author: LISI, District Judge.

text:
    Christopher HEIEN, individually and on behalf of all others similarly situated; Anna Nguyen, individually and on behalf of all others similarly situated; Anna Miniutti, individually and on behalf of all others similarly situated; Benjamin Spiller, individually and on behalf of all others similarly situated; Antonia Peabody, individually and on behalf of all others similarly situated; Endicott Peabody, individually and on behalf of all others similarly situated; Humoud Al Sabah, individually and on behalf of all others similarly situated; Brian Epstein, individually and on behalf of all others similarly situated; Laura Nesci, individually and on behalf of all others similarly situated; Ron Levy, individually and on behalf of all others similarly situated; Andrea Mangone, individually and on behalf of all others similarly situated; Nicolai Jakobsen, individually and on behalf of all others similarly situated, Plaintiffs, Appellants, v. ARCHSTONE; Archstone Communities, LLC; ASN Park Essex, LLC; ASN Quincy, LLC; ASN Quarry Hills, LLC; ASN North Point I, LLC; Archstone North Point, LLC; Archstone Cronin’s Landing; ASN Watertown, LLC; ASN Kendall Square, LLC; Archstone Avenir, LP; ASN Bear Hill, LLC, Defendants, Appellees.
    No. 15-2299
    United States Court of Appeals, First Circuit.
    September 14, 2016

      Edward Foye, with whom Michael Brier, Kevin Thomas Peters, Arrowood Peters LLP, Matthew J. Fogelman, Fogelman & Fogelman LLC, Newton, MA, Joshua N. Garick, Woburn, MA, and Law Offices of Joshua N. Garick were on brief, for appellants.
    Craig M. White, with whom Baker & Hostetler LLP, Thomas H. Wintner and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, MA, were on brief, for appellees.
    Before TORRUELLA and BARRON, Circuit Judges, and LISI, District Judge.

       Of the District of Rhode Island, sitting by designation.

   LISI, District Judge.

The Plaintiffs in this class action are former and current tenants of residential property in Massachusetts leased to them by Defendants Archstone and several related entities. In their suit, the Plaintiffs challenged certain “amenity use fees,” which, they alleged, were imposed by the Defendants in violation of the Massachusetts Security Deposit Statute, Mass. Gen. Laws ch. 186, § 15B, and Chapter 93A of the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A, § 1 ei seq. The underlying litigation having long been resolved with a complete settlement between the parties, this appeal springs solely from class counsel’s dissatisfaction with the amount of attorneys’ fees awarded to them by the district court. Because the district court did not abuse its discretion in fashioning the fee award, we affirm.

A. Background

1. The Hermida Litigation

In the related case of Hermida v. Archstone et. al, C.A. No. 10-12083-WGY (D. Mass., U.S. District Judge William G. Young presiding), other Archstone tenants had previously brought identical claims against one of the Defendants’ corporate affiliates. The Hermida plaintiffs were represented by the same law firms as in the instant case.

On November 29, 2011, the district court granted summary judgment on liability in favor of the Hermidas, determining that the amenity use fees charged by the Defendants violated the Massachusetts Security Deposit Statute. Hermida v. Archstone et. al., 826 F.Supp.2d 380 (D.Mass. 2011). Eventually, the Hermida case was settled and the district judge awarded attorneys’ fees and costs of $62,714.38, which was less than half of the lodestar amount requested by counsel. Hermida v. Archstone et. al., 950 F.Supp.2d 298 (D.Mass. 2013). In a detailed Memorandum and Order, the district judge explained the reduction in fees for time spent by counsel on travel, on performing clerical and administrative tasks, and for the practice of block billing. Id. at 311-315.

2. The Heien Litigation

On May 17, 2012, after the question of liability had already been decided in Her-mida, the Plaintiffs filed a class action- suit against Archstone and eleven other related entities. In their complaint, the Plaintiffs stated that “the principal common issues with respect to the class are whether Archstone’s charging of the amenity fee violated the Security Deposit statute and chapter 93A.” Complaint at ¶ 71 (ECF No. 2-1) The Plaintiffs acknowledged that “Judge Young’s decision in the Hermida v. ASN Reading case, Docket No. 1:10-CV-12083-WGY, is precisely on point.” Id.

On August 23, 2012, the district court stayed the instant class action, pending waiver or resolution of all appeals of the judgment entered in Hermida. Electronic Order (ECF No. 41). In a September 30, 2012 status report, the Plaintiffs informed the district court that the parties were in settlement. discussions. Status Report (ECF No. 43).

On March 13, 2014, the Plaintiffs filed an unopposed motion in which' they requested, inter alia, preliminary approval of a proposed settlement. Pltfs.’ Mot. for Settlement (ECF No. 47). The settlement agreement reflects that the case was being settled simultaneously with Hermida and that “by virtue of the settlement in Hermi-da there will be no appeals and therefore there is no longer a reason to stay the Action.” Class Action Settlement Agreement (ECF No. 49 at Page 2 of 29). The settlement fund was capped at $1,300,000 for payment of individual claims and attorneys’ fees and costs. Id. at Page 3 of 29. Under the terms of the settlement agreement, the Defendants agreed “[t]o not object to the payment of attorneys’ fees and expenses from the Class Settlement Fund in an amount up to 15% of the total Fund amount ($1,300,000.00).” Id. at Page 5 of 29. Any sums remaining in the settlement fund after payment of all individual claims, administration expenses, and attorneys’ fees were to be returned to the Defendants. Id. at Page 8 of 29. The district court granted the Plaintiffs’ motion to approve the settlement on March 27, 2014. Electronic Order (ECF No. 50).

On June 3, 2014, Plaintiffs’ counsel filed a motion for attorneys’ fees and costs, in which they requested payment of $429,000 (33% of the maximum settlement fund) for their services in this case. Pltfs.’ Mot. for Attorneys’ Fees and Costs (ECF No. 53). In their motion, the Plaintiffs acknowledged that the case “by itself did not involve intense litigation, given the imposition of the stay,” and they conceded that the case “only was filed because Judge Young concluded that the Hermidas did not have standing to assert claims against the defendants in this action.” Id. at 7. Counsel’s submissions in support of the fee motion included billing records ■ that showed lodestar attorneys’ fees of $58,693. Exhibits A-F to Pltfs.’ Mot. for Attorneys’ Fees and Costs (ECF Nos. 53-1, 53-2, 53-3). The Defendants responded with an objection to the motion, suggesting that the district court consider the effect of Hermi-da on the case, as well as the significantly lower lodestar amount- submitted by Plaintiffs’ counsel. Defs.’ Obj. to Class Counsel’s Petition for Attorneys’ Fees (ECF No. 54 at 1-2).

3. The Order

On October 2, 2014, the district judge entered an electronic order awarding, without further explanation or analysis, attorneys’ fees in the sum of $29,250. Electronic Order (ECF No. 66). Plaintiffs’ counsel promptly filed a Motion for Written Findings of Fact and Rulings of Law (ECF No. 67), in response to which the district court issued a written order on October 15, 2015. Order (ECF No. 73). The order states as follows:

ORDER
In response to Class Counsel’s Motion for Written Findings of Fact and Rulings of Law, ECF No. 67, this Court clarifies its order awarding the attorneys’ fees in the sum of $29,250.00. Order, ECF. No. 66.
The attorneys’ fees in the awarded amount are appropriate because this Court resolved the issues of law relevant for this case in a related action Hermida v. Archstone, 826 F.Supp.2d 380 (D.Mass. 2011). Moreover, this Court stayed this class action pending waiver or resolution of all appeals of the judgment entered in Hermida. Order, ECF No. 41. This case, therefore, did not proceed to the discovery stage and the parties did not engage in significant motion practice. This Court also considered the actual benefit recovered for the class members, Joint Report Status 3, ECF No. 60, and took into account that the Defendants promptly agreed to settle the dispute.
SO ORDERED.

B. Standard of Review

This Court reviews a district court’s determination regarding attorneys’ fees only for a mistake of law or abuse of discretion. In re Volkswagen and Audi Warranty Extension Litigation, 692 F.3d 4, 13 (1st. Cir.2012); United States v. Metropolitan Dist. Com’n, 847 F.2d 12, 14 (1st Cir.1988) (citing Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984)); Maceira v. Pagan, 698 F.2d 38, 39 (1st Cir.1983). While mistakes of law “always constitute abuses of a court’s discretion,” Airframe Sys., Inc, v. L-3 Commc’ns Corp., 658 F.3d 100, 108 (1st Cir.2011), a fee determination will be set aside only “if it clearly appears that the trial court ignored a factor deserving significant weight, relied upon an improper factor, or evaluated all the proper factors (and no improper ones), but made a serious mistake in weighing them.” Id. (quoting Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292-93 (1st Cir.2001)).

As this Court has previously explained, “in a common fund case the district court, in the exercise of its informed discretion, may calculate counsel fees either on a percentage of the fund basis or by fashioning a lodestar.” In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295, 307 (1st Cir.1995). The Court recognized that the percentage-of-fund method “in common fund cases is the prevailing prax-is” and acknowledged the “distinct advantages that the POF method can bring to bear in such cases.” Id. However, the Court has also noted that the percentage-of-fund approach “may result in the overcompensation of lawyers in situations where actions are resolved before counsel has invested significant time or resources.” Id. If the fee is determined according to the lodestar approach, “it is the court’s prerogative (indeed, its duty) to winnow out excessive hours, time spent tilting at windmills, and the like.” Gay Officers Action League v. Puerto Rico, 247 F.3d at 296 (citing Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir.1997)).

