United States v. Coleman

• Court: Court of Appeals for the First Circuit
• Decided: July 21, 2025
• Docket: 23-1322
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 22-1882, 23-1315, 23-1322

UNITED STATES,

Appellee,

v.

LOUIS D. COLEMAN III,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Rikelman and Lynch, Circuit Judges.*

Christine DeMaso, Assistant Federal Public Defender, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

* Judge Selya heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's decision. The remaining two panelists issued the opinion pursuant to 28 U.S.C. § 46(d). July 21, 2025

- 2 - RIKELMAN, Circuit Judge. After a 15-day trial, a jury

convicted Louis Coleman of kidnapping resulting in death under 18

U.S.C. § 1201(a)(1). The district court imposed the sentence

required by statute, life in prison without the possibility of

parole. On appeal, Coleman alleges a wide array of errors

throughout the district court proceedings. After careful

consideration of the voluminous record, we find no error. Thus,

we affirm Coleman's conviction and sentence.

I. BACKGROUND

The tragic events at the center of this case occurred in

late February 2019. In the pre-dawn hours of Sunday, February 24,

Coleman encountered Jassy Correia on a street in downtown Boston,

Massachusetts. The two walked to his car together at around

2:15 a.m. Two hours later, Coleman drove into the parking lot of

his apartment building in Providence, Rhode Island. Video footage

from building cameras captured him carrying Correia's limp body

into his apartment. Four days later, the police stopped Coleman

on a highway in Delaware and found Correia's dead body in his

trunk. At trial, the parties vigorously disputed what transpired

between Coleman and Correia in those critical two hours on Sunday

morning.

Because Coleman challenges the sufficiency of the

government's evidence against him, "[w]e recount the relevant

facts as presented at trial 'in the light most favorable to the

- 3 - jury's verdict, consistent with record support.'" United States

v. Katana, 93 F.4th 521, 525 (1st Cir. 2024) (quoting United States

v. Akoto, 61 F.4th 36, 38 (1st Cir. 2023)). In evaluating

Coleman's other claims on appeal, "we offer a balanced treatment,

in which we objectively view the evidence of record." United

States v. Greaux-Gomez, 52 F.4th 426, 430 (1st Cir. 2022) (quoting

United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015)).

"Because 'we cannot simultaneously recite the facts in both

manners, we limit our initial summary . . . to those details

essential to framing the issues on appeal,'" and provide additional

details later in our analysis, as needed. Id. (quoting

Burgos-Montes, 786 F.3d at 99).

A. Coleman Goes Out in Boston

After several days of illness, Coleman decided to go out

in Boston on Saturday night, February 23, 2019. At the time, he

was an engineer at the defense company Raytheon. He asked friends

to join him, but they were unavailable, so he drove from Providence

to Boston by himself. He entered Venu, a nightclub in downtown

Boston, around 1:00 a.m. on February 24.1

1 During their investigation, law enforcement officers collected surveillance footage from cameras inside and outside of Venu, other areas of downtown Boston, and parts of Providence. The jury viewed much of this footage during trial, and it is thus part of the record that we summarize here. Except where we note otherwise, we do not distinguish between testimony at trial and events captured on camera.

- 4 - At Venu, Coleman met and spent time with Lorna Horace.

They began talking at about 1:20 a.m. and soon exchanged phone

numbers. They also danced, held hands, and kissed. Shortly before

Venu closed at 2 a.m., Lorna's brother, Ednel Horace, separated

Coleman and Lorna.2 The Horace siblings left Venu together with

their friends. Coleman exited Venu around the same time.

B. Correia Celebrates Her Birthday with Friends

Correia was celebrating her upcoming twenty-third

birthday that same weekend. At the time, she was living in a

shelter with her young daughter and had received a pass to leave

for the weekend, with plans to return by 5:00 p.m. on Sunday. She

had arranged for her daughter's grandmother, Rosina Castro, to

watch her daughter so that Correia could stay overnight on Saturday

with her friend, Yvania Mondesir.

To celebrate her birthday, Correia planned to go with

friends to Venu on Saturday night. During the day, she met

Mondesir at her apartment in Dorchester, and the two went shopping

for clothes for that evening. Correia bought herself an orange

jumpsuit and shoes and bought Mondesir a new outfit as well. They

spent the rest of the day at Mondesir's apartment. Mondesir

testified at trial that they did not drink alcohol before going to

Venu but may have smoked marijuana. She also testified that they

2 Because Lorna and Ednel Horace have the same last name, we refer to them by their first names to avoid confusion.

- 5 - did not take any other drugs. Correia dressed for the night in

the orange jumpsuit that she had bought earlier, open-toed shoes,

and a jean jacket.

Two of Correia's friends, Aja Hiltz and Reginald Thomas,

had agreed in advance to pick up Correia and drive her to Venu

that night. Because of confusion about where Correia was staying

for the weekend, Hiltz and Thomas only arrived at Mondesir's

apartment in Dorchester close to midnight. The group -- Correia,

Hiltz, Mondesir, and Thomas -- then proceeded to Venu. There was

some tension in the car because Hiltz did not know in advance that

Mondesir would be joining them. After waiting in line, the group

eventually entered the nightclub at about 12:40 a.m.

In Venu, the group ordered a bottle of champagne and

then later a round of shots. The three women danced, while Thomas

stayed at the bar. At one point, Correia and Mondesir began to

argue. The argument between the two escalated and Mondesir pushed

Correia. Hiltz testified at trial that Mondesir had been the

aggressor and Correia had tried to pacify Mondesir. The argument

occurred around 2 a.m., when Venu was closing for the night.

A little after 2 a.m., Correia, Hiltz, and Thomas

prepared to leave Venu. Correia appeared to be struggling to

navigate the stairs in the club and sat down to take off her shoes.

While Correia was seated, Mondesir approached her again but Hiltz

kept the two women separated. They exited Venu and crossed a

- 6 - street into an alley. In the alley, Mondesir yelled at Correia

and pushed her again. Shortly afterwards, Hiltz asked both Correia

and Mondesir to leave with her. Hiltz told Correia several times

that Correia should come with her, or Hiltz would leave, but

Correia decided to take an Uber instead. By the time Hiltz and

Thomas were ready to depart, the full group had migrated out of

the alley and onto Tremont Street. It was about 2:14 a.m. when

Hiltz and Thomas actually left. Afterwards, Mondesir pushed

Correia one more time and Correia fell on the sidewalk.

After getting up from the sidewalk, Correia walked away

from Mondesir and towards a minivan parked on the street, which

she attempted to enter. The minivan had an Uber decal but the

driver, Tamer Alqasir, testified at trial that he explained to

Correia that he could not take her. In response, Correia tried to

pull the window down and told him that if he rolled the window up,

she would call the police. After Correia persisted and opened the

door to his car, Alqasir pushed her to prevent her from sitting in

the passenger seat. Correia fell outside of the minivan and then

threw snow at the door.

C. Coleman and Correia Leave Together

It was at this point, after Alqasir pushed Correia out

of his minivan, that Coleman and Correia met for the first time.

Coleman approached Correia by the minivan at 2:16 a.m. Alqasir

- 7 - testified at trial that Coleman told Correia something along the

lines of "this is not your Uber."

Coleman and Correia then walked a few steps away from

the minivan and talked briefly, holding each other's hands as they

spoke. After about 30 seconds of conversation, they walked down

Tremont Street towards Coleman's parked car, still holding hands,

arriving at the car at 2:20 a.m. During the walk, Correia, who

did not have her shoes, jumped on Coleman's back and he carried

her piggyback-style. When they reached the car, Correia climbed

into the passenger seat on her own, and Coleman proceeded to the

driver's side. They drove away about two minutes later.

Coleman parked again on another part of Tremont Street

at 2:32 a.m., where he and Correia remained for about 12 minutes.

Although the street was lit, video footage does not show what

happened inside Coleman's car during those 12 minutes, but it does

show that other vehicles drove by his car. After that stop,

Coleman drove down Tremont until he turned right onto a one-way

street. Finding two police cruisers blocking the end of that

street, Coleman quickly backed up the block and turned back onto

Tremont Street, heading north. Location data then showed him

proceeding in the direction of I-93 and merging onto I-93 in the

direction of I-95 South. Sometime later, Coleman drove north

again, and location data placed the car near South Quincy around

- 8 - 3:20 a.m. Finally, Coleman began to travel south again, eventually

entering Rhode Island.

Coleman drove into the parking lot of his apartment

building in Providence around 4:00 a.m. He proceeded to exit his

car, retrieve a white comforter from his apartment, and return to

the car. Video footage from inside and outside his apartment

building showed Coleman carrying a body out of his car -- law

enforcement later identified the body as Correia based on the

orange jumpsuit. Coleman carried Correia's limp body through the

lobby of his apartment building, into the elevator bank, and out

of the elevator onto the sixth floor, where he lived. Correia's

body was naked from the waist up.

There is no video evidence from the early hours of Sunday

after Coleman entered his apartment unit. Coleman's neighbor

testified at trial, however, that she woke up due to loud banging

and a closet door being slammed shut early Sunday morning.

Some of Coleman's actions over the following days were

recorded on video by cameras in his building and in various stores.

Videos and receipts showed that Coleman purchased several items

between February 24 and 27, including a scented candle and lighter

from RiteAid; pelletized limestone from Home Depot; and baking

soda, coveralls, a mask, safety goggles, an odor respirator, CLN

Release Bleach, a large suitcase, and a gas canister from several

Walmart stores. Location data further revealed that Coleman

- 9 - visited two car washes within the span of thirty minutes on Sunday,

February 24.

During the same few days, Coleman conducted various

internet searches. Forensic analysis of his hard drive revealed

that Coleman researched topics including hardship withdrawals from

Fidelity, a car air freshener, an air purifier, sanitizing Clorox,

a turkey baster, and turkey baster alternative. He additionally

searched questions, such as "[c]an a person fit in a suitcase,"

"[h]ow to clean for embalming," "[o]il barrel, where to purchase,"

and "[h]ow to pull a tooth that's not loose." On February 24,

Coleman installed the application IPVanish on his computer, which

is used to hide a user's IP address.

D. The Investigation

Both Mondesir and Correia's father reported Correia

missing to the Boston Police Department (BPD) on Tuesday, February

26, 2019. In response, BPD officers conducted interviews and

collected and reviewed video recordings from Venu and other

businesses in the area. Through this review, BPD learned that

Correia left Venu with a man. They later identified the man as

Coleman and connected him to an address in Providence.

After learning that Coleman was a person of interest in

a missing person investigation, Providence Police Department (PPD)

officers conducted a wellness check at Coleman's address just

before 1:00 a.m. on February 28, 2019. They were unable to enter

- 10 - the building. Coleman was not in the building at the time but

likely saw the police cruisers from where he was walking outside.

He returned to his apartment building at 1:00 a.m. and began to

pack his car, making several trips from his apartment to the car

between 1:00 a.m. and 4:05 a.m. He placed the suitcase that he

had bought earlier in the week in the trunk of his car, noticeably

struggling with its weight. After he finished packing his car, he

drove away.

Officers from both the BPD and PPD returned to Coleman's

address the morning of February 28. They entered Coleman's

apartment, as the door had been left slightly open and appeared to

be broken. The officers noticed that the apartment was "extremely

cold," all the windows were open, and there was "a very strong

smell of cleaning solution." While walking around the apartment,

they also noticed that the bathroom shower curtain and a couch

cushion were missing. At that point, the officers decided to leave

the apartment and call their supervisors. The apartment was

searched carefully later that afternoon, pursuant to a warrant.

On the same day, law enforcement gained access to surveillance

videos from the apartment building and reviewed hundreds of videos,

including the footage we describe here.

As the investigation proceeded in Providence, members of

BPD's Special Investigations Unit executed an "exigent request" to

- 11 - use "pings" to locate a phone that they had linked to Coleman.3

From the video footage review, law enforcement also identified the

make, model, and license plate of Coleman's car. With that

information, officers confirmed that Coleman's car had OnStar, a

built-in navigation system that can act as a GPS unit. They made

an emergency request to OnStar to turn on the OnStar unit in

Coleman's car. Using location information from pings to Coleman's

phone and OnStar, law enforcement discovered that Coleman was

driving south from Rhode Island. They located him near Wilmington,

Delaware around 1:41 p.m., and contacted Delaware State Police

(DSP).

DSP officer Hasan Halis stopped Coleman's car on I-95

South, as Coleman was exiting the highway. After back-up arrived,

DSP officers arrested Coleman and asked him if anyone else was in

the car, to which he responded, "in the trunk." DSP officers then

gave commands to see if anyone would exit the trunk, at which point

Coleman said, "she's dead." The officers searched the car and

found Correia's body covered in white powder in the suitcase; she

was bound with duct tape and inside a couch cushion, which was

inside a trash bag. The DSP paramedic on the scene concluded that

Correia was dead.

3 At trial, an officer defined "pings" as a process by which "the phone company can reach out to the phone, ping the phone and get its geographical location" based on the phone's connection to a cell tower.

- 12 - Soon after arresting Coleman, DSP officers observed a

bandage on his face and asked him if his injury needed to be

addressed. Coleman responded, "it's from the girl."

Following the arrest, officers recovered various items

from Coleman's car, including a computer tower, a red gas can, a

Bic lighter, a ski mask, contractor bags, gloves, pliers, and hedge

trimmers. They also observed damage to the car itself, namely two

cracks to the windshield on the passenger side. The cracks were

processed for DNA testing, and the swabs of the windshield's

interior produced matches for both Coleman's and Correia's DNA.

The day after police arrested Coleman and recovered

Correia's body, Delaware Medical Examiner Dr. Jennie Vershvovsky

conducted an autopsy. She later testified about her findings at

trial. Dr. Vershvovsky stated that Correia weighed 119 pounds at

the time of her death and had numerous abrasions and contusions on

her face, which had occurred while Correia was still alive. She

also stated that Correia had injuries around her neck and provided

her medical opinion that the cause of Correia's death was

strangulation.

When Dr. Vershvovsky performed the autopsy, she used a

sexual assault kit to collect an oral swab, a vaginal swab, a

rectal swab, fingernail scrapings, and fingernail clippings from

Correia's body. Semen matching Coleman's DNA was identified on

the vaginal swab. Coleman's DNA was also matched to the rectal

- 13 - swab and fingernail scrapings and clippings. Dr. Vershvovsky

testified that there were no injuries to Correia's vagina or anus,

but that the lack of lacerations or bruising in these areas did

not rule out sexual assault.

