author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Ángel Luis PÉREZ-DÍAZ, Defendant, Appellant.
    No. 15-1977
    United States Court of Appeals, First Circuit.
    February 3, 2017

      Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.
    Marshal D. Morgan, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E, Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   TORRUELLA, Circuit Judge.

Ángel Luis Pérez-Díaz (“Pérez”) was convicted of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and sentenced to seventy-eight months of imprisonment and ten years of supervised release. Pérez pled guilty and conditioned his guilty plea on preserving his right to appeal the district court’s denial of his motion to suppress. In this motion to suppress, Pérez had alleged that the search and seizure of computers and other items from his apartment violated the Fourth Amendment. The district court held two evidentiary hearings and issued a Report and Recommendation (“R&R”) after each hearing, both times denying the motion to suppress. Pérez now appeals the denial of his motion to suppress, arguing that FBI agents violated the Fourth Amendment by trespassing on the curtilage of his home, entering his apartment without his consent, and illegally seizing his property before obtaining a search warrant. Because the district court’s factual findings do not support Pér-ez’s contentions — and we find no clear error in these factual findings — we reject Pérez arguments and affirm the district court.

I. Background

In November 2010, FBI agents conducted an undercover online session through which they downloaded child pornography. The I.P. address of the internet user from whom they downloaded the pornography led them to the former family home of Pérez (the “Family Home”). On April 29, 2011, the FBI agents executed a search warrant on the Family Home. The FBI agents spoke to Pérez’s wife and children at the Family Home, and learned that Pérez had recently moved out. Pérez’s fourteen-year-old son told one of the FBI agents that he saw Pérez looking at pornography on Pérez’s computer before Pér-ez moved out. Pérez’s wife told the FBI agents where Pérez presently lived and what kind of car he drove, and informed the agents that Pérez worked as a police officer for the Puerto Rico Police Department. Upon obtaining Pérez’s new address, the FBI agents traveled to his apartment, where they determined the car outside the apartment belonged to Pérez.

The parties dispute the facts surrounding the subsequent events. Based on the testimony of the FBI agents, the agents entered the apartment building property through the back gate, which did not require force to open. Two of the four FBI agents, led by Special Agent Tomás Ortiz, initiated a knock-and-talk by knocking on the door to Pérez’s apartment. Pérez answered and talked with the agents through the door for two minutes, and then allowed the agents to enter. Agent Ortiz asked Pérez if he could ask him some questions; Pérez responded in the affirmative, and showed them into the kitchen.

In the kitchen, the agents asked Pérez about his computer use. He stated he searched for pornography on his computer, and that any accidentally viewed child pornography would be on the hard drive of a broken desktop computer. When asked if he ever accidentally downloaded child pornography, Pérez stated yes. Pérez led the agents to the living room closet, where he took out a ten-year-old hard drive and gave it to one of the agents, attempting to pass it off as the hard drive of the above-, mentioned desktop computer. The agents noticed a laptop on the floor of the living room and asked Pérez if he used that laptop at his prior residence (the Family Home where his wife and children still resided) and may have inadvertently downloaded or watched child pornography on it. Pérez responded that he had used the laptop at his prior residence, but that he had neither downloaded nor watched child pornography on it. One of the agents asked if Pérez could turn on the laptop to show the agents that he did not have any peer-to-peer file sharing applications installed, and at that point Pérez became evasive and stated he did not want them to touch the laptop.

At this point the agents immediately ended the interview and proceeded to secure the premises while Agent Ortiz went to obtain a search warrant for the apartment, which he received by 12:20 that afternoon. After they obtained the warrant, the agents searched the apartment and seized several electronic media items, including the desktop computer Pérez discussed during the knock-and-talk and the laptop located on the living room floor. The desktop and the laptop yielded at least eighty images and over six hundred videos of child pornography.

Pérez tells a different story. According to his account, the agents forced open a padlock on the back gate in order to gain access to his front door; entered his apartment without his consent by pushing gently on his chest; forcefully sat him on an exercise bike and interrogated him; searched his apartment at will after he refused to cooperate; ordered him to move from the kitchen to the living room after they had completed the initial investigation; and continued to search his apartment even after he spoke to his attorney on the phone.

On May 30, 2012, a grand jury charged Pérez with possession of one or more materials which contained visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) in the United States District Court for the District of Puerto Rico. Following the indictment, Pérez filed a motion to suppress'all evidence, both physical and testimonial, recovered during the FBI agents’ search of his residence and property on April 29, 2011, arguing these pieces- of evidence were the fruits of a warrantless and illegal search. After an evidentiary hearing on August 19, 2013, the magistrate judge issued a first R&R denying Pérez’s motion to suppress. The magistrate judge credited the agents’ testimony over Pérez’s testimony. Pérez filed a timely objection, but the district court denied that objection and adopted the magistrate’s R&R.

Two months later, in December of 2013, Pérez moved for reconsideration of the motion to suppress and produced new evidence, namely two blurry pictures of the padlock of the back gate purportedly taken on April 29, 2011, and an affidavit from a locksmith stating that those pictures appeared to show that the padlock had been opened by force. The court denied reconsideration because Pérez did not explain why he did not produce this evidence at the suppression hearing.

In April of 2014, Pérez moved for reconsideration again, attaching a sworn statement from a neighbor stating the customary practice in the apartment building was .to lock the padlocks on the gates. Pérez stated he only just introduced the evidence because he had been unable to locate this neighbor until recently. This time the district court granted the motion for reconsideration in part, also admitting the blurry pictures of the padlock as well as the opinion testimony of the locksmith, and scheduled another evidentiary hearing.

After a supplemental suppression hearing on October 7, 2014, the magistrate judge affirmed his initial findings in a Supplemental R&R, again crediting the FBI agents’ testimony over the testimony of Pérez.

In February 2015, Pérez pled guilty to possession of child pornography under a plea agreement that preserved his right to appeal as to the district court’s denial of his motion to suppress. He was sentenced to seventy-eight months of imprisonment and ten years of supervised release. This timely appeal followed.

II. Standard of Review

This court reviews the lower court’s factual findings for clear error, and reviews de novo “[t]he ultimate conclusion as to whether there is a Fourth Amendment violation.” United States v. Stokes, 829 F.3d 47, 50 (1st Cir. 2016) (alteration in original); see United States v. Rabbia, 699 F.3d 85, 91 (1st Cir. 2012).

Clear error exists when there is a definite and firm conviction that a mistake has been committed. Under any set of circumstances, clear error is not an easy standard to meet. This is particularly true, however, when the challenge is to a witness’s credibility, due to our inability to see witnesses face-to-face or to appraise in person their demeanor and inflection. Accordingly,' we are especially deferential to the district court’s credibility judgments. Indeed, absent objective evidence that contradicts a witness’s story or a situation where the story itself is so internally inconsistent or implausible that no reasonable factfinder would credit it, the ball game is virtually over once a district court determines that a key witness is credible.

United States v. Guzmán-Batista, 783 F.3d 930, 937 (1st Cir. 2015) (citations and quotation marks omitted).

