United States v. Armenteros-Chervoni

133 F.4th 8

• Court: Court of Appeals for the First Circuit
• Decided: March 20, 2025
• Docket: 23-1447
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1447

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE LUIS ARMENTEROS-CHERVONI,

Defendant, Appellant.

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

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Barron, Chief Judge, Gelpí and Montecalvo, Circuit Judges.

Tina Schneider for appellant.

Julian Nahuel Radzinschi, Assistant United States Attorney, with whom Gregory B. Conner, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United States Attorney, were on brief, for appellee.

March 20, 2025 BARRON, Chief Judge. In 2023, Jorge Luis

Armenteros-Chervoni ("Armenteros"), an attorney in Puerto Rico,

was convicted of five offenses in the United States District Court

for the District of Puerto Rico. The convictions related to a

visit that Armenteros made on a single day to a federal

correctional institution in the Commonwealth. Three of the

convictions were for violating 18 U.S.C. § 1001(a)(2) by "mak[ing]

any materially false, fictitious, or fraudulent statement or

representation." The other two were for violating 18 U.S.C.

§ 1791(a)(1) and (b)(4) by attempting to "provide[] to an inmate

of a prison a prohibited object."

On appeal, Armenteros contends that the convictions must

be vacated either because the indictment setting forth the

underlying charges was multiplicitous or for trial error. We agree

that two of the three § 1001(a)(2) convictions and one of the two

§ 1791(a)(1) and (b)(4) convictions must be vacated because the

underlying charges were multiplicitous. Because we see no merit

in his claims of trial error, we affirm the other two convictions.

I.

A.

The operative indictment was handed up on July 14, 2022.

It charged Armenteros with various federal crimes in connection

with his visit on December 22, 2021, to the Metropolitan Detention

- 2 - Center ("MDC"), a U.S. Bureau of Prisons ("BOP") correctional

facility in Guaynabo, Puerto Rico.

The first two counts charged Armenteros with violating

18 U.S.C. § 1791(a)(1) and (b)(4), which make it a crime for a

person to "provide" -- or "attempt" to provide -- an inmate at a

federal correctional facility with "a prohibited object." The

statute then defines "prohibited object" to include, among other

things, "a phone or other device used by a user of commercial

mobile service." Id. § 1791(d)(1)(F). Count One alleged that

Armenteros committed this violation by attempting to provide "two

Palm brand cellular telephones" to "inmates housed at MDC" during

the visit to MDC. Count Two charged him with violating

§ 1791(a)(1) and (b)(4) by attempting to do the same as to

"seventy-five SIM (Subscriber Identity Module) cards for phones."

The remaining counts in the indictment -- Counts Three

through Five -- charged Armenteros with violating 18 U.S.C.

§ 1001(a)(2), which prohibits a person from making a

"false . . . statement" to a federal official. Count Three

charged him with violating § 1001(a)(2) by, "[o]n or about December

22, 2021," "falsely stating that he did not have within his

possession any 'Telephones-any type,' or any 'Electronic Devices'

on BOP Form BP-A0224 (Notification to Visitor) on a visit to" one

inmate that he named on the form. Count Four charged him with

violating that provision at that same time by falsely stating on

- 3 - a different "Notification to Visitor" form that he did not have

within his possession any of those items "on a visit" to a

different inmate that he named on that form. Count Five charged

him with violating § 1001(a)(2) -- once again, on or about the

same date -- by falsely stating on yet a third "Notification to

Visitor" form that he did not have within his possession any of

those items "on a visit" to a third inmate that he named on the

form.

B.

Before trial, Armenteros moved in accordance with

Federal Rule of Criminal Procedure 12 to challenge the indictment

on multiplicity grounds. "An indictment is multiplicitous when a

single offense is charged in more than one count . . . ." United

States v. Serino, 835 F.2d 924, 930 (1st Cir. 1987). A

multiplicitous indictment runs afoul of the U.S. Constitution's

Fifth Amendment's Double Jeopardy Clause, which prohibits multiple

punishments for a single offense. U.S. Const. amend. V.

Armenteros contended that Counts One and Two were

multiplicitous because the conduct alleged across the two counts

amounted to just one violation of 18 U.S.C. § 1791(a)(1) and

(b)(4), rather than, as charged in the indictment, two violations

of those provisions and so two separate § 1791(a)(1) and (b)(4)

offenses. He further contended that Counts Three, Four, and Five

were multiplicitous because the conduct alleged across those three

- 4 - counts amounted to just one violation of 18 U.S.C. § 1001(a)(2),

rather than, as charged in the indictment, three violations of

that provision and so three separate § 1001(a)(2) offenses.

Accordingly, he moved for the District Court to either dismiss the

indictment or order the government to "choose two

non-multiplicitous counts."

In response, the government contended that the motion

must be dismissed without prejudice on the ground that Armenteros's

motion was "premature" because "double jeopardy is a post-trial

remedy." The government contended in the alternative that the

motion was meritless because the counts were not multiplicitous.

The District Court denied Armenteros's motion without

prejudice on the ground that "dismissal of any counts at this stage

on double jeopardy grounds is premature." But see Fed. R. Crim.

P. 12 (requiring motions alleging "a defect in the

indictment" -- including "charging the same offense in more than

one count (multiplicity)" -- to be "raised by pretrial motion if

the basis for the motion is then reasonably available and the

motion can be determined without a trial on the merits"); United

States v. Pires, 642 F.3d 1, 16 (1st Cir. 2011) (requiring the

government to choose between multiplicitous counts is "one option,

but not the only option"). The District Court informed Armenteros

that he could "move for post-conviction relief on the grounds

advanced in the Motion to Dismiss if he is ultimately convicted on

- 5 - the counts he asserts are multiplicitous." Armenteros did not

raise the multiplicity issue in front of the District Court again.

C.

At trial, the government presented the testimony of

Marlon Laguna-Santos, an incarcerated inmate at MDC. Laguna

testified that he had previously possessed cellphones and SIM cards

while incarcerated in the state system, but that he did not know

Armenteros. Laguna then testified that he successfully smuggled

various contraband -- including phones, SIM cards, drugs,

cigarettes, and caulking material -- into MDC in August of 2020

after being promised $50,000 to do so.

The District Court gave a limiting instruction following

this testimony. It stated that the testimony about the August

2020 smuggling incident could be considered only for the limited

purpose of "determining whether there is a demand in MDC for

contraband" and the "different methods by which contraband is

attempted to be introduced at MDC." The District Court also

instructed the jury that there was "no evidence that Mr. Armenteros

was involved in this particular incident that was just narrated by

Mr. Laguna[-]Santos."

Laguna also testified about a second smuggling episode

at MDC in 2020 -- this time involving "[c]ellphones, substances,

a hammer, [and] a chisel" -- for which he was paid $300,000. The

District Court thereafter gave another limiting instruction

- 6 - substantially similar to the one that the District Court had given

following Laguna's testimony as to the August 2020 smuggling

incident.