Dr. Vershvovsky also ordered a toxicology analysis of

Correia's blood. The toxicology report came back positive for

both cocaine and marijuana. The report also showed a blood alcohol

concentration of 0.21 grams per deciliter, three times the

presumptive intoxication level in Massachusetts. A forensic

toxicologist testified that the combination of these substances,

particularly cocaine and alcohol, can cause paranoia and violence.

E. Legal Proceedings

A grand jury returned an indictment charging Coleman

with kidnapping resulting in death in violation of 18 U.S.C.

§ 1201(a)(1) on April 4, 2019. Coleman's trial took place in May

2022.

The government's theory of the case, in short, was that

Coleman had deceived Correia by offering her a ride to Mondesir's

apartment when his intent was to have sex with her. According to

the government, Coleman sexually assaulted and killed Correia in

his car during the 12-minute stop on Tremont Street. At trial,

Coleman did not dispute that he caused Correia's death. Instead,

the defense argued that Correia left with Coleman voluntarily,

they had consensual sex, and they later got into a sudden and

- 14 - unexpected argument that turned violent and resulted in Correia's

death.

The jury returned a guilty verdict on June 1, 2022. The

district court sentenced Coleman to life in prison.

Coleman timely appealed the verdict and sentence.4

II. DISCUSSION

We now analyze each of Coleman's legal claims, moving

chronologically through the stages of his prosecution.

A. The Indictment

Coleman raises three challenges related to his

indictment, each of which he preserved in the district court.

First, he argues that the indictment was constitutionally

insufficient for failing to provide facts specific to core elements

of kidnapping. Second, he argues that the district court

erroneously denied his motion for a bill of particulars. Third,

he argues that the government's reliance at trial on evidence that

he kidnapped Correia for sexual gratification violated the

Presentment Clause of the Fifth Amendment because that theory was

not presented to the grand jury. We evaluate each challenge in

turn.

4With the permission of this court, Coleman submitted a pro se brief in addition to his counseled brief. In our analysis, we distinguish between the arguments raised in the two briefs.

- 15 - 1. Sufficiency of the Indictment

We begin with Coleman's argument that the indictment was

constitutionally defective. We review a challenge to the

sufficiency of an indictment de novo. United States v. Savarese,

686 F.3d 1, 6 (1st Cir. 2012).

An indictment is generally constitutionally adequate if

it "specifies the elements of the offense charged, fairly apprises

the defendant of the charge against which he must defend, and

allows him to contest it without fear of double jeopardy." Id.

Under our precedent, an indictment meets this standard if it

"use[s] the statutory language to describe the offense," so long

as it also includes enough "facts and circumstances . . . to inform

the accused of the specific offense with which he is charged."

Id. (citing United States v. Mojica-Baez, 229 F.3d 292, 309 (1st

Cir. 2000)).

The grand jury charged Coleman under the federal

kidnapping statute, which provides:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person . . . when[] the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense[] shall be

- 16 - punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

18 U.S.C. § 1201(a)(1). The indictment contained only one count,

and it stated:

On or about February 24, 2019, in the District of Massachusetts, and elsewhere, the defendant,

LOUIS D. COLEMAN, III,

did unlawfully seize, confine, inveigle, decoy, kidnap, abduct, and carry away and hold, for ransom and reward and otherwise, Jassy Correia, when Ms. Correia was willfully transported in interstate commerce, and when Louis D. Coleman, III traveled in interstate commerce in committing and in furtherance of the commission of offense, resulting in the death of Ms. Correia.

All in violation of Title 18, United States Code, Section 1201(a)(1).

Coleman argues that the indictment was insufficient

because it alleged only broad statutory language without providing

factual specificity. He points to three problems in particular.

According to Coleman, the indictment left the government free to

pursue any theory because it alleged that Coleman "seized,

confined, inveigled, decoyed, kidnapped, abducted, or carried

Correia away." Next, he claims the indictment omitted "how or

when he held her involuntarily for an appreciable period."

Finally, he contends the indictment omitted the purpose for which

Coleman kidnapped Correia. Coleman argues that the "omitted

- 17 - elements go to the core of the kidnapping charge," and thus he

needed this information to adequately prepare his defense.

We disagree that the indictment needed to be more

specific to pass constitutional muster. To begin, it was

permissible to list each statutorily available method of

kidnapping in the alternative in the indictment. Coleman points

us to no case where we have held that an indictment is

constitutionally deficient for including alternative theories.

Further, requiring the government to charge only one means of

establishing an element when multiple means are statutorily

available would conflict with the well-established rule that

"where an indictment charges in the conjunctive several means of

violating a statute, a conviction may be obtained on proof of only

one of the means." United States v. García-Torres, 341 F.3d 61,

66 (1st Cir. 2003) (quoting United States v. Simpson, 228 F.3d

1294, 1300 (11th Cir. 2000)); see also United States v. Mubayyid,

658 F.3d 35, 70 (1st Cir. 2011);5 United States v. Howard, 742 F.3d

1334, 1344 n.3 (11th Cir. 2014) (collecting cases across circuits).

5Mubayyid, which was cited by the government, involved a challenge to the sufficiency of the evidence against the defendant. See 658 F.3d at 69. The defendant had been charged with concealing two material facts, and we held that the verdict could stand if the evidence was sufficient as to either fact. See id. at 69-70. Coleman argues that Mubayyid is distinguishable because the defendant in that case did not challenge the sufficiency of the relevant count of the indictment and because the indictment described the two facts with specificity. (The defendant had

- 18 - Next, the indictment was not required to be more specific

as to precisely when or how Coleman "held" Correia. The use of

the word "hold," combined with the other facts about when and where

Correia's alleged kidnapping occurred, was sufficient to apprise

Coleman of this element of the offense. See United States v.

Resendiz-Ponce, 549 U.S. 102, 108 (2007) (rejecting argument that

the indictment needed to specify overt acts constituting attempted

illegal re-entry into the U.S. and finding the use of the statutory

word "attempt," when combined with facts about the time and place

of defendant's attempted re-entry, constitutionally sufficient);

United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (the

indictment "need only outline 'the elements of the crime and the

nature of the charge'" (quoting United States v. Guerrier, 669

F.3d 1, 3 (1st Cir. 2011))).

Coleman points to our decision in United States v. Murphy

as an example of a case in which we found an indictment defective

for failing to provide specific facts, but that case involved

special circumstances not at issue here.6 See 762 F.2d 1151 (1st

Cir. 1985). In Murphy, the defendants were charged with

challenged a different count of the indictment before the district court, which had dismissed that count, and the government appealed. See id. at 46-47.) Although the details of Mubayyid are different, the general principle articulated in Mubayyid applies here.

Coleman also cites United States v. Santa-Manzano, 842 F.2d 6

1 (1st Cir. 1988), which we address in relation to his Presentment Clause argument. See infra Section II.A.3.

- 19 - intimidating a witness to interfere with an official proceeding in

violation of 18 U.S.C. § 1512(a)(1). See id. at 1153. The

indictment specified the date, location, and victim of the charged

offense, but not the specific proceeding that the defendants were

accused of attempting to influence. See id. We found the

indictment defective for failing to specify the proceeding,

explaining that a defendant could not properly prepare a defense

without "at least some indication of the identity of the proceeding

in which the defendant tried to influence testimony." Id. at

1154-55. The name of the witness was not sufficient to indicate

the proceeding because the witness was an informant in multiple

cases, and the government changed its theory about which proceeding

defendants had allegedly tried to influence during the course of

the trial. See id. at 1152-53. "[W]hat is a fair description of

a crime for purposes of permitting an adequate defense necessarily

varies with the nature of the offense and the peculiarities of

defending against the kind of charge involved." United States v.

Tomasetta, 429 F.2d 978, 979 (1st Cir. 1970). In this case, where

Coleman was charged with holding a specific person on a specific

date, there is no similar need to specify in greater detail how

the hold happened for Coleman to prepare a defense.

Similarly, the indictment did not need to specify

Coleman's purpose in holding Correia. We previously ruled that

"the phrase 'for ransom or reward or otherwise'" (the purpose

- 20 - element) is "a necessary element" of federal kidnapping which

should be included in the indictment. United States v. Calderon,

77 F.3d 6, 9-10 (1st Cir. 1996) (quoting 18 U.S.C. § 1201). We

did not suggest, however, that the indictment needs to be more

specific than the statutory language to provide sufficient notice

of the purpose element. See id. We now join our sister circuits

in rejecting the argument that an indictment for kidnapping needs

to state the purpose of the defendant with more specificity than

the statutory language. See Hall v. United States, 410 F.2d 653,

659-60 (4th Cir. 1969) (indictment that alleged the victim was

held "for ransom[,] reward[,] and otherwise" was sufficient);

United States v. Bentley, 310 F.2d 685, 685 (6th Cir. 1962) (same);

Loux v. United States, 389 F.2d 911, 916 (9th Cir. 1968) (same);

United States v. Atchison, 524 F.2d 367, 370-71 (7th Cir. 1975)

(same); see also United States v. Webster, 162 F.3d 308, 328 (5th

Cir. 1998); United States v. Boykin, 794 F.3d 939, 945-48 (8th

Cir. 2015); United States v. Adams, 83 F.3d 1371, 1373-75 (11th

Cir. 1996).7

The indictment here "faithfully tracks the language of

the statute" and "notifies [Coleman] not only of the elements of

the crimes charged, but also of the relevant facts." Savarese,

7 We note that Atchison, Webster, Boykin, and Adams are at odds with our precedent in Calderon to the extent that they do not treat the defendant's purpose as an element of 18 U.S.C. § 1201.

- 21 - 686 F.3d at 7. Namely, it provides the date of the alleged

kidnapping, the name of the victim, and the location.8 Nothing

more is required. See Stepanets, 879 F.3d at 372-73;

Resendiz-Ponce, 549 U.S. at 108, 110 (finding an indictment that

tracked the statutory language and specified the date and location

of the charged offense constitutionally sufficient, and explaining

that modern pleading rules do not require "detailed allegations").

2. Bill of Particulars

We now turn to Coleman's argument that the district court

erroneously denied his motion for a bill of particulars. The court

found that a bill of particulars was not necessary here for Coleman

"to help prepare a defense, avoid surprise, or protect against

double jeopardy." We review the denial of a bill of particulars

for abuse of discretion. United States v. Sepulveda, 15 F.3d 1161,

1193 (1st Cir. 1993).

The location alleged in the indictment is admittedly broad. 8

But we assess the adequacy of the indictment in the context of the crime charged. See Tomasetta, 429 F.2d at 979. The location described in the indictment ("in the District of Massachusetts, and elsewhere") was appropriate here, particularly in light of Coleman's interstate travel. Compare id. (indictment charging the defendant "of making threats by an unstated means to an unnamed person on a particular day in a city of moderate size" was constitutionally insufficient); with United States v. Hallock, 941 F.2d 36, 38, 40 (1st Cir. 1991) (indictment that charged conspiracy "in the District of Maine and elsewhere" and listed the defendant's coconspirators was sufficient because "a conspiracy does not normally occur at only one particular time or place" and the defendant had "the most relevant names").

- 22 - Bills of particulars are rarely used in modern

prosecutions. See id. at 1192. "When pursued, they need be

granted only if the accused, in the absence of a more detailed

specification, will be disabled from preparing a defense, caught

by unfair surprise at trial, or hampered in seeking the shelter of

the Double Jeopardy Clause." Id. at 1192-93.

The district court did not abuse its discretion by

denying Coleman's motion for a bill of particulars. To the extent

Coleman argues that he could not prepare a defense because the

government had not settled on a theory of how the kidnapping

occurred, we find that argument unpersuasive considering our

holding that it was permissible for the government to charge

alternative elements in the conjunctive. See supra Section II.A.1.

And, to the extent he argues that he was unfairly surprised, his

sole example is Dr. Vershvovsky's testimony that Correia was alive

when Coleman carried her into his apartment. But the district

court properly struck that testimony so any prejudice was

mitigated.9 Further, given the government's statement at trial

that it had not expected that testimony either, we see no basis to

conclude that a bill of particulars would have prevented this

9We address this issue in greater detail below, in evaluating Coleman's argument that the district court erroneously denied a mistrial based on the same testimony. See infra Section II.E.1.

- 23 - surprise. Finally, Coleman has not developed an argument as to

why he needed a bill of particulars to avoid double jeopardy.

3. Presentment Clause

We now turn to Coleman's argument that he was convicted

based on allegations not presented to the grand jury, in violation

of his constitutional rights under the Presentment Clause. The

Presentment Clause of the Fifth Amendment guarantees that "[n]o

person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury."

U.S. Const. amend. V.

Coleman contends that the admission of evidence at trial

that he kidnapped Correia for sexual gratification violated the

Presentment Clause because the indictment did not allege that his

purpose was sexual gratification and, in his view, the government

had no evidence at the time of the indictment that it could have

presented to support that theory. Because, Coleman reasons, the

grand jury could not have indicted him on the sexual gratification

theory, he argues that he has a claim "analogous to a pretrial

motion raising a constructive amendment."

The government disagrees with Coleman's characterization

of his claim. It views Coleman's argument as a challenge to the

sufficiency of the evidence before the grand jury, which is the

type of challenge that we are barred from deciding. See Kaley v.

United States, 571 U.S. 320, 328 (2014); United States v. Capozzi,

- 24 - 486 F.3d 711, 726 (1st Cir. 2007) ("A court should not inquire

into the sufficiency of the evidence before the indicting grand

jury . . . ." (quoting United States v. Maceo, 873 F.2d 1, 3 (1st

Cir. 1989))).

We agree with Coleman that he has raised a constitutional

claim we can review, but we treat his argument as raising a

prejudicial variance claim, not a constructive amendment claim.

We review constructive amendment and prejudicial variance claims

de novo. See Katana, 93 F.4th at 530.

i. Constructive Amendment

"A constructive amendment occurs when the government's

evidence or arguments or the court's jury instructions alter the

terms of an indictment such that the defendant is effectively

charged with a different offense than the one returned by the grand

jury." Id. "A constructive amendment is considered prejudicial

per se and grounds for reversal of a conviction" in part because

it violates a defendant's rights under the Presentment Clause.

Id. (cleaned up) (citation omitted).

Under our modern constructive amendment precedent, we

focus on the offense charged in the indictment, not the particular

theories of liability. Id. at 532 (citing United States v. Simon,

12 F.4th 1, 35 (1st Cir. 2021)). And we look to statutory elements

in response to claims by defendants that the crime charged has

been changed. See id.