Finally, the Court is mindful of the Supreme Court’s admonition that “fee litigation can, but should not, transform into the tail that wags the dog.” Victor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 20 (1st Cir.2012) (citing City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)). As long as there is a basis for understanding the district court’s reasoning, the findings “ ‘need not be infinitely precise, deluged with details, or even fully articulated.’” Victor Corp. v. Vigilant Ins. Co., 674 F.3d at 20 (quoting Foley v. City of Lowell, 948 F.2d 10, 20 (1st Cir.1991)).

C. The Parties’ Positions

The Plaintiffs make two arguments on appeal. They assert that in considering the actual benefit recovered for the class members, the district court committed legal error under Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (affirming attorney award from total amount of class action judgment, including unclaimed portion, on the basis that the class action bestowed a benefit even on class members who did not file a claim). In the alternative, the Plaintiffs contend that when viewed against other cases in which attorney awards ranged between 20 and 30 percent of the total common fund, it was abuse of discretion by the district court to award to class counsel what amounts to 2.25 percent of the common fund in this case.

On their part, the Defendants contend that the attorneys’ fees awarded in this case are tied to the lodestar award in Hermida, and they suggest that the rationale for the reduced award in the instant case is implied in the district judge’s reasoning in Hermida.

D. Discussion

It is undisputed that the relevant legal issues irt this ease were decided in Hermida before this case was even filed; that the case was stayed shortly after its commencement until final settlement; and that the parties did not engage in any discovery or motion practice. Moreover, although the common benefit fund amounted to $1,300,000, only a small portion, $180,480, was paid out to the individual claimants. Joint Status Report (EOF No. 60 at Page 3 of 4). Following settlement of the cáse, class counsel sought $429,000 in attorneys’ fees, more than seven times counsel’s asserted lodestar amount of $58,693.

In the October 15, 2015 order, the district court gave several reasons why the court deemed the amount of the award appropriate. First, the court pointed out that the relevant legal issues had already been resolved in Hermida. Order EOF No. 73 at 1. “Moreover,” the court pointed out that the Heien case had been stayed pending waiver or resolution of all appeals in Hermida and that, as a result, the Heien case had not proceeded to discovery, nor had the parties engaged in any significant motion practice. Id. at 2. Further, the court took into account the fact that the Defendants agreed to settle this matter “promptly.” Id. Finally, the court stated that it had “also considered” the actual benefit recovered for the class members in Heien. Id.

The Plaintiffs have focused on the single reference to the claimed, portion - of the common benefit fund to arrive at the conclusion that the court impermissibly based the fee award on only that consideration. However, the order as a whole, especially when viewed against the procedural history of this case and the close connection to Hermida; makes clear that this consideration was only one of the factors the district court included. The primary reason given for the size of the award is that the case had required little, if any, legal work. As the Plaintiffs had repeatedly conceded, the legal issues in this case had already been resolved in Hermida. The fee award in this case, set at almost exactly half of the lodestar amount submitted by the Plaintiffs, was entirely consistent with the lodestar-based attorneys’ fee award in Hermida, where counsel had already been provided with detailed reasoning and precise calculations by the court. The order in this case makes two separate references to Hermida, indicating that, just like in Her-mida, the award for attorney’s fees was based on the lodestar method and then reduced to what the district court considered an appropriate award. Boeing, which affirmed a fee award based on the total amount of a class action judgment, does not render a consideration of the claimed benefits as one of the factors in awarding attorney’s fees legal error in a lodestar calculation. Such consideration is not impermissible under the lodestar method because it clearly relates to one of the twelve factors enunciated in Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S.Ct. 1933, 76 Ed.2d 40 (1983) (listing among the factors “the amount involved and the results obtained” and confirming that “the level of a plaintiffs success is relevant to the amount of fees to be awarded.”).

The Plaintiffs’ alternative suggestion that the fee award constitutes an imper-missibly low percentage of the total common fund may be dealt with in short order. As stated by the district court, it reflects the court’s effort to fashion a reasonable and appropriate fee award in consideration of the unique procedural history of this case and its close connection to Hermida. The court gave several reasons for awarding $29,260 to class counsel, none of which are the subject of factual dispute. In addition, the district judge detailed in the fee memorandum and order in Hermida his rationale for reducing attorneys’ fees for block billing and for time spent on travel and administrative tasks.

The order in this case left room for speculation by the parties as to the method utilized by the district court to arrive at the fee award. While the inclusion of an explanation as to the district court’s elected method or of the court’s calculation of the award might have foreclosed such speculation — and, we think it to be the better practice — neither the absence of such mathematical analysis nor the amount of the award itself constitute an abuse of discretion.

Affirmed.

Each side to bear its own costs.


source: Caselaw Access Project

author: HOWARD, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. David ALCANTARA, Defendant, Appellant.
    No. 15-2061
    United States Court of Appeals, First Circuit.
    September 19, 2016

      Molly Kapstein Cote, Warwick, RI, on brief for appellant.
    Donald C. Lockhart, Assistant, United States Attorney, and Peter F. Neronha, United States Attorney, on brief for appel-lee.
    Before HOWARD, Chief Judge, SELYA and LYNCH, Circuit Judges.
   HOWARD, Chief Judge.

Defendant-Appellant David Alcantara was convicted, after a jury trial, of conspir-ácy to commit bank fraud and conspiracy to pass counterfeit currency. Alcantara now challenges these convictions, raising various evidentiary issues and one purported instance of prosecutorial misconduct. Finding each of Alcantara’s claims meritless, we affirm.

I.

To provide context, we describe the relevant facts supported by the evidence at trial. In December 2009, Alcantara and others set out to steal money from a Citizens Bank account belonging to a car-wash business. One of the co-conspirators was a teller at the bank. Another arrived at the bank posing as an agent of the car-wash company. The second co-conspirator approached the compromised teller and presented a false passport. The funds were successfully transferred from the car wash’s account to a fraudulent account in the name of Hernandes Realty. Shortly thereafter, two other confederates liquidated much of the funds through a series of cashiers’ checks.

Just weeks later, on January 19, 2010, Alcantara met with a person — who, unbeknownst to Alcantara, was an undercover government agent — about the possibility of obtaining fake drivers’ licenses. During the meeting, Alcantara indicated that he needed the licenses in “four or five days,” which did not leave the agent enough time to prepare them. Alcantara told the agent that the two might be able to work together “for the next round.”

The very next day, Alcantara perpetrated a second bank fraud, this time from Bank of America. To execute the scheme, Alcantara provided two co-conspirators with false temporary licenses and instructed them to open accounts. The accomplices later transferred funds into these accounts. Unfortunately for Alcantara, however, neither co-conspirator was successfully able to withdraw the money. One was arrested, and the other fled after hearing what he thought was an alarm.

On January 24, Alcantara had another conversation -with the undercover agent. During this call, Alcantara asked the agent whether he knew anyone who worked at a bank. The two spoke for a third time on January 27, again discussing the possibility of the agent preparing fake licenses.

In February 2010, Alcantara became involved in a scheme to pass counterfeit money. Essentially, the plan was to use counterfeit bills to purchase inexpensive items in various retail stores, receiving change in authentic currency. Alternatively, the conspirators also purchased more expensive items, returning them shortly thereafter for real currency. On February 23, Alcantara drove to a mall in Farming-ton, Connecticut with his brother Urias and other co-conspirators. Alcantara distributed counterfeit $100 bills to the group, which the others then attempted to pass. Ultimately, Urias Alcantara was caught and arrested in possession of seventeen counterfeit $100 bills. Before his brother’s apprehension, Alcantara unsuccessfully attempted to alert the group that the police were approaching.

On March 4, the Secret Service visited a T-Mobile store where the conspirators had passed some of the counterfeit bills. The next day, one member of the group texted Alcantara to inform him of this development. He further indicated that the agents planned to return to the store to speak with the manager as well as review records and camera footage. Alcantara was arrested eleven days later, on March 15, 2010, at JFK International Airport.

II.

Alcantara raises a number of issues on appeal, namely, (1) various unpreserved evidentiary challenges; (2) two arguably preserved evidentiary challenges; and (3) an unpreserved prosecutorial misconduct claim.

A.

Alcantara identifies five purported evi-dentiary errors that he concedes he failed to raise below. Our review accordingly is for plain error. United States v. Peña-Santo, 809 F.3d 686, 694 (1st Cir. 2015). This standard is an “exacting” one, requiring Alcantara to establish that “(1) there was an error, (2) which was clear or obvious, (3) that affected his substantial rights, and (4) also seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Id.

1.

Alcantara first takes aim at various ref-erencés to “luxury vehicles” in the trial transcript, as well as a photograph of his Bentley that was entered into evidence. According to Alcantara, the “cumulative effect” of this evidence was to bias the jury against him due to his “lavish lifestyle.”

Contrary to Alcantara’s contention, the cited testimony constituted probative evidence. Multiple witnesses testified that they knew Alcantara by his Bentley. Such testimony was admissible to establish the witnesses’ knowledge of the defendant. Alcantara’s response that “[identity was not an issue in this case” is beside the point. See Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (citing the “familiar, standard rule” that a defendant “may not stipulate or admit his way out of the full evidentiary force of the case”). Other witnesses, who were co-conspirators in Alcantara’s criminal plots, testified, that he drove a Lexus during the course of the conspiracy, including to meetings and bank branches. This testimony was admissible as “intrinsic to the crime[s] for which [Alcantara was] charged and [ ] on trial.” United States v. DeSimone, 699 F.3d 113, 124 (1st Cir. 2012).