Laguna further testified that incarcerated leaders of

criminal organizations need cellphones while in prison because

they have to "maintain respect in the free community," "keep a

watch over what is [theirs]," and "make sure that everything

tallies and nothing is stolen from [them]." Laguna then explained

the need for multiple SIM cards, testifying that these leaders

would use "one for business," "one for family," and "another one

. . . for different things like ordering people to be killed."

At the close of Laguna's direct examination, the

District Court instructed the jury as follows:

I do want to instruct the jury that in addition to the prior limiting instructions, the jury should note that it is instructed that it cannot use this evidence to conclude that Mr. Armenteros was involved in any particular offense or criminal conduct for which cellphones, SIM cards and chargers can be used once they enter MDC. That is not what the case is about, and this is not what that evidence could prove.

The government also presented evidence about Kendrick

Morell-Torres, a client of Armenteros's for whom Armenteros had

filled out, but not submitted, a BOP "Notification to Visitor"

form. Ricardo Albino, an officer at MDC, testified that Morell

had been sanctioned on three separate occasions in the past for

- 7 - possessing a cellphone or other related device. Later, Laguna

testified that Morell was a "leader of the Los Lirios housing

project," who was "at war" with Laguna's organization and its

"enemy on the street."

D.

The jury found Armenteros guilty on all counts. The

District Court sentenced him to nine months of imprisonment as to

his conviction for each count, to be served concurrently with each

other. Armenteros was also sentenced to one year of supervised

release as to his convictions on Counts One and Two and three years

of supervised release as to his convictions on Counts Three through

Five, to be served concurrently with each other. In addition, the

District Court imposed special assessments under 18 U.S.C. § 3013

on Armenteros that totaled $350. The assessments were for $25 on

each of the convictions for Counts One and Two, and $100 for the

each of the convictions on Counts Three through Five.

Armenteros filed this timely appeal.

II.

A key question in considering whether charges are

multiplicitous is "whether Congress intended the acts charged to

constitute a single crime or plural offenses." United States v.

Lilly, 983 F.2d 300, 302 (1st Cir. 1992) (citation omitted). "When

Congress has the will . . . of defining what it desires to make

the unit of prosecution," "it has no difficulty in expressing it."

- 8 - Bell v. United States, 349 U.S. 81, 83 (1955). Thus, "if Congress

does not fix the punishment for a federal offense clearly and

without ambiguity, doubt will be resolved against turning a single

transaction into multiple offenses." Id. at 84; see, e.g., United

States v. Verrecchia, 196 F.3d 294, 298 (1st Cir. 1999). "Because

this issue turns on a question of statutory interpretation, our

review is de novo." United States v. Smith, 919 F.3d 1, 15 (1st

Cir. 2019) (citation omitted).

We begin with the aspect of Armenteros's challenge to

his § 1001(a)(2) convictions in which he contends that they cannot

stand because the underlying charges were multiplicitous. 18

U.S.C. § 1001(a)(2) criminalizes "knowingly and

willfully . . . mak[ing] any materially false, fictitious, or

fraudulent statement or representation" in "any matter within the

jurisdiction of the executive, legislative, or judicial branch of

the Government of the United States." 18 U.S.C. § 1001(a)(2).

Armenteros contends that this provision must be construed to treat

as only one offense the making of identical false statements in

three different BOP "Notification to Visitor" forms that are

submitted at the same time, even if that same false statement is

made on different "Notification to Visitor" forms that name

different inmates as the inmate being visited on the date in

question. He then argues that each of the three such forms that

- 9 - he submitted simultaneously when he was a visitor at MDC "[o]n or

about December 22, 2021" contained the same false statement --

namely, the statement "No" in response to the question "Are any of

the following items in your possession . . . ?" He therefore

contends that, by charging him with three § 1001(a)(2) offenses,

the indictment's § 1001(a)(2) counts were multiplicitous, at least

given his further contention that the making of the false statement

"No" on the second and third forms resulted in no additional

impairment to governmental functions beyond the impairment

occasioned by the making of that statement on the first form.

The government appears to concede that the making of

identical false statements -- written or oral -- that do not each

result in additional impairment to governmental functions

constitutes only one violation of § 1001(a)(2) rather than as many

violations of that provision as identical false statements were

made. The government contends, however, that Armenteros's

allegedly false statements on the three forms were not identical

even though the statement each time was "No." As a result, the

government argues that the making of each statement in question

constituted a separate and independent violation of § 1001(a)(2).

The government contends in the alternative that even if the three

allegedly false statements were identical, the making of each of

them still constituted a separate, stand-alone violation of

§ 1001(a)(2). That is so, according to the government, because of

- 10 - the distinct impairment of governmental functions that the making

of each false statement caused. For the reasons we next explain,

we are not persuaded by either contention.

1.

To make the case that Armenteros separately violated

§ 1001(a)(2) in each BOP visitor form that he submitted because

the allegedly false "No" statement contained in each form was

different from the one made in the other forms, the government

first emphasizes that each such form named a different inmate to

be visited. The government contends that it follows from that

fact that, in submitting each of the forms, Armenteros made a

separate false statement that was different from -- and so not

identical to -- the false statement that he made in submitting

each of the other forms.

The government's contention depends on its assertion

that Armenteros, by giving the "No" response, stated on each form

that "he was not in possession of [the listed items] for his visit

for a given inmate" (emphasis added). We disagree, however, that

Armenteros made that statement on any -- let alone each -- of the

three forms that he submitted.

Each BOP visitor form that Armenteros submitted asked:

"Are any of the following items in your possession, or in

possession of children in your party under 16 years of age?" On

- 11 - each form, Armenteros checked "No" next to all of the listed items,

including "Telephones-any type" and "Electronic Devices."1

To be sure, each form also contained a line marked "Name

of Inmate To Be Visited," on which Armenteros filled in the name

of one of the three clients that he planned to visit. But, with

respect to what items he, as a person filling out the form, was in

possession of, each form asked of him only: "Are any of the

following items in your possession . . . ?" And, in asking that

question, none of the forms that he submitted asked, as the

government contends that each form did, whether the listed items

were in his possession "for" the visit to any particular inmate.

So, the government is in effect asking us to read into

the form's direct query -- "Are any of the following items in your

possession . . . ?" -- an implicit query about whether the visitor

was in possession of them with respect to a visit to a particular

1 The government notes that Armenteros in fact made two separate false statements on each of the three forms that he submitted, because he filled out "No" with respect to not only "Telephones-any type," but also "Electronic Devices." The government did not charge Armenteros, however, with thereby committing two violations of § 1001(a)(2) by submitting each form. Rather, it charged him with only one such violation on each form, such that his convictions were each predicated on his having made only one -- rather than two -- false statements.