- 25 - The district court's decision to admit evidence that the

government relied on to argue that Coleman kidnapped Correia for

sexual gratification did not amount to a constructive amendment or

violate the Presentment Clause. Coleman was indicted for

kidnapping Correia and causing her death on February 24 in

violation of 18 U.S.C. § 1201(a)(1), and the jury convicted him of

that same crime. The admitted evidence concerned an element of

that crime (namely, Coleman's purpose in kidnapping Correia). It

did not alter the "substance of the charge." United States v.

Dowdell, 595 F.3d 50, 68 (1st Cir. 2010) (quoting United States v.

Eirby, 262 F.3d 31, 38 (1st Cir. 2001)). There was thus no

constitutional violation. See id. at 67-68 (amendment to the

indictment to reflect distribution of "cocaine base" rather than

"cocaine" did not violate the Presentment Clause because the

charged offense, 21 U.S.C. § 841(a), prohibits the distribution of

any controlled substance); see also Gooch v. United States, 297

U.S. 124, 128 (1936) (explaining Congress enlarged the federal

kidnapping statute to encompass a kidnapping for any benefit to

the defendant).

Coleman relies on our prior decision in United States v.

Santa-Manzano to argue otherwise, but that decision is not on

point. See 842 F.2d 1 (1st Cir. 1988). In Santa-Manzano, the

indictment charged a specific fraudulent scheme involving the sale

of fake certificates of deposit, including a sham office where

- 26 - unsuspecting buyers would be lured into purchasing these false

certificates, but, at trial, the government proved an entirely

different fraudulent scheme involving the sale of a worthless line

of credit in return for 18 million Venezuelan bolivars. See id.

at 2. The indictment did not specify the property that was the

object of the charged scheme to defraud. See id. We thus found

that indictment constitutionally deficient because it "suggest[ed]

a different [crime]" than "the crime the government sought to

prove." Id. at 2-3. By contrast, Coleman's indictment properly

alleged the elements of the crime, including the purpose element,

and the government became more specific about its purpose theory

both during discovery and at trial. Under our case law, the

narrowing of a charge is at most a variance from the indictment.

See United States v. Mueffelman, 470 F.3d 33, 38-39 (1st Cir.

2006); Katana, 93 F.4th at 530. And as we discuss below, we

conclude there was no prejudicial variance here.

ii. Prejudicial Variance

A variance occurs when the government relies on

different facts at trial than it alleged in the indictment to prove

the same offense. See Katana, 93 F.4th at 530. In contrast to a

constructive amendment, a variance requires reversal only if there

is prejudice to a "defendant's substantial rights, i.e., the right

to have knowledge of the charge sufficient to prepare an effective

defense and avoid surprise at trial," and to prevent a second

- 27 - prosecution for that same offense. Id. (quoting United States v.

Vega-Martínez, 949 F.3d 43, 51 (1st Cir. 2020)); see also United

States v. Fornia-Castillo, 408 F.3d 52, 66 (1st Cir. 2005) ("[S]o

long as the statutory violation remains the same, the jury can

convict even if the facts found are somewhat different than those

charged -- so long as the difference does not cause unfair

prejudice." (quoting United States v. Twitty, 72 F.3d 228, 231

(1st Cir. 1995))). Coleman has the burden to show such prejudice.

See Mueffelman, 470 F.3d at 39.

We are not convinced that there was any variance here.

Coleman argues that no evidence of "sexual assault or sex at all"

was presented to the grand jury. For example, he contends that

the results of the DNA test on Correia's sexual assault kit were

not even available to the grand jury before it returned its

indictment. To the extent Coleman claims that the grand jury could

not have found, as a matter of fact, that his purpose was sexual

gratification without DNA evidence of sexual intercourse, the

government is correct that we are foreclosed from reviewing the

sufficiency of the evidence before the grand jury. See Kaley, 571

U.S. at 328.10

10 In support of his Presentment Clause challenge, Coleman also cites a March 2019 statement from the then-U.S. Attorney that "it [did not] appear Correia was sexually assaulted." This statement did not foreclose the government from arguing to the grand jury one month later that Coleman's purpose was sexual

- 28 - But even assuming there was a variance, Coleman has not

shown any prejudice. The record reflects that Coleman was aware

well before trial that the government planned to introduce evidence

that he sexually assaulted Correia. This topic came up repeatedly

in pretrial motions and pretrial conferences with the district

court. Coleman's well-developed arguments at trial to introduce

evidence to show that any sexual encounter was consensual

demonstrate that he was prepared for the government's theory.11 On

these facts, we cannot conclude that Coleman "was 'so in the dark

about the' government's prosecution theory at trial that '[]he

could not prepare a defense or plead double jeopardy to stop a

second prosecution for the same crime.'" Katana, 93 F.4th at 537

(quoting Greaux-Gomez, 52 F.4th at 239).

B. Motion to Suppress

Coleman next contends that the district court erred in

denying his motion to suppress evidence obtained from several

searches following his arrest. In his view, the warrants

gratification. The parties agree that the government had, at that point, evidence from the police investigation into Correia's disappearance, including video footage of Correia naked from the waist up when Coleman carried her from his car. We see no reason to conclude that the government could not have argued to the grand jury that Coleman's purpose was sexual gratification based on that evidence. 11 Coleman separately argues that this evidence was erroneously excluded, an argument which we address below. See infra Section II.D.4.i.

- 29 - supporting those searches did not establish probable cause. The

challenged warrants authorized searches of Coleman's cellphone,

records from his cellphone service provider, his Google account

records, a laptop and computer tower seized from his car, and the

vehicle information module for his car.

"We review de novo the district court's legal conclusion

about whether a given set of facts amounts to probable cause."

United States v. Gonzalez, 113 F.4th 140, 147 (1st Cir. 2024). "We

view the facts in the light most favorable to the district court's

ruling, but only to the extent they are not clearly erroneous."

United States v. Rivera, 988 F.3d 579, 581 (1st Cir. 2021). In

conducting that analysis, a court considers whether a warrant

application contains sufficient information to "demonstrate

probable cause to believe that (1) a crime has been

committed -- the 'commission' element, and (2) enumerated evidence

of the offense will be found at the place searched -- the so-called

'nexus' element." Gonzalez, 113 F.4th at 148 (quoting United

States v. Roman, 942 F.3d 43, 50 (1st Cir. 2019)).

"Probable cause exists when the totality of the

circumstances suggests that there is a fair probability that" the

crime occurred and "contraband or evidence of a crime will be found

in a particular place." United States v. Francis, 132 F.4th 101,

107 (1st Cir. 2025) (internal quotation marks omitted) (quoting

United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013)). "Fair

- 30 - probability is less than a more-likely-than not standard,"

Gonzalez, 113 F.4th at 148, and always entails a "practical,

common-sense decision," Francis, 132 F.4th at 107 (quoting United

States v. Tanguay, 787 F.3d 44, 50 (1st Cir. 2015)). In our

analysis, we "accord[] deference to the reasonable inferences that

the issuing judge may have drawn." United States v. Sylvestre, 78

F.4th 28, 33 (1st Cir. 2023).

Coleman argued to the district court and re-urges on

appeal that the warrant applications failed to provide sufficient

information to establish probable cause as to both the commission

and nexus elements. As we explain below, however, we agree with

the district court that there was probable cause to believe Coleman

kidnapped Correia and that evidence of that crime would be found

in the documents and devices to be searched. Because we conclude

there was probable cause, we do not reach the parties' arguments

about the good-faith exception.

1. The Commission Element

The parties agree on appeal with the district court's

assessment that "the issues [across the warrant applications] are

essentially the same and intertwine and overlap to a great extent."

They treat the affidavit submitted by FBI Special Agent Thomas

Zukauskas in support of the cellphone warrant application as

representative for the commission element. We do the same.

- 31 - Special Agent Zukauskas described in detail law

enforcement's investigation into Correia's disappearance, which

led to Coleman's arrest on February 28, 2019. Because this

detailed description overlaps substantially with our earlier

description of the same events, we focus on the facts in the

affidavit most pertinent to Coleman's suppression motion.

In his affidavit, Special Agent Zukauskas recounted the

key events that occurred preceding the search. As he set out:

• Correia left the area outside of Venu at 2:16 a.m. on Sunday, February 24 with a man that law enforcement later identified as Coleman. Correia and Coleman walked to a red sedan, which Coleman drove into the parking lot of his Providence apartment building two hours later.

• After arriving at his apartment complex, Coleman carried a woman's limp, half-naked body out of his car and dragged it through the lobby of his building, into the elevator, and towards his apartment. From his review of photos and video, Special Agent Zukauskas believed it was Correia's body.

• Early on February 28, 2019, Coleman packed the same red sedan with several items, including a suitcase, and drove out of state. Later that day, Delaware State Police located and stopped Coleman in his vehicle. There were cracks in the vehicle's windshield on the passenger side.

• When asked if anyone else was in the vehicle, Coleman stated "she's in the trunk." Law enforcement conducted a sweep of the red sedan and found a dead body with significant bruising in a suitcase in the trunk. It appeared to be Correia. Coleman was taken into custody; he had a bandage on his face and when asked about it, he attributed the injury to "the girl."

- 32 - Despite this detailed factual account, Coleman argues

that the affidavit did not provide a substantial basis to conclude

that there was probable cause to establish three of the necessary

elements of kidnapping. In his view, the affidavit did not

demonstrate that Correia was (1) unlawfully seized, confined,

inveigled, decoyed, kidnapped, abducted, or carried away and (2)

held for an appreciable period against her will (3) for ransom,

reward, or otherwise. See 18 U.S.C. § 1201(a); Chatwin v. United

States, 326 U.S. 455, 459-60 (1946).

Our review of the "totality of the circumstances as they

are set forth in the warrant application" persuades us that there

was sufficient information to demonstrate a fair probability that

Coleman kidnapped Correia. United States v. Sheehan, 70 F.4th 36,

44 (1st Cir. 2023). Coleman contends the magistrate judge could

not have concluded that a seizure and holding occurred because the

affidavit describes Correia voluntarily walking to Coleman's car

but does not describe what occurred between their departure from

Boston and their arrival in Providence. But his view of the facts

does not credit reasonable inferences that the magistrate judge

could draw against him. See Sylvestre, 78 F.4th at 33. According

to the affidavit, Correia was alive when she entered Coleman's car

but was dead or unconscious two hours later when Coleman carried

her limp body out of the car; her face was bruised; the windshield

was cracked on the passenger side; and Coleman attributed an injury

- 33 - on his face to Correia. A permissible, common-sense inference

from these facts is that a struggle occurred in the car, during

which Correia was seized and held against her will.

We are also unconvinced by Coleman's claim that the

affidavit provided no basis from which to conclude Coleman

kidnapped Correia to "secure a benefit for himself." This

one-sentence argument is likely waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Regardless, the affidavit

references evidence of a struggle in the car and the footage

showing Correia naked from the waist up when Coleman carried her

out of the car, which is enough to show a fair probability that

Coleman held Correia for sexual gratification, to cover up a crime,

or to prevent the reporting of a crime. Any of these purposes

would suffice to satisfy the broad language of the federal

kidnapping statute.

2. The Nexus Element

Coleman also argues that the warrant affidavits did not

establish probable cause to believe that evidence related to the

crime would be found in the computer tower, laptop, and cellphone

recovered from his car. As we explain below, we disagree.

Because whether there was probable cause turns on the

facts discussed in each warrant application, we begin with the

overlapping facts. According to the affidavits, Coleman packed

his car in Providence in the early hours of February 28, drove out

- 34 - of state, and was stopped and arrested by law enforcement later

that day in Delaware. Shortly after the stop, officers found

Correia's dead body in his car. Officers recovered the computer

tower, laptop, and cellphone from the car,12 as well as various

other items, including long-handled loppers; a gas container and

lighter; safety glasses; work gloves; pliers; and disinfectant

wipes.

The affidavits described, based on the officers'

experiences and training as FBI Special Agents, the potential

evidentiary value of each item to be searched. For example, in

his affidavits supporting both the computer tower and laptop search

warrant applications, Special Agent Brendan Fogerty stated that it

was likely that these items contained evidence "of Coleman's

planning and/or execution of the kidnapping," his plans to flee,

and research about "various means of cleaning, transporting, and

disposing of a human body and trace evidence." As to the

cellphone, Special Agent Zukauskas stated that it was likely to

have evidence of the owner's "daily activities" and, more

Regarding the cellphone, the affidavit stated that Coleman 12

provided the number associated with the recovered cellphone as his home number during booking and that Coleman's social media accounts were connected to that cellphone. In light of this evidence, we are not persuaded by Coleman's argument that there are no facts "from which to infer that Coleman had this cellphone, or any cellphone, with him during the alleged crime." Even if he did not have that cellphone with him at the time of the crime, there was a fair probability that the cellphone had evidence related to his planning or his flight.

- 35 - specifically, was likely used to "send or receive relevant emails

and text messages; to set up or access relevant websites; and/or

communicate with witnesses." Although we now know that Coleman

and Correia first met on February 24, 2019, that fact was not known

when the warrant was issued on March 12, 2019.

Coleman argues that the cellphone, laptop, and computer

tower affidavits include only general statements about how people

use those devices, and thus do not sufficiently link those items

either to kidnapping or to the allegations in this case. But

"[d]irect evidence is not necessary to ground a probable cause

determination where, as here, the import of circumstantial

evidence is obvious." United States v. Adams, 971 F.3d 22, 33

(1st Cir. 2020). Each warrant application was premised on the

fact that Coleman was fleeing his home with a dead body and various

items that could be used to dispose of a body and related evidence.

In this context, as the district court noted, the "obvious

inference from the fact that [Coleman] took [these items] with him

on his flight is that there was something on [them] that he wished

to hide." It was also reasonable to infer that Coleman would have

researched how to dispose of the body or related evidence on each

device based on the agents' statements in the affidavits.13

Law enforcement sought and received warrants for associated 13

records (i.e., cellphone records from Coleman's service provider and Google account records associated with Coleman's cellphone and

- 36 - Coleman also cites our decision in Roman to support his

point that general observations about the use of electronic devices

are not sufficient to establish the nexus element. In Roman, we

held that the affidavit contained no evidence tying the alleged

crime to the place to be searched, and that the government's case

"depend[ed] entirely on inferences made by [the DEA agent], drawn

largely from" testimony found to contain material

misrepresentations and omissions. See 942 F.3d at 50. There was

no comparable lack of evidence here, and no allegations that the

affidavit contained material misrepresentations and omissions.