Alcantara’s alternative argument that, even assuming the challenged evidence was relevant, it was inadmissible under Federal Rule of-Evidence 403, fares no better. Alcantara points to twenty-one references to luxury vehicles, in addition to the photograph of his Bentley, in a trial transcript that spans hundreds of pages. Moreover, several of these references took place during defense counsel’s cross-examinations and closing argument. Finally, the mentions of luxury vehicles were generally matter-of-fact statements that Alcantara was known for driving a Bentley or that he drove a Lexus on certain occasions. There was nothing ■ particularly inflammatory about them, such that the probative value of the testimony would be “substantially outweighed by a danger of ... unfair prejudice.” See Fed. R. Evid. 403. Accordingly, it is doubtful that the district court erred at all, and it certainly did not commit plain error, by declining to exclude this evidence sua sponte.

2.

Alcantara’s second claim of eviden-tiary error runs along similar lines. He argues that a handful of references to' his wearing a New York Yankees baseball cap prejudiced the jury (which he assumes to have been composed of Boston Red Sox fans) against him. As an initial matter, all but two of the cited references occurred during defense counsel’s cross-examination. In any event, this testimony, like the references to luxury vehicles discussed above, was relevant to the witnesses’ knowledge of Alcantara and his appearance. Any possibility of unfair prejudice was ameliorated when the district court explicitly instructed the Rhode Island jury not to hold Alcantara’s wearing of a Yankees hat against him.

3.

Alcantara next takes issue with the admission of certain evidence relating to illegal activity by his brother Urias. This argument proceeds from the erroneous assumption that the government failed to connect Alcantara to his brother’s misconduct.

The evidence in question consisted of (1) two photographs of Urias with counterfeit money and (2) testimony regarding Urias’s arrest for passing counterfeit bills at the Farmington mall. With respect to the latter issue, the government introduced evidence that Alcantara, far from being merely present when his brother was arrested, was a central player in the criminal scheme. Alcantara drove to the mall with co-conspirators, distributed the counterfeit $100 bills to them, and attempted to warn the others when the police were approaching. Accordingly, testimony about the Farmington incident was not, as Alcantara contends, prior bad acts evidence subject to Federal Rule of Evidence 404(b). Rather, it constituted evidence “intrinsic” to the criminal conspiracy for which Alcantara was tried and convicted. DeSimone, 699 F.3d at 124.

A similar analysis applies to the photographs, which depict Urias next to a table covered in currency. The government introduced evidence that the bills in the photos were counterfeit. The photos were obtained from Alcantara’s iPhone, along with a third image of Alcantara himself standing over a similar table of bills. The pictures were all taken within minutes of each other. In these circumstances, and in light of the previously discussed evidence that Alcantara and his brother both joined in a conspiracy to pass counterfeit bills, the photographs of Urias were admissible against Alcantara to prove that conspiracy.

4.

Alcantara’s fourth claim of error relates to a Secret Service agent’s testimony that the bills depicted in the photographs discussed above were indeed counterfeit. Essentially, Alcantara argues that this testimony constituted improper lay opinion. We have held that a lay witness may provide an opinion based upon expertise that he or she “personally acquires through experience, often on the job.” United States v. Vega, 813 F.3d 386, 394 (1st Cir. 2016) (citation omitted). Such lay expertise must be “the product of reasoning processes familiar to the average person in everyday life.” Id. (citation omitted). For example, “a police officer noticing patterns of behavior across criminal operations” who “uses straightforward logic to conclude a defendant’s behavior fits within that pattern ,.. does not need to be qualified as an expert.” Id.

Here, the agent testified that he had previously investigated numerous cases involving counterfeit bills. In the case at hand, the agent determined that the bills depicted in the photographs were counterfeit by considering a variety of factors, including: (1) one bill was draped over a stick of deodorant, which counterfeiters often use to avoid detection; (2) the ink on another bill appeared to be “bleeding,” which does not happen to real bills; (3) the bills were all face-down such that the serial numbers were not visible; (4) the bills were all the same denomination; and (5) the bills all appeared new. These considerations represent precisely the type of straightforward experiential logic that this court has repeatedly found to be within the realm of permissible lay opinion testimony. See, e.g., United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012) (agent’s testimony that “based on his- experience in prior drug investigations ... traffickers often list unrelated third parties as their telephones’ subscribers”); United States v. Maher, 454 F.3d 13, 24 (1st Cir. 2006) (officer’s testimony that “based on his experience” Post-It notes “were likely notes of drug orders and the number ‘4’ referred to a quantity of the drug”). Accordingly, the admission of this testimony was not plain error.

To the extent that Alcantara also generally assails the reliability of the agent’s testimony, these concerns go to the “weight of the evidencé, -not its admissibility.” See United States v. Mejia, 600 F.3d 12, 19-20 (1st Cir. 2010) (citation omitted).

5.

In a final claim of unpreserved evidentiary error, Alcantara argues that the court improperly admitted “flight” evidence, namely, the fact that he was arrested at JFK Airport, Such evidence is admissible so long as there is “sufficient extrinsic evidence of guilt to support an inference that [the] defendant’s flight was not merely an episode of normal travel but, rather, the product of a guilty conscience related to the crime alleged.” De-Simone, 699 F.3d at 125 (citation omitted). While Alcantara disputes the existence of a sufficient factual predicate, the extrinsic evidence of his guilt was substantial, highlighted by the testimony of multiple co-conspirators in both the bank frauds and the counterfeiting plot. This fact alone dooms Alcantara’s claim of plain error. See, e.g., id. (noting “overwhelming evidence” of the defendant’s guilt); United States v. Otero-Méndez, 273 F.3d 46, 53 (1st Cir. 2001) (finding sufficient factual predicate based on evidence of defendant’s involvement in the charged carjacking). If more were needed, the inference of a guilty conscience is further supported by the fact that Alcantara’s arrest at the airport occurred just eleven days after he learned that the authorities were investigating his counterfeiting scheme.

B.

Alcantara raises two additional evidentiary issues on appeal, which he claims to have preserved below. Assuming that Alcantara did preserve these arguments, we review the district court’s evi-dentiary rulings for abuse of discretion. See United States v. Gemma, 818 F.3d 23, 35 (1st Cir. 2016).

1.

First, Alcantara argues that testimony regarding his conversations with the undercover agent was irrelevant and thus inadmissible. This contention need not detain us long. Alcantara’s first meeting with the agent, during which he expressed a desire to obtain fake licenses, occurred on January 19, 2010, just weeks after his involvement in a December 2009 bank fraud using a fake passport. On January 20, Alcantara and his confederates set in motion a second bank fraud scheme, again using false identification documents (albeit not ones provided by the agent). In the space of the, following week, Alcantara had two more conversations with the undercover agent relating to (1) any contacts the agent might have at banks and (2) Alcan-tara’s desire to obtain fake licenses. Alcan-tara’s communications with the agent were part and parcel of the charged conspiracy, and we accordingly perceive no error. See DeSimone, 699 F.3d at 124.

2.

Alcantara’s other “preserved” argument is similarly unavailing. Alcantara contends that the photograph of him standing over a table covered in currency was “irrelevant and unduly prejudicial.” This argument proceeds from the flawed assumption that the government failed to introduce any “reliable evidence that the money in the picture was in fact counterfeit.” As discussed above, a Secret Service agent did opine that, based on his experience, the bills in the picture appeared to be counterfeit. While Alcantara quibbles with the reliability of the agent’s opinion, this goes only to the weight of the evidence, not to its admissibility. See Mejia, 600 F.3d at 19-20. Indeed, as Alcantara himself points out, defense counsel conducted a robust cross-examination in an effort to undermine the agent’s testimony. Unfortunately for Alcantara, the jury was not swayed. The evidence that the bills in the photograph were counterfeit dooms Al-cantara’s argument. At the risk of stating the obvious, a picture of the defendant with a pile of counterfeit bills is relevant to prove his involvement in a counterfeiting conspiracy.

C.

The final arrow in Alcantara’s quiver is an unpreserved claim of prosecu-torial misconduct. In analyzing a prosecutor’s purportedly improper statement, “we typically ask whether [that] statement so poisoned the well that a new trial is merited.” United States v. Cruz-Díaz, 550 F.3d 169, 174 (1st Cir. 2008) (citation omitted). We have identified , the following four factors as relevant to this inquiry: “(1) the severity of the misconduct; (2) the context in which it occurred; (3) whether the judge gave any curative instructions ... ; and (4) the strength of the evidence against the defendant.” United States v. Fernandez, 94 F.3d 640 (1st Cir. 1996) (unpublished table decision), 1996 WL 469009, at *8 (citation omitted). Because Alcantara failed to object at trial, our review is for plain error. Cruz-Díaz, 550 F.3d at 174.

Alcantara takes issue with a few isolated sentences from the government’s rebuttal argument: “Now, the Defendant says, well, where are the insiders? ... That’s for another day. That’s for another jury. This jury is tasked with deciding what this member of the conspiracy did, what this Defendant did.” As an initial matter, it is hardly clear that the prosecutor’s statement was improper. Of course, it is true that the jury at Alcantara’s trial was tasked with assessing only his guilt, not that of any other co-conspirator. However, Alcantara contends that the prosecutor’s statement “provided false affirmation to the jury that other .individuals were, in fact charged for the crimes.”