- 12 - person at the facility. By its plain terms, however, that is not

what the form asked.

Of course, the form no doubt asks the question at issue

at least in part to ensure that various listed items are not

brought to inmates. But the question that the form asks the

visitor to the facility is not: "will you be possessing" any of

the listed items while visiting the inmate you name as the inmate

you are visiting. The question the form asks is "are you in

possession" of the listed items, full stop.

Indeed, if Armenteros had falsely answered "No" to the

question that the form did ask but had left blank the name of the

inmate that he was visiting, he still would have made a false

statement, insofar as he in fact was in possession of a

"[t]elephone[]" or "[e]lectronic [d]evice[]." Nor do we

understand the government to suggest otherwise. Therefore, the

question at issue concerned what he was in possession of, not what

he was in possession of with respect to a specific inmate that he

was visiting.

Thus, we are not persuaded by the government's

contention that Armenteros made different -- rather than

identical -- false statements in submitting each form when he

answered the question about the items that he possessed. Rather,

on each form, he was asked an identical question -- "Are any of

- 13 - the following items in your possession . . . ?" -- and on each

form he gave an identical answer to that question: "No."

In other words, Armenteros gave the identical false

statement three times, rather than three false statements that

were each different from one another. He thus acted no differently

than he would have if he had been asked orally by the same prison

official at the time that Armenteros submitted the forms in

question whether he was then in possession of the listed items and

he had answered identically -- but falsely -- "No" to that same

question each time. Indeed, the government conceded at oral

argument that a visitor who says three identical false statements

to the same federal official in response to the same question being

asked three times during a single interaction may not be charged

with three separate violations of § 1001(a)(2). We thus do not

see -- nor does the government explain -- why the fact that the

statements here are written, or that they are scattered across

three different documents, make any difference.

2.

The government's fallback contention draws on the Ninth

Circuit's holding that, even where the same false statements are

involved, there is no problem in separately charging each false

statement as a separate offense if the "later false statements

further impaired the operations of the government." United States

v. Rosen, 365 F. Supp. 2d 1126, 1136-37 (C.D. Cal. 2005) (quoting

- 14 - United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988)).

The government contends that, although we have not previously done

so, we should follow the Ninth Circuit's lead. The government

further contends that Counts Three through Five were not

multiplicitous because each respective allegedly false statement,

even if identical to one another, "impaired government operations

in a different way (including requiring the government to

investigate different inmates for potential contraband

possession)."

Even if we were to adopt the Ninth Circuit's approach,

however, there would remain the question whether, under that

approach, there is a multiplicity problem here. The answer to

that question turns, in part, on how the "additional impairment"

analysis proceeds.

The Ninth Circuit's analysis in Salas-Camacho is

instructive. 859 F.2d at 791. There, the defendant had falsely

denied carrying any goods to declare to a primary customs inspector

and later made that same denial to a secondary customs inspector.

Id. The Ninth Circuit held that the second denial further impaired

the operations of the government because it was made to "a separate

official . . . with different duties," such that "the ability of

- 15 - both officials to carry out their respective functions [wa]s

impaired." Id.

Here, however, Armenteros submitted the three forms that

contained the same false denial of his possession of prohibited

objects to the same officer at MDC at the same time. We do not

see how that officer's ability to carry out his official

duty -- inspecting visitors for contraband -- was further impaired

by Armenteros's submission of three forms, each of which contained

the same false denial, than the officer's ability would have been

had Armenteros submitted only one such form. Cf. United States v.

Olsowy, 836 F.2d 439, 443 (9th Cir. 1987) (holding that two

separate statements made by a claimant to the same Secret Service

agent could not be the subject of multiple convictions because

"[o]nce he misled the agent, repeating the lie adds little or

nothing to the harm caused to the Secret Service's inquiry"). Nor

does the government point to any case with remotely analogous facts

to this one that has been deemed to have caused the further

impairment that the Ninth Circuit's approach requires to be

present.

The government does argue that Armenteros's false

statements each resulted in a distinct impairment of governmental

functions because each false statement required the government to

- 16 - investigate a different inmate for potential contraband

possession. But here, too, we are not persuaded.

We do not dispute that the government had reason to

investigate three different inmates for having been provided a

prohibited object because Armenteros, on each form, filled in the

"Name of Inmate To Be Visited" with the name of a different inmate.

But the government's reason to investigate those three

inmates -- rather than any others or some subset of those

three -- cannot be attributed to any misdirection about whom to

investigate caused by the allegedly false statement itself. The

reason for investigating those inmates specifically -- as opposed

to any or all others -- stems from the statements that Armenteros

made on the forms he submitted about whom he was visiting. Yet

the government does not dispute that those statements were

themselves true statements, and we do not understand the Ninth

Circuit's approach to make a person criminally liable under

§ 1001(a)(2) for the official time and expense that a true

statement occasions.

Consider in this regard if Armenteros had made only one

false statement, by checking the "No" boxes next to "Telephones-any

type" and "Electronic Devices" on one form but checking "Yes" on

those boxes on the other two forms, while also still filling out

the name of the inmate he was visiting on those two forms. In

that event, the government would still have had reason to

- 17 - investigate whether those two inmates had been given a prohibited

object. Thus, the false statement itself would not have given

rise to the only claimed additional impairment of government

functions that the government has identified here -- the

investigation of whether a named inmate possessed the prohibited

object.

Accordingly, we conclude that the § 1001(a)(1) counts

were multiplicitous. And so there remains to address with respect

to this ground for challenging those convictions only the question

of the proper remedy.

3.

Armenteros contends that the proper remedy is to vacate

all his § 1001(a)(2) convictions -- and the accompanying

sentences -- and to instruct that any new prosecution based on the

conduct charged in the underlying § 1001(a)(2) counts be limited

to one count alleging a violation of that statute. Armenteros

relies on United States v. Langford for the proposition that "a

multiplicitous indictment may improperly prejudice a jury by

suggesting that a defendant has committed several crimes -- not

one." 946 F.2d 798, 802 (11th Cir. 1991) (citation omitted).

We rejected this very argument, however, in Lilly, 983

F.2d at 305. There, we declined to employ "so sweeping a remedy"

based on an alleged "risk that the jury was prejudiced by the

prosecutor's overly ambitious charging decision." Id. (noting the

- 18 - reduced risk of spillover effect where, as here, the same evidence

would be admitted in a trial for the single count as was admitted

for the multiplicitous charges). Instead, we followed "our

long-settled practice" and concluded that the remedy was "simply

to vacate the offending convictions and sentences." Id. (citation

omitted). Armenteros develops no argument in his briefs as to why

his case is any different.2 We thus see no reason to depart from

our approach in Lilly.

We therefore vacate Armenteros's convictions and

corresponding sentences as to Counts Four and Five because those

counts are multiplicitous with Count Three. We affirm the

conviction, the nine-month term of imprisonment, three years of

supervised release, and $100 special assessment on Count Three.