C. Voir Dire

We now turn to Coleman's claim related to jury selection.

Coleman requested that the district court show all potential jurors

one of two educational videos about implicit bias. The court

denied that request, explaining that although the "concept

underlying the video[s] is important," it would be better on

balance to address concepts of "implicit bias, fairness, and

listening to the evidence . . . orally, not through [the videos.]"

email address) on the basis that those records would contain relevant communications and location data. Coleman has not made an argument about those warrants separate from his argument about the warrants for his electronic devices. For the same reasons we find the nexus element satisfied to justify a search of Coleman's electronic devices, we find the nexus element satisfied to justify a search of the associated records.

- 37 - We review the district court's voir dire decisions for

abuse of discretion. See United States v. Parker, 872 F.3d 1, 6

(1st Cir. 2017). We reverse only if "our review of the record

leaves us with a definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached

upon a weighing of the relevant factors." Id. (quoting United

States v. Gelin, 712 F.3d 612, 621 (1st Cir. 2013)). We find no

abuse of discretion here.

In some circumstances, the Constitution requires the

court to ask "special voir dire question[s]" to address "[t]he

possibility of racial prejudice." United States v. Brown, 938

F.2d 1482, 1485 (1st Cir. 1991).14 The parties dispute whether

this case presents such circumstances. Coleman argues that the

district court erred in characterizing this case as not "a

particularly racially charged crime." He contends that race was

fundamental to the case because he is a Black man who was tried

before a jury with no Black jurors, and his efforts to flee the

police and hide Correia's body were tied to his experiences as a

Black man in the U.S. who had been beaten by police officers in

14 In Brown, we pointed to two cases as examples of those circumstances: one "involv[ed] a black civil rights activist whose defense to a marijuana possession charge was that he had been framed by local white police" and one "involv[ed] [the] sentencing of a black defendant who had been convicted of a capital offense" for killing a white storekeeper. 938 F.2d at 1485 (citing Ham v. South Carolina, 409 U.S. 524 (1973), and Turner v. Murray, 476 U.S. 28 (1986)).

- 38 - the past. The government responds that because Correia and Coleman

were both Black, there was no interracial perpetrator/victim

dynamic, and that this case did not raise any other particular

risk of racial prejudice. The government also argues that the

district court addressed the issue of potential racial prejudice

through its jury instructions and the questions it posed to the

jury, and that it articulated valid reasons to decline to show the

videos that Coleman proffered.

The district court discussed the importance of

impartiality with all prospective jurors, including the potential

for racial prejudice. It informed the prospective jurors that

both Coleman and Correia were "African-American" and stressed that

Coleman "must be considered as an individual . . . , not according

to his ethnicity or race." After providing that context, the court

asked the prospective jurors if they "have any feelings of any

kind that might affect [their] ability in any way to be fair and

impartial in the trial of this matter." In previous cases, we

have ruled that similar questions sufficiently addressed racial

bias. See Parker, 872 F.3d at 5-7; cf. United States v. Casanova,

886 F.3d 55, 59-60 (1st Cir. 2018) (on plain error review, holding

similar questions posed to the jurors as a group were sufficient

"to safeguard [the defendant's] right to an impartial jury").

To be sure, the district court in Parker asked a total

of three questions during voir dire targeting potential racial

- 39 - bias, at defense counsel's request. See 872 F.2d at 5-6. Here,

the district court asked only one question, but it did so

immediately after addressing Coleman's race and highlighting that

the jury should guard against the risk of racial bias influencing

its decision-making. We cannot conclude that it was "a clear error

of judgment" for the district court to address the issue of racial

bias in this manner, rather than by playing the videos submitted

by Coleman. Id. at 6.

Coleman also argues that the district court's statements

that the videos were "distracting," "smug," and "condescending"

indicate an abuse of discretion. We disagree with Coleman's

characterization of the record. Coleman takes the court's

statements out of context: the court acknowledged the "concept[s]

underlying the video [are] important" but decided to address those

concepts in a different way. After the jury was empaneled, the

court provided an instruction that demonstrated its recognition of

the reality of prejudice, including prejudice "that we may not

even be conscious of." It stated:

As I'm sure you know, when we get into issues of race or nationality or religion or gender, things can be very problematic indeed. All of us do tend to think of other people as being part of one or more groups. We all do it to some extent. In a jury trial, that kind of thing, again, can be unfair and that's particularly dangerous if we're talking about things that are below the surface that we don't talk about openly or that we may not even be conscious of.

- 40 - I don't need to tell you, I'm sure, that the defendant should be judged based on the evidence, not on his race or gender. But each of you should take extra care to make sure you're doing exactly that, that you're being as honest as you can with yourselves. If you hear yourself thinking inwardly that's what a typical man would do under these circumstances or, worse, a typical black man or a typical wom[a]n would do this or a typical black woman, stop yourself, catch yourself, think about what you're doing. Are you making a decision based on the evidence or something else?

I'm not saying it's easy to overcome your assumptions, again, the ones that you're not even thinking about, but it is your duty and responsibility to be as fair as you can and to decide the case based on the evidence and not according to generalized assumptions that you may have.

Citing several law review articles, Coleman sought to

have the district court specifically address implicit bias,

arguing that education can mitigate the impact of implicit bias

and that such education should cover that "implicit bias exists,

it is normal, and it operates without awareness." The district

court's instruction did not use the term "implicit bias," but it

addressed the central idea Coleman urged the court to highlight:

that each juror should be aware of prejudice "below the surface."

We conclude the district court did not abuse its discretion in

addressing potential racial bias in this manner.

D. The District Court's Evidentiary Rulings

Coleman also challenges four of the district court's

evidentiary rulings. Namely, (1) the denial of his pretrial motion

- 41 - to preclude the government from using the term "sexual assault";

(2) the admission of evidence regarding Correia's plans to pick up

her daughter; (3) the exclusion of expert testimony by Dr. Jeffrey

Fagan; and (4) the exclusion of evidence of Correia's alleged prior

sexual and violent conduct.

Generally, "[w]e review the district court's rulings on

whether to admit or exclude evidence, including rulings on

motions in limine, for abuse of discretion." United States v.

Brown, 510 F.3d 57, 66 (1st Cir. 2007). "[A]n abuse of discretion

occurs when a relevant factor deserving of significant weight is

overlooked, or when an improper factor is accorded significant

weight, or when the court considers the appropriate mix of factors,

but commits a palpable error of judgment in calibrating the

decisional scales." Id. at 67 (quoting United States v. Frabizio,

459 F.3d 80, 91 (1st Cir. 2006)). We review de novo Coleman's

constitutional claim that the court's exclusion of evidence about

Correia's prior conduct infringed his right to present a defense.

See United States v. Brown, 669 F.3d 10, 19 (1st Cir. 2012).

We conclude that the district court did not abuse its

discretion as to any of the challenged evidentiary rulings. We

further determine that excluding evidence of Correia's prior

conduct did not infringe Coleman's right to present a defense.

- 42 - 1. Denial of Motion to Preclude the Government from Using the Phrase "Sexual Assault"

Coleman contends that the district court abused its

discretion when it denied his motion to preclude the government

and its witnesses from using the term "sexual assault" at trial.

He argues that allowing the government to use this term was

unfairly prejudicial and invaded the province of the jury to decide

whether Coleman had in fact kidnapped Correia for sexual

gratification.15

In its ruling on Coleman's motion, the district court

explained that the government planned to introduce evidence that

sexual intercourse occurred and that, "under the circumstances[,]

it [was] not unfair for the government to use the term 'sexual

assault.'" The court pointed to Correia's "very high level of

intoxication, at least measured by her . . . blood alcohol level

and [the fact] that a violent struggle took place in the car." In

15 We bypass the government's point that Coleman did not object

to the use of the term "sexual assault" during trial. As the government acknowledges, although a defendant must ordinarily "object to particular evidence at trial in order to preserve his appellate rights," "when a defendant raises such an objection before trial by a motion in limine and the district court's rejection of the defendant's position is unconditional, the defendant's objection may be deemed preserved even if not raised again at trial." United States v. Encarnacion, 26 F.4th 490, 503-504 (1st Cir. 2022) (citations omitted). We need not decide whether the rejection of the defendant's position was unconditional here, because we conclude that the district court did not abuse its discretion in allowing the government to use the term "sexual assault."

- 43 - light of this evidence, the court concluded that the term "sexual

assault" was not unfair or inflammatory. We see no error of

judgment in this analysis.

Nor do we think the district court's ruling invaded the

province of the jury. Coleman argues that by using the term

"sexual assault," the government and its witnesses "presented

nonconsensual sex as a fact" and this amounted to offering an

opinion on the "ultimate issue[]" of Coleman's purpose, an element

of the crime. The only witnesses to use the term "sexual assault"

were Dr. Vershvovsky and a forensic examiner, who both used the

phrase in their discussions of the "sexual assault kit" samples

collected from Correia's body. Dr. Vershvovsky also testified

that the lack of injury to Correia's vaginal area did not rule out

that sexual assault occurred. Each side argued as to whether the

evidence was consistent with sexual assault. More significantly,

whether sexual assault occurred was not the ultimate issue before

the jury. Rather, the ultimate issue was whether Coleman kidnapped

Correia for sexual gratification. Based on this record, we

conclude that neither the government nor its witnesses presented

sexual assault as a fact, and that it remained up to the jury to

decide the ultimate issue of whether the purpose element was

satisfied.

- 44 - 2. Admission of Testimony Regarding Correia's Plans to Pick Up Her Daughter

The government filed its own motion, seeking to

introduce at trial statements Correia made to others about her

plans for the weekend of February 23, 2019, including statements

to her case worker at the shelter where she lived and to her

daughter's grandmother. The government argued that these

statements were non-hearsay evidence of Correia's state of mind

and intent to pick up her daughter and return to the shelter by

late afternoon on Sunday, February 24. Coleman opposed the motion,

contending that Correia's statements were not relevant under

Federal Rule of Evidence 401 and, even if they were, the court

should exclude them under Federal Rule of Evidence 403 because the

risk of unfair prejudice substantially outweighed their probative

value.

The district court granted the government's motion,

subject to certain limits. "[I]n order to avoid any potential

improper appeal to sympathy or bias," the court prohibited the

government from "elicit[ing] information concerning (1) the nature

of the shelter in which the victim was residing, or the reason she

was residing there, or (2) the name of the victim[']s child, or

any other details concerning the child." The trial witnesses

testified within these limits. Correia's case worker, Loveth

Anumele, testified that Correia lived in a shelter in Lynn with

- 45 - her daughter and that Correia had received a pass to be away from

the shelter until 5:00 p.m. on Sunday, February 24. Correia's

daughter's grandmother, Rosina Castro, testified that she was

watching her granddaughter that weekend and that Correia had

arranged to pick her up on Sunday.

Coleman argues that the district court abused its

discretion by admitting Anumele's and Castro's testimony because

their testimony "had no relevance but was calculated to make

Correia more sympathetic." "Evidence is relevant as long as it

has some tendency to make a fact of consequence more or less

probable." See United States v. Kilmartin, 944 F.3d 315, 335 (1st

Cir. 2019) (citing Fed. R. Evid. 401).

Here, Correia's Sunday plans were relevant because they

made it more likely that she intended to stay in Massachusetts

after she left Venu, and to return to Mondesir's apartment, where

she had left her housekeys. In the mosaic of this case, the

statements thus could have helped the jury evaluate whether Coleman

deceived Correia by offering her a ride to Mondesir's apartment,

as the government claimed. The district court's instruction that

the government omit details about Correia's daughter and about the

shelter where they lived mitigated the potential for unfair

prejudice.16 Especially because the jury had only circumstantial

16 Correia lived in an emergency assistance housing shelter for victims of domestic violence.

- 46 - evidence about what transpired during the critical minutes between

2:16 a.m. and Correia's death, the district court did not abuse

its discretion in ruling that the risk of unfair prejudice did not

substantially outweigh the probative value of the admitted

evidence.17

Coleman cites our opinion in Kilmartin to support his

claim that, even if the evidence were relevant, the district court

should have excluded it under Rule 403; however, that case is

distinguishable. In Kilmartin, we held that the district court

abused its discretion when it admitted testimony from several of

the defendants' alleged victims, as well as copious emails between

the defendant and the victims, as evidence of a fraud scheme that

targeted suicidal individuals. See 944 F.3d at 335-37. The

"testimony went into excruciating detail about the . . . victims'

personal lives, medical issues, histories of depression, earlier

17 Coleman argues that Correia's Sunday plans were not relevant because her plans were not incompatible with accepting a ride from him and having consensual sex with him. We certainly do not mean to overstate the probative value of the admitted testimony. That said, given that there is no direct evidence of what Correia and Coleman said to each other outside of Venu, we conclude that her Sunday plans made it at least somewhat more probable that their brief conversation was about him giving her a ride to Mondesir's apartment. The government's theory was that this offer was deceptive because his intent was to have sex with Correia, as we discuss in more detail below. See infra Section II.G.1.i. And, although Coleman argues that evidence about Correia's Sunday plans was not relevant because he did not contest her intent to return home on Sunday, he did arguably contest that was her intent when he elicited testimony from Hiltz that Correia would sometimes "go off with someone for a few days."

- 47 - suicide attempts, suicidal motivations, and the like." Id. at

335. We described the emails as "likely to evoke an emotional

response in even the most hardened individuals." Id. at 337.

Finding that this evidence "added virtually nothing of legitimate

value to the government's case," we explained that "just because

evidence may have a smidgen of probative value, that bare fact

does not give the government free rein to capitalize upon its

emotionally laden content." Id. By contrast, Anumele's and

Castro's trial testimony was brief and specifically framed to avoid

details that would stir the jury's emotions.

3. Exclusion of Dr. Fagan's Expert Testimony

To support his argument that he fled the police out of

fear, rather than consciousness of guilt, Coleman sought to

introduce two types of evidence at trial: facts indicating that

police had assaulted him in 2013 and expert testimony by Dr. Fagan.

In describing Dr. Fagan's testimony, Coleman explained that he

intended to call him as an expert who would "explain empirical

studies showing that the impacts of threatening police

interactions . . . include fear of bodily harm and possibly

death."

The government urged the district court to exclude both

types of evidence. As to Dr. Fagan's testimony, it argued that

Coleman's expert disclosure was insufficient under Federal Rule of

Criminal Procedure 16(b)(1)(C), and thus neither the court nor the

- 48 - government could assess whether the testimony met the requirements

of Federal Rule of Evidence 702 (the expert witness rule) and

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which

set the standard for evaluating if an expert's methodology is

reliable.