III. Discussion

A. The Facts

Pérez has presented no argument that would come anywhere near to convincing us that the district court committed clear error by crediting the testimony of Agent Ortiz. The only objective evidence Pérez advances that would — if credited— cast doubt on Agent Ortiz’s testimony concerns the lock on the back gate. Agent Ortiz testified that the agents did not have to use force to enter through the back gate. Pérez, however, claims that the back gate was locked by a padlock, and that the agents forced the padlock. To support his claims, Pérez relies on (1) a photograph of what appears to be the padlock in question, accompanied by a locksmith’s affidavit and testimony, and (2) an affidavit from one of his neighbors, and testimony from that neighbor and from his landlord.

The photograph was of such poor quality, however, that the locksmith stated that he was not sure whether the dark spots on those photographs were indications that the lock was forced, or mere rust or other stains. The locksmith was never shown the actual lock, nor was that lock ever produced. Pérez has also failed to explain why he never raised the issue of the forced lock at the first hearing on his motion to suppress. Pérez has similarly failed to explain why, in a video he himself made shortly after the agents left — a video which included the area around the back gate — he did not focus in any way on the lock.

Pérez’s neighbor no longer lived in the building at the time the knock-and-talk was conducted, and therefore cannot testify to what happened on that day; she also cannot testify to whether or not the back gate was typically locked after she moved out. Pérez’s landlord admitted that he did not normally go to the apartments, and that he was not there on April 29, 2011.

The district court therefore did not commit clear error by crediting Agent Ortiz’s testimony over the evidence Pérez presented and his testimony. In the analysis that follows, we therefore rely on the facts the district court found.

B. Curtilage

The curtilage of one’s home encompasses “the area immediately surrounding and associated with the home,” and it is regarded as part of the home for purposes of the Fourth Amendment. Florida v. Jardines, — U.S.-, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013).

Pérez argues that the agents violated the Fourth Amendment by trespassing on the curtilage of his home by entering through the back gate. We need not here resolve whether the area between the back gate and the front door is curtilage, because the officers did not use force to enter it, and they did not search the area — they only passed through it in order to knock on Pérez’s front door. In Jar-dines, the Supreme Court found that officers had violated the Fourth Amendment by searching (using a drug-sniffing dog) the curtilage of the defendant’s home; the Supreme Court also considered it “an unsurprising proposition” that the officers could have passed through the defendant’s curtilage and “lawfully approached his home to knock on the front door in hopes of speaking with him.” Id. at 1415 n.l. This is so, because an “implicit license typically permits the visitor to approach the home by the front path, knock promptly.... Complying with the terms of that traditional invitation ... is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” Id. at 1415. The FBI agents therefore did not violate the curtilage of Pérez’s home by opening the back gate or by merely walking from the back gate to the front door.

C. Consent to Entry into Pérez’s Apartment

A police officer may approach and knock on a citizen’s front door, and request the opportunity to speak to the citizen, in what is known as a knock-and-talk. Kentucky v. King, 563 U.S. 452, 469-70, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). The citizen does not have to answer or speak to the police officers, and if he does speak to the officers, he does not have to allow them into their homes. Id. at 470, 131 S.Ct. 1849.

“Consensual searches are a recognized exception to the Fourth Amendment’s warrant requirement, but the government bears the burden to prove by a preponderance of the evidence that defendant or an authorized third party gave the consent voluntarily.” United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008) (citation omitted). Whether the consent was given voluntarily is a question of fact that “turns on the district court’s comprehensive assessment of the totality of the circumstances attending the interaction between defendant/third party and the searching officers.” H. Factors to be weighed in making this comprehensive assessment include, but are not limited to, “(i) the consenter’s age, education, past experiences, and intelligence; (ii) whether law enforcement officials advised the con-senter of his constitutional right to refuse consent; (iii) the length and conditions of the consenter’s detention and/or questioning; and (iv) law enforcement officials’ use of any inherently coercive tactics.” Id. at 264 n.2.

In considering the totality of the circumstances, we are especially swayed by the fact that Pérez is an experienced police officer. An experienced police officer understands that when FBI agents turn up on his doorstep, he has no obligation to speak to them. He knows that he does not have to let them in. If he should choose to speak to the agents or to invite them in, he also understands that he is free not to answer any questions. Yet Pérez chose to speak to the agents through the door for two minutes. He chose to step aside so as to let them enter. He chose to answer a number of questions. He chose to show them the hard drive he had hidden away. And when the officers asked him for something he did not wish to provide — access to his laptop — he withdrew his consent. Once the consent was withdrawn, the officers promptly ceased the search, and Agent Ortiz went to secure a search warrant. The entire interaction lasted only an estimated thirty to forty-five minutes, and took place in surroundings that were familiar to Pér-ez — his own home. The FBI agents did not use any inherently coercive tactics; they asked Pérez straightforward questions, which he willingly answered. Pérez makes much of the fact that the knock-and-talk took place at 8:30 a.m., after he had returned from a late shift the previous night, and that he was therefore tired. However, even if we accept Pérez’s testimony that he returned from work at 3:00 a.m., 8:30 a.m. is hardly unreasonable. In addition, Pérez himself testified that he was expecting a visit from his landlord that morning. He could not therefore have been entirely surprised to receive a knock on his door, or been entirely unprepared to have visitors in his home.

The district court did not clearly err in finding that Pérez consented to the search and that the agents did not exceed the scope of that consent.

D. Seizure of the Apartment

The test for whether a temporary seizure is acceptable under the Fourth Amendment is based on reasonableness, looking at four factors set out in Illinois v. McArthur: (1) the police had probable cause to believe the property “contained evidence of a crime or contraband,” (2) “the police had good reason to fear” the contraband would be destroyed before the police returned to the location with a warrant, (3) “the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy,” and (4) “the police imposed the restraint for a [sufficiently] limited period of time.” 531 U.S. 326, 331-33, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001).

The agents had probable cause to believe that Pérez’s apartment contained evidence that he had viewed child pornography. “The standard [for probable cause] is satisfied when the totality of the circumstances create a fair probability that ... evidence of a crime will be found in a particular place.” United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014) (omission in original). The agents executed a warrant on the Family Home because, in November 2010, their undercover operation had revealed that a computer there contained child pornography. At the Family Home, the agents learned from Pérez’s family members that he had lived at the Family Home during November 2010, that he used a desktop and a laptop computer there, and that he had viewed pornography on at least one of those computers. The agents also learned that Pérez had moved out of the Family Home, and that he had taken both of his computers with him. In addition, when the agents were in Pérez’s apartment, he admitted that he had inadvertently downloaded child pornography. There was thus a fair probability that Pér-ez’s apartment — in particular the computers there — contained evidence that he had viewed child pornography.

The agents also had reason to fear that Pérez would destroy the evidence unless they secured the premises. Pérez had learned from his conversation with the agents at his apartment that they had executed a search warrant on the Family Home looking for evidence of child pornography. The agents had asked him whether he had accidentally downloaded child pornography. They had also asked him to turn on his laptop (which, as Pérez appears to have known, contained images of child pornography). The agents “reasonably could have concluded that [Pérez], consequently suspecting an imminent search, would, if given the chance, get rid of the [evidence] fast.” McArthur, 531 U.S. at 332, 121 S.Ct. 946.