Armenteros separately challenges his two convictions for

violating 18 U.S.C. § 1791(a)(1) and (b)(4) on the ground that the

underlying charges were multiplicitous. These convictions were

based on two counts that charged Armenteros with attempting to

provide "a prohibited object" to an inmate during his one visit to

2At oral argument, counsel for Armenteros suggested that this case was distinguishable from Lilly because, in that case, the trial court instructed the jury to consider each charge separately seven times, while, in this case, the trial court did so only once. Even if we look past waiver, see Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015), nothing in Lilly suggests that case turned on the number of such instructions, see 983 F.2d at 305-06.

- 19 - MDC on December 22, 2021. The first conviction was for a count

that charged him with having violated the statute while visiting

MDC "[o]n or about December 22, 2021" by attempting to provide an

inmate with two cellphones, which the count charged as a single

offense. The second conviction was for a count that charged

Armenteros with having violated that statute while at MDC at that

same time by attempting to smuggle seventy-five SIM cards, which

the count also treated as a single offense. Armenteros argues

that the conduct described across the two counts constituted only

one violation of § 1791(a)(1) and (b)(4), not two, such that the

charges underlying these two convictions were multiplicitous. Our

analysis of this contention follows.

The text of 18 U.S.C. § 1791(a)(1) prohibits

"provid[ing] to an inmate of a prison a prohibited object, or

attempt[ing] to do so." The definition of the term "prohibited

object" for the purposes of the section is set forth in

subsection (d)(1). That subsection lists seven different

definitions of that term:

(d) Definitions.-- As used in this section -- (1) the term "prohibited object" means -- (A) a firearm or destructive device or a controlled substance in schedule I or II, other than marijuana or a controlled substance referred to in subparagraph (C) of this subsection;

- 20 - (B) marijuana or a controlled substance in schedule III, other than a controlled substance referred to in subparagraph (C) of this subsection, ammunition, a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison; (C) a narcotic drug, methamphetamine, its salts, isomers, and salts of its isomers, lysergic acid diethylamide, or phencyclidine; (D) a controlled substance (other than a controlled substance referred to in subparagraph (A), (B), or (C) of this subsection) or an alcoholic beverage; (E) any United States or foreign currency; (F) a phone or other device used by a user of commercial mobile service . . . in connection with such service; and (G) any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual . . . .

18 U.S.C. § 1791(d)(1) (emphasis added).

Subsection (b) then sets out the punishment for each

definition in subsection (d). The definition at issue here, in

subsection (d)(1)(F), provides that a "prohibited object" is "a

phone or other device used by a user of commercial mobile service

. . . in connection with such service." 18 U.S.C. § 1791(d)(1)(F).

- 21 - 2.

Armenteros does not dispute that the definition of a

"prohibited object" in subsection (d)(1)(F) covers a SIM card. He

thus makes no argument that, because a SIM card is merely a

component part of "a phone," it is not itself an "other device

used by a user of commercial mobile service . . . in connection

with such service." 18 U.S.C. § 1791(d)(1)(F) (emphasis added).

But cf. United States v. Hendrickson, 949 F.3d 95, 99 n.5 (3d Cir.

2020) ("The words 'or other' between the words 'phone' and 'device'

show that a 'phone' is an example of the type of device that the

statute covers. The word 'other' usually indicates that the term

that follows it is of the same kind as the item or person already

mentioned." (internal quotation marks and citations omitted)); An

Act to Amend the Communications Act of 1934, Pub. L. No. 97-259,

§ 125, 96 Stat. 1087, 1098 (1982) (adding a section on forfeiture

of communications devices and referring separately to

"communications device, devices, or components thereof" (emphasis

added)). Armenteros instead contends that § 1791 must be read to

make the unit of prosecution "each category of prohibited objects,"

by which he means each distinct definition of a "prohibited object"

listed in 18 U.S.C. § 1791(d)(1)(A) through 18 U.S.C.

§ 1791(d)(1)(F).

Armenteros reasons that because "a phone" and "other

device used by a user of commercial mobile service" are both

- 22 - contained within the "statutory category" of § 1791(d)(1)(F), his

attempt to provide both such objects to an inmate during his

December 22, 2021, visit to MDC necessarily constitutes a single

offense under § 1791. That is so, he argues, regardless of how

many such qualifying "prohibited object[s]" -- whether cellphones

or SIM cards, singly or in combination -- were involved.

Armenteros reasons that this conclusion is required based on the

text of § 1791(d)(1)(F). He asserts that nothing about the

provision's words -- including its use of the "or" between "a

phone" and "other device used by a user of commercial mobile

service" -- makes clear enough Congress's intent that attempting

to provide "a phone" is a distinct offense from attempting to

provide an "other device used by a user of commercial mobile

service" for us to treat the charged conduct in his case as two

offenses rather than one.

The government disagrees. It contends that the statute

unambiguously treats attempting to provide a phone and a SIM card

as two separate offenses, even when those objects are provided to

a single inmate during a visit to the inmate's prison facility on

a single day. The government maintains that this is the case,

moreover, even if providing only multiple phones -- or only

multiple "other device[s] used by a user of commercial mobile

service" -- to a single inmate during a single visit would

constitute just one offense.

- 23 - The government's theory is that the unit of prosecution

under § 1791 is the "kind of prohibited object" and that there can

be multiple "kinds" contained within each separately set off

statutory definition of a "prohibited object." The government

then proceeds to argue that § 1791(d)(1)(F)'s use of the "or"

between "a phone" and "other device used by a user of commercial

mobile service" serves as the textual marker of a distinction

between "kinds of prohibited objects" and thus of separate

offenses. As a result, in the government's view, Congress's use

of "or" in § 1791(d)(1)(F) reveals Congress's unambiguous intent

to treat "a phone" as a distinct "kind of prohibited object" from

"other device used by a user of commercial mobile service."

Thus, the government contends, attempting to provide

each "kind of prohibited object" constitutes an independent

offense, even assuming that providing multiple numbers of each

such object -- whether the object is "a phone" or "other device

used by a user of commercial mobile service" -- to an inmate during

a single visit constitutes only a single offense. And so, the

government argues, attempting to provide "a phone" and an "other

device used by a user of commercial mobile service" constitutes

two offenses, notwithstanding that attempting to provide multiple

phones would constitute only one offense just as would attempting

to provide multiple "other device[s] used by a user of commercial

mobile service."

- 24 - The government supports this contention about how to

construe the provision in question by pointing to the way that

"or" is used in § 1791(d)(1)(A). That provision defines a

"prohibited object" to include "a firearm or destructive device or

a controlled substance in schedule I or II." 18 U.S.C.

§ 1791(d)(1)(A). The government asserts that "a controlled

substance" and "a firearm" are clearly two different "kinds of

prohibited objects," such that attempting to provide both "a

controlled substance" and "a firearm" would constitute two

offenses. From that premise, the government reasons that because

Congress used "or" to separate "a firearm" and "a controlled

substance in schedule I or II" in § 1791(d)(1)(A), its use of "or"

to separate "a phone" and "other device used by a user of

commercial mobile service" in § 1791(d)(1)(F) clearly evinces

Congress's intent to treat attempting to provide those two items

as distinct offenses.

But the text of § 1791(d)(1)(A) indicates, insofar as it

bears on how to construe the provision that is our concern, that

Congress chose "or" followed by an "a" -- rather than just "or"

standing alone -- as the textual marker for a new "kind" of

prohibited object. In that regard, we note that § 1791(d)(1)(A)

defines "prohibited object" as "a firearm or destructive device or

a controlled substance in schedule I or II" (emphasis added). That

second "a" after "or" and in front of "controlled substance in

- 25 - schedule I or II" textually separates "controlled substance in

schedule I or II" from "firearm" in § 1791(d)(1)(A). Yet, Congress

chose not to include a second "a" between "phone" and "other device

used by a user of commercial mobile service" in § 1791(d)(1)(F).

We therefore see no basis for concluding that § 1791(d)(1)(A)

supports its favored construction of § 1791(d)(1)(F).

We do emphasize, however, that it does not necessarily

follow from this conclusion that just because of Congress's choice

not to put "a" in front of "destructive device," someone who

attempts to provide a "firearm" and a "destructive device," like

a grenade, in one place at one time would have committed only one

offense. Nor does it necessarily follow from this conclusion that

someone who attempts to provide "a phone" and an "other device

used by a user of commercial mobile service," like a pager, in one

place at one time would have committed only one offense, because

of Congress's choice not to put "a" in front of "other device used

by a user of commercial mobile service." It may be that when an

object qualifies as a "prohibited object" because it is encompassed

in a definition listed in § 1791(d)(1), each such object would be

capable of being charged as a single offense in its own right.

Indeed, the catch-all definition in § 1791(d)(1)(G)

lends some credence to this interpretation. That definition

provides that a "prohibited object" is "any other object that

threatens the order, discipline, or security of a prison, or the

- 26 - life, health, or safety of an individual." 18 U.S.C.

§ 1791(d)(1)(G). It is not evident why Congress would have

intended that the government could charge the provision during a

single visit of multiple objects that the catch-all covers as but

one offense no matter how distinct from each other the objects

were.

Furthermore, the fact that § 1791(a)(1) criminalizes

attempting to provide "a prohibited object" -- as opposed to, for

example, "any prohibited object" -- arguably provides support for

the conclusion that Congress intended to allow each prohibited

object to be charged as a single offense. That semantic choice

arguably indicates the relevant unit of prosecution is the

qualifying object, rather than the kind of such object.

It may be, therefore, that providing a firearm and a

grenade would be capable of being charged as two offenses for the

same reasons that providing two firearms could be charged as two

offenses. Similarly, it may be that providing "a phone" and an

"other device used by a user of commercial mobile service" would

be capable of being charged as two offenses for the same reasons

that providing two phones could be charged as two offenses.

To be sure, Armenteros does contend that each prohibited

object does not constitute a separate crime. He cites United

States v. Kerley, 544 F.3d 172, 179 n.8 (2d Cir. 2008), for the

proposition that Congress's use of "a prohibited object" instead

- 27 - of "any prohibited object" does not render the statute unambiguous

on its own. But Armenteros does not address the import of the

catch-all definition in § 1791(d)(1)(G) or the import of

§ 1791(d)(1)(A)'s definition of a "prohibited object" as "a

firearm or destructive device" in discerning Congress's intent as

to the unit of prosecution.

Armenteros does also contend that interpreting the unit

of prosecution to be each prohibited object would lead to "absurd

or counter-intuitive" disparities in punishment for different

prohibited objects. Armenteros notes that a person convicted of

providing seventy-five SIM cards, assuming SIM cards fall under

(d)(1)(F), would face up to seventy-five years in prison, while a

person convicted of providing a single gun would only face twenty

years. But Armenteros cites no authority for the proposition that

a statutory scheme that imposes a greater criminal penalty for

repeated convictions of a lesser offense than for a single

conviction of a greater offense is "absurd or counter-intuitive."3

In any event, the government does not argue that each

prohibited object is itself a unit of prosecution. Its sole theory

of prosecution of Armenteros for violating § 1791(a)(1) and (b)(4)

has been and remains a limited one. It contends on appeal, as it

3 The only authority cited by Armenteros, United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997), did not deal with the kind of disparity that Armenteros alleges would result if each prohibited object were a unit of prosecution under § 1791.

- 28 - has throughout, that attempting to provide a "phone" and "other

device used by a user of commercial mobile service" constitutes

two offenses. And it does so because it contends that the word

"or" between "phone" and "other device" demarcates two separate

kinds of prohibited objects, such that providing a phone and an

"other device" necessarily constitutes two offenses, even if

providing two phones or two "other device[s]" constitutes only one

such offense. For the reasons already explained, however, that

theory of the unit of prosecution is mistaken.

Thus, we see no basis for rejecting Armenteros's

challenge to his § 1791(a)(1) and (b)(4) convictions based on the

underlying charges being multiplicitous. See United States v.

Burhoe, 871 F.3d 1, 25 & n.28 (1st Cir. 2017). Accordingly, we

move on to address the proper remedy.4

4 Armenteros separately contends that we must find the § 1791 counts to be multiplicitous, because § 1791 criminalizes "the scheme," rather than "acts taken in furtherance of that scheme." He thus contends that the unit of prosecution under § 1791 is "the scheme" of providing or attempting to provide contraband rather than "the item or the category of item." As a result, he contends that he could only be charged with one violation for attempting to provide cellphones and SIM cards, as his conduct was part of a single scheme. He relies for this argument on Lilly, 983 F.2d at 302-03. But, in addition to the fact that Lilly concerned a different criminal statute, it also explained that the fact "[t]hat a criminal may plot on a large scale, envisioning a series of discrete acts as part of a grand plan, does not mean that various aspects of his felonious conduct cannot be separately charged under the bank fraud statute." Id. at 303. Thus, even assuming arguendo that § 1791 is comparable to the bank fraud statute for the purposes of discerning the unit of prosecution, Lilly does not

- 29 - 3.

Armenteros once again contends based on Langford that

the proper remedy is to vacate all his § 1791(a)(1)

convictions -- and the accompanying sentences -- and to instruct

that any new prosecution be limited to one count alleging a

violation of that statute. But, for the reasons given above, our

decision in Lilly leads us to conclude otherwise, given that

Armenteros develops no argument in his briefs as to why his case

is any different from that one. We thus vacate Armenteros's

conviction and corresponding sentence as to Count Two, because

that count is multiplicitous with Count One. We affirm the

conviction, the nine-month term of imprisonment (served

concurrently with the term under Count Three), one year of

supervised release (to be served concurrently with the term under

Count Three), and $25 special assessment on Count One.

III.

Armenteros separately contends that, even if the

challenge to his convictions based on the underlying charges having

been multiplicitous fails, all his convictions must be vacated

because of various claimed trial errors. Thus, we must address

these claims of trial error as to the convictions that survive his

provide support for Armenteros's contention that § 1791 criminalizes the "scheme" to provide contraband rather than the discrete acts that comprise it.

- 30 - challenge to them based on the charges being

multiplicitous -- namely, his conviction on the charges set forth

in Count One for violating 18 U.S.C. § 1791(a)(1) and (b)(4) and

Count Three for violating 18 U.S.C. § 1001(a)(2).

We review a district court's evidentiary ruling for

abuse of discretion when objections to it are properly preserved,

as here. United States v. Torres-Pérez, 22 F.4th 28, 34 (1st Cir.

2021). For reasons explained below, we conclude that there is no

merit to any of Armenteros's claims that the District Court abused

its discretion.

Armenteros first contends that the District Court erred

by failing to exclude Laguna's testimony about his prior smuggling

operations into MDC and the reasons inmates seek cellphones.

Armenteros argues that Laguna's testimony on those subjects had to

be excluded under Federal Rules of Evidence 401 and 403 and that

the District Court's failure to do so requires that we vacate his

remaining § 1001(a)(2) and § 1791 convictions.

We begin with Armenteros's arguments that it was

improper under both Rules 401 and 403 for the District Court to

admit Laguna's testimony about his prior smuggling operations. We

address each challenge in turn.

- 31 - Evidence is relevant if it has "any tendency" to make a

material fact "more or less probable." Fed. R. Evid. 401. We

have previously explained that Rule 401 "set[s] a very low bar for

relevance." United States v. Rodríguez-Soler, 773 F.3d 289, 293

(1st Cir. 2014). Our review as to a district court's relevancy

determination is "quite deferential," United States v.

Pina-Nieves, 59 F.4th 9, 21 (1st Cir. 2023), and such

determinations provide grounds for reversal only in "exceptional

cases," Cummings v. Standard Reg. Co., 265 F.3d 56, 63 (1st Cir.

2001) (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 597

(1st Cir. 1987)).

Armenteros contends that Laguna's testimony about his

personal experience smuggling contraband into MDC was irrelevant

to the only disputed fact at trial -- "whether Armenteros knowingly

attempted to smuggle cellphones into the prison" -- because none

of the offenses with which Armenteros was charged were based on

the smuggling incidents described by Laguna. But Laguna's

testimony as to his successful smuggling operations into MDC had

a "tendency" to make the material fact of Armenteros's knowledge

more or less probable by showing that attempts to bring phones

into MDC were not always inadvertent. Indeed, defense counsel

seemed to admit as much in his closing argument, during which he

contended that "no one in their right mind would think it is

possible to successfully pass cellphones and SIM cards into MDC

- 32 - without [them] being detected." Thus, Laguna's testimony had a

"tendency" to make the material fact of Armenteros's knowledge

more or less probable.

Armenteros argues, in the alternative, that even if

Laguna's testimony about his past smuggling operations is relevant

under Rule 401, it still fails under Rule 403. A trial court "may

exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice." Fed. R. Evid.

403. "[M]arginally relevant" "background evidence" will be

excluded under Rule 403, United States v. Kilmartin, 944 F.3d 315,

336 (1st Cir. 2019), if it has "the capacity . . . to lure the

factfinder into declaring guilt on a ground different from proof

specific to the offense charged," id. (alteration in original)

(quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)). A

district court, however, is "afforded 'especially wide latitude'"

in making Rule 403 determinations, which are disturbed "[o]nly

rarely -- and in extraordinarily compelling circumstances."

United States v. Pena, 24 F.4th 46, 66 (1st Cir. 2022) (alteration

in original) (quoting United States v. Habibi, 783 F.3d 1, 4 (1st

Cir. 2015)).

prior smuggling operations into MDC was likely to confuse the jury

because it shifted the focus of the trial from Armenteros's

- 33 - knowledge to "whether Armenteros was enabling dangerous drug gangs

to operate from within . . . the prison." We are not persuaded.

A trial court's instructions to the jury as to the

limited purposes for which evidence is to be considered can have

a "salutary effect" that "alleviate[s] [the] impact of unfair

prejudice." United States v. Smith, 292 F.3d 90, 101 (1st Cir.

2002) (citation omitted); see also United States v. Freeman, 208

F.3d 332, 344 (1st Cir. 2000) ("Jurors are presumed to follow the

court's instructions."). Here, the evidence in question was

clearly probative because it tended to show Armenteros's

knowledge, and, at the close of Laguna's direct examination, the

District Court explicitly instructed the jury that it could not

use Laguna's testimony to conclude that "Mr. Armenteros was

involved in any particular offense or criminal conduct for which

cellphones, SIM cards and chargers can be used once they enter

MDC" because "[t]hat is not what the case is about, and this is

not what that evidence could prove." Moreover, none of Laguna's

testimony about his prior smuggling operations implicated

Armenteros in the conduct that the testimony described. Thus,

Armenteros's reliance on Kilmartin, 944 F.3d at 337, and Pires,

642 F.3d at 11, is misplaced, because, in those cases, the

challenged evidence did concern either the conduct in which the

defendant himself was alleged to have engaged or the character of

the defendant himself.

- 34 - Armenteros does dispute the effectiveness of the

District Court's first two limiting instructions. They instructed

the jury that it could only consider Laguna's testimony about his

prior smuggling operations for the purpose of determining whether

there was a demand in MDC for contraband and whether there were

different methods by which contraband was introduced at MDC. But

Armenteros fails to explain why the last limiting instruction --

which, as explained above, directly addressed the unfair prejudice

that he now asserts -- failed to cure any potential prejudice from

Laguna's testimony.5 Given the probative value of the evidence,

the lack of anything in it that purported to describe any conduct

directly attributable to the defendant, and the careful and clear

limiting instruction given by the District Court, we conclude that

the District Court did not abuse its discretion in declining to

exclude Laguna's testimony about his prior smuggling operations

into MDC under Rule 403.6

5 True, in Kilmartin, we found that the trial court abused its discretion in allowing evidence over a Rule 403 objection notwithstanding limiting instructions given by the trial court. See 944 F.3d at 338, 340. We did so, however, because the trial court's instruction was not given relative to the challenged evidence and "did nothing to insulate the jurors from the emotional clout of the challenged evidence." Id. at 340. That is not the case here. 6 In challenging both Laguna's testimony and the evidence regarding Morell under Rule 403, Armenteros points to statements made by the government during rebuttal. But we see nothing in the government's rebuttal that would change our conclusion that the District Court did not abuse its discretion in concluding that the

- 35 - 2.

We now turn to Armenteros's challenge -- again under

Rules 401 and 403 -- to Laguna's testimony about the reasons

inmates seek cellphones. Armenteros contends that Laguna's

testimony as to "why the inmates wanted cellphones" and "how

cellphones were illegally used by inmates" was irrelevant to the

material fact of Armenteros's knowledge.

Laguna's testimony as to why inmates needed cellphones

provided evidence, however, that inmates were willing to pay

substantial amounts of money for them, as the government alleged

was the case with respect to the inmates for whom Armenteros was

allegedly providing the SIM cards in question. The high value

placed on smuggled phones and other devices in prison, in turn,

bears on the likelihood of whether anyone -- and thus whether

Armenteros -- would knowingly attempt to bring such prohibited

objects into the prison despite the obvious risks of doing so.

Laguna's testimony as to why inmates needed multiple SIM

cards similarly provided evidence that SIM cards, even when not

paired with phones, would be valuable to inmates. By providing

evidence against the notion that a SIM card would be of no use to

any inmate, Laguna's testimony tended to provide support for the

government's contention that inmates were paying Armenteros for

probative value of the challenged evidence was not substantially outweighed by any unfair prejudice.

- 36 - the SIM cards that he was allegedly providing to inmates. Thus,

Laguna's testimony had a "tendency" to make the material fact of

Armenteros's knowledge more or less probable by showing that there

was high demand for phones and SIM cards within MDC and that the

number of SIM cards he attempted to smuggle into MDC accorded with

the fact that prisoners in MDC made use of multiple SIM cards.

Armenteros appears to concede that the high value placed

on smuggled phones and other devices among inmates at MDC was

probative of his motive and thus his knowledge. He nonetheless

disputes that it was relevant "how cellphones were used in the

prison," because "[v]alue is value, and it does not matter why an

item is valuable." But evidence about the specific use that

inmates in MDC made of cellphones and multiple SIM cards was

probative of the value of those prohibited objects to inmates in

that facility, because that evidence made tangible what that value

was.

Armenteros alternatively contends that the District

Court erred under Rule 403 by not excluding Laguna's "inflammatory"

testimony about how inmates use phones and SIM cards -- which,

among other things, described imprisoned leaders of criminal

organizations using cellphones and SIM cards "for ordering

killings." He contends that this testimony had to be excluded

under Rule 403 because it resulted in unfair prejudice, even if it

had probative value.

- 37 - To make the case, Armenteros once again argues that this

testimony impermissibly "changed the focus of the inquiry from

Armenteros's knowledge to whether Armenteros was enabling

dangerous drug gangs to operate from within . . . the prison." We

understand the basis for Armenteros's concern, especially given

that the testimony concerned the use of the relevant type of

contraband in killings. But, as we have explained, we are

reluctant to second-guess a district court's on-the-spot judgment

about whether to permit testimony under Rule 403 when the district

court has issued limiting instructions directly addressing the

prejudice concern. See Smith, 292 F.3d at 101. And Armenteros

develops no argument as to why the District Court's final limiting

instruction failed to protect against any unfair prejudice from

Laguna's testimony about how inmates use phones. Moreover, this

evidence made tangible the value of the contraband in question in

a way that no other evidence did.7 Cf. Old Chief, 519 U.S. at

7 In addition to Laguna's testimony about how inmates use cellphones and SIM cards, the government did also present expert testimony by a special investigative service technician at MDC on the value of cellphones and SIM cards within that facility. "[A] judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point." Old Chief, 519 U.S. at 183. The expert testimony represented "less risky alternative proof" of the contraband's value than Laguna's testimony, as the expert testimony did not refer to the use of the relevant kind of contraband in killings. Id. But, especially because the most inflammatory portion of the testimony did not concern conduct in which Armenteros was described as having been

- 38 - 186-87 ("[A] criminal defendant may not stipulate or admit his way

out of the full evidentiary force of the case as the [g]overnment

chooses to present it."). Finally, much like the portion of

Laguna's testimony about his prior smuggling operations, none of

this testimony purported to describe any conduct in which

Armenteros himself was claimed to have participated. So, here,

too, both Kilmartin, 944 F.3d at 337, and Pires, 642 F.3d at 11,

are distinguishable on the facts. We therefore conclude that,

although the question is close, the District Court did not abuse

its discretion in allowing Laguna's testimony about the reasons

inmates seek cellphones and multiple SIM cards.

We now turn to Armenteros's challenges to the evidence

pertaining to Kendrick Morell-Torres. Armenteros contends that

the District Court erred by allowing (1) the completed but

unsubmitted BOP visitor form for Morell that was found in

Armenteros's belongings; (2) Laguna's testimony that his

a participant, we still do not find that, in consequence, the District Court abused its discretion in determining that the probative value of the testimony was not substantially outweighed by any unfair prejudice, at least given the "salutary effect" of the District Court's final limiting instruction. Smith, 292 F.3d at 101. Indeed, as even Old Chief recognized, "the mere fact that two pieces of evidence might go to the same point would not, of course, necessarily mean that only one of them might come in," 519 U.S. at 183, and there is a difference between a second-hand account of the value of contraband within a prison and a first-hand account by an inmate, who had himself possessed cellphones and SIM cards while incarcerated, of how that contraband had value.

- 39 - organization was "at war" with a criminal organization of which

Morell was a leader and that Morell was their "enemy on the

street"; (3) evidence that showed Morell had been disciplined on

three separate occasions for possessing a cellphone or related

device at MDC prior to Armenteros's visit in December 2021; and

(4) a photograph of Morell. Armenteros bases his challenge again

on Rules 401 and 403.

We begin with Armenteros's contention that the District

Court erred in allowing this evidence because it was not relevant.

Here, Armenteros relies on the same reasons that he relied on in

contending that Laguna's testimony was not relevant, namely that

the evidence in question did not bear on the only issue before

the jury -- Armenteros's knowledge. But, after considering each

piece of the Morell-related evidence, we cannot agree that Rule

401 provides a basis for disturbing any of the convictions.

The completed but unsubmitted BOP visitor form for

Morell tended to provide support for the government's theory that

Morell was the intended recipient of the cellphones and SIM cards

that Armenteros was carrying. Similarly, Morell's disciplinary

history for possessing similar contraband and Laguna's testimony

that Morell was the leader of a criminal organization, together

with Laguna's testimony about leaders' particular need for

cellphones, reinforced the government's contention that Armenteros

intended to provide the contraband to Morell. By tending to prove

- 40 - that Armenteros intended to deliver the contraband to a particular

inmate within MDC, this evidence had the tendency to make the

material fact of Armenteros's knowledge more or less probable.

To be sure, the government does not explain how Morell's

photograph was relevant to the material fact of Armenteros's

knowledge, except, we suppose, by tending to prove that the person

to whom Armenteros was alleged to have been providing the

contraband existed. But even if there were error under Rule 401

in admitting Morell's photograph, that error was harmless, as it

is "highly probable" that the erroneous introduction of Morell's

photograph did not influence the verdict. United States v. Piper,

298 F.3d 47, 56 (1st Cir. 2002). In that regard, we discern no

evidence that Morell's photograph, on its own, had any unfairly

prejudicial effect on the jury's verdict, and Armenteros does not

argue otherwise.

Armenteros does also challenge the evidence concerning

Morell on Rule 403 grounds. In doing so, however, Armenteros

contends only that the evidence concerning Morell "hijacked" the

trial, making it about "Morell, his drug cartel, and his war with

a rival gang" rather than about "whether Armenteros knowingly

attempted to smuggle contraband into the prison." We are not

persuaded that the District Court abused its discretion by

rejecting the Rule 403 objection to the Morell evidence.

- 41 - As to the photograph of Morell, any error under Rule 403

was harmless for the same reasons discussed above. Similarly, we

discern no basis in the record -- and Armenteros does not point to

any -- to disturb the District Court's conclusion that neither the

BOP visitor form for Morrell nor the evidence of Morell's prior

disciplinary history at MDC for possessing cellphones or related

devices posed a "danger of . . . unfair prejudice" that

"substantially outweighed" their probative value in tending to

prove his motive. Fed. R. Evid. 403. Finally, as to Laguna's

testimony that Morell was the leader of a rival criminal

organization, the District Court's final limiting instruction

applied fully to that portion of Laguna's testimony. And, for

reasons like those described above in affirming the District

Court's ruling under Rule 403 as to Laguna's testimony concerning

his smuggling, we see no basis for concluding that the District

Court abused its discretion in permitting Laguna to provide the

testimony that he gave about Morell. The testimony was plainly

probative of Armenteros's knowledge by tending to prove his motive,

it did not describe any conduct in which Armenteros himself was

asserted to have been involved, and the limiting instruction

directly addressed the prejudice concern that undergirds the Rule

403 challenge. We thus conclude that there was no abuse of

discretion in the District Court's decision under Rule 403 not to

exclude the evidence regarding Morell.

- 42 - B.

Armenteros next argues that the District Court erred by

"micromanag[ing]" defense counsel's closing argument. He contends

that the District Court did so by placing various limitations on

his closing, as these restrictions violated his Sixth Amendment

right to effective assistance of counsel because they "unjustly

impede[d] the ability of defense counsel from fully articulating

the defense." He further argues that the restrictions violated

his Sixth Amendment right to counsel of choice because they

required "this particular attorney -- the one chosen by

Armenteros -- to argue with one hand tied behind his back." He

thus argues that his convictions under both § 1791 and § 1001(a)(2)

cannot stand.

"The presiding judge must be and is given great latitude

in controlling the duration and limiting the scope of closing

summations." Herring v. New York, 422 U.S. 853, 862 (1975). Thus,

we "review the limitations placed on defendant's closing argument

for abuse of discretion." United States v. Teleguz, 492 F.3d 80,

83-84 (1st Cir. 2007) (citation omitted). Applying that standard

here, we discern no error.

Armenteros contends that the District Court wrongly

prevented his defense counsel from doing the following during his

closing argument: (1) using the phrase "a doubt based on reason";

(2) "alluding to [the jury's] lack of legal training"; (3) telling

- 43 - the jury that the case was "dump[ed] on the[ir] lap"; and

(4) "suggest[ing] that, during their deliberations, [the jury]

should stand up and explain, out loud, why they think [the

defendant] is guilty before they can find him guilty." The

District Court imposed these restrictions in response to the

government's motion.

Armenteros first points out that we have previously

approved of the phrase "a doubt based on reason" as a way to

explain reasonable doubt. See, e.g., United States v. Whiting, 28

F.3d 1296, 1303 (1st Cir. 1994). But we do not see how the District

Court's prohibition of that phrase impermissibly limited defense

counsel's closing argument given the fact that he was still able

to fully address the concept of reasonable doubt in his closing

argument. Armenteros cites no authorities to support his

contention that a trial court's denial of defense counsel's

preferred set of words in explaining the concept of reasonable

doubt amounts to an unconstitutional limitation on defense

counsel's ability to "make a proper argument on the evidence and

the applicable law in his favor." Herring, 422 U.S. at 860

(quoting Yopps v. State, 178 A.2d 879, 881 (Md. 1962)).

As to the other restrictions that the District Court

imposed, Armenteros contends that they did not concern the kind of

"superheated rhetoric" of which our case law has disapproved in

the context of reviewing arguments by the government. Even still,

- 44 - a district court has "broad discretion" to ensure that an argument

"not stray unduly from the mark, or otherwise impede the fair and

orderly conduct of the trial." Id. at 862. We thus see no abuse

of discretion in the District Court's decision to prohibit

Armenteros's counsel from "alluding to [the jury's] lack of

training," suggesting to the jury that the case was "dump[ed] on

the[ir] lap[s]," or telling the jury to "stand up and explain, out

loud, why they think [the defendant] is guilty before they can

find him guilty," on the ground that such arguments would have

been "inflammatory" or "unnecessary."

Armenteros separately contends that the District Court

abused its discretion by imposing these restrictions

"preemptively" in response to the government's motion. Instead,

Armenteros argues, the District Court should have addressed any

objections from the government after "hearing [defense] counsel's

remarks in context," at which point the District Court could have

used specific curative instructions or general jury instructions

to remedy the effects of any problematic language employed by

defense counsel. While Armenteros is correct that the District

Court could have chosen to proceed in this manner, see, e.g.,

United States v. González-Pérez, 778 F.3d 3, 16-19 (1st Cir. 2015),

Armenteros cites no authority for the proposition that this is the

only way in which the District Court may exercise its wide

discretion in regulating the scope and substance of closing

- 45 - arguments, cf. United States v. Simpson, 974 F.2d 845, 848 (7th

Cir. 1992) (upholding, under abuse of discretion review, a district

court's grant of the government's motion -- prior to closing

argument -- to place a restriction on defense counsel's closing

argument). We therefore reject Armenteros's contention that the

District Court abused its discretion by limiting defense counsel's

closing argument.8

IV.

For the reasons given above, Armenteros's convictions

and corresponding sentences as to Counts Two, Four, and Five are

vacated. His convictions and corresponding sentences as to Counts

One and Three are affirmed.

8 Armenteros's remaining challenge is that the cumulative effect of the alleged trial errors violated his right to a fair trial. But, in light of our analysis above, there is no basis for the application of that doctrine here. United States v. Correa-Osorio, 784 F.3d 11, 26 (1st Cir. 2015) (citing United States v. DeSimone, 699 F.3d 113, 128 (1st Cir. 2012)).

- 46 -