The district court permitted Coleman to introduce

evidence of the 2013 assault by the police, but it excluded Dr.

Fagan's testimony under Rules 702 and 403 of the Federal Rules of

Evidence, as well as Rule 16 of the Federal Rules of Criminal

Procedure. Coleman contends that the court abused its discretion

in excluding Dr. Fagan's testimony.

We begin by reviewing the district court's conclusion

that Dr. Fagan's opinion testimony was inadmissible under Federal

Rule of Evidence 702. We note that the court's analysis of Rule

702 overlapped with its analysis under Federal Rule of Criminal

Procedure 16, as the court explained that the insufficient

disclosure made it impossible to assess the reliability of Dr.

Fagan's methodology.

Under Rule 702, a qualified expert may testify in the

form of an opinion if four requirements are met:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

- 49 - (c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702. And under Daubert, courts consider the

following nonexclusive factors to determine whether an expert's

methodology is reliable: (1) "whether [the theory or technique]

can be (and has been) tested"; (2) "whether the theory or technique

has been subjected to peer review and publication"; (3) "the known

or potential rate of error" of a particular scientific technique;

and (4) whether the methodology has been generally accepted by the

relevant scientific community. 509 U.S. at 593-94. Coleman had

the burden of demonstrating the admissibility of Dr. Fagan's expert

opinion. See United States v. Tetioukhine, 725 F.3d 1, 6 (1st

Cir. 2013).

Before issuing its ruling on Dr. Fagan's testimony, the

district court put Coleman on notice at a motion hearing and at

the pretrial conference that it had concerns with Dr. Fagan's

minimal expert disclosure. That initial disclosure provided only

Dr. Fagan's curriculum vitae and a two-sentence description of his

testimony. The court made clear that Dr. Fagan's "credentials and

his opinion with nothing else in between" were insufficient to

"indicate what the basis of [his] opinion is." It also had

"concerns about the methodology from a Daubert standpoint." In

- 50 - response to the court's concerns, Coleman provided the government

with a supplemental disclosure. He again included only a

two-sentence description of Dr. Fagan's testimony.18 He also

specified the 17 articles that Dr. Fagan was relying on to form

his opinion and provided a one-sentence summary of each article.

On this record, Coleman has not demonstrated that the

district court abused its discretion in excluding Dr. Fagan's

testimony under Rule 702. Although the court put Coleman on notice

of its concerns that he had insufficiently explained the basis of

Dr. Fagan's opinion, Coleman provided only a minimal supplemental

disclosure. There was no expert report or affidavit from Dr. Fagan

explaining the reasons for his opinion or describing accepted

methodologies in his field or the methodologies of the disclosed

articles. As the district court explained, it was "impossible for

[the court] to assess even what the precise opinion is, what the

methodology is." As to the disclosure of "various studies," the

district court had no way to "know how to assess them" because it

18 The summary stated: Professor Fagan may testify that the impacts upon Black persons of involuntary police confrontation, false accusations by police, and threatening police behavior extend beyond liberty interests to include the fear of grievous bodily harm and possibly death. Professor Fagan may also testify that fear, anxiety, and impaired perception and social judgement occurs so that flight may be unrelated to consciousness of guilt.

- 51 - did not know "how they were conducted," "what data they're based

on, what principles they involved, whether they were reliable

principles, reliably applied and all the rest of it."19

Coleman attempts to transform the district court's

ruling into a rejection of social science research generally, but

the court made no such sweeping ruling. Rather, it concluded,

based on the particular expert disclosure before it, that Coleman

failed to meet his burden to show that Dr. Fagan's opinion was

based on valid and reliable studies accepted in his field.

In light of the thin disclosure, the district court did

not abuse its broad discretion in exercising its "gate-keeping

role" to ensure an expert's testimony "rests on a reliable

foundation" under Rule 702 and Daubert. United States v. Vargas,

471 F.3d 255, 261 (1st Cir. 2006) (citation omitted). Because we

find no error in the district court's ruling to exclude Dr. Fagan's

testimony under Rule 702 and Daubert, we do not reach its ruling

that Dr. Fagan's testimony also was inadmissible under Rule 403.

4. Exclusion of Specific Instances of Correia's Prior Conduct

Coleman filed two motions to introduce at trial evidence

of Correia's prior conduct, relying on Federal Rules of Evidence

19 Our own review of Dr. Fagan's disclosure confirms the district court's assessment that the limited disclosure does not explain how Dr. Fagan relied on various articles to form an opinion potentially relevant to this case. It was Coleman's burden to connect the dots.

- 52 - 404(b) and 405(a)-(b), which govern the use of character evidence,

and his constitutional right to "a meaningful opportunity to

present a complete defense."20 Holmes v. South Carolina, 547 U.S.

319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690

(1986)). One motion related to Correia's prior sexual behavior.

The other related to what Coleman claimed was Correia's character

for violence, particularly when she was drinking.21 The arguments

in the two motions overlapped because one of the specific instances

of violence that Coleman sought to introduce related to Correia's

prior sexual conduct -- we refer to that proffered evidence as the

"Atlanta incident." Coleman claimed that this evidence was

necessary to rebut the government's theory that Coleman kidnapped

Correia for sexual gratification and to support his theory that

they had consensual sex, Correia later became violent, and an

unexpected struggle ensued that caused her death.

The district court allowed Coleman to attempt to elicit

"reputation testimony" from Mondesir that Correia "engaged in acts

of prostitution as needed," on the ground that such evidence would

further Coleman's right to a fair trial. It also allowed in

20Because the relevant motions and proffers were filed under seal in the district court and the parties' briefing about these motions was filed under seal in this court, we do not discuss the specifics of the alleged prior conduct. 21The first pretrial motion addressed several categories of character evidence. We focus only on the character evidence claim that Coleman pursues on appeal.

- 53 - reputation testimony about Correia's alleged violence when

drinking, as well as testimony about at least one specific instance

of violence.22 But the court excluded evidence of specific

instances of Correia's prior sexual behavior, including the

Atlanta incident, under Federal Rules of Evidence 412 and 403.

As a reminder, we review the district court's

evidentiary rulings for abuse of discretion. See Brown, 510 F.3d

at 66. We review Coleman's preserved constitutional challenge de

novo. See Brown, 669 F.3d at 19.

i. Exclusion of Correia's Prior Sexual Conduct

Coleman argues that the district court's ruling

excluding specific instances of Correia's prior sexual behavior

was wrong, both under the relevant rules of evidence and because

it violated his Sixth Amendment right to present his defense. See

United States v. Rosario-Pérez, 957 F.3d 277, 293 (1st Cir. 2020)

("The Sixth Amendment guarantees criminal defendants the right to

present a defense . . . ." (quoting United States v. Bartelho, 129

F.3d 663, 673 (1st Cir. 1997))); see also Holmes, 547 U.S. at 324.

In particular, he identifies three specific pieces of evidence

that he contends should have been admitted: (1) testimony about

We use the term "violence" to be consistent with Coleman's 22

pretrial motion. At trial, however, the relevant witness testified that Correia became "messy" when drunk but denied that Correia started fights. She also testified that Correia attempted to break up a fight when asked to recount a specific instance in which Correia was allegedly fighting when drunk.

- 54 - the Atlanta incident; (2) text messages between Correia and

Mondesir about her activity on February 23, 2019; and (3) documents

related to Correia's sexual conduct in 2013 and 2014.

We begin by evaluating the district court's ruling

excluding such evidence under Federal Rule of Evidence 412.

Subject to limited exceptions, Rule 412 provides that "evidence

offered to prove that a victim engaged in other sexual behavior[]

or evidence offered to prove a victim's sexual predisposition" "is

not admissible in a . . . criminal proceeding involving alleged

sexual misconduct." Fed. R. Evid. 412(a)-(b).

Coleman intended to introduce evidence of Correia's

prior sexual conduct to argue that she consented to have sex with

him. In his view, the excluded evidence was essential to rebut

the government's sexual assault theory because it helped to explain

why Correia may have provided consent.

But as the district court correctly concluded, the plain

language of Rule 412 states that evidence of Correia's "other

sexual behavior" was not admissible at trial. See Fed. R. Evid.

412(a). The commentary to Rule 412 confirms that conclusion. See

In re Kirkland, 75 F.4th 1030, 1043 (9th Cir. 2023) ("We may look

to the advisory committee's notes because they 'provide a reliable

source of insight into the meaning of a rule.'" (quoting United

States v. Vonn, 535 U.S. 55, 64 n.6 (2002))); Tome v. United

States, 513 U.S. 150, 167-68 (1995) (Scalia, J., concurring)

- 55 - ("[T]he Notes are . . . ordinarily the most persuasive" authority

on the meaning of the rules, although they cannot change the

meaning of the text). Indeed, the commentary specifically

contemplates that Rule 412 could apply in a kidnapping case. It

states:

The strong social policy of protecting a victim's privacy and encouraging victims to come forward to report criminal acts is not confined to cases that involve a charge of sexual assault. The need to protect the victim is equally great when a defendant is charged with kidnapping, and evidence is offered, either to prove motive or as background, that the defendant sexually assaulted the victim.

Fed. R. Evid. 412 advisory committee's note to 1994 amendment.

Thus, the evidence was clearly inadmissible under Rule 412 unless

it fit within an exception.

One of the limited exceptions to Rule 412 in criminal

cases is for "evidence whose exclusion would violate the

defendant's constitutional rights." Fed. R. Evid. 412(b)(1)(C).

"The constitutional exception under Rule 412(b)(1)(C) protects, in

part, defendants' 'constitutional right under the Fifth and Sixth

Amendments to introduce evidence in their defense.'" United States

v. Brandon, 64 F.4th 1009, 1016 (8th Cir. 2023) (quoting United

States v. Pumpkin Seed, 572 F.3d 552, 559-60 (8th Cir.

2009)), cert. denied, 144 S. Ct. 514 (2023). Coleman argues that

the district court should have applied this exception because

- 56 - evidence of Correia's prior sexual conduct "countered the

government's narrative of a planned sexual assault and made

Coleman's theory of defense more likely."

We have recognized that the evidentiary rules must give

way to the Constitution, when needed. See Rosario-Pérez, 957 F.3d

at 294 ("Where the stakes are very high, it is a court's job to

make sure that the rules themselves are not made an instrument of

injustice."). That said, the constitutional right to "a meaningful

opportunity to present a complete defense" does not guarantee

Coleman "an unfettered right to offer testimony that is

incompetent, privileged, or otherwise [inadmissible] under

standard rules of evidence." Brown, 669 F.3d at 19 (first quoting

Brown v. Ruane, 630 F.3d 62, 71 (1st Cir. 2011); then quoting

Taylor v. Illinois, 484 U.S. 400, 410 (1988)); see also United

States v. Pires, 642 F.3d 1, 14 (1st Cir. 2011) ("[T]he right to

present a defense does not trump valid rules of evidence.").

In prior cases, we have used the relative probative value

of evidence as a benchmark for whether the Constitution requires

its admission in the Rule 412 context, holding that a court need

not admit evidence that is marginally relevant. See United States

v. Gemma, 818 F.3d 23, 34 (1st Cir. 2016) (evidence of a

trafficking victim's prior prostitution "is either entirely

irrelevant or of such slight probative value in comparison to its

prejudicial effect that a decision to exclude it would not violate

- 57 - [the defendant's] constitutional rights"); Greaux-Gomez, 52 F.4th

at 436 (constitutional exception to Rule 412 did not apply, even

assuming evidence of the victim's prior sexual conduct was relevant

for impeachment, because "any probative value of the evidence was

substantially outweighed by the danger of unfair prejudice"). Our

sister circuits have likewise concluded that the exclusion of

evidence under Rule 412 does not violate a defendant's

constitutional rights when that evidence has little or no relevance

or when its relevance is outweighed by the risk of unfair

prejudice. See, e.g., United States v. Elbert, 562 F.3d 771, 777

(8th Cir. 2009); United States v. Haines, 918 F.3d 694, 697 (9th

Cir. 2019); United States v. Powell, 226 F.3d 1181, 1199 (10th

Cir. 2000).

Here, the probative value of specific instances of

Correia's prior sexual conduct was minimal. Coleman argued that

the excluded evidence was critical in part because it went to

"whether there was consent, when there was consent, and what that

looked like." But the excluded evidence concerned situations that

were meaningfully different from the interaction between Coleman

and Correia, either because the prior situations involved

individuals Correia already knew, rather than a stranger like

Coleman, or because they occurred when Correia was a juvenile. By

comparison, the risk of prejudice was significant. Rule 412 exists

in part because stereotypes about sexually active women are

- 58 - prevalent. See Fed. R. Evid. 412 advisory committee's note to

1994 amendment; see also Gemma, 818 F.3d at 35 (evidence offered

to show a victim acted consistently with prior sexual behavior

"falls squarely within a class deemed so extremely prejudicial as

to warrant special treatment under the Federal Rules of

Evidence").23

The parties discuss three decisions from the U.S. Court

of Appeals for the Eighth Circuit addressing the constitutional

exception to Rule 412 in criminal cases, but none of those

decisions suggest that the district court erred in excluding the

evidence at issue here. Two cases involved aggravated sexual

assault charges, where the victims had suffered recent sexual

assaults by other perpetrators. In United States v. Bear Stops,

the Eighth Circuit found that evidence of the previous sexual

assault was necessary to provide an alternative explanation for

the victim's bloody underwear, which was found close in time to

the previous assault, and to provide context for testimony that

the victim was experiencing symptoms of sexual abuse. See 997

F.2d 451, 454-457 (8th Cir. 1993).24 Similarly, in United States

23 We note that the excluded evidence was not "evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct," which can be "offered by the defendant to prove consent" under another exception to Rule 412. Fed. R. Evid. 412(b)(1)(B) (emphasis added). 24At the time that Bear Stops was decided, Rule 412 had an exception for evidence of "past sexual behavior with persons other

- 59 - v. Zephier, the Eighth Circuit held that admitting evidence of a

prior sexual assault was necessary to counter expert testimony

that the victim's behavioral issues were "consistent with how rape

victims often respond" to rape. 989 F.3d 629, 636 (8th Cir. 2021).

The third case, United States v. Brandon, is most

relevant here, and the Eighth Circuit held that the district court

did not need to admit evidence of the victim's prior prostitution

under Rule 412's constitutional exception. See 64 F.4th at 1019.

In Brandon, the defendant sought to offer evidence of the victims'

prior prostitution as an "alternative theory of the case to

explain" evidence matching his DNA to one of the victim's vaginal

swabs. See id. at 1015. "Given the speculative nature of [the

defendant's] theory," the Eighth Circuit found that the district

court had not erred by excluding the evidence of prior

prostitution. Id. at 1019. It reasoned that the exclusion "was

not arbitrary or disproportionate to the purposes served by

than the accused" "offered by the accused on the issue of whether the accused was or was not the source of injury." 997 F.2d at 454 n.2 (citing Fed. R. Evid. 412(b)(2)(A)). The Eighth Circuit declined to apply the source-of-injury exception because it determined that the constitutional exception applied and prior Eighth Circuit case law limited the injury exception to cases in which emotional injuries were accompanied by "cognizable physical consequence." Id. (quoting United States v. Shaw, 824 F.2d 601, 603 n.2 (8th Cir. 1987)). The 1994 Amendments to Rule 412 broadened that exception, allowing the defendant to offer "evidence of specific instances of a victim's sexual behavior . . . to prove that someone other than the defendant was the source of semen, injury, or other physical evidence." Fed. R. Evid. 412(b)(1)(A) (emphasis added).

- 60 - exclusion, including avoiding further embarrassment and harassment

of the victims, avoiding possible confusion of the issues by the

jury, and preventing a 'thinly-veiled attack on [the victims']

general credibility.'" Id. (quoting Pumpkin Seed, 572 F.3d at

560).

Whereas the defendants in Bear Stops and Zephier sought

to introduce evidence that was directly related to who was

responsible for the sexual assaults on the victims, the defendant

in Brandon sought to introduce evidence that would bolster a highly

speculative theory for why the evidence of sexual contact between

him and the victim did not demonstrate an "assault" at all.

Coleman likewise sought to introduce evidence of Correia's prior

sexual conduct to bolster his theory that his sexual contact with

Correia was consensual, and accepting his theory required the jury

to make several inferential leaps. Given the narrowness of the

exceptions to Rule 412, the district court properly excluded that

evidence.

Looking beyond the Rule 412 context, Coleman cites our

prior decisions in Rosario-Pérez and United States v.

Mulinelli-Navas, 111 F.3d 983 (1st Cir. 1997), for the proposition

that he had the constitutional right to rebut the government's

argument that he sexually assaulted Correia. But neither of those

cases presented the question of whether the Constitution requires

otherwise inadmissible evidence to be admitted to rebut the

- 61 - government's theory at trial. And, like in Bear Stops and Zephier,

the excluded evidence in those cases directly related to who was

responsible for the alleged crime. In Rosario-Pérez, we found

that the district court had erred in making two of its evidentiary

rulings, both of which related to evidence that someone other than

the defendant had shot and killed a victim.25 See 957 F.3d at

290-94. Having found both rulings independently erroneous, we

determined that the cumulative prejudicial effect required

reversal and a new trial. See id. at 294. In that context, we

explained that "under the Constitution or, failing that, the

court's supervisory power to make the rules of evidence just and

fair in application, [the defendant] must be permitted to offer

evidence to show that he did not commit the murder." Id. In

Mulinelli-Navas, we held that the district court had erroneously

prevented the defense from asking certain questions on

cross-examination, which would have supported the defendant's

theory that someone else was responsible for the fraud with which

she was charged. See 111 F.3d at 991-92. We explained that the

district court had exceeded its power to limit cross-examination

and violated the defendant's Sixth Amendment right to

The government had been allowed to introduce testimony that 25

the defendant shot and killed "Teton," a drug seller that reported to the defendant, as evidence to satisfy the overt act element of the charged drug conspiracy. See Rosario-Pérez, 957 F.3d at 289. The excluded testimony was offered to show that someone else was responsible for Teton's murder. See id. at 290.

- 62 - confrontation by preventing the defendant from introducing "any

testimony to support [her] theory of defense." Id. at 992.

Neither case suggests that the Constitution requires the admission

of marginally probative and otherwise inadmissible evidence.

Because all the proffered evidence was inadmissible

under Rule 412, we do not reach the district court's alternative

ruling excluding the evidence under Rule 403. We also do not need

to reach Coleman's argument that the proffered evidence about the

Atlanta incident was admissible under Rules 404(b) and 405(b). As

the government points out, the commentary to the rules makes clear

that "[e]vidence, which might otherwise be admissible under Rules

. . . 404(b) [and] 405 . . . must be excluded if Rule 412 so

requires." Fed. R. Evid. 412 advisory committee's note to 1994

amendment; see also Fed. R. Evid. 404 advisory committee's note to

the 2000 amendment (noting the amendment does not affect "the

standards for proof of character by evidence of other sexual

behavior or sexual offenses under Rules 412-415.").26

26 Coleman also argues that testimony about the Atlanta incident could have come in without reference to the sexual conduct. But he has developed no argument about its relevance to his defense without those details. Thus, we deem this argument waived. See Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

- 63 - ii. Exclusion of Correia's Prior Acts of Violence

In his pro se brief, Coleman also argues that the

district court erroneously excluded evidence of an altercation

between Correia and the father of her child, Miguel Castro. He

contends that this evidence supported his theory that Correia

initiated a fight with him in his car, resulting in her death.

After carefully reviewing the record, we conclude that

Coleman never attempted to introduce this evidence. The district

court initially deferred ruling on Coleman's pretrial motion

related to Correia's alleged character for violence. During the

trial, it allowed in "opinion evidence concerning her propensity

for violence" but indicated it was still deciding whether to allow

in "specific acts of violence." In response, Coleman argued that

Mondesir should be allowed to testify about certain texts and the

Atlanta incident because that evidence was admissible. He did not

mention the incident between Correia and Castro. Later discussions

of the outstanding evidentiary issues also did not touch on the

Castro incident. Additionally, although Coleman filed a proffer

regarding the text messages and the Atlanta incident and a

supplemental memorandum to admit medical documents that he claimed

showed Correia's violent character, we see nothing in the record

to indicate that he submitted a similar motion related to the

incident between Correia and Castro. Because Coleman failed to

preserve this issue at the district court, we do not reach it on

- 64 - appeal. See Zhou v. Desktop Metal, Inc., 120 F.4th 278, 287-88

(1st Cir. 2024).

E. The District Court's Other Trial Rulings

Coleman raises two additional challenges to the district

court's rulings during trial. First, he appeals the court's denial

of his motion for a mistrial over Dr. Vershvovsky's testimony.

Second, he argues that the court made multiple errors in how it

treated Mondesir's testimony towards the end of trial. For

example, he contends that the court should not have permitted

Mondesir to invoke her Fifth Amendment right not to testify and

should have allowed him to question her about some of her previous

statements. In his view, the cumulative impact of these errors

amounted to a violation of his Sixth Amendment right to present a

complete defense.

We review the district court's ruling to deny Coleman's

motion for a mistrial and to exclude evidence for abuse of

discretion. See Brown, 510 F.3d at 66; United States v. Apicelli,

839 F.3d 75, 86 (1st Cir. 2016). " When a district court rules

favorably on a witness's invocation of h[er] Fifth Amendment right,

we [also] review its ruling for abuse of discretion." United

States v. Forty-Febres, 982 F.3d 802, 807 (1st Cir. 2020). We

review Coleman's other constitutional challenges de novo. See

Brown, 669 F.3d at 19.

- 65 - After careful consideration, we find no error or abuse

of discretion in the district court's rulings on these issues.

1. Dr. Vershvovsky's Testimony

Coleman appeals the denial of his motion for a mistrial

in response to Dr. Vershvovsky's testimony that Correia was alive

when Coleman carried her body into his lobby in the early hours of

Sunday, February 24.

"Declaring a mistrial is a last resort, only to be

implemented if the taint is ineradicable, that is, only if the

trial judge believes that the jury's exposure to the evidence is

likely to prove beyond realistic hope of repair." Apicelli, 839

F.3d at 86 (quoting United States v. Trinidad-Acosta, 773 F.3d

298, 306 (1st Cir. 2014)). We consider three non-exhaustive

factors in making this determination: "1) whether an appropriate

curative instruction was issued, 2) whether the judicial response

was timely, and 3) whether appellants successfully rebutted the

presumption that the jury followed the judge's instructions." Id.

(quoting United States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st

Cir. 2013)).

We begin by setting out the context for Dr. Vershvovsky's

testimony. Before trial, the government disclosed that it would

call Dr. Vershvovsky, the medical examiner who performed the

autopsy on Correia's body. It also disclosed that Dr. Vershvovsky

would opine that Correia's death resulted from strangulation and

- 66 - that "it [was] not possible to determine with precision the date

or time of Ms. Correia's death." At trial, Dr. Vershvovsky

testified as follows:

Q: When you viewed the video of Ms. Correia being dragged inside the building, were you able to make a determination as to whether she was alive or dead at that point?

A: I think she was alive.

Q: What is the basis for that opinion?

A: Because at first she has absolutely no injuries. I think she was intoxicated but alive.

Coleman made a contemporaneous objection to Dr.

Vershvovsky's unanticipated testimony, which the court overruled.

Coleman then asked to be heard at the end of the government's

direct examination. He explained that the government had not

disclosed that Dr. Vershvovsky would testify that Correia was still

alive while she was in his apartment, and, as a result, he was not

prepared with rebuttal testimony on this issue. The government

admitted that it too was surprised by this aspect of Dr.

Vershvovsky's testimony, but that the testimony did not contradict

her expert disclosure. The government further argued that Dr.

Vershvovsky "is subject to cross-examination on that topic" and

that there was still time for the defense to identify and present

"an additional expert."

The district court agreed with Coleman that this aspect

of Dr. Vershvovsky's testimony impermissibly exceeded the scope of

- 67 - her expert disclosure and struck that testimony when the jury

returned from its break. The court also provided a curative

instruction. The government did not object to striking the

testimony or to the curative instruction. Unsatisfied with this

remedy, Coleman moved for a mistrial on the basis that the

testimony was so prejudicial that a curative instruction was

insufficient. The court denied that motion.

We find no abuse of discretion in the district court's

ruling to deny a mistrial over Dr. Vershvovsky's testimony. That

ruling is sound under all three factors we consider in such

circumstances. See Apicelli, 839 F.3d at 86. To begin, the court

issued a curative instruction, stating:

Before we begin the cross-examination, the witness issued or made a statement concerning whether the victim was alive or dead at the moment that she was taken out of the car and into the apartment shown on the video.

I am going to strike that from the record and instruct you to disregard it. And when I say disregard it, that means it's not part of the evidence in this case, that you may not consider it in any way directly or indirectly in your consideration of the evidence in this case.

As to the substance of the instruction, Coleman's only argument on

appeal is that the court did not explain why it struck the

testimony, leaving potential for confusion. But Coleman never

asked the court to include an explanation. Cf. Apicelli, 839 F.3d

at 87 (court gave additional requested instruction not to draw a

- 68 - prohibited conclusion). Thus, we see no basis for concluding the

instruction was inappropriate.

The instruction was also prompt. The district court

acted quickly after hearing Coleman's argument on this issue,

providing the curative instruction only about 30 minutes after the

challenged testimony.

Finally, Coleman has not shown that Dr. Vershvovsky's

testimony was so inflammatory that "responsible jurors w[ould] not

be able to put the testimony to one side" despite being instructed

to do so. Sepulveda, 15 F.3d at 1185; see also id. (we "start

with a presumption that jurors will follow a direct instruction to

disregard matters improvidently brought before them"). Coleman

argues that Dr. Vershvovsky's testimony was extremely prejudicial

because the jury must have relied on it to conclude that he held

Correia during the car ride and in his apartment, satisfying the

appreciable hold element. At closing, however, the government

argued that Coleman strangled Correia in the minutes they were

together in his parked car on Tremont Street, and that he avoided

the police on the one-way street because "by [that] time he had a

dead body in the seat right next to him." Coleman fails to explain

why the jury would have dwelled on testimony that the district

court promptly instructed it to disregard instead of accepting the

- 69 - government's theory at closing that he killed Correia in his car.27

And, for the reasons we explain below, see infra Section II.F.2,

the evidence was sufficient for the jury to find an appreciable

hold under the government's theory of the case. Thus, we conclude

that the district court did not abuse its discretion in denying

Coleman's motion for a mistrial as to Dr. Vershvovsky's testimony.

2. Mondesir's Testimony During the Defense's Case

We next turn to Coleman's challenges to the district

court's rulings during Mondesir's testimony close to the end of

trial. As a reminder, Mondesir initially testified during the

government's case. But based on the court's decision that Coleman

could introduce reputation testimony about Correia's alleged sex

work, Coleman recalled Mondesir during his case. Coleman expected

Mondesir to testify consistently with statements she had provided

to the police during its investigation of Correia's death.28

Mondesir's second appearance on the witness stand was

chaotic. When Coleman asked whether Mondesir was back in court

voluntarily and whether she had refused to speak with his counsel,

27 Indeed, the government's disavowal of Dr. Vershvovsky's statement could have led the jury to doubt other aspects of her testimony and thus could have been detrimental to the government's case. 28 Because Mondesir's statements to the police are not part of the public record in this case and were filed under seal in our court, we do not recount them in detail. We describe only one statement, which Coleman asked Mondesir about during trial.

- 70 - Mondesir responded "[w]hy would I want to talk to you? Why are

you dragging me back here to answer questions that has nothing to

do with nothing? He killed her. It doesn't matter what you ask

me. It doesn't matter." When defense counsel then asked whether

Correia had worked as a prostitute on the days immediately prior

to her death, Mondesir responded "[a]re you kidding me?" and

"[w]hat the fuck you looking at?" (We believe this second comment

was directed at the defendant, not his counsel.) After being asked

the same question again, Mondesir simply responded "no." Defense

counsel then tried to refresh Mondesir's memory as to her interview

with the police. At that point Mondesir asked why she was back on

the stand and explained how detrimental the proceeding was to her

mental health. The district court instructed defense counsel to

wrap up, and counsel asked whether Mondesir told the police that

Correia "was working as a prostitute on an as-needed basis, mostly

on the weekends." At that point, Mondesir invoked her Fifth

Amendment right not to incriminate herself. The court then

instructed the jury that if it believed Mondesir made this earlier

statement to the police, it could consider the statement "in

assessing her credibility," but not for its truth.

Coleman objected to the district court's instruction,

arguing that Mondesir's prior statement was admissible under

Federal Rule of Evidence 807, the residual exception to the hearsay

rule. The court overruled his objection. Coleman then moved for

- 71 - a mistrial and also moved the court to reconsider its exclusion of

Mondesir's statements to the police. The court denied both

motions.

i. Exclusion of Mondesir's Statements to the Police

Coleman argues that Mondesir's prior statements to the

police were admissible under Rule 807 and that their exclusion

violated his Sixth Amendment right to present a complete defense.

In so arguing, he does not contest that her statements were

hearsay. As a reminder, we review the district court's evidentiary

rulings for abuse of discretion and its constitutional rulings de

novo. See Brown, 510 F.3d at 66; Brown, 669 F.3d at 19. Despite

the different standards of review, the analysis overlaps. Under

Rule 807, a hearsay statement with sufficient guarantees of

trustworthiness may be admitted for its truth when "it is

more probative on the point for which it is offered than any other

evidence that the proponent can obtain through reasonable

efforts." Fed. R. Evid. 807(a)(2). Similarly, whether Coleman

was entitled to introduce evidence of Correia's alleged prior sex

work in order to present a complete defense hinges in large part

on the probative value of this evidence. See supra Section

II.D.4.i.

Even assuming Mondesir's alleged statement to the police

was trustworthy, it was at most marginally probative of whether

Coleman and Correia had consensual sex on the night that Correia

- 72 - died. As we explained earlier, Correia's previous sexual

relationships with individuals she already knew were not

predictive of how she would interact with someone who was a

complete stranger. Instead, the inference that any prior sex work,

in and of itself, made it more likely that Correia would consent

to sex with any man in any situation is the sort of highly

prejudicial inference that led to Rule 412. See Fed. R. Evid.

412.

Further, the statement by Mondesir that Coleman sought

to introduce was stripped of its context. Mondesir's discussion

with the police in no way suggested that Correia would have agreed

to a commercial sex transaction with a man she met on the street

on the night that she was celebrating her birthday.

Additionally, as compared to other evidence in the

record, Mondesir's alleged statement was not "more probative" of

whether Coleman and Correia had consensual sex that night. Fed.

R. Evid. 807(a)(2). For example, Dr. Vershvovsky had already

testified that the autopsy she conducted revealed no physical signs

of force or harm to Correia's genitals.

Considering the record as a whole, we see no evidentiary

or constitutional error in the district court's decision not to

admit Mondesir's alleged statement for its truth.

- 73 - ii. Invocation of the Fifth Amendment

The parties make several arguments about Mondesir's

assertion of her Fifth Amendment right not to incriminate herself.

Coleman argues that the district court abused its discretion by

ruling that Mondesir had validly asserted her Fifth Amendment

privilege. He also argues, in the alternative, that if Mondesir

had properly asserted this privilege, her prior statement to the

police should have come in as a statement against interest under

Federal Rule of Evidence 804(b)(3). The government, for its part,

argues that Coleman failed to preserve this challenge, such that

plain error review applies, and that he has waived the claim

entirely by failing to address the plain error standard on appeal.29

See United States v. Aponte-Colón, 104 F.4th 402, 415 (1st Cir.

2024).

We bypass the Fifth Amendment issues because we conclude

that Mondesir's alleged prior statement was inadmissible,

regardless of whether the privilege applied. To the extent Coleman

argues that he should have been able to question Mondesir about

29As the government points out, Coleman did not contemporaneously object to Mondesir's assertion of the Fifth Amendment privilege. Coleman did, however, file a motion for mistrial the next day, in which he contended that Mondesir had been allowed to "improperly assert a 'Fifth Amendment privilege' where it is clear that none exists." In denying that motion, the district court noted that it was "by no means clear . . . that that was a bad faith assertion of a Fifth Amendment right" in light of the relevant crimes.

- 74 - her earlier statement to the police, even though she invoked the

Fifth Amendment, the testimony that he sought to elicit would have

been a characterization of Mondesir's prior statement, and that

prior statement was itself inadmissible hearsay. Cf. United States

v. Cascella, 943 F.3d 1, 6 (1st Cir. 2019) (foregoing deciding

"whether the handling of the privilege-pleading witness was error"

because that error was harmless). Mondesir's prior statement also

would have been inadmissible under Rule 412 for the very same

reasons that the evidence regarding specific instances of

Correia's prior sexual behavior was inadmissible. See supra

Section II.D.4.i. Thus, there was a real risk of encouraging the

jury to decide the case on improper grounds. See Haines, 918 F.3d

at 699 ("[T]he district court enforces the Rule to ensure that the

jury decides the case based on proper considerations."). As a

result, there was no error in excluding the statement, and we need

not analyze the parties' Fifth Amendment arguments.

iii. The Second Motion for a Mistrial

We turn now to Coleman's argument that the district court

abused its discretion by denying his motion for a mistrial after

Mondesir's testimony. Coleman's strategic decisions at the

district court undermine his claim that the "last resort" of

mistrial was appropriate here. Apicelli, 839 F.3d at 86. For

example, he did not ask the court to strike Mondesir's testimony

- 75 - or request a curative instruction, despite the court's invitation

for him to do so.

Coleman insists, however, that only a mistrial would

have been sufficient because Mondesir provided false testimony and

caused a scene in the courtroom. To Coleman's first point, we are

not convinced that Mondesir's testimony was false. Having

carefully reviewed Mondesir's interview with the police, it is not

clear that she would have described Correia's conduct as "working

as a prostitute in the time period shortly before she died," which

is how Coleman phrased his question to her at trial. Mondesir had

used other terms to describe Correia's prior sexual behavior, and

it was the police officer interviewing her who described Correia's

conduct as "prostitution."30 To the extent Mondesir's testimony

was misleading, we cannot conclude it was so prejudicial as to

require a mistrial, given our conclusion about the marginal

probative value of her statement to the police.

To Coleman's second point, he has not demonstrated how

Mondesir's "outbursts" in the courtroom prejudiced him to such an

extent that "the last resort" of a mistrial was in order. The

government argues that these outbursts largely reflected

Mondesir's frustration at having to return to court to take the

Because we do not agree that Mondesir gave false testimony, 30

we also reject Coleman's argument in his pro se brief that the government violated his due process rights by failing to correct Mondesir's "false statements."

- 76 - stand for a second time. And the record indicates that Mondesir's

only statement directed at Coleman was that "[h]e killed her."

But Coleman admitted to causing Correia's death; he disputed only

how she died. On this record, we cannot conclude that the district

court abused its discretion when it denied the motion for a

mistrial.

F. Sufficiency of the Evidence

At the close of the government's case, Coleman moved for

a judgment of acquittal, arguing that the government had failed to

introduce evidence sufficient to establish the elements of

kidnapping. The district court denied Coleman's motion in a

thorough oral decision, finding the evidence sufficient as to each

element. Coleman renewed his motion at the close of evidence, and

the court denied it again.

We review a preserved sufficiency challenge de novo.

See United States v. Falcón-Nieves, 79 F.4th 116, 123-24 (1st Cir.

2023). "[T]he relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Id. at 123 (quoting United

States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)). As we have

explained:

If the evidence "viewed in the light most favorable to the verdict gives equal or nearly equal circumstantial support to a theory of

- 77 - guilt and a theory of innocence of the crime charged, this court must reverse the conviction. This is so because . . . where an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the prosecution, a reasonable jury must necessarily entertain a reasonable doubt."

United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (internal

quotation marks omitted) (quoting United States v. Flores-Rivera,

56 F.3d 319, 323 (1st Cir.1995)).

To set the stage for our analysis, we briefly recount

the elements of kidnapping. Under the federal kidnapping statute,

the government had to show that Coleman (1) seized Correia and (2)

held her for an appreciable time against her will (3) for ransom

or reward or otherwise, and (4) willfully transported her in

interstate commerce. See 18 U.S.C. § 1201(a)(1); Chatwin, 326

U.S. at 459-60. On appeal, Coleman contends that the government

failed to establish the first three elements of kidnapping,

including by failing to establish his intent as to these elements.

1. Seizure

Coleman argues that the government did not introduce

sufficient evidence to meet the seizure element. This element can

be met either by a physical or nonphysical taking. See 18 U.S.C.

§ 1201(a) ("Whoever unlawfully seizes, confines, inveigles,

decoys, kidnaps, abducts, or carries away . . . any person

. . . ."). In its opening statement, the government indicated

- 78 - that "[t]he evidence will show how [Coleman] lured [Correia] into

his car, confined her there, sexually assaulted her, strangled her

to death, and transported her across state lines into Rhode Island,

all against her will." In its closing argument, the government

contended that "[Coleman] tricked [Correia]."

There is no direct evidence in the record as to whether

Coleman deceived Correia about his intentions that night. In fact,

the record documents only five words from Coleman to Correia on

February 24: Alqasir's testimony that Coleman told Correia

something like "this is not your Uber." The government presented

video evidence of Coleman and Correia talking briefly after that

interaction, holding hands, and eventually walking together to his

car. But there is no audio of their conversation.

The district court concluded that, viewing the record in

the light most favorable to the government, the circumstantial

evidence was sufficient for a reasonable jury to find beyond a

reasonable doubt that Correia was seized. In particular, it held

that a jury could conclude that Coleman "enticed [Correia] into

the vehicle with the promise of a ride, but that [his] purpose was

to hold or detain her for purposes of sexual gratification."

We agree with the district court's assessment of the

record. The government presented evidence that Correia intended

to return to Mondesir's apartment after leaving Venu. Hiltz

testified that Correia told her that she was staying with Mondesir

- 79 - that night and that she would "get an Uber home." And Mondesir

testified that Correia left her belongings, including the keys to

her own residence, at Mondesir's apartment. In the moments before

Coleman approached Correia, Correia tried to get into a car with

an Uber decal. Thus, the jury could have reasonably inferred that

she was attempting to follow through on her plan to find an Uber

to Mondesir's apartment. Further, a reasonable jury could infer

that she left with Coleman because he offered her a ride. The

fact that Coleman and Correia spoke for less than a minute before

they walked away together also supports that inference. As the

government argues, in light of all this evidence, the most obvious

explanation for Correia's quick agreement to leave with Coleman is

that he offered to drive her to Mondesir's apartment.

According to Coleman, however, it was equally likely,

based on the evidence, that he offered Correia a ride and she later

"agreed to have sex with [him]." He also argues that because the

evidence was insufficient to show that he intended to sexually

assault Correia, the government could not establish that he

intended to deceive her. In support, he points to the evidence

that he began that Saturday night seeking to go out with friends,

spent his time in Venu with a willing partner, and calmly separated

from that partner when she went home with her brother.

Coleman overlooks, however, the evidence that the

district court highlighted in its sufficiency ruling, as well as

- 80 - the court's obligation to view that evidence in the light most

favorable to the government. That evidence indicated that Coleman

approached an intoxicated young woman who was separated from her

friends, without her shoes or jacket on a winter night, and had

sex with her in his car just minutes later. Further, the evidence

indicated a struggle in the car. As the district court reasoned,

the most likely inference that a jury could draw from these

circumstances, even if it was not the only possible inference, was

that Coleman formed the intent to assault Correia before or soon

after he approached her. See Morillo, 158 F.3d at 22 (we assess

"all reasonable inferences[] in the light most favorable to the

verdict" (quoting United States v. Garcia, 983 F.2d 1164, 1163

(1st Cir. 1993))).31

Because the evidence was sufficient to find that Coleman

deceived Correia about his intent when they began to walk to his

car, it was sufficient to satisfy the seizure element. See United

States v. Stands, 105 F.3d 1565, 1576 (8th Cir. 1997) (finding

sufficient evidence of seizure by inveiglement or decoy where the

victim was lured into a car under a false pretense about the

destination when in fact the plan was to take the victim to an

31 That Coleman had respectful interactions with one woman that night was not especially probative of whether he was capable of assaulting a different woman, particularly in light of the strong evidence of sexual assault we discuss below. See infra Section II.F.3.

- 81 - isolated location to assault him); United States v. Hughes, 716

F.2d 234, 239 (4th Cir. 1983) ("By inducing his victim by

misrepresentations to enter his vehicle and to accompany him, and

knowing that the victim's belief as to their purpose and

destination is different from his actual illicit purpose, the

kidnapper has interfered with, and exercised control over, her

actions. We find this conduct sufficient to satisfy the

'involuntariness of seizure and detention' requirement . . . .").

2. Holding

Coleman next contends that there was insufficient

evidence to establish that he held Correia against her will for an

"appreciable period." We begin with the legal framework for what

qualifies as "holding" under the federal kidnapping statute. We

then turn to Coleman's argument that the evidence was not

sufficient to support the holding element.

i. The Holding Requirement

The appreciable period requirement comes from the

Supreme Court's seminal decision about the federal kidnapping

statute, Chatwin v. United States. In that case, the Court

explained that the "act of holding a kidnapped person" implies "an

- 82 - unlawful physical or mental restraint for an appreciable period."

326 U.S. at 460 (emphasis added).32

Although several of our sister circuits have held that

the appreciable period requirement is not met when a kidnapping is

incidental to the commission of another crime, such as extortion

or assault, we disagree and reject that view. These circuits

generally treat a kidnapping as incidental to another crime when

the time of the hold is not considerably longer than the time it

takes to commit the other crime. See Gov't of the Virgin Islands

v. Berry, 604 F.2d 221, 227 (3d Cir. 1979) (adopting a four-factor

test to determine whether kidnapping is incidental to another

crime); United States v. Howard, 918 F.2d 1529, 1535-36 (11th Cir.

1990) (adopting and applying Berry); United States v. Jackson, 24

F.4th 1308, 1314 (9th Cir. 2022) (same); see also United States v.

Krivoi, 80 F.4th 142, 153 (2d Cir. 2023) (adopting a "narrowing

gloss" on the federal kidnapping statute similar to the Berry

32The government suggested in its brief that we could ignore this requirement because it is not found in the statute's text. We disagree. "We are bound by the Supreme Court's 'considered dicta.'" United Nurses & Allied Pros. v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020) (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). In any event, the government agreed at oral argument that because the jury was instructed that the hold must be appreciable, the only issue on appeal is whether there was sufficient evidence to meet that standard.

- 83 - test);33 United States v. Murphy, 100 F.4th 1184, 1199 (10th Cir.

2024) (not adopting Berry but interpreting § 1201 to require "an

appreciable temporal period of detention (i.e., holding) beyond

that necessary to commit any other offense.").