The agents also made reasonable efforts to reconcile the needs of law enforcement with the demands of personal privacy. The agents neither searched Pérez’s apartment nor detained Pérez in any way. They merely remained in his apartment to ensure that no evidence would be destroyed.

Finally, the seizure lasted for only approximately three hours, from around 9:30 a.m. to around 12:20 p.m. See id. (finding a two-hour seizure of an apartment reasonable, referring to two hours as a “limited” amount of time, and noting that “this time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant”). There is no indication that Agent Ortiz did not act with diligence in securing the warrant; rather, the evidence suggests that three hours was the time required to obtain the warrant and to return to Pérez’s apartment with the warrant.

Pérez has thus failed to show that the district committed clear error when it found that the temporary seizure of Pér-ez’s apartment did not violate the Fourth Amendment.

IV. Conclusion

Pérez has failed to show that the district court committed clear error when it rejeet-ed his Fourth Amendment challenges. The decision of the district court is therefore affirmed.

Affirmed.

      . A knock-and-talk is an investigative procedure where "officers who have not yet secured a warrant go to investigate a suspected crime and determine whether the suspect will cooperate.” United States v. Paneto, 661 F.3d 709, 712 (1st Cir. 2011).

      . Although Pérez asserts that he was not allowed to leave his apartment while it was seized, his testimony is contradicted by that of the agents, and the district court did not commit clear error by crediting their testimony over his.


source: Caselaw Access Project

license: Public Domain

text:
    PRIME HEALTHCARE SERVICES-LANDMARK LLC, Plaintiff, Appellee, v. UNITED NURSES AND ALLIED PROFESSIONALS, LOCAL 5067, Defendant, Appellant.
    No. 16-1161
    United States Court of Appeals, First Circuit.
    February 3, 2017

      Christopher Callad, Providence, RI, for appellant.
    David C. Casey, Boston, MA, with whom Jillian S. Folger-Hartwell, Providence, RI, and Littler Mendelson, P.C. were on brief, for appellee.
    Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.
   TORRUELLA, Circuit Judge.

This appeal requires us to decide whether a dispute between employees and their successor employer should be resolved in arbitration or in the courts. The parties agreed to arbitrate this dispute. The district court, however, refused to compel arbitration; it found that ERISA preempted arbitration of this dispute, and reasoned that this, in turn, presented an issue of arbitrability properly decided by a judge, not an arbitrator. Because we find that the issue of ERISA preemption in this case is not an issue of arbitrability, but rather one that is squarely for the arbitrator to decide, we reverse.

I. Background

Plaintiff-Appellee Prime Healthcare Services (“Prime”) purchased Landmark Medical Center (“Landmark”), a financially-troubled hospital in Woonsocket, Rhode Island, in December 2013. Defendant-Appellant United Nurses and Allied Professionals, Local 5067 (“Union”) is a union local which represented Landmark’s employees pursuant to a collective bargaining agreement.

In 2006, Landmark and the Union entered into a collective bargaining agreement (“Landmark CBA”), in effect until 2009, renewed automatically each year unless either party reopened. This CBA contained a grievance and arbitration clause that provided that any unresolved disputes “concerning the interpretation, application or meaning” of the CBA could be submitted to arbitration with the American Arbitration Association. This CBA also contained a pension provision, which stated, in relevant part:

The Employer [Landmark] and the Union agree that, if during the term of this Agreement the Employer sells more than fifty (50) percent of its assets, the Employer may terminate the Landmark Medical Center Retirement Plan for Union Employees in accordance with the requirements of ERISA. The Union acknowledges and agrees it is clearly and unmistakably waiving any and all rights it has or may have to bargain with the Employer over any aspect of the termination, provided such termination shall not reduce benefits accrued by any participant in the Landmark Medical Center Retirement Plan for Union Employees as of the date of termination.

In June 2008, Landmark was placed under the oversight of a Temporary Special Master by the Providence Superior Court due to its financial woes.

In 2012, Prime made an offer to take over Landmark. Prime met with the Union and agreed that it would take over Landmark’s contract with its employees.

On October 10, 2012, Prime and the Union signed a cover memorandum (“Cover Memorandum”) and accompanying contract (“Prime CBA”). The Cover Memorandum provided that “Prime shall recognize and continue to process any and all grievances and/or labor arbitrations pending at the time of the closing pursuant to the CBAs referenced herein”. The Cover Memorandum also stipulated that in the event of inconsistencies between the Cover Memorandum and the Asset Purchase Agreement (that was yet to be concluded and approved by the court), the Cover Memorandum would govern. The Prime CBA contained the same grievance/arbitration clause as the Landmark CBA.

On June 5, 2013, the Pension Benefit Guarantee Corporation (“PBGC”) announced its intention to involuntarily terminate Landmark’s defined benefit retirement plan because Landmark had failed to maintain the minimum funding requirements. The termination was completed the following week.

On July 1, 2013, the Union filed a grievance against Landmark alleging a violation of the pension provision of the Landmark CBA. The grievance was denied, and the Union demanded arbitration.

On July 8, 2013, the Providence Superior Court authorized Landmark to execute the termination agreement. The Court also ruled that “any and all rights and remedies of [the Union] with respect to the employee retirement benefits are reserved.” The PBGC and the Special Master then entered into an Agreement for Appointment of Trustee and Termination of Plan. This Agreement conveyed all assets of the retirement plan to the PBGC, and provided, inter alia, that any asset purchase agreement that the Special Master entered into could not include assumption of the retirement plan.

In October 2013, the Union amended its grievance against Landmark to state: “The employer violated the governing Collective [BJargaining Agreement ... when it changed the terms of the defined pension benefit provisions and ceased making contributions to employees [sic] pensions”. Landmark denied this amended grievance, too, and the Union filed a request for arbitration on November 8, 2013.

On November 26, 2013, Prime entered into the Asset Purchase Agreement with the Special Master to purchase Landmark. This court-approved Agreement stated that Prime would not assume or be responsible for “any Liability under any Benefit Plan and all administrative costs associated therewith.”

On December 31, 2013, when the Asset Purchase Agreement became effective, Landmark terminated all of its employees. On January 1, 2014, some of these employees were hired back by Prime, and the Prime CBA took effect.

On May 5, 2014, Prime filed a Petition for Declaratory, Judgment in the United States District Court for the District of Rhode Island. Prime sought, inter alia, to stay arbitration.

In June 2014, the Union filed another grievance against Prime, stating that it violated the 2012 Cover Memorandum by-refusing to submit the Union’s pending grievance to arbitration.

On January 21, 2016, the District Court for the District of Rhode Island (Lagueux, J.) ruled, on summary judgment, for Prime on the grounds that ERISA preempted the Union’s claims (and any matters relating to the Retirement Plan).

This appeal timely followed.

II. Standard of Review

“Summary judgment is appropriate when the record shows that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “We review de novo the grant of a motion for summary judgment.” Id. at 782. “[W]e may affirm the entry of summary judgment ‘on any ground made manifest by the record,’ so long as the record ‘reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Batista v. Cooperativa De Vivienda Jardines De San Ignacio, 776 F.3d 38, 42 (1st Cir. 2015) (citations omitted).

As 'neither party disputes any material facts, our review focuses solely on whether the movant was entitled to judgment as a matter of law.

III. Discussion

The issue before us is whether an arbitrator or a court should resolve the present dispute. This issue raises two questions, which we address in turn: first, whether the present case raised a question of substantive arbitrability, and with it, the presumption against arbitration; and, second, whether the subject matter of the Union’s claims is suitable for arbitration.

A. Arbitrability

Because we already offered a detailed discussion of the Supreme Court’s precedents concerning arbitrability in Kristian v. Comcast Corp., 446 F.3d 25, 37-41 (1st Cir. 2006), we here limit our discussion to those aspects of arbitrability necessary to resolve the present case.

“The ‘question of arbitrability’ is a term of art with a narrow scope.” Unite Here Local 217 v. Sage Hospitality Resources, 642 F.3d 255, 261 (1st Cir. 2011). The Supreme Court considers the phrase “question of arbitrability”

applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Kristian, 446 F.3d at 38 (quoting Howsam, 537 U.S. at 83-84, 123 S.Ct. 588 (2002)).

As we went on to explain in Kris-tian, “[t]he cornerstone here is an assumption about the intent of the contracting parties to an arbitration agreement, in ‘the kind of narrow circumstances where contracting parties would likely have expected a court to have decided the gateway matter.’ ” 446 F.3d at 38 (quoting Howsam, 537 U.S. at 83-84, 123 S.Ct. 588). And in these narrow circumstances, a presumption applies that a court, rather than an arbitrator, decides the gateway matter. Id. at 38-39. This presumption can be defeated, however, by clear and unmistakable evidence that the parties did mean to submit that matter to arbitration. Unite Here, 642 F.3d at 262.

There are two categories of disputes where we apply the presumption that courts, rather than arbitrators, resolve the gateway matter: “(1) disputes ‘about whether the parties are bound by a given arbitration clause’; and (2) disagreements ‘about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.’ ” Id at 39 (quoting Howsam, 537 U.S. at 84, 123 S.Ct. 588) (clarifying that “[ejxamples of the former include whether an arbitration contract binds parties that did not sign the agreement; and whether an arbitration agreement survived a corporate merger and bound the subsequent corporation.... Examples of the latter include whether a labor-management layoff controversy was covered by the arbitration clause of a collective-bargaining agreement; and whether a clause providing for arbitration of various grievances covers claims for damages for breach of a no-strike agreement”) (citations omitted).

The kind of arbitrability involved in these two categories — the kind of arbitra-bility where we presume that a court de-cides the gateway matter — can be referred to as “substantive arbitrability.” Howsam, 537 U.S. at 85, 123 S.Ct. 588. The Supreme Court has also found that there is “procedural arbitrability,” where the presumption is that an arbitrator — not a court— should decide the gateway matter, because that is what the parties would likely have expected. Id. at 84, 123 S.Ct. 588. Examples of “procedural arbitrability” include “procedural questions which grow out of the dispute and bear on its final disposition,” and “allegation[s] of waiver, delay, or a like defense to arbitrability.” Kristian, 446 F.3d at 39 (quoting Howsam, 537 U.S. at 84, 123 S.Ct. 588).

The present dispute does not raise an issue of substantive arbitrability. The Cover Memorandum entered into by Prime and the Union stated that “Prime shall recognize and continue to process any and all grievances and/or labor arbitrations pending at the time of the closing [of the Asset Purchase Agreement] pursuant to the CBAs referenced herein,” and the parties agree that the grievance at issue here was pending at the time of the closing of the Asset Purchase Agreement. Both the Landmark CBA and the Prime CBA contained arbitration clauses. The Providence Superior Court, which authorized Landmark to execute the termination agreement, ruled that “any and all rights and remedies of [the Union] with respect to the employee retirement benefits are reserved.” The present dispute between the Union and Prime is indeed about employee retirement benefits. Thus, both parties are bound by the arbitration clause.

This binding arbitration clause also applies to the dispute at issue. Not only is the Cover Memorandum directly applicable to the dispute before us, but all the relevant documents contain broad language. Thus, the Cover Memorandum is applicable to “any and all grievances and/or labor arbitrations,” and the arbitration provisions of both the Landmark CBA and the Prime CBA encompass “any dispute between the Hospital and the Union concerning the interpretation, application or meaning of any of the express provisions of this Agreement.” “The breadth of the arbitration clause, which covers ‘any disputes over [the] interpretation or application’ of the Agreement, presents an insurmountable impediment to [Prime]’s position.” Unite Here, 642 F.3d at 262.

Still, the district court concluded that the matter before us presented an issue of arbitrability, and was therefore for the court, not for an arbitrator, to decide. The district court reached this conclusion by reasoning that the Union’s claim was one that, per ERISA, could only be brought by the PBGC, and that ERISA’s preemptive sweep therefore preempted or barred arbitration. Prime now urges us to adopt this analysis. We decline. As we demonstrate in the next section, a statutory bar to or preemption of arbitration is not an issue of arbitrability — and ERISA does not bar or preempt the arbitration of this claim. Consequently, this case should proceed to arbitration, and the arbitrator shall decide, inter alia, whether ERISA bars • or preempts the Union’s claims.

B. Suitability of the Subject Matter for Arbitration

“[T]he [Supreme] Court stated that once it was clear that the ‘parties’ agreement to arbitrate reached the statutory issues,’ a court must then consider ‘whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.’ ” Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 148-49 (1st Cir. 1998) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). The “liberal policy favoring arbitration agreements” informs this inquiry. Id. at 149 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). Still,

there might be some cases in which the arbitral setting is an-inappropriate forum for the resolution of statutory claims, but ... the burden [is] squarely on the plaintiff to prove that this is so.... If Congress intended to preclude a waiver [of a judicial forum], that intention would be discoverable in the text or legislative history of the statute, or in an ‘inherent conflict’ between arbitration and the underlying goals of the statute.

Id. (quoting Gilmer, 500 U.S. at 26, 111 S.Ct. 1647) (internal citations omitted).

The question we must resolve then, is whether the text or the legislative history of ERISA shows Congressional intent to preclude a waiver of judicial remedies, and whether an inherent conflict exists between arbitration and the underlying goals of ERISA. This is a different inquiry from the inquiry into arbi-trability — the arbitrability inquiry focuses on the intent of the parties, whereas we must now focus on the intent of Congress.

As a preliminary matter, we note that an argument that ERISA in general shows Congressional intent to preclude arbitration is highly implausible. See, e.g., Bird v. Shearson Lehman/American Exp., Inc., 926 F.2d 116, 118-19 (2d Cir. 1991). Because Prime does not advance such an argument, we need not decide the issue here. We also note that the fact that the arbitration agreement is contained in a collective bargaining agreement does not make it any less enforceable. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 251, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) (enforcing arbitration clause in collective bargaining agreement).

Prime, however, argues that the subject matter of the present case is not suitable for arbitration. Prime contends that the Union’s claim is preempted or barred by ERISA. Citing 29 U.S.C. §§ 1341(a)(1), 1362(b)-(c), Prime contends that Title IV of ERISA provides the exclusive means by which defined benefit pension plans may be terminated, and also specifies which entities can pursue claims for unfunded liabilities. Citing 29 U.S.C. § 1342(d)(1)(B)(ii), Prime then argues that where, as here, the PBGC initiated the termination, only the PBGC and the statutory trustee of the plan (which Prime states is the PBGC in this case) have the power to collect any amounts due under the plan. Prime also cites 29 U.S.C. § 1367 for the proposition that ERISA provides the mechanism by which the PBGC can enter into settlement agreements with plan sponsors to recoup any amounts due under the plan. Prime then shifts its attention to 29 U.S.C. §§ 1322(c) and 1344. Prime believes that these sections would be superfluous if the Union were to prevail on its claim, because these sections provide that the PBGC must allocate to participants and beneficiaries a portion of the unfunded benefit liabilities recovered for the terminated plan, and set out a priority scheme for doing so. Prime then argues that in order for the PBGC to ensure that this priority scheme is followed, the PBGC alone must control all assets that will be allocated to participants and beneficiaries in question. Prime’s concern is that if an arbitrator were to rule in favor of the Union, the PBGC would then be unable to fulfill the role ERISA prescribes for it. In this, Prime sees an “inherent conflict” between the purposes of ERISA and arbitration.

The fatal flaw in Prime’s reasoning is that it fails to draw a simple, but crucial distinction: the question before us is not whether the Union can bring its claim, but who decides — court or arbitrator — whether the Union can bring its claim. Even if we assume, for the sake of argument, that Prime’s reading of ERISA is correct, this does not mean that the subject matter of the Union’s claims is not suitable for arbitration. For if ERISA indeed preempts or bars the Union’s claim, an arbitrator can make that determination. And if it is indeed key to the statutory scheme of ERISA that all assets that will be allocated to participants and beneficiaries of the plan be under the control of the PBGC, then, once again, an arbitrator can make that determination.

Prime, however, argues that an arbitrator may reach the wrong conclusion, and thus the purposes of ERISA would not be reached. This is exactly the kind of “outmoded” view of arbitration that the Supreme Court has repeatedly rejected. See, e.g., Rodríguez, 490 U.S. at 481, 109 S.Ct. 1917. We are not to presume that an arbitrator will make mistakes. In addition, the judicial review of arbitral decisions, albeit limited, provides adequate protection against errors that an arbitrator may commit.’ Mitsubishi, 473 U.S. at 638, 105 S.Ct. 3346 (“Having permitted the arbitration to go forward, the national courts of the United States will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed.”). Consequently, a subject matter cannot be unsuitable for arbitration by virtue of a concern that the arbitrator may err.

It is telling that Prime is able to point to only one case in which a court found an “inherent conflict” between arbitration and the purposes of a statute: In re United States Lines, Inc., 197 F.3d 631 (2d Cir. 1999). That case is readily distinguishable from the present one. In United States Lines, the court found that, under the right circumstances, core (but not non-core) bankruptcy matters must be resolved in bankruptcy court, rather than arbitration. Id. at 640. This is because one of the policies that underlies the Bankruptcy Code is the need for a single, centralized proceeding — and the preferred forum for that proceeding is bankruptcy court. Id. at 640-41. The court cited to, inter alia, the text and legislative history of the Bankruptcy Code — including direct references to arbitration — for the proposition that Congress intended to preclude parties from arbitrating certain claims. Id In the present case, by contract, Prime has not pointed to anything in ERISA or its legislative history that calls for a single, centralized proceeding’ to decide the Union’s claim; Prime has also not pointed to anything in ERISA or its legislative history that would preclude arbitration from being the proper forum for the resolution of that claim.

IV. Conclusion

Because the case before us belongs in arbitration, we vacate the memorandum and order of the district court, and remand with instructions to grant the Union’s motion to compel arbitration. We take care to note that we have resolved only one narrow question: whether this dispute — including the issue of whether ERISA bars or preempts the Union’s claims — should be resolved by an arbitrator or by a court. Nothing in our opinion is intended to intimate in any way how the arbitrator should •resolve the dispute — that is, of course, for the arbitrator to decide.

Vacated and Remanded. Costs are awarded to appellant.

      . A detailed description of the PBGC and its functions has been offered by the court below. See Prime Healthcare Servs., LLC-Landmark v. United Nurses & Allied Prof'ls, Local 5067, 158 F.Supp.3d 60, 62-97 (D.R.I. 2016). See also United Steelworkers of America v. United Eng'g, Inc., 52 F.3d 1386 (6th Cir. 1995).

      . The term "arbitrability” has been used inconsistently, at times encompassing all prerequisites to and conditions for arbitration. George Bermann, The Gateway Problem in International Commercial Arbitration, 37 Yale J. Int’l L. 1, 10 (2012). As we explain in this section, we here use the term in the narrow sense in which the Supreme Court used it in Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002).

      . Although, confusingly, the term "arbitrability” has been used to encompass the suitability of the subject matter for arbitration, we here follow the Supreme Court in Howsam, and use the term of art “arbitrability” in its narrow sense. See supra n. 1.

      . To be clear, we by no means suggest that Prime’s reading of ERISA is, or is not, correct — this matter will be for the arbitrator to resolve in the first instance. Rather, we are merely assuming for the sake of argument that Prime's reading of ERISA is correct, only to show that even if it is correct, the Union’s claims must still be arbitrated.

      . Prime also argues that a claim may not be arbitrated at all if the arbitral award would require a party to violate the law. In a similar vein, Prime argues that arbitration would be futile if it resulted in an award contrary to federal law, and that an arbitrator cannot order something that is contrary to federal law. Prime cites George Watts & Son, Inc. v. Tiffany & Co.. 248 F.3d 577, 580-81 (7th Cir. 2001) in support of this proposition. These arguments, too, are rooted in an outmoded view of arbitration as an inadequate forum for the adjudication of federal claims — but we are not to presume that an arbitrator will make a wrong determination of the federal claims, and if she does, we will be able to review it. Prime has also failed to demonstrate that the only award an arbitrator could render would be an award of pension benefits (which, on Prime’s reading of ERISA, would violate federal law). In other words, we have no reason in the present case to presume that an arbitrator will compel Prime to do anything that is contrary to federal law.

      . The Union also argues that the district court relied on mootness to deny its demand for arbitration. While the Union is likely correct that mootness would present an issue of "procedural arbitrability”, and thus presumptively be for the arbitrator to decide, we do not read the district court as having relied on mootness to reach its conclusion, for the district court noted that its “ruling does not rest squarely on the doctrine of mootness”.


text:
    MEDITERRANEAN SHIPPING CO., S.A., Plaintiff, Appellee, v. BEST TIRE RECYCLING, INC., Defendant, Appellant, v. Armstrong International, Inc., d/b/a Armstrong Exchange; John Wayne Kwange, Third Party Defendants.
    No. 15-2482
    United States Court of Appeals, First Circuit.
    February 6, 2017

      Israel Roldán-González, with whom Isis Aimée Roldán-Márquez, Aguadilla, PR, were on brief, for appellant.
    Alberto J. Castañer-Padró, with whom Castafier Law Offices P.S.C., Guaynabo, PR, was on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   TORRUELLA, Circuit Judge.

The present dispute arises out of a contract for the shipment of used tires from Puerto Rico to Vietnam. The shipment accrued demurrage charges, port- storage charges, and related administrative fees, apparently because it arrived late to Vietnam. On summary judgment, the district court found that Best Tire Recycling, Inc. (“Best Tire”) was the shipper, and therefore, pursuant to the bills of lading, was liable for the charges and fees to the carrier, Mediterranean Shipping Co. (“Mediterranean”). Best Tire now contends that the district court erred in holding that there were no genuine issues of material fact as to whether Best Tire was the shipper. However, Best Tire was designated as the shipper on the bills of lading, and we therefore affirm the findings of the district court.

I. Background

Mediterranean is an ocean common carrier that transports goods between the United States and foreign countries. Best Tire is a Puerto Rico-based corporation that collected and transported scrap tires, among other things, within Puerto Rico. In 2012, John Wayne Kwange (“John Wayne”), doing business as Armstrong Exchange and/or Armstrong International, Inc. (“Armstrong”) hired Best Tire to deliver forty containers of scrap tires to the port of San Juan, Puerto Rico for $600 a container. Best Tire instructed John Wayne to contact Mediterranean, the common carrier, to get booking information and then inform Best Tire of the arrangement.

On April 3, 2012, John Wayne emailed Gypsa Carrion, of Oceanic General Agency, an agent of Mediterranean, and requested price quotes to ship tires from San Juan, Puerto Rico to Haiphong, Vietnam. Best Tire was copied on this email and admits to receiving it. In this email, John Wayne designated Best Tire as the “shipper” and Phong Vuong Limited Company as the “consignee.” On April 11, Ms. Carrion sent a reply email to John Wayne and Nydia Caro, Best Tire’s administrative assistant, providing them with “booking numbers for the next 4 sailings” and further notifying them that Mediterranean was “creating the shipper in their system.” In this email, Ms. Carrion also stated: “[Y]our trucker may start pulling out the [container] units with ... just the [booking] numberfs].”

Once Best Tire received the booking information, it subcontracted with IPM Transport to bring empty containers from the port of San Juan to Best Tire’s storage facilities in Rincón, Puerto Rico, and then to transport the containers, filled with scrap tires, back to Mediterranean’s cargo ship in the port of San Juan. Between April and May of 2012, all containers were delivered and Best Tire charged John Wayne $600 per delivered container. Mediterranean issued bills of lading for each of the scrap tire shipments and, consistent with John Wayne’s initial email, identified Best Tire as the shipper.

Best Tire admits that it received the bills of lading. Mediterranean’s standard bill of lading provides that, inter alia, “[e]very Person defined as a Merchant is jointly and severally liable towards [Mediterranean] for all of the various undertakings, responsibilities, and liabilities of the Merchant.” A “Merchant” is defined to “include!] the Shipper, Consignee, holder of th[e] Bill of Lading, the receiver of the Goods and any Person owning, entitled to or claiming the possession of the Goods or of this Bill of Lading or anyone acting on behalf of this Person.” “Freight” is defined to “include[] the freight and all charges, costs and expenses whatsoever payable to [Mediterranean] in accordance with the applicable Tariff and this Bill of Lading, including storage, per diem and demurrage.” Mediterranean’s standard bill of lading also incorporates “[t]he terms and conditions of [Mediterranean’s] applicable Tariff,” which include information about “de-murrage, per diem, storage expenses and legal fees.”

When the cargo ultimately arrived at its destination in Vietnam, the consignee refused to accept delivery, apparently because the shipment arrived late. As a result of the consignee’s refusal to accept' the shipment, Mediterranean had to store it. In total, this stored cargo incurred demur-rage charges totaling $353,083.50, port-storage charges totaling $36,780, and an administrative fee totaling $300. Moreover, Mediterranean argued “that $69,889.54 of the cost to ship the freight from Puerto Rico to Vietnam remained unpaid.” Best Tire received a total of $24,000 for its services in this transaction.

The district court sitting in admiralty granted Mediterranean’s motion for summary judgment, holding that Best Tire was a party to the contract of ocean carriage and as such was liable to Mediterranean for unpaid ocean freight charges, shipping container demurrage, port storage and related administrative fees.

II. Standard of Review

“Summary judgment is appropriate when the record shows that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “We review de novo the grant of a motion for summary judgment.” Id. “[W]e may affirm the entry of summary judgment on any ground made manifest by the record, so long as the record reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Batista v. Cooperativa de Vivienda Jardines de San Ignacio, 776 F.3d 38, 42 (1st Cir. 2015) (citation omitted).

III. Discussion

“‘To ascertain what contract was entered into[, courts] look primarily to the' bills of lading, bearing in mind that the instrument serves both as a receipt and as a contract’ and that ‘[o]rdinarily, the person from whom the goods are received for shipment assumes the obligation to pay the freight charges; and his obligation is ordinarily a primary one.’ ” EIMSKIP v. Atlantic Fish Market, Inc., 417 F.3d 72, 77 (1st Cir. 2005) (quoting Louisville & Nashville R.R. v. Cent. Iron & Coal Co., 265 U.S. 59, 67, 44 S.Ct. 441, 68 L.Ed. 900 (1924)).

Nevertheless, the “pattern and presumption” that the party identified as “shipper” on the bills of lading is the party that bears liability “can be overcome by statute, by contractual provisions, or by the parties’ course of conduct.” Id. (citing Louisville & Nashville R.R., 265 U.S. at 67-68, 44 S.Ct. 441.).

It is uncontested that Best Tire is designated as the shipper on all of the bills of lading. Best Tire does not argue that the presumption this creates is overcome by statute or by a contractual provision. Rather, Best Tire argues that the parties’ course of conduct overcomes the pattern and presumption that Best Tire bears liability. We find that it does not.

Best Tire relies heavily on our reasoning in EIMSKIP. In EIMSKIP, the district court had found Atlantic liable to EIM-SKIP, the common carrier, even though Atlantic was not identified as the shipper on the bills of lading; Atlantic appealed, and we affirmed. Id. at 76. We relied on Atlantic’s conduct: it had booked the shipments with EIMSKIP, it was invoiced for the shipments, and it had orally agreed to pay for them. Id. Mayflower, the party designated as the shipper on the bills of lading, was never invoiced for the shipments. Id. Best Tire sees a similarity between the conduct of John Wayne and/or Armstrong and the conduct of Atlantic, in that John Wayne was the one who contacted Mediterranean to organize the shipments and, seemingly, prepaid a number of the shipments.

The fundamental flaw in Best Tire’s argument is that in EIMSKIP, we found that both Mayflower (who was identified as the shipper on the bills of lading) and Atlantic (who was not) were liable to the carrier. “Two parties may each make themselves liable to a third party for payment of the same freight on a single shipment — one by a contract reflected in part by the bill of lading and the other by explicit promises and course of conduct independent of the bill of lading.” Id. Thus, our reasoning in EIMSKIP does not absolve Best Tire of liability. At most, our reasoning suggests that John Wayne and/or Armstrong could also be held liable — however, the district court was unable to serve either John Wayne or Armstrong, as they are apparently nowhere to be found. In any event, Mediterranean can elect which party it will hold liable, because Best Tire is jointly and severally liable to Mediterranean — the question whether John Wayne and/or Armstrong could also be held liable is not before us.

Best Tire also relies on Norfolk S. Ry. v. Groves, 586 F.3d 1273 (11th Cir. 2009), for the proposition that “a party must assent to being named as a consignee on the bill of lading to be held liable as such, or at the least, be given notice that it is being named as a consignee in order that it might object or act accordingly.” Id. at 1282. We need not decide whether Best Tire’s silence can be construed as assent to being named a party on the bill of lading, because Best Tire was given notice of this fact. Best Tire had received two email messages notifying it that it would be the shipper. As Best Tire itself admits, it “could have refused being named as the shipper by replying to those messages.” In addition, Best Tire received the six bills of lading on four separate occasions between April 24, 2012 and June 28, 2012. Best Tire was designated as the shipper on all these bills of lading. Yet Best Tire made no objections until August of 2013, when it received invoices for demurrage and other charges — well over a year after it had accepted the bills of lading.

IV. Conclusion

The decision of the district court is affirmed.

Affirmed.

      . Best Tire raised two additional issues in its appeal brief: (1) because some of the shipments were marked as “freight prepaid” Mediterranean is estopped from collecting from Best Tire; (2) pursuant to the doctrine of laches, Mediterranean may only collect de-murrage and port charges accrued in the 180 days prior to the filing of the complaint by Mediterranean. The first of these issues is being raised for the first time on appeal. Although Best Tire did identify "laches” as one of several affirmative defenses in its complaint, these arguments were never clearly raised or argued before the district court. Both of these arguments are therefore waived. See Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).


author: HOWARD, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Rosalind HERMAN, Defendant, Appellant.
    No. 16-2001
    United States Court of Appeals, First Circuit.
    February 6, 2017

      Steven A. Feldman and Feldman and Feldman on brief for appellant.
    Craig Estes, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.
   HOWARD, Chief Judge.

Defendant-Appellant Rosalind Herman was convicted, after a jury trial, of conspiracy, willful violation of the Investment Advisers Act, wire fraud, and corruptly impeding the administration of internal revenue laws. These charges arose from a scheme in which Herman and a co-eonspir-ator solicited funds for purported investment in a hedge fund management company. Rather than investing the money they obtained, totaling more than $1.3 million, Herman and her confederate used it for personal expenses. Herman also allegedly defrauded the Internal Revenue Service by claiming false business deductions and failing to file tax returns in some years, resulting in almost $1.85 million in unreported income. After the jury returned its guilty verdict, the district court sentenced Herman to eighty-four months’ imprisonment. On appeal, Herman raises two narrow claims, one relating to her convictions and a second challenging her sentence. Because we find each of these claims unavailing, we affirm.

I.

We begin with Herman’s challenge to her convictions, which is predicated entirely upon purported deficiencies in the district court’s instructions on the reasonable doubt standard. Because Herman failed to object to the instructions below, we review only for plain error. See United States v. Van Anh, 523 F.3d 43, 57 (1st Cir. 2008). In order to satisfy this demanding standard, Herman must establish that “(1) [ ] an error occurred (2) which was clear or obvious and which not only (3) affected [her] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Id. at 55 (first alteration in original) (citation omitted). Herman’s claim falters on the first element. We perceive no error, much less plain error, in the district court’s reasonable doubt instructions.

As an initial matter, we have repeatedly noted “that reasonable doubt does not require definition.” United States v. Rodríguez-Cardona, 924 F.2d 1148, 1160 (1st Cir. 1991). Thus, “an instruction which uses the words reasonable doubt without further definition adequately apprises the jury of the proper burden of proof.” United States v. Ademaj, 170 F.3d 58, 66 (1st Cir. 1999) (citation omitted); see also Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (“[T]he Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.”). Where, however, the court does undertake to define the term, it cannot employ a definition that creates “a reasonable likelihood of leading the jury to believe that it can convict on some lesser standard of proof.” Van Anh, 523 F.3d at 57 (citation omitted). With that said, “the Constitution does not require ... any particular form of words.” Victor, 511 U.S. at 5, 114 S.Ct. 1239. The district court, thus, retains significant discretion in formulating its instructions, so long as it “correctly conveys] the concept of reasonable doubt to the jury.” M. (citation omitted).

Here, Herman takes issue with the following passage from the court’s instructions:

[T]he burden of proof here is not common sense, of course you can use your common sense, the burden of proof here is proof beyond a reasonable doubt, and there must be no guesswork, no speculation, no “maybe this happened,” “perhaps,” “possibly,” “it could have,” not even that it’s likely that this or that happened, it has to be proved beyond a reasonable doubt.

Herman makes five specific arguments as to why the reasonable doubt instructions were deficient. Four are easily disposed of. First, while Herman correctly notes that the court was not required to define reasonable doubt, neither was it prohibited from doing so. See Victor, 511 U.S. at 5, 114 S.Ct. 1239. Second, once it decided to provide a definition, the court was not bound to use one of the specific formulations that Herman now proposes. See id. Third, the mere fact that the district court gave a “negative” definition, explaining reasonable doubt by reference to what it is not, does not, in itself, require reversal. United States v. DeVincent, 632 F.2d 147, 152-53 (1st Cir. 1980). Fourth, the court’s allusion to the jury’s use of “common sense,” while perhaps unnecessary, did not constitute error. United States v. Munson, 819 F.2d 337, 346 (1st Cir. 1987).

Herman’s fifth claim of instructional error is the most substantial, but it too ultimately fails. Herman posits that, by presenting “a choice between guesswork and speculation on the one hand, and reasonable doubt on the other,” the court “effectively reduced the government’s burden of proof.” This is because the instructions could have led the jury to believe that “it could return a guilty verdict so long as it found the government’s proof was non-speculative.” Unfortunately for Herman, we have previously upheld the use of language very similar to that at issue here. See United States v. Burnette, 375 F.3d 10, 20 (1st Cir. 2004) (“The jury must never find the defendant guilty on mere suspicion, conjecture or guess.”), vacated on other grounds, 543 U.S. 1181, 125 S.Ct. 1406, 161 L.Ed.2d 176 (2005); United States v. Whiting, 28 F.3d 1296, 1304 (1st Cir. 1994) (“[A] defendant is never to be convicted ‘on the basis of mere conjecture, surmise or guesswork.’ ”).

Any suggestion that the jury may have been misled is further undermined by the court’s repeated emphasis that proof beyond a reasonable doubt was required for conviction. Indeed, the court mentioned the reasonable doubt standard no fewer than nine times in its instructions to the jury. And it introduced the concept on the very first day of trial, when it made clear that Herman sat before the jury as “an innocent woman” who could only be convicted based on proof “beyond a reasonable doubt.” In this context, we perceive no reasonable likelihood that the language cited by Herman led the jury to apply a lesser standard of proof. See Van Anh, 523 F.3d at 58 (holding that instruction “adequately communicated the government’s burden” where the court mentioned that burden ten times and “stressed the presumption of innocence”).

II.

We turn now to Herman’s claim of sentencing error. The parties do not contest the district court’s calculation of the guideline sentencing range (“GSR”) as 108 to 135 months. After arriving at this GSR, the court proceeded to vary downward to “avoid unwarranted sentencing disparities among defendants.” It ultimately imposed an incarcerative sentence of' eighty-four months, a full two years below the bottom of the GSR.

Herman now argues that, notwithstanding this below-guidelines sentence, the court erred by refusing to grant, in addition, a downward departure on two alternative bases: (1) Herman’s own physical impairments, see U.S.S.G. § 5H1.4; and (2) her responsibilities caring for family members, see id. § 5H1.6. Herman characterizes her claim as a challenge to the substantive reasonableness of the sentence. See United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014) (“The substantive dimension [of our sentencing review] focuses on the duration of the sentence in light of the totality of the circumstances.”). In any event, whether the issue is framed as substantive or procedural, we review the district court’s “discretionary refusal to depart” from the GSR for “reasonableness.” United States v. Anonymous Defendant, 629 F.3d 68, 74 (1st Cir. 2010); see also United States v. Maguire, 752 F.3d 1, 7 (1st Cir. 2014) (“[Discretionary refusals to vary or depart are open to reasonableness review in accordance with an abuse of discretion standard.”). And Herman faces an even steeper climb than most defendants seeking to establish sentencing error. This is because “[i]t is a rare below-the-range sentence that will prove vulnerable to a defendant’s claim of substantive unreasonableness.” United States v. King, 741 F.3d 305, 310 (1st Cir. 2014). We apply these principles in turn to each of Herman’s purported grounds for departure.

The guidelines provide that “[a]n extraordinary physical impairment may be a reason to depart downward” from the GSR. U.S.S.G. § 5H1.4. We have, however, clarified that “[djepartures based upon health problems are discouraged and can only be justified if the medical problems are present in unusual kind or degree.” United States v. LeBIanc, 24 F.3d 340, 348 (1st Cir. 1994) (citation omitted). Thus, in order to be entitled to a departure, a defendant must establish that her “life would be threatened or shortened by virtue of being incarcerated” or that “the Bureau of Prisons would be unable to adequately accommodate [her] medical needs.” Id. at 349.

Here, the evidence of Herman’s physical impairment falls well short of this bar. Herman cites portions of the Presen-tence Investigation Report (“PSR”) indicating that: (1) she is five-foot-two-inches tall but weighs only seventy-two pounds; (2) she claimed to have been diagnosed with “malnourishment and dehydration” during her spring 2016 trial; and (3) she reported suffering from tachycardia (an elevated heart rate), resulting in blood pressure fluctuations and difficulty breathing. Herman, who was sixty-one years old at the time of sentencing, conclusorily asserts that, in light of these conditions, she “is unlikely to survive 84-months’ imprisonment.” But the PSR also indicated that Herman “does not regularly see any doctors and does not take any prescription medications.” And, before the district court, defense counsel expressly acknowledged the lack of medical records substantiating Herman’s health issues. In these circumstances, we “discern no hint of unreasonableness” in the district court’s conclusion “that there was no evidence that the federal prison system could not deal appropriately with [Herman’s] medical problems.” Maguire, 752 F.3d at 7. We note also that the court recommended that the Bureau of Prisons initially house Herman in a “medical facility for a complete evaluation of [her] medical situation.”

Herman’s second proposed ground for departure, her family responsibilities, is “not ordinarily relevant” to the sentencing determination. U.S.S.G. § 5H1.6. Accordingly, this too is a “discouraged” basis for departure. United States v. Pereira, 272 F.3d 76, 80 (1st Cir. 2001). Indeed, as we have explained, “[a] defendant’s incarceration will invariably cause hardship to [her] family.” United States v. Louis, 300 F.3d 78, 82 (1st Cir. 2002). Departure is only warranted in “exceptional” cases. Id. Exceptional circumstances may exist where the defendant’s caretaking is “irreplaceable” to her family. U.S.S.G. § 5H1.6 cmt. n.1(B)(iii). By contrast, courts should not grant a departure where “there are feasible alternatives of care that are relatively comparable to what the defendant provides.” Pereira, 272 F.3d at 83.

In the present case, while Herman cites evidence that she provided care to her family prior to her incarceration, she fails to demonstrate that such care is irreplaceable. First, she points to the fact that one of her sons “suffers from a minor learning disability” and that the second has “brain damage” resulting from a traffic accident. With respect to the former, Herman does not explain how any care that she provided for her son’s “minor learning disability” is irreplaceable. Herman’s other son, who was thirty-two years old at the time of sentencing, sustained a brain injury in a 2000 car accident. He is employed as a “concrete/cement worker.” He has also graduated from high school and taken some college courses since the accident. Herman provides no information about the seriousness of her son’s injuries or the extent of any care that she provided for him.

Herman’s most substantial contention on this issue relates to care that she provided for her husband, but, even in this context, she fails to demonstrate that her care is irreplaceable. Herman’s husband has been largely incapacitated since 2012. He suffers from a variety of medical conditions, which Herman details in her briefing. The PSR recounts a number of tasks that Herman performed for her husband prior to her incarceration. But Herman fails to dispute the government’s assertion that, during part of the time her husband was experiencing these health issues, Herman lived in Las Vegas, while her husband remained in Massachusetts. Moreover, the record reflects multiple alternative sources of care for Herman’s husband. Both of the couple’s sons live in Woburn, Massachusetts, the same town as their father. Herman also has three sisters who live in that state. Moreover, after Herman was ordered detained, the family hired a visiting nurse to care for her husband. Nowhere in her briefing does Herman explain why any of these alternative care options are not feasible. Accordingly, the district court’s decision not to depart downward was reasonable.

While the foregoing is sufficient to dispatch with Herman’s claim of sentencing error, we pause for a moment to note other factors that the district court was permitted to consider in exercising its broad discretion. See United States v. Politano, 522 F.3d 69, 73 (1st Cir. 2008). Herman stole more than $1.3 million from several victims, some of whom were unsophisticated investors who entrusted Herman with their life savings. And, even after the jury returned its guilty verdict, Herman refused to take responsibility for abusing that trust. Instead, she placed the blame squarely at the feet of her co-conspirator. The district court, however, did not find Herman’s denials credible. These facts relating to Herman’s offense conduct and her subsequent refusal to accept responsibility were plainly relevant to the court’s sentencing determination. See 18 U.S.C. § 3553(a). The fact that the district court may have weighed these considerations more heavily than Herman would have preferred, especially in relation to her proffered physical impairments and family responsibilities, does not render the sentence unreasonable. See United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

III.

For the foregoing reasons, we AFFIRM Herman’s convictions and sentence.

      . Herman's co-conspirator pled guilty, testified against Herman, and was sentenced to forty-two months’ imprisonment.

      . The cases Herman cites on this point are readily distinguishable. First, both resulted in affirmance of the district court's decision to grant a departure under U.S.S.G. § 5H1.6. See United States v. Roselli, 366 F.3d 58, 70 (1st Cir. 2004); United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. 1993). In light of the discretionary nature of this determination, our holdings do not imply that the district courts were required to depart downward. Moreover, the cases are distinguishable because, unlike the present case, they involved evidence that the defendant's care was truly irreplaceable. See Roselli, 366 F.3d at 70 (affirming downward departure where the defendant’s "two children require[d] round-the-clock care because of [cystic fibrosis], where adequate help [wa]s not readily available, and where the other parent [wa]s battling her own debilitating health problems”); Sclamo, 997 F.2d at 974 (citing evidence that the defendant played a "critical and unique role” in psychological treatment of stepson).