Proceeding from the dubious assumption that the prosecutor acted improperly, we still fail to perceive plain error. Any misconduct that occurred was far from severe. The statements at issue occupy a mere handful of lines in the trial transcript. Moreover, during his closing argument, defense counsel had referred to the absence of various uncharged co-conspirators. Accordingly, the prosecutor’s comment can be read as an attempt to shift the jury’s focus back to where it belonged: the evidence against Alcantara. Nonetheless, after making the statement at issue, the prosecutor expressed her openness to a curative instruction that her comment “was not intended to suggest whether anyone else was charged.” When the court offered to provide such an instruction, defense counsel expressly declined. Finally, as laid out above, the evidence against Alcantara in this case was overwhelming. In these circumstances, the prosecutor’s isolated and relatively innocuous comment did not “so poisonf ] the well” that a new trial was required. See Cruz-Díaz, 550 F.3d at 174 (citation omitted); see also Fernandez, 94 F.3d 640, 1996 WL 469009, at *11 (finding no plain error where the prosecutor “erroneously stated that the testifying drug traffickers were ‘either in jail or go to [sic] jail’ ”).

D.

We also reject Alcantara’s claim that the cumulative effect of the purported errors discussed above requires a new trial. See United States v. Gaw, 817 F.3d 1, 12 (1st Cir. 2016) (“[C]umulative-error analysis is inappropriate when a party complains of the cumulative effect of non-errors.” (citation omitted)).

III.

For the foregoing reasons, we AFFIRM Alcantara’s convictions.

      . Alcantara also challenges the admissibility of this testimony. We address his argument on this point separately below.

      . Alcantara argues that the third photo was also inadmissible, but, as discussed below, this argument similarly fails.

      .The agent explained that counterfeiters use deodorant to coat the bills, creating a layer of substance which can make them appear genuine in the “counterfeit pen test" commonly used by retailers.

      . This assumption is a generous one. Indeed, with respect to the first puiportedly preserved issue, namely, evidence relating to Alcantara’s discussions with the undercover agent,. Alcan-tara concedes that he only objected to the admission of the transcripts of those conversations. He did not object to the recordings or any other aspect of the agent’s testimony. More broadly, the sole record evidence cited ■ by Alcantara to establish the preservation of these issues is a one-page pre-trial motion in limine. Ordinarily, where the district court denies such a motion, the moving party must renew its objection at trial to avoid forfeiture. See, e.g., United States v. Raymond, 697 F.3d 32, 37 (1st Cir. 2012).


author: KAYATTA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Paul R. HINKEL, Defendant, Appellant.
    No. 15-1672
    United States Court of Appeals, First Circuit.
    September 20, 2016

      Christine DeMaso, Assistant Federal Public Defender, Federal Public Defender Office, District of Massachusetts, for appellant.
    Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before THOMPSON, SELYA, and > KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

After being ensnared by a law enforcement sting operation, Paul Hinkel was charged with using a means of interstate commerce (the internet) to entice a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). He was convicted following a jury trial and sentenced to ten years’ imprisonment, to be followed by five years’ supervised release. On appeal, he claims that a variety of alleged errors undermined the integrity of the jury’s verdict and the appropriateness of his sentence. After careful review, we affirm both Hinkel’s conviction and the bulk of the sentence imposed by the district court, finding cause to alter only two conditions of Hinkel’s supervised release.

I. Background

At trial, the government relied chiefly on evidence of electronic messages exchanged between Hinkel and government agents posing as a fifteen-year-old girl and her mother. Because Hinkel’s challenge trains partly on the sufficiency of the government’s evidence, we summarize this back-and-forth in considerable detail, vulgar and lewd as it is.

On February 14, 2014, an agent with the Department of Homeland Security placed a personal advertisement on the “Casual Encounters” online message board, a subsection of the website Craigslist frequented by those seeking adult sex partners. Using the name “Lisa Richards,” the agent published a post entitled “mom with daughter looking — w4m—38 (Boston).” In its entirety, the post stated: “open minded mom DDF with daughter looking for male that might be interested in taboo, relationship, some dom.needs to be dis-creete though, if you have an interest in a interesting relationship contact me, use in-tersting in subject line, we will chat off CL.”

At 12:54 pm that day, Craigslist user “ctautumn,” later identified as Hinkel, responded to the advertisement via email using the subject line “VERY INTERESTING AND INTRIGUING.” Hinkel told “Lisa” that he was “an experienced Daddy/Dom and [he] ha[d] been looking for this type of scenario.” He then listed some of his “taste[s]” and provided graphic descriptions of sexual acts that he imagined engaging in with “Lisa” and her daughter. Forty-five minutes later, the agent responded, writing that “she” was “trying to introduce [her] daughter to sex” and asking if Hinkel “mind[ed] if- shes young?” Prompted by Hinkel’s responsive request for her daughter’s age, “Lisa” informed Hinkel that her daughter “Samantha” was “15 but experienced.”

Seven minutes later, at 2:05 pm, Hinkel responded: “Sounds very naughty! I am concerned about her age since legally she should be 16 or older.” He asked whether “Lisa’s” daughter had “played in this type of scene before” and whether “Mommy and daughter play together as well,” stating that he found “that kind of play so very erotic,” and that it was a “big turn on for [him].” In response, at 2:10 pm, “Lisa” wrote, “shes not [16 or older] so i guess this conversation is over.” But Hinkel insisted otherwise, replying, one minute later, to say, “Nope. It is not over! I want to talk more! I’m very intrigued by it all. Such taboo and naughty play!!!!”

Over the course of roughly the next month, Hinkel corresponded frequently and in lurid detail with “Lisa” and her fictitious daughter “Samantha.” In subsequent emails, “Lisa” told Hinkel that she was looking for a man to “teach[] her [daughter]” and that she wanted “Samantha” “to experience sex with a man the right way.” Hinkel frequently expressed eagerness to perform this role, describing his own sexual desires in detail. From time to time, though, he also expressed what he called “conflicting feelings” regarding the criminal conduct he was preparing to engage in. At one point Hinkel told “Lisa”:

I once placed an ad looking for this very type of scenario, but to be honest the ad stated that the daughter was to be of legal age. I was taken back a bit when you said she wasn’t. The last thing I want to do to any girl is damage her emotionally. I’m very caring. As long as she is desires this, I am game.

On another occasion, Hinkel wrote “Lisa” that when he arrived to meet “Samantha” he would “play it by ear and gauge it based on Samantha’s feelings and comfort level,” saying that he was “nervous ... [to] be with such a young girl” and “sooooooooo very concerned about her and how she will feel.’’ “Lisa” reassured Hinkel, saying “i think you will love her., .and i appreciate the way you describe our situation :),” telling him that the planned encounter would be “such an amazing experience for us to have together.”

Hinkel and “Lisa.” formed plans to stage their encounter with “Samantha” at “Lisa’s home” in Watertown, Massachusetts, on March 19, 2014. A week before, Hinkel exchanged emails directly with “Samantha.” Referring to her as “sweetheart,” Hinkel promised to make the experience “fun and enjoyable” for this fifteen-year-old girl. When “Samantha” said that she liked it when she “rub[bed] herself,”'Hink-el asked if she would like him to “touch [her] there as well.” In one of his final messages to “Lisa,” Hinkel asked whether “Samantha” knew she could never tell anyone about their planned encounter because, in his words, “you and I can get into a lot of trouble. Even years later.”

On the appointed day, Hinkel arrived at the Watertown residence where he was greeted by arresting officers. He consented to a search of the bag he was carrying and of a lockbox in his vehicle. These searches — and later searches of his home and work computers — yielded evidence, ultimately introduced at trial, that we will discuss in greater detail later in this opinion.

II. Analysis

Hinkel does not contest that he was the author of the “ctautumn” emails and text messages sent to the government agents. His chief defense at trial was entrapment.

The defense of entrapment “exists to prevent ‘abuse[ ]’ of the ‘processes of detection and enforcement ... by government officials’ who might instigate an illegal ‘act on the part of persons otherwise innocent in order to lure them- to its commission and, to punish them.’ ” United States v. Díaz-Maldonado, 727 F.3d 130, 137 (1st Cir. 2013) (alterations in original) (quoting Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 77 L.Ed. 413 (1932)). When the defense is properly raised, we apply a two-part test. First, we look at the government’s conduct to see if it is of the type that would cause a person not otherwise predisposed to commit a crime to do so. See id. Examples of such “government overreaching” include “excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, noncriminal type of motive.” United States v. Gendron, 18 F.3d 955, 961-62 (1st Cir. 1994). If the government does employ “methods of persuasion or inducement that create a substantial risk that ... an offense will be committed by persons other than those who are ready to commit it,” Model Penal Code § 2.13(l)(b), “we proceed to a second step and look at the particular person to see if that person was in any event predisposed to commit the crime,” Díaz-Maldonado, 727 F.3d at 137; accord Gendron, 18 F.3d at 962-63.

In seeking an entrapment jury instruction, a defendant must first shoulder the “modest” burden, of making a prima facie showing that there is some evidence both elements are satisfied in his or her case. United States v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009). If this .‘.“entry-level burden’ - of production,” Díaz-Maldonado, 727 F.3d at 139 (quoting United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987)), is satisfied — as it clearly was in this case, see, e.g., United States v. Gamache, 156 F.3d 1, 9-11 (1st Cir. 1998) — then the defendant is entitled to a jury instruction explaining the defense. In addition,

the burden shifts to the government to prove beyond a reasonable doubt one of two things, either of which defeats the defense: that the government did not wrongfully induce the accused to engage in criminal conduct or that the accused had a predisposition to engage in such conduct absent the inducement.

United States v. DePierre, 599 F.3d 25, 27 (1st Cir. 2010).

The district court instructed the jury on the parameters of the entrapment defense using the pattern jury instructions commonly used by district courts in this circuit, declining to give a lengthier instruction requested by Hinkel. The court also denied Hinkel’s motion for judgment of acquittal premised on the government’s failure to offer evidence sufficient to remove the inference of entrapment from the proceedings. See Fed. R. Crim. P. 29. Hinkel challenges both of these unfavorable decisions on appeal.

1. Sufficiency of the Evidence

Hinkel put a credible entrapment case to the jury by arguing that the government’s bundling of licit and illicit sex into a package deal led him to go where he never would have gone but for the government’s clever and sophisticated inducement. The government went to lengths to create a dressed-up window of opportunity for the crime to be committed and, on numerous occasions, downplayed the harm that could be expected to flow from the commission of the crime by describing how “amazing” the encounter would be, how “excited” “Samantha” was, and how “Lisa” “appreciate^]” how “honest and caring” Hinkel had been in his messages. As in virtually any sting operation, the fictitious co-conspirator here also sought to allay concerns about detection by the authorities and to build credibility with the target of the investigation through frequent, familiar communication that undoubtedly took the “edge” off of the reprehensible conduct under contemplation. As for predisposition, Hinkel points out that he had never previously been convicted of a crime, had raised two adult children and had not been accused of having an inappropriate relationship with either of them, and that the government had not uncovered any evidence suggesting that he had other underage victims.

The jury, though, was not buying Hinkel’s view of the evidence. So the question for the district court, and now us, is whether the evidence of both wrongful inducement and lack of predisposition was so one-sided that a reasonable jury could not have found beyond a reasonable doubt that the government carried its burden of negating the entrapment defense; This question of evidentiary sufficiency is a question of law that we consider de novo. United States v. Prieto, 812 F.3d 6, 13 (1st Cir. 2016).

We resolve that question in the government’s favor. Crucially, the government informed Hinkel at the very outset of the exchanges — before rolling out the force of its enticements — that the daughter was only fifteen years old. Promptly thereafter (only about an hour and fifteen minutes after Hinkel first responded to the advertisement, and just six emails into the exchange), the agents pointblank offered him an unambiguous opportunity to walk away. The precise words exchanged merit attention. When told the girl’s age Hinkel voiced no firm objection. Rather, he expressed “concern,” and then asked for more information about her experience. A government agent intent on inducement might well have simply responded by answering the question with assurances about her experience. Instead, the agent treated the expression of concern as a likely objection, and volunteered that the “conversation [was] over,” thereby giving Hinkel an easy out before he crossed the threshold that led to the subsequent eh-ticement and assurances that could otherwise be seen as creating a disposition where none previously existed. Equally importantly, upon learning the daughter’s age and recognizing the illegal nature of the proposed relationship, Hinkel explained his refusal to walk away by citing the “taboo” nature of the proposal as that which made it attractive to him: “I’m very intrigued by it all. Such taboo and naughty play!!!!”

Hinkel did thereafter make statements that implied some residual conflict concerning the illegality of the proposal, but never because he viewed the command of the law as indicative of what is right and wrong. Rather, his concern about the illegality of the proposed conduct was one that was assuaged by arrangements to minimize detection (i.e., confirming that “Samantha” was told to keep their activities secret). In this respect, he was like a putative bank robber who hesitated only to make sure that the bank’s security system was down. He also made clear his position that he would do nothing that, in his judgment, harmed “Samantha.” But, of course, that is a judgment that the law does not allow him to make, anymore than it allows a person to kill only those thought to deserve death. In this respect, Hinkel’s self-serving arrogance in relying on his own version of right versus wrong reasonably might be seen as an ingredient in his predisposition to commit the crime.

In any event, the important point is that Hinkel was offered and declined a clear exit at the outset. Hinkel was not a person who entered a nightclub only to find out several hours later that it was a bordello. Rather, he was more like the person who confirmed at the front door the nature of the activity being offered, and then entered precisely because its greater than expected “taboo” aspects attracted him. Given such a chronology, a jury could easily find beyond a reasonable doubt that the agents’ subsequent enticements and assurances, much like those of a pimp, were simply reasonable efforts to negotiate the arrangement rather than, wrongful overreaches aimed at. using pressure to create a crime. “This is not a case.... in which a government agent refused to take ‘no? for an answer and persisted in recruiting a target.” Díaz-Maldonado, 727 F.3d at 137.

This is also not a case like United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000), where government agents first established, over the course of six months, a close relationship with a lonely target whom they then enticed by slowly “play[ing] ón [the target’s] obvious need for an adult relationship, for acceptance of his sexual proclivities and for a family, to draw him ever deeper into a sexual fantasy world involving these imaginary girls,” id. at 702. Similarly, in State v. Canaday, 263 Neb. 566, 641 N.W.2d 13 (2002), undercover law enforcement agents strung an advertisement respondent along for four months before clearly establishing that the target was expected to have sex with the fictitious pen pal’s children as a requirement of any relationship with the mother, see id. at 17-20.

Here, the government’s tactics as they played out involved no “psychologically ‘graduated’ set of responses to [the target’s] own noncriminal responses, beginning -with innocent lures and progressing to frank offers.” Gendron, 18 F.3d at 963. Rather, the initial lure was ambiguous (mother and daughter in “taboo” and “interesting” arrangement), and the ambiguity was thoroughly and promptly eliminated before Hinkel sought to explore and act on the further enticements.

Because we find that the evidence supported a finding that the government did not wrongly induce Hinkel to engage in criminal conduct, we need not reach the question of whether the government also sufficiently demonstrated that Hinkel was predisposed to commit the kind of offense in question absent any governmental involvement. See United States v. Walter, 434 F.3d 30, 37 (1st Cir. 2006) (“In addressing Walter’s primary argument that the government failed to carry its burden of proving that no entrapment occurred, we again note that the government’s burden is met if it proves beyond a reasonable doubt that either element of the defense, inducement or lack of predisposition, fails.”); cf. United States v. Nieves-Burgos, 62 F.3d 431, 434 (1st Cir. 1995) (“[W]hen a jury returns a general verdict of guilty on a single count charging more than one criminal act, the verdict stands if the evidence sufficiently supports any of the acts charged.”)

2. Instructions

Hinkel further faults the district court for refusing to give his requested entrapment instruction. Instead, the court gave the pattern jury instruction on entrapment commonly used by district courts in this jurisdiction. See Pattern Crim. Jury Instr. 1st Cir. § 5.05 (1998). The chief distinction between the two is that Hink-el’s version included examples of government activity that might amount to improper inducement to commit a crime.

We see no abuse of discretion in the court’s decision or legal error in its instruction. Arguing otherwise on appeal, Hinkel relies principally on United States v. Montañez, 105 F.3d 36 (1st Cir. 1997). The defendant in Montañez hung his entire defense on the theory that he was entrapped by a government agent posing as a female friend who repeatedly be-seeched him to obtain cocaine for her to resell, claiming that she would lose her children if he did not help her earn money. Id. at 37-38. When instructing the jury on entrapment, the district court gave several examples of inducement by coercion but refused to include examples of entrapment based on "appeals to sympathy. Id. at 38 & n.3. We reversed, ruling that by both providing the coercion examples and “omitting any ‘sympathy’ examples, the trial court may well have left the jury with the' mistaken impression that coercion is a necessary element of entrapment and, in this case, such a misunderstanding could well have affected the outcome.” Id. at 39.

Here, the district c.ourt did not instruct on entrapment by setting o.ut. some examples of inducement while leaving, out other, more pertinent examples. In its discretion, the court simply stuck with the standard form, accurately describing the generic defense of entrapment, and correctly outlining the elements. Unlike in Montafiez, this instruction "adequately informed] -the jury of [the defendant’s] theory of defense,” id. at 40, and did not suggest that the conduct here was not wrongful by omitting it from a description of conduct that was wrongful.

B. Evidentiary Issues

On appeal, Hinkel renews his objections to several unfavorable evidentiary judgment calls made by the district court during the course of the trial. Hinkel challenges: (1) the admission of seventeen photographs and five sexually explicit cartoons discovered on his work computer; (2) the admission of evidence of sexual paraphernalia and children’s clothing found in the trunk of his ear on the day of his arrest; (3) the exclusion of evidence of a prior sexually-tinged electronic conversation with an adult he met online; and (4) the exclusion of certain text messages Hinkel sent to “Lisa” that, he argues, would have “contextualized the government’s facially inculpatory evidence.” We address each evidentiary challenge in turn.

1. The Photographs and Cártoon Evidence

A post-arrest forensic examination of Hinkel’s computer yielded twenty-two electronic images that were later introduced at trial. Seventeen are photographs of Hinkel, apparently self-taken. The remaining five are drawings of anime characters. Once the district court ruled that Hinkel was entitled to a jury instruction on entrapment, the government offered and the district court admitted, over Hinkel’s objection, both sets of evidence as probative of Hinkel’s predisposition to commit the crime of conviction. The images, the court reasoned, were probative of Hinkel’s predisposition to commit a sex crime involving a minor because they demonstrated Hinkel’s interest in “playing out a role of a hypersexualized child in need of chastisement,” a fantasy that he later sought to actualize through his communications with “Lisa” and “Samantha.” The government briefly discussed these images at trial in the course of its examination of the forensic technician and again during closing arguments. Jurors were, of course, free to peruse the contents of the entire report.

Evidence of another act is ordinarily impermissible “to show that on a particular occasion the person acted in accordance with” the character manifest in the other act, Fed. R. Evid; 404(b)(1), but such evidence may be introduced “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” id.(b)(2). “[I]n situations where the defendant employs entrapment

as a defense to criminal liability, prior bad acts relevant to a defendant’s predisposition to commit a crime are highly probative.” United States v. Van Horn, 277 F.3d 48, 57 (1st Cir. 2002); cf. United States v. Thomas, 134 F.3d 975, 980 (9th Cir.), as amended on denial of reh’g (Apr. 10, 1998) (“For the jury to find predisposition beyond a reasonable doubt, it must consider the defendant’s character.”). But even if evidence of a defendant’s prior acts or his or her character has “special relevance” to a disputed issue such as predisposition, such evidence “may not be admitted if ... its probative value is ‘substantially outweighed by the danger of ... unfair prejudice, confusion of the issues, or misleading the jury.’ ” Van Horn, 277 F.3d at 57 (quoting Fed. R. Evid. 403).

We review the court’s decision to admit this evidence for abuse of discretion. Id. at 56. Because the “balancing act” demanded by Rule 403 is a “fact-sensitive enterprise” best left to the trial judge, “[o]nIy rarely and in extraordinarily compelling circumstances will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.” United States v. Vizcarrondo-Casanova, 763 F.3d 89, 94 (1st Cir 2014) (alteration in original) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1988)); see also United States v. Majeroni, 784 F.3d 72, 76 (1st Cir. 2015) (“In exercising their broad discretion under Rule 403, trial judges have a feel for the evidence and the courtroom that is difficult to replicate on the pages of a transcript, so our deference to judgment calls of this type is great.”).

We consider first the five cartoons, which consist of detailed anime drawings of adults and minors engaged in sex acts, sometimes in bondage. It was well within the trial court’s discretion to admit these cartoons found on Hinkel’s computer depicting sex with children as probative of Hinkel’s predisposition. Cf. United States v. Chambers, 642 F.3d 588, 595-96 (7th Cir. 2011) (images of child pornography possessed by defendant admissible to show “sexual inclination towards children”); United States v. Brand, 467 F.3d 179, 199-201 (2d Cir. 2006) (evidence of “possession of images of child pornography and child erotica” admissible to show defendant predisposed to commit “sexual offenses against children”). Hinkel could hardly challenge the government to prove his predisposition to engage in sex with a minor while simultaneously barring the government from presenting proof that he possessed depictions of adults having sex with minors.

The seventeen photos of Hinkel require a different analysis. None involve children. Rather, thirteen pictures show Hinkel wearing women’s underwear, sometimes with his genitalia visible, one shows him prepared to punish himself, two show his erect penis, and two present views of his spread buttocks. What properly probative role these pictures had in this case is a mystery. The government forthrightly confesses that “they played virtually no role in the government’s case or its response to Hinkel’s entrapment defense.” Egged on less frankly by government counsel at trial, the district court hypothesized that the pictures were all relevant to the entrapment defense. The reasoning seems to be that in one of the pictures Hinkel appears to wear a child’s tutu, so if Hinkel fantasized himself as a child, that reasonably suggests he was predisposed to have sex with a child. No evidence at all supported this hypothesized nexus. Nor does the nexus apply, even by its own terms, to sixteen of the seventeen pictures.

The Supreme Court has cautioned that “evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing pi-edisposition.” Jacobson v. United States, 503 U.S. 540, 550, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). Our own court has rejected as impermissible “the inference ... that the tendency to engage in unusual, albeit legal, sexual activity with an adult indicates a predisposition toward pedophilia.” Gamache, 156 F.3d at 11. In sum, the photos had virtually no probative force on any issue properly before the jury.

We turn therefore to the issue of prejudice. In most circumstances, the prejudicial impact of these photos would be patent and substantial; Knowledge of Hinkel’s licit but unusual sexual practices and his attitude toward sex might cause some jurors to think that his proclivities knew no bounds, licit or otherwise. In this case, though, this prejudicial • potential was largely cumulative, or redundant, because of the email exchanges put before the jury. In these properly admitted exchanges evidencing both the crime and the facts relevant to the entrapment defense, Hinkel repeatedly and lewdly described his preferred sexual practices, including practices likely viewed by. some jurors as more unusual than what the pictures showed. Also properly admitted;were the graphic anime pictures, the relevant prejudicial impact of which went much more directly to the heart of the case. The risk of incremental prejudice from the photos was further blunted by the district court’s prophylactic statement to the jury earlier in the trial that it was not to act as “the bedroom police” and that “if we get evidence in this ease of cross-dressing or bondage and discipline or, within limits, sadomasochism, that whatever you may think about that conduct, among consenting adults .... That’s not criminal.”

All in all, we have evidence of very little probative value that was nevertheless highly unlikely to have caused any incremental prejudice in the context of this particular record already replete with evidence of Hinkel’s sexual behavior and plans. Whether that means that, net-net, the district court did not abuse its discretion, or that error exists, but it is harmless, we need not decide. In either event, Hinkel loses.

2. Other Evidentiary Challenges

Law enforcement officers found a lockbox in the truck Hinkel drove to the scene where he intended to consummate the crime. After securing Hinkel’s consent, they searched the lockbox and discovered a cache of sexual paraphernalia, including women’s clothing and underwear, children’s underwear, and sex toys among other objects. Over objection, the district court admitted evidence of this material, finding it “probative of [Hinkel’s] then present intent.” See Fed. R. Evid. 803(3). Hinkel argues that this evidence was both irrelevant and unfairly prejudicial.

We disagree: it was no abuse of discretion to let the jury learn of the sex-related objects Hinkel brought with him from Connecticut to Massachusetts for the encounter with “Lisa” and “Samantha.” All of this evidence went to helping the government prove its affirmative case that Hinkel was not all talk and no action. In short, the objects were relevant — and highly so — because Hinkel brought them to the scene of the meeting with Lisa, evidencing that sex was the purpose of that meeting.. Hinkel argues that he only intended to use what he carried out of the truck. But a jury could reasonably find that he brought all of the items as possible objects to use with “Samantha.” After all, he had told “Lisa” that he would “play it by ear” and “see how it went” with “Samantha,” To the extent the objects also ran the risk of eliciting juror disgust, and thus prejudice, the balance here was one that the trial judge had ample discretion to weigh.

Hinkel also challenges two decisions by the district court excluding evidence he sought to admit. One piece of evidence was a fragment of a 2010 online chat exchange recovered from Hinkel’s work computer. The exchange occurred between two users, “fun2day07” (Hinkel, by his own assertion) and “purplean-gell219,” that apparently took place in March 2010. At one point in the chat transcript, “purpleangell219” asked Hinkel (assuming he is, indeed, “fun2day07”) if he ever “want[ed] to play with [his daughtei-]” and- Hinkel said he had not and “would never do anything] like that.” Counsel for Hinkel sought to introduce the chat transcript as evidence of lack of predisposition and the district court ruled the exchange irrelevant. For several reasons, this is a judgment we will not disturb. For one, the exchange occurred several years before the events in question. Second, there was no suggestion in Hinkel’s prosecution that he abused his own children. Leaving aside questions about authenticity, hearsay, and completeness, excluding this evidence on relevance grounds was a decision well within the judge’s range of discretionary authority.

Hinkel also sought to admit certain text messages sent by him, which he says provided context for two other messages that were read aloud by a government witness at trial. The text messages read aloud related to Hinkel sending “Lisa” an explicit photograph. Defense counsel objected to the text messages in the first instance but then, on cross examination,' sought to introduce other parts of the conversation to place the messages in context. The district court ruled that this was impermissible since the defense was objecting to the messages’ admissibility. On appeal, Hinkel claims he would have used the opportunity to highlight a text message wherein he wrote, “Too bad, looks like I scared you with that photo. Take care.”

The district court’s treatment of this evidence was inconsistent at best. But we fail to see how this lost opportunity to introduce evidence of Hinkel apologizing for sending an explicit photograph would have had any bearing at all on the strength, completeness, or relevance of the government’s evidence. Even assuming that the district court’s puzzling explanation for excluding the text evidence was error, there is nothing remotely exculpatory about the text message conversation that could have materially benefitted Hink-el. Any error was harmless. See United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998); United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997).

C. Supervised Release

After serving his ten-year .prison sentence — the minimum term of imprisonment for conviction under this statute, see 18 U.S.C. § 2422(b) — Hinkel will be subject to a five-year term of supervised release. At Hinkel’s sentencing hearing, the district court imposed all of the Special Conditions (“Conditions”) of supervised release proposed by the Probation Office in its Presentence Report (“PSR”). Hinkel has preserved objections to four of the thirteen Conditions, excerpted in relevant part below:

Condition 4: The defendant shall not possess or use a computer or have access to any online service without the prior approval of the Probation Office.
Condition 7: The defendant is not to use a computer, internet-capable device, or similar electronic device to access child pornography or to communicate with any individual or group for the purpose of promoting sexual relations with children. The defendant is prohibited from entering chat rooms to send or receive ‘instant messages,’ or to send or receive email with attached electronic files through any electronic medium unless required for an express class assignment in an accredited educational institution or as an express job requirement for legal, outside employment. The defendant shall not utilize any sex-related adult telephone services, websites, or electronic bulletin boards.
Condition 9: The defendant shall provide the probation officer with access to any requested financial information for purposes of monitoring their compliance with the imposed computer access/monitoring conditions, including, but not limited to, credit card bills, telephone bills, and cable/satellite television bills.
Condition 13: The defendant shall be subject to search and seizure of his residence and elsewhere with reasonable suspicion by the Probation Office.

We review preserved challenges to conditions of supervised release for abuse of the sentencing judge’s diseretion. United States v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009). “Although district courts have significant discretion to impose special conditions of supervised release, that discretion is-not unlimited.” United States v. Medina, 779 F.3d 55, 60 (1st Cir. 2015). A special condition of release may only be imposed if the sentencing court determines that the condition:

(1) is reasonably related to the factors set forth in [18 U.S.C. § ]3553(a)(l), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C. § ]3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3).is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§ ]994(a).

18 U.S.C. § 3583(d); see generally Medina, 779 F.3d at 60. The rationale for imposing the condition must also “have adequate evidentiary support in the record.” United States v. Roy, 438 F.3d 140, 144 (1st Cir. 2006).

Applying these principles, we find that the first sentence of Condition 4, excerpted above, sweeps too broadly in banning Hinkel from, essentially, all internet access without the prior approval of his probation officer. This kind of broad-brush, untailored approach to sculpting the conditions of supervised release imposes “a greater deprivation of liberty than is reasonably necessary” to achieve the penal goals Congress has identified. 18 U.S.C. § 3583(2).

We have upheld broad restrictions on internet access as a condition of supervised release “where (1) the defendant used the internet in the underlying offense; (2) the defendant had a history of improperly using the internet to engage in illegal conduct; or (3) particular and identifiable characteristics- of the defendant suggested that such a restriction was warranted.” Perazza-Mercado, 553 F.3d at 70. Here, Hinkel did use the internet in committing the crime but we are reluctant to rely on that use alone where it is largely collateral to the offense in question, much like how using his truck to arrive to meet “Lisa” and “Samantha” would differ from using his truck to drive recklessly.

As we have previously observed, “[a]n undue restriction on internet use ‘renders modern life — in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted online, and where vast amounts of government information are communicated via website — exceptionally difficult.’ ” Id. at 72 (quoting United States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003)). That observation, made some seven years ago, has only more force today. And it takes no leap of faith to predict that in roughly nine years, when Hinkel is released, internet connectivity is likely to be even closer to a prerequisite to normal functioning in modern society. See generally Riley v. California, — U.S. -, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014) (observing two years ago that internet-enabled smart phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”).

Hinkel’s internet usage will also be subject to electronic monitoring per the unob-jected-to additional provisions of Condition 4. Given these restrictions, further banning Hinkel from even monitored internet access provides too little benefit to outweigh what we increasingly view as a serious and severe imposition.

Nor do we take solace, as we have in a previous case, in the presence in Condition ■4 of a safety valve permitting the defendant to seek approval from the Probation Office and, if necessary, the district court, in order to use the. internet for educational or vocational purposes. See United States v. Stergios, 659 F.3d 127, 134 (1st Cir. 2011) (“Should Stergios find [the internet ban] unduly restrictive upon his release, he need only speak with his supervising officer and, if that does not succeed, raise the issue with the district court.”). Stergios, unlike Hinkel, was a “repeat offender” with “a history of improperly using the internet to engage in’ fraud.” Id. at 135. Importantly, Stergios had previously proven himself unable or unwilling to refrain from using a computer to commit fraud while on supervised release following a conviction arising out of a similar use of computers to commit fraud. There is no contention that Hinkel has such a recidivist history or that he has already violated conditions of release. Our obligation to ensure that the special conditions of supervised release work no “greater deprivation of liberty than is reasonably necessary,” 18 U.S.C. § 3583(d)(2), to achieve the goals of criminal sentencing, see id. §§ 3583(a)(2)(B)-(D), compels us to vacate the first sentence — and no more — of Condition 4 of Hinkel’s supervised release.

For similar reasons, we also find that the last two sentences of Condition 7 in the excerpt above sweep too broadly and, in the case of the last sentence, too ambiguously. The penultimate sentence suffers from the same defect as we have identified in Condition 4, flatly prohibiting (other than in the course of outside employment or classwork) the use of what have now become standard forms of communicating and associating on essentially all subjects. The last sentence, in turn, expands what would be a reasonable effort to preclude access to sites and services related to sex with minors, or child pornography, into a ban covering access to all sites that are in any way “sex-related,” thereby covering, for example, a large swath of generally accepted modern entertainment, and even news.

In finding the first sentence of Condition 4 unreasonable, we simultaneously sustain as reasonable the first sentence of Condition 7. Forbidding Hinkel from using devices “to access child pornography or to communicate with any individual or group for the purpose of promoting sexual relations with children” speaks closely to the conduct at the heart of the offense Hinkel committed and is reasonably limited to the particular forms of communication that enabled his crime.

Finally, we may briefly dispense with Hinkel’s challenge to Conditions 9 and 13. These Conditions essentially act as enforcement subsidies in the government’s favor, supporting the Probation Office’s efforts to ensure Hinkel’s compliance with the conditions limiting his freedom in his first five post-carceral years. While these provisions make'it easier for the government to invade his privacy, they are reasonably related to either the Conditions we have approved or the ones Hinkel has not challenged. Without such tools to “mandate compliance,” the district court’s imposition of special conditions would be “ineffectual.” Stergios, 659 F.3d at 134 (quoting United States v. Sebastian, 612 F.3d 47, 52 (1st Cir. 2010)).

III. Conclusion

Having carefully considered Hinkel’s very well'briefed and argued challenge, we affirm his conviction and affirm his sentence, with the exception of the first sentence of Condition 4 and the last two sentences of Condition 7 governing the terms of his supervised release, each of which we vacate.

      . According to trial testimony, the use of "w4m" signified that the poster was a "w[oman]" seeking a “m[an].” Throughout this opinion, we reproduce the text of Hinkel and the agents’ communications warts and all, with minimal editorial revisions for clarity.

      . Testimony reflected that in the parlance of these online postings, “DDF” meant “drug and disease free,” "dom” meant "dominate," and “CL” meant "Craigslist.”

      .Hinkel was correct'about this as a matter of Massachusetts law, see Mass. Gen. Laws ch. 265, § 23; ch. 277, § 39, meaning that he would not have been guilty of the crime of conviction had he simply responded by stating his intention to wait until "Samantha” turned sixteen to engage in the sexual conduct.

      . It is unfortunately not far-fetched to encounter parents pimping their minor children on the internet. See, e.g., Aisha J. v. Ariz. Dep’t of Econ. Sec., No. 1 CA-JV 11-0161, 2012 WL 666573, at *2 (Ariz. Ct. App. Feb. 28, 2012).

      . Hinkel had requested that the district court tell jurors that:
      Improper inducement may include persuasion, false statements, excessive pressure by the officer, an undue appeal to sympathy, psychological manipulation, or other governmental conduct that creates a risk of causing an otherwise unwilling person to commit the crime charged. Even very subtle pressure, if skillfully applied, can amount to inducement for purposes of the entrapment defense. Some of the inducement factors relevant to enticement of a minor to engage in sexual activity may' include a) whether the government made the initial contact; b) whether the government introduced the topics of sex and meeting in person; and c) the extent to which the government influenced the defendant’s behavior by portraying the minor as sexually precocious.

      . Much of this evidentiary contest played out in advance of trial, with the district court informing the parties how it would rule were the entrapment issue to arise at trial, as it ultimately did. Hinkel objected when the im,ages were introduced, dooming the government’s appellate argument that the dispute has not been properly preserved.

      . Trial testimony indicated that some of the items of clothing worn by Hinkel in these photos appeared to be among those found in Hinkel’s vehicle at the time of his arrest. See infra Part II.B.2.

      . For this same reason, it was not plain error for the district court to have failed to repeat without request its earlier instruction that the jurors were not ‘‘bedroom police.” Trial counsel, too, may have had perfectly rational tactical reasons to refrain from seeking the repetitive instruction. See United States v. Fanfan, 468 F.3d 7, 12-13 (1st Cir. 2006) (“[M]any I defense lawyers would shrink from an instruction that the jury should not count [a defendant’s] propensity for [a particular crime] against him. Rather than erasing the risk that the jury would misuse the bad act evidence, such an instruction could easily invite the jury’s attention to a quite natural inference.”).

      . These text messages sent by Hinkel to "Lisa" read, "I’m glad and eager to hear her response. Makes me aroused to think of her ■ like this,” and, "Very hot,. I could even use a toy on her, while in that position, and make her cum several times before I take her.”

      . Condition 4 also requires that Hinkel cooperate with Probation to install software on his computer to. monitor his activities. He does not object to this requirement.


author: LYNCH, Circuit Judge.

text:
    WEN ZHONG LI, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-2373
    United States Court of Appeals, First Circuit.
    September 20, 2016

      Wei Jia and Law Office of Wei Jia, Boston, MA, on brief for petitioner.
    Laura Halliday Hickein, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Russell J.E. Verby, Senior Litigation Counsel, on brief for respondent.
    Before HOWARD, Chief Judge, • LYNCH and BARRON, Circuit Judges.
   LYNCH, Circuit Judge.

Wen Zhong Li petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s (“IJ”). order removing him to China and denying his application for adjustment of status or voluntary departure. Li challenged the Department of Homeland Security’s (“DHS”) charge that he was removable because he had procured admission into the United States by willfully misrepresenting his identity to immigration officials. Following a procedural maze of two Notices to Appear,- multiple IJ rulings, and a denial of an application to adjust status by the U.S. Citizenship and Immigration Services (“USCIS”), the BIA held that Li was‘removable because the misrepresentation of his identity was willful. Li now argues that this ruling was error. We deny his petition.

I.

Li, a native and citizen of China, was paroled into the United .States on May 2, 2000 in Honolulu, Hawaii after presenting a fraudulent Japanese passport that featured his photograph but stated his name as Ikeda Katsuyuki. According to Li, he procured that passport from “his friends and family [who] helped him get [the] passport and everything he needed to enter the United States.” Under what was then known as the Visa Waiver Pilot Program (“VWPP”), which was available to Japanese, but not Chinese, citizens and nationals, Li was paroled into the country for a period of time not to exceed July 31, 2000. Li remained in the United States past that date.

On April 16, 2002, the former Immigration and Naturalization Service (“INS”) apprehended Li during a raid on a home in Quincy, . Massachusetts and served him with a Notice to Appear (“NTA”). The NTA charged him as removable for procuring or having sought to procure admission into the United States “by fraud or willfully, misrepresenting a material fact” under 8 U.S.C. § 1182(a)(6)(C)(I), and for failing to possess a valid entry document at the time of application for admission under § 1182(a)(7)(A)(i)(I). On June 25, 2002, Li filed written pleadings, in which he denied that he had been paroled into the United States on May 2, 2000; that he had misrepresented himself as a Japanese citizen and national; arid thát he had remained in the United States beyond July 31, 2000 without authorization.

On July 21, 2003, after holding four hearings on the matter, an IJ sustained the charge of removability, found that Li was an arriving alien who was statutorily ineligible for adjustment of status or voluntary departure, and ordered him ■ removed to China. At one of the four hearings, DHS Special Agent Randolph Reeves testified that, upon apprehension in 2002, Li initially presented himself to Reeves as Ikeda Katsuyuki and produced an Ohio driver’s license bearing that name. The license had been issued on January 2, 2001. Li later admitted to Reeves that his real name was Wen Zhong Li, that he was a citizen of China; and that he had used a false Japanese passport to enter the United States. Reeves further explained that at the time of Li’s entry, the VWPP had been temporarily suspended, and so citizens and nationals from designated countries were being temporarily paroled into the United States, rather than being formally admitted-.

A flurry of procedural activity ensued. In October 2005, Li filed a motion to reopen his removal proceedings, citing Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). A second IJ granted the motion. At his reopened removal proceedings in August 2006, Li filed written pleadings that admitted all allegations in the 2002 NTA, including the fact that he had misrepresented himself as a Japanese citizen and national and that he was removable under both statutory provisions cited in that initial NTA. In February 2007, the second ÍJ granted Li’s motion to terminate proceedings to allow him to seek employment-based adjustment of status with the US-CIS. The USCIS denied his application to adjust status in September 2008 because Li had procured his entry into the United States in violation of 8 U.S.C. § 1182(a)(6)(C)(I). In June 2009, DHS issued a second NTA charging Li as removable under the same two inadmissibility provisions as in the 2002 NTA, and Li filed written pleadings in response in December 2009. There, he conceded removability under § X 182(a)(7)(A)(i)(I) (for failing to possess a valid entry document at the time of application for admission), but denied that he was removable under § 1182(a)(6)(C)(I) (for procuring admission into the United States by fraud or willful misrepresentation of a material fact). Li also sought termination of proceedings, adjustment of status, or voluntary departure.

On September 29, 2011, the second IJ found that Li was removable as charged-. First, as the charge in the 2002 NTA was identical to that in the 2009 NTA and as the original IJ had sustained that charge, the second IJ found that the original IJ’s “decision remained] the law of the case.” The second IJ also found, in the alternative, that even under an independent review, Li had procured his parole by willfully misrepresenting his identity with the fraudulent Japanese passport. Undercutting Li’s argument that he could not read or understand English in 2000 and thus could not have known that the passport was Japanese or contained a foreign name, the IJ emphasized Li’s possession of the Ohio driver’s license — which featured the same name as the fraudulent passport and had been issued only months after Li was paroled into the country. The IJ then found that the misrepresentation was material because Japan was a VWPP-designated country but China was not, and Li had thus obtained benefits “unique to the visa waiver program, namely the ability to enter the United States without first obtaining a visa stamp.”

The IJ also concluded that Li was ineligible for relief in the form of adjustment of status because he was inadmissible under § 1182(a)(6)(C)(I). See 8 U.S.C. § 1255(a). Li was likewise ineligible for voluntary departure because he was an arriving alien. See 8 U.S.C. § 1229c(a)(4).

The BIA affirmed, agreeing with the second IJ’s assessment of the record evidence.

Li now petitions for review of the BIA’s decision.

II.

We review the BIA’s finding that an alien procured an immigration benefit through willful misrepresentation as a “question of fact” subject to deferential substantial evidence review. Akwasi Agyei v. Holder, 729 F.3d 6, 14 (1st Cir. 2013). This case turns on whether there was substantial evidence to support the finding of willfulness. We hold that there was such evidence and accordingly deny Li’s petition.

Substantial evidence supports the BIA’s and IJ’s finding that Li’s misrepresentation of his name, citizenship, and nationality was willful. See Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir. 2008) (when BIA writes “separately while deferring to and affirming the decision of an IJ, we review both the BIA’s decision and the relevant portions of the IJ’s decision”). Here, in addition to relying on the law-of-the-case doctrine, see, e.g., Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983), the IJ independently found on the facts that Li’s misrepresentation had been willful.

We have held that “the element of willfulness [for the purpose of 8 U.S.C. § 1182(a)(6)(C)(I)] is satisfied by a finding that the misrepresentation was deliberate and voluntary.” Toribio-Chavez v. Holder, 611 F.3d 57, 63 (1st Cir. 2010) (quoting Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999)). “An intent to deceive is not necessary; rather, knowledge' of the falsity is sufficient,” Id.

The record supports the finding that Li deliberately and- voluntarily used the fraudulent Japanese passport to gain entry into the United States. For one, Li admitted in his written pleadings in 2006 that he had misrepresented his identity when he presented a fraudulent Japanese passport with the name Ikeda Katsuyuki so that he could be paroled into the country. Furthermore, less than one.year after his entry, Li obtained an Ohio driver’s license with the same false name of Ikeda Katsuyuki. During the 2002 raid, Li identified himself to Reeves as Ikeda Katsuyuki, produced the driver’s license with that name, and only later admitted that he was actually Wen Zhong Li. These facts constitute substantial evidence to support the finding that Li’s misrepresentation was willful. Indeed, as the second IJ observed, the Ohio driver’s license, issued on January 2, 2001, was crucial, for it showed that Li “had the presence of mind to apply for and obtain a government-issued document in a name that he claimed to not be able to read.”

Finally, Li’s argument that the IJ erroneously failed to make a credibility determination does not help him, for three reasons. First, it is not clear that the statutory provision that Li cites, 8 U.S.C. § 1229a(c)(4)(C), applies to the threshold issue of removability, as distinct from his ability to satisfy other requirements for relief. See Ahmed v. Lynch, 804 F.3d 237, 241 (2d Cir. 2015). Second, contrary to Li’s protests that neither the first nor the second IJ made any credibility finding, the second IJ’s 2011 decision may be read to reflect an adverse credibility finding. Indeed, the second IJ explicitly noted how certain' evidence “[u]ndercut[ ] [Li’s] assertion that his misrepresentation was not willful” See Chaidy v. Holder, 458 Fed.Appx. 506, 511 (6th Cir. 2012) (unpublished opinion) (holding that presumption of credibility did not apply where “[t]he IJ did more than ‘express[ ] suspicion’ about [the petitioner’s] credibility; rather, he clearly disbelieved it” (second alteration in original)). Third, even assuming that Li is entitled to a rebuttable presumption of credibility, such a presumption is overcome where, as here, the petitioner’s testimony is contradicted by a subsequent admission.

The petition for review is denied.

      . Today, the Visa Waiver Program enables eligible citizens or nationals of thirty-eight designated countries to travel to the United States for up to ninety days without first obtaining a visa. See U.S. Dep't of State, Bureau of Consular Affairs, Visa Waiver Program, https://travel.state.gov/content/visas/en/visil/ visa-waiver-program.html. Japan remains a designated country, while China is not. See id.

      . DHS inherited the INS’s functions in March 2003.

      . Li does not explain why he did not recognize that the passport was not in Chinese, regardless of his command of English.

      . The BIA also denied Li’s motion to close the case pending DHS's determination of his eligibility for a favorable exercise of prosecutorial discretion. Li did not petition for review of this decision, so we do not reach it.