Based on the plain language of the statute, we decline

to adopt the requirement formulated in Berry and elsewhere that

when a victim is necessarily held during the commission of another

crime (e.g., assault or homicide), the hold must be appreciably

longer than the time it takes to commit that offense. The

kidnapping statute uses only the world "holds." 18 U.S.C.

decoys, kidnaps, abducts, or carries away and holds for ransom or

reward or otherwise any person . . . shall be punished by

imprisonment . . . ." (emphasis added)). There is no indication

from either the single word "holds" or the surrounding statutory

context that Congress contemplated an "incidental kidnapping"

exception.

The federal kidnapping statute was amended in 1934, two

years after it was enacted, to broaden the purpose element from

"for ransom or reward" to "for ransom or reward or otherwise."

33The U.S. Court of Appeals for the Second Circuit adopted the following test: "When a defendant is charged with both kidnapping and another offense, the defendant's conduct satisfies section 1201(a)'s second element . . . only if the defendant held the victim for a period that was appreciably longer than the time required to commit the other offense." Krivoi, 80 F.4th at 153.

- 84 - See Gooch, 297 U.S. at 127-28 (discussing the amendment). As we

discussed earlier, see supra Section II.A, the term "otherwise"

could encompass a criminal purpose, such as sexual assault. In

light of the amendment, it makes little sense to us that "an

extended detention would be a kidnapping if done just for the sake

of it, but not a kidnapping if done to accomplish some attendant

offense." Cardozo v. United States, 315 A.3d 658, 676 (D.C.

2024).34

Our sister circuits relied on Chatwin's discussion of

the risks of overzealous prosecution to justify the incidental

kidnapping exception. See, e.g., Berry, 604 F.2d at 226; Krivoi,

80 F.4th at 153. In Chatwin, the Supreme Court expressed its

concern that a broad reading of the federal kidnapping statute

could be used to prosecute "unattractive or immoral situations

lacking the involuntariness of seizure and detention which is the

very essence of the crime of kidnap[p]ing." 326 U.S. at 464. The

Court went on to state that "the purpose of the Act was to outlaw

interstate kidnap[p]ings rather than general transgressions of

morality involving the crossing of state lines." Id.

But we do not understand the Supreme Court's language in

Chatwin -- which emphasized the risk of prosecuting immoral, not

34 The District of Columbia Court of Appeals rejected the Berry test in the context of D.C.'s kidnapping law, which was modeled after the federal statute and enacted just one year later. See Cardozo, 315 A.3d at 666 n.3, 669.

- 85 - illegal, behavior -- to have endorsed an atextual exception to the

kidnapping statute when seizure and detention are incidental to

another crime. Instead, the requirements that a victim be seized

and held involuntarily for an appreciable period serve to ensure

that the federal kidnapping statute, which carries severe

penalties, is not applied to situations "lacking the

characteristics of true kidnap[p]ings." Id. For this reason, we

do not agree with Coleman that adopting an "incidental kidnapping"

exception is necessary to ensure that the government does not

charge crimes such as robbery and sexual assault as kidnapping.

ii. The Sufficiency of the Evidence to Establish a Holding

Having clarified our understanding of the holding

requirement of 18 U.S.C. § 1201(a), we turn to Coleman's argument

that the government did not produce sufficient evidence for the

jury to find that Coleman held Correia for an appreciable period.

For the reasons we set out above, we reject Coleman's argument

that we must subtract the time it would have taken to hold Correia

during a sexual assault and homicide in evaluating the evidence on

whether the hold was "appreciable." As a reminder, the government

argued that the sexual assault and homicide occurred during the

12-minute stop on Tremont Street. Thus, we focus our analysis on

what we perceive to be the possible time periods for the hold,

including the 12-minute stop during which the government alleged

Coleman sexually assaulted and killed Correia.

- 86 - The parties disagree about the duration of the hold.

The government argues that the hold was 27 minutes, claiming that

it began when Coleman deceived Correia into leaving with him and

ended sometime during the 12-minute stop on Tremont Street. For

his part, Coleman contends that the hold cannot include the

6-minute walk to his car because even if he deceived Correia, she

was not confined during the walk. We conclude that we need not

resolve whether both the seizure and the hold began when Coleman

allegedly deceived Correia into walking to his car.35

Whether the hold was 27 minutes, including the walk to

Coleman's car, or 21 minutes, excluding the walk to the car, a

reasonable jury could conclude, based on the facts here, that the

hold was for an appreciable period. In applying Chatwin's

requirement that a hold be appreciable, courts assess not only the

duration of a hold but also its qualitative aspects. See, e.g.,

Krivoi, 80 F.4th at 151 ("[W]hen determining whether a victim's

As we discuss in detail later, a hold could be carried out 35

through deception alone. See infra Section II.G.1.iii. At oral argument, Coleman contended that, separate from the question of whether a hold can be accomplished by deceit, the circumstances of the walk to his car suggested it could not count as part of the hold. He pointed out that Correia was not "led away" because she was interacting with multiple people, she was in a populated area, she appeared to leave with Coleman voluntarily, she was able to support herself and jump onto Coleman's back, and she entered his car herself. Because a reasonable jury could find that the hold here was appreciable even after subtracting the time to walk to Coleman's car (thus leaving a 21-minute time period), we need not resolve whether indicia of voluntariness could undermine a finding that the walk was part of the hold.

- 87 - detention is 'appreciable,' we consider not only the detention's

length but also other aspects of the detention, such as the extent

of the danger posed to the victim."); Cardozo, 315 A.3d at 678

(although the duration of a hold is a key factor, in close cases

"a jury can and should consider the entire factual context of the

situation when determining if somebody has been held for such a

time and in such a manner that they could be fairly described as

being held captive as a hostage or a prisoner").36 One such

qualitative aspect is the isolation of the victim, which we have

noted is dangerous precisely because it "increases the likelihood

that the victim will be harmed." United States v. Cunningham, 201

F.3d 20, 28 (1st Cir. 2000) (citation omitted) (reviewing the

application of an "abduction" enhancement under the U.S.

Sentencing Guidelines, § 2E2.1(b)(3)(A), to a non-kidnapping

crime). Here, the government presented evidence that Correia was

isolated from her friends, was moved from a more populated area to

a less populated area, and was strangled to death. From the

evidence in this case, a rational jury could find that either a

21-minute or a 27-minute hold was appreciable.

36 Coleman cites Cardozo for the proposition that a hold less than 30 minutes is generally not appreciable. See 315 A.3d at 677-78. But in Cardozo, the D.C. Court of Appeals explicitly rejected a bright-line rule and made clear that the court and the jury should consider whether "other hallmarks of kidnappings are present in [close] cases." Id. at 678.

- 88 - Coleman argues that several pieces of evidence undermine

this finding: videos showed that Tremont Street was well-lit when

the car stopped for 12 minutes, they did not show the car moving

or any signs of struggle, and there was testimony that Correia

could have opened the passenger side door. He claims that, based

on this evidence, it is "equally plausible that Coleman and Correia

had consensual sex during this time, and the struggle resulting in

her death happened later, during the unrecorded hours."

We disagree that Coleman has presented an "equally

plausible" theory requiring a ruling in his favor on sufficiency

grounds. The jury watched videos showing that after the stop on

Tremont Street, Coleman drove down a one-way street and then drove

quickly in reverse on that same street in the wrong direction when

he encountered two police cars. Based on that evidence, the jury

could have reasonably found that Correia was already dead, or

incapacitated by serious injuries, after the stop on Tremont

Street. Because there was no other time before the 12-minute stop

when the assault and homicide could have occurred, it was not

equally as likely that Coleman and Correia had only consensual sex

during that 12-minute stop. And, as to the testimony that Correia

could have opened the passenger side door, the jury also heard

testimony that Coleman weighed 200 pounds and Correia weighed only

119 pounds. Finally, the jury heard testimony that Correia's

toxicology report showed a blood alcohol concentration level that

- 89 - was three times the level of presumptive intoxication in

Massachusetts. Under these circumstances, regardless of whether

Coleman had locked the doors and whether Correia technically could

have opened the passenger side door, we agree with the district

court that "[i]t might not have been obvious to her" that she could

do so, especially when it was fair to conclude that she was

"intoxicated and panicking and struggling." Thus, the evidence

was sufficient for the jury to conclude that Correia was confined

in the car.

3. Purpose

Coleman next argues that there was insufficient evidence

to satisfy the purpose element of the kidnapping statute. The

government argued at trial that Coleman either held Correia for

sexual gratification or to prevent her from reporting a crime to

the police. Because both theories were premised on a sexual

assault having occurred, Coleman argues that there was

insufficient evidence as to the purpose element because there was

insufficient evidence that intercourse was nonconsensual.

We disagree. To be sure, Dr. Vershvovsky testified that

there were no injuries to Correia's genitals, but she also

testified that this did not rule out sexual assault. Considering

the DNA evidence of sexual intercourse and the evidence of a

struggle in the car -- including the injuries to the rest of

Correia's body and the cracks in the windshield of the car -- the

- 90 - jury could reasonably infer that Correia did not consent to sex

with Coleman.

This same evidence undermines Coleman's argument that

the government did not prove that he intended to seize Correia and

hold her against her will for personal benefit. For the reasons

we have discussed, a rational jury could find that Coleman deceived

Correia into walking to his car when his intent was to sexually

assault her, and thus that he had the intent to hold her for the

time necessary to assault her.

G. Jury Instructions

Coleman argues that the district court committed several

errors in instructing the jury that, either independently or

cumulatively, require reversal.

We review "[a] district court's refusal to give a

requested instruction . . . de novo." United States v.

Figueroa-Lugo, 793 F.3d 179, 191 (1st Cir. 2015). To prove error,

the defendant bears an initial burden to show that "the evidence,

viewed in the light most favorable to the defense, 'can plausibly

support the theory of the defense.'" Id. (quoting United States

v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998)). "Assuming that the

defendant satisfies this initial burden, we 'will reverse a

district court's decision to deny the instruction only if the

instruction was (1) substantively correct as a matter of law, (2)

not substantially covered by the charge as rendered, and (3)

- 91 - integral to an important point in the case so that the omission of

the instruction seriously impaired the defendant's ability to

present his defense.'" Id. (quoting United States v. Baird, 712

F.3d 623, 628 (1st Cir. 2013)). In conducting this analysis, we

will assume Coleman met his burden of demonstrating that the

evidence plausibly supported his theory of the case.37

We take each of Coleman's challenges to the jury

instructions in turn and ultimately reject each of them.

1. The Seizure Element Instructions

Coleman challenges the district court's refusal to adopt

several of his proposed instructions on the seizure element and

argues that the instruction that the court did provide was

erroneous. First, he requested an instruction defining "inveigle"

as to "entice, cajole, or tempt a victim by false promises, false

representations, or other deceitful means." Second, he requested

two instructions that the government must prove that he "seized,

confined, inveigled, decoyed, kidnapped, abducted, or carried away

the victim without her consent." Third, Coleman requested an

37 Coleman generally challenges both the district court's refusal to give his requested instructions and the district court's jury instructions. We analyze the latter challenge "under a two-tiered standard." United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir. 2010). We review whether the district court's instructions contained an error of law de novo, but "we review for abuse of discretion whether the instructions adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues." Id. (internal quotation marks omitted) (quoting United States v. Silva, 554 F.3d 13, 21 (1st Cir. 2009)).

- 92 - instruction that the jury must "must be convinced beyond a

reasonable doubt that [he] had the willingness and intent to use

physical force to complete the kidnapping if the deception failed"

in order to find that he inveigled or decoyed Correia.

The district court rejected these proposed instructions.

Instead, it instructed the jury on seizure as follows:

The first element of the crime of kidnapping that the government must prove is that the defendant unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away the victim.

. . .

"Inveigle" and "decoy" both involve the non-forcible taking of a victim, in which a defendant entices or lures the victim in some way into accompanying him or remaining with him.

To "inveigle" means to entice, cajole, or tempt a victim. That may include deceitful means, such as false promises or representations, although such false promises or representations are not required.

To "decoy" means to entice or lure a victim by means of some fraud, trick or temptation.

The fact that the victim may have accompanied the defendant voluntarily at first does not necessarily mean that a kidnapping did not occur. Even if the victim accompanied the defendant voluntarily at first, circumstances might have changed, and the defendant at some later point may be found to have seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away the victim.

- 93 - i. "Inveigle"

We begin with the district court's instruction defining

"inveigle." The heart of the parties' dispute is whether

"inveigle" requires an element of deceit. The court instructed

the jury that inveiglement "may include deceitful means, such as

false promises or representations, although such false promises or

representations are not required." (Emphasis added). Coleman

argues that this instruction was erroneous because "inveigle" in

the context of the federal kidnapping statute must involve deceit.

The government responds that Coleman has waived this argument for

lack of development and that, in any event, the district court's

instruction was entirely proper.

We have not previously addressed the meaning of

"inveigle," and we see no reason to do so here because the

instructional error that Coleman alleges could not, on the facts

of this case, have affected the verdict.38 Cf. United States v.

McLellan, 959 F.3d 442, 466 (1st Cir. 2020) (explaining that an

overly broad instruction is not grounds for reversal if "it appears

beyond a reasonable doubt" that the instruction did not affect the

verdict). The government's theory at trial was that Coleman

deceived Correia. The government relied on evidence that Correia

intended to return to Mondesir's apartment after leaving Venu and

38 For that same reason, we bypass the government's waiver argument.

- 94 - that Coleman had been "shut down with respect to getting together

with [another woman]" to argue that Correia left with Coleman

because he offered "to give her a ride where she wanted to go,"

but his real intent was "to have sex with her." The government

summed up its theory like this: "He tricked her. So, in other

words, the defendant decoyed and inveigled [Correia], and as a

result, [she] set off with the defendant towards his car."

Coleman, for his part, argued during closing that the evidence

showed Correia voluntarily left with him, they had consensual sex,

and they later ended up in a violent altercation resulting in

Correia's death. Responding directly to the government's theory,

Coleman claimed that there was no evidence that he had offered

Correia a ride as a trick.

Ultimately, the jury heard no argument that Coleman

inveigled Correia through non-deceitful means. From the evidence

presented, the jury was free to make the inference that the

government urged -- that Coleman deceived Correia by offering her

a ride to Mondesir's apartment. It was also free to reject that

inference and accept Coleman's argument that Correia went with him

willingly. But if the jury agreed with Coleman, then we must

presume that it followed the district court's instruction that

"[e]ven if the victim accompanied the defendant voluntarily at

first, circumstances might have changed," such that the jury could

find that "the defendant at some later point . . . seized,

- 95 - confined, inveigled, decoyed, kidnapped, abducted, or carried away

the victim." Remember, