 971 F.2d 562, 570 (10th Cir. 1992) ("An examination of
the defendant's bank records gave no indication that the funds in
the defendant's account came from any source other than investors
in the alleged [fraud scheme].      Under the circumstances, the


                                   - 13 -
            Rivera, moreover, makes no developed argument to the

contrary.   He instead focuses solely on how the jury instruction's

"expansive and elastic" language defining "proceeds" permitted the

jury to find that the gambling winnings were "proceeds."   But, as

we have just explained, that focus is too limited, given how § 1957

defines "criminally derived property."      See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").7


evidence was sufficient for the jury to find that the funds
withdrawn were derived from the specified unlawful activity."
(emphasis added)); cf. United States v. Davis, 226 F.3d 346, 357
(5th Cir. 2000) ("[W]hen the aggregate amount withdrawn from an
account containing commingled funds exceeds the clean funds,
individual withdrawals may be said to be of tainted money, even if
a particular withdrawal was less than the amount of clean money in
the account.").
     7 We thus have no need to address whether the instruction
would have been prejudicial if we were, like Rivera, to focus only
on the meaning of "proceeds." We do note that it is not at all
clear that it was. Rivera does contend that Santos makes clear
that the funds used to purchase cars, insofar as they are from
gambling winnings, would not qualify as "proceeds" even if they
would qualify under FERA's more expansive definition. But Santos
considered only whether the "proceeds" of the defendant's illegal
lottery referred to the "receipts" of that lottery, or its
"profits." 553 U.S. at 511 (Scalia, J., plurality opinion). Thus,
Santos did not address how tight the connection between a
transaction charged under § 1957 and some specified unlawful
activity must be in order for the funds used to make the
transaction to "constitute" the "proceeds" of that activity. See
18 U.S.C. § 1957(f)(2). Moreover, some courts, pre-FERA, indicated
that "proceeds" was even then an expansive term. See Moore, 27
F.3d at 976-77 ("[W]hen funds obtained from unlawful activity have
been combined with funds from lawful activity into a single asset
. . . it may be presumed . . . that the transacted funds, at least
up to the full amount originally derived from crime, were the


                              - 14 -
           Accordingly, we conclude that Rivera's challenge to the

jury instruction concerning the definition of the term "proceeds"

in § 1957 fails.    For even if the instruction was given in error,

Rivera has not shown how that error affected his substantial

rights.

                                  III.

           We turn, then, to Rivera's contention that the evidence

was insufficient.    Our review is de novo.   United States v. Maymí-

Maysonet, 812 F.3d 233, 236 (1st Cir. 2016).       In undertaking that

review, we consider "the evidence, both direct and circumstantial,

in the light most favorable to the prosecution and decide whether

that evidence, including all plausible inferences drawn therefrom,

would allow a rational factfinder to conclude beyond a reasonable

doubt that the defendant committed the charged crime."               Id.

(quoting United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st

Cir.   2008)).     Applying   these   standards,   we   reject   Rivera's

sufficiency challenge, which, as we will explain, has two distinct

aspects.



proceeds of the criminal activity or derived from that activity."
(emphasis added)); see also United States v. Sokolow, 91 F.3d 396,
409 (3d Cir. 1996) ("It is clear from the full context of the
district judge's explanation of the concept of proceeds that he is
addressing the absence of a legal requirement that the government
trace the funds constituting criminal proceeds when they are
commingled with funds obtained from legitimate sources. We find
no error in the district court's jury instructions in this regard."
(emphasis added) (internal citation omitted)).


                                 - 15 -
                                   A.

          First,    Rivera   argues    that   the   government   presented

insufficient evidence to prove beyond a reasonable doubt that the

money that he used to purchase the two vehicles was "criminally

derived property."    But, we do not agree.         See United States v.

Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007) (explaining

that on sufficiency review the "government need not succeed in

eliminating every possibly theory consistent with the defendant's

innocence" (internal quotation marks and citation omitted)).

          The government adduced a wealth of evidence that showed

that   Castrillon    generated   the    gambling     winnings    by   using

fraudulent funds in an amount far greater than the amount that she

testified that she gave to Rivera to make each car purchase.

Specifically, Castrillon testified that she obtained more than

$2.5 million from the victims of her fraud, which began in 2005.

Moreover, Castrillon testified that she "began [her gambling]

addiction, it was for five years, 2006 [or] 2005"; that, as of

2007, her income from her prior employment had come to an end; and

that, over time, she suffered gambling losses of "much more" than

half a million dollars.

          A jury could thus reasonably infer that the source of

the money that Castrillon used to generate the gambling winnings

was exclusively the money that Castrillon took from the "proceeds"

of the fraud.   A jury could also reasonably infer that the amount


                                 - 16 -
of fraudulently obtained funds she used to fund her gambling

totaled at least as much as the amount of money that she gave to

Rivera to buy the cars.     And, for the reasons that we have just

explained regarding the scope of the "derived from" prong of

§ 1957's definition of "criminally derived property," a jury that

could reasonably make those inferences also could reasonably find

the following.     Insofar as Rivera used the gambling winnings to

make each car purchase that is at issue here, he each time used

"criminally derived property" in excess of $10,000 from "specified

unlawful activity" to do so.

          To make the contrary case, Rivera advances a number of

arguments about the state of the record.       But we do not find them

to be persuasive.

          Rivera    first   contends    that   it   is   possible   that

Castrillon made money from gambling before the fraud began in 2005.

He thus argues that a jury reasonably could have found that Rivera

made the car purchases with funds taken from these pre-fraud,

untainted gambling winnings.    But, Rivera identifies no plausible

source -- nor do we find one in the record -- for Castrillon's

hypothetically untainted gambling winnings, let alone evidence

that such untainted winnings were of a size sufficient to supply

more than $10,000 towards a car purchase not once, but twice.

          To the contrary, by her own testimony, Castrillon began

gambling "in 2006, [or] 2005," and she did not testify that the


                               - 17 -
gambling preceded the fraud.           Nor did she at any point testify

that her pre-fraud gambling luck (if any she had) generated amounts

of any significance.        In fact, Castrillon made clear that she used

the fraudulently obtained funds to feed her casino gambling in the

down periods, which she also testified were frequent enough (or

unlucky enough) that Castrillon's gambling losses at a San Juan

hotel's casino well exceeded half a million dollars.

            Rivera    next    notes    that,   at   one   point     during   her

testimony, Castrillon stated that the funds that Rivera used to

buy the BMW came from money that she made off of the "electronic

lottery."   And, Rivera contends, a jury reasonably could find that

the lottery winnings were not tainted by the fraud.

            Rivera never identifies evidence in the record, however,

that reveals an untainted source of the funds that Castrillon might

have tapped to play the electronic lottery.               Nor did Castrillon

herself identify one.        Rather, Castrillon, as we have just noted,

testified   that     she   had   no   source   of   income   from    her   prior

employment after 2007 and that she had casino gambling losses in

excess of $500,000.        She also agreed during her testimony at trial

that the "money [she] would gamble with . . . was from" her fraud

victims, which funds totaled more than $2.5 million.8




     8  The full colloquy surrounding that statement during
Castrillon's cross-examination by the government reads as follows:


                                      - 18 -
          Finally, Rivera points to the gap in time between late

October 2008, when Castrillon received the last of the funds she

took directly from the fraudulent scheme, and May 2009, when the

second vehicle was purchased.    But Rivera identifies no plausible

separate source of funds -- that is, funds that were not "derived

from" the "proceeds" of the fraud scheme -- with which Castrillon

might have gambled after the scheme ended and from which the funds

used to pay for the cars could have come.   We thus do not see how

this gap helps Rivera's argument.

          That leaves only the circuit precedents that Rivera

relies upon.   But, given the evidence in the record, these cases

are readily distinguished.




     A: Are you asking me, sir, if the money that I used to
     pay for the [Toyota Sequoia], I never thought about
     paying it back to other people?
     Q: That's pretty obvious; isn't it?
     A: The answer to that is no.
     Q: And you testified that -- in direct, that that money
     was from casino winnings?
     A: Yes, there was evidence to that effect and I had to
     present it.    Not the casino, it was the electronic
     lottery.
     Q: The money you would gamble with, as you testified
     before, was from the individuals who were loaning you
     money?
     A: And the money that I would also, at the same time,
     win at the machines.

In answering the prosecutor's question, Castrillon clearly did not
distinguish between casino gambling and the electronic lottery,
thus suggesting she also used fraudulently derived funds to play
the lottery.


                                - 19 -
             The first precedent Rivera relies on is our decision in

United States v. Carucci, 364 F.3d 339 (1st Cir. 2004).             There,

the government sought to prove that the defendant was guilty of

violating § 1957 because he had laundered funds derived from the

criminal activities of Stephen Flemmi, "the notorious leader of

Boston's 'Winter Hill Gang.'"        Id. at 340.     We explained that, in

light   of   the    record,    "[a]ccepting   that   Flemmi's   income   was

illegitimate, it could have been linked to any number of criminal

activities . . . [and thus] there [was] no . . . evidence that

Flemmi had engaged in the specified [unlawful activities charged

in the indictment] in the relevant time period."          Id. at 347.

             Rivera's case is very different.        The record here does

not reveal plausible sources for the money that Rivera used to

help Castrillon buy the two cars other than the gambling winnings

that the record sufficiently shows were "derived from" the proceeds

of her fraud.      Instead, the evidence offers no plausible untainted

source form which the gambling winnings were made.

             Similarly off-point is United States v. Wright, 651 F.3d

764 (7th Cir. 2011).          There, the Seventh Circuit held that the

government failed to prove a violation of § 1957 because the

defendant used only $8,000 in "drug proceeds" -- an amount below

the statute's $10,000 threshold for the amount that must be

involved in a transaction charged under § 1957 -- to purchase a

property that the defendant later sold for approximately $50,000.


                                    - 20 -
Id. at 771.       In Rivera's case, however, the government did not

rely on the value of the assets purchased (the cars) to get over

the   statutorily    imposed     $10,000-per-transaction          threshold     for

"criminally derived property."            The government instead relied on

extensive     evidence   that    showed    the    following.       The   gambling

winnings came exclusively from the funds that Castrillon took from

her fraud.     And, the fraudulently obtained funds that she used to

gamble totaled well in excess of the amount of money that would

have been needed to cover the money that Rivera got from Castrillon

to buy the cars, which exceeded $10,000 per transaction.

              For related reasons, United States v. Rutgard, 116 F.3d

1270 (9th Cir. 1997), is also no help to Rivera.                There, the Ninth

Circuit   held    that   money     derived       from   funds   that     were   not

"criminally derived property" and that were sufficient to pay for

a transaction in excess of $10,000 does not become "criminally

derived" just because the clean funds are commingled in an account

that also contains "criminally derived property."                  Id. at 1292;

see also Saccoccia v. United States, 42 Fed. Appx. 476, 481 (1st

Cir. 2002).      But here, the record overwhelmingly indicates that

only funds that were, at the least, "derived from" the proceeds of

the fraud were used to give Rivera the funds that he used to buy

the   cars.      Thus,   the    circumstance      Rutgard   addressed      is   not

presented here.




                                    - 21 -
                                          B.

           The     other   aspect    of    Rivera's     sufficiency    challenge

concerns the evidence of his mens rea.                   He argues that the

government presented insufficient evidence to prove that he "knew

that more than $10,000 of criminal money was involved" in the

second   vehicle    purchase.        (emphasis    added).       He    bases   this

contention on Castrillon's testimony that she told him that "the

money for the car was gambling winnings."

           The record, however, reveals evidence of Rivera's close

ties to Castrillon -- including her testimony that it was "[a]s if

he was" her father.          Rivera also concedes that the government

presented wide-ranging evidence of Rivera's participation in the

fraud scheme, including evidence that he recruited new victims,

pressured them to take out loans, assured them the frozen funds at

the heart of the scheme were real, and threatened victims who came

to complain to Castrillon's mother.

           Thus, a jury could reasonably infer that Rivera knew

that Castrillon had no source of revenue for her gambling activity

other than the fraudulently obtained funds and that he knew that

the fraudulent scheme was extremely profitable -- generating, per

Castrillon's testimony, over $2.5 million.              And a jury that could

reasonably make this inference could also reasonably infer that

Rivera   knew    that      money    obtained     from    that   scheme    funded

Castrillon's gambling and, consequently, that the funds she took


                                     - 22 -
from her gambling activity to give to him to make the two car

purchases was "criminally derived."                    This part of his sufficiency

challenge, therefore, fails as well. See United States v. Richard,

234   F.3d   763,     769    (1st    Cir.    2000)        ("[T]he     government    must

prove . . . that [the defendant] had general knowledge of the

subject property's criminal nature . . . .").

                                        IV.

             Having dispensed with Rivera's challenges to the jury

instructions and to the sufficiency of the evidence, we now address

the two remaining challenges that Rivera makes that concern the

tie between Castrillon's gambling winnings and her fraud.                       Neither

challenge has merit.

                                            A.

             Rivera    contends      first       that    his    convictions    must    be

reversed because of statements that the prosecutor made in his

closing argument.           In those statements, the prosecutor told the

jury that it could convict Rivera if the money used to buy the

vehicles "came from casino winnings and not directly from victims"

because that money was nevertheless "criminally derived property."

Rivera contends that these statements amounted to an erroneous

assertion     that    the     jury    was        legally       required   to   apply     a

"presumption that all of Castrillon's money was dirty."

             Rivera    concedes       that        he     did    not   object   to      the

prosecutor's statements at trial.                 Our review, therefore, is for


                                       - 23 -
plain error.     United States v. González-Pérez, 778 F.3d 3, 20 (1st

Cir. 2015).    We find none.     As we read the record, the prosecutor

did not argue that a legal presumption of taint applied to all the

funds that were used to purchase the cars.      The prosecutor merely

summarized his view of what had been revealed by the circumstantial

evidence presented at trial about the nature of the funds used to

make those transactions.9      Moreover, the District Court instructed

the jury that "the closing arguments are not evidence."       For these

reasons,   the    prosecutor's    statements   supply   no   basis   for

sustaining Rivera's challenge.       United States v. Allen, 469 F.3d

11, 16 (1st Cir. 2006) (noting that even a mischaracterization of

the defendant's testimony, provided it was "unintentional and

isolated" and corrected by a cautionary instruction by the district

court, "did not prejudice the outcome of the case" and therefore

did not constitute plain error).




     9 To the extent Rivera argues that the prosecutor "misstated
Castrillon's testimony," we reject that challenge as well.      As
Rivera correctly notes, "Castrillon testified that her gambling
money came from either gambling winnings or loans."      Thus, the
prosecutor did not err in suggesting to the jury that even if the
money Rivera used to obtain the two manager's checks used to
purchase the BMW "came from casino winnings and not directly from
victims," it was nevertheless "criminally derived property because
the money she was playing with was the victims' money."
Significantly, the government never stated that the funds in
question were "proceeds."


                                  - 24 -
                                         B.

             Rivera    also    argues     that    his     convictions      must    be

overturned because the District Court did not permit his attorney

to adduce evidence quantifying Castrillon's gambling winnings.

Rivera did preserve this challenge, and so our review is for abuse

of discretion.       United States v. DeCologero, 530 F.3d 36, 58 (1st

Cir. 2008).

             The record does not show that the District Court barred

Rivera from presenting this evidence.                   Rather, after Rivera's

attorney, on re-direct, withdrew a question in which he sought to

quantify   Castrillon's        gambling       winnings,    the     District   Court

emphasized    that    Rivera's    attorney       could    pursue    this   line    of

questioning if he could "show the relevance and accuracy of that

information."

             Moreover, the additional evidence at issue could not

have helped Rivera identify a plausible untainted source for the

funds used to buy the cars.          Much evidence was adduced at trial

about the size of Castrillon's fraud and her lack of independent

sources of income.        In fact, during his direct examination of

Castrillon,    Rivera's       attorney    withdrew       without    objection     his

question about "[h]ow much money [Castrillon] would win" while

gambling when the District Court told him that such testimony was

needlessly cumulative.         Thus, there was no abuse of discretion by

the District Court.


                                    - 25 -
                                         V.

           We now take up Rivera's three remaining challenges. None

supports the reversal of his convictions.

                                         A.

           Rivera     first     contends        that   the   prosecutor     acted

improperly     by   asking    Castrillon        "whether     four   other   trial

witnesses were lying." Because Rivera did not raise this challenge

below, our review is for plain error.

           The government does not dispute that the prosecutor's

error in this regard was clear and obvious.                See United States v.

Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) (noting that "it is

improper for an attorney to ask a witness whether another witness

lied on the stand").            In order "to constitute plain error,"

however, the prosecutor's improper questions "must potentially

have affected the outcome of the district court proceedings."

United States v. Fernandez, 145 F.3d 59, 63 (1st Cir. 1998)

(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).                   We

see no basis for concluding that they did.

             Rivera first points to the government's question about

whether the "salesperson" who testified that Rivera was present

when the Toyota Sequoia was purchased "was lying."                  But the jury

heard   testimony    --   and    was    presented      extensive    accompanying

documentary evidence -- that Rivera purchased the Toyota Sequoia

on Castrillon's behalf.         We thus do not see how the comment by the


                                       - 26 -
prosecutor that is at issue -- even if improper -- was sufficiently

prejudicial to warrant overturning the verdict.                   See id. at 65

("Given    the    strength      of   the   government's   case,    it   stretches

credulity to believe that the improper framing of these un-

objected-to questions affected the outcome of the trial.").

              Rivera also fails to show the requisite prejudice from

the   three      other    instances     that   he   identifies    in    which   the

prosecutor asked Castrillon whether other witnesses were lying.10

The   government         put   forth   considerable    evidence    of    Rivera's

participation in the two vehicle purchases, his closeness to

Castrillon and, as Rivera himself concedes, his knowledge of and

participation in the fraud scheme itself.              Thus, "[w]e see no way

that these few miscast questions could have so tainted the trial

as to affect its outcome."             Id. at 64; see also United States v.

Pereira, __ F.3d __, 2017 WL 462104, at *12-*13 (1st Cir. Feb. 3,

2017) (noting a lack of prejudice to the defendant, and thus no

plain error, where the questions "were limited in number and scope,

and only pertained to tangential, corroborated testimony").


      10Those three instances are the following.     At one point
during the government's cross-examination of Castrillon, the
prosecutor took issue with statements suggesting Rivera was not
involved in alerting her to the apparent distress of two victims
of the fraud scheme, Fidel Lozada Gutierrez and Edgardo Vidal. At
another, the prosecutor disputed Castrillon's account of how
Rivera learned that a different victim of Castrillon's scheme,
William Sanchez, had loaned her money.     At a third point, the
prosecutor challenged Castrillon's testimony concerning how much
money yet another victim, Roberto Ortiz, had loaned Castrillon.


                                        - 27 -
                                    B.

            Rivera next argues that the District Court erred in

granting the government's motion in limine to exclude evidence

that   concerned   the    negligence     or    lack   of   due   diligence   of

Castrillon's victims.       Rivera contends that the District Court's

ruling limited his ability "to demonstrate just how successful

Castrillon was in duping people, thereby making it more likely

that Rivera himself was duped."               Our review is for abuse of

discretion.    DeCologero, 530 F.3d at 58.

            As the government correctly points out, the District

Court permitted Rivera to argue to the jury that he was a victim

of Castrillon's manipulation and to present evidence in support of

that argument.     Thus, we do not see how the District Court erred.

It merely excluded evidence that would have been at best cumulative

(and, at worst inconsistent with) a side point that Rivera wished

to make but that was not even in dispute: that Castrillon was a

skilled fraudster.       Thus, there was no abuse of discretion.

                                    C.

            Finally, we reject Rivera's claim of cumulative error.

The record contains strong evidence that the gambling winnings

Rivera used to buy the cars were, at the least, "derived from" the

"proceeds" of Castrillon's fraud.        The errors that Rivera alleges,

however, are not responsible for the jury having heard that

evidence.     We thus conclude that the errors Rivera points to, if


                                  - 28 -
any there were, "in the aggregate, do not come close to achieving

the critical mass necessary to cast a shadow upon the integrity of

the verdict."   United States v. Sepulveda, 15 F.3d 1161, 1196 (1st

Cir. 1993).

                                VI.

          For these reasons, we affirm Rivera's convictions.




                              - 29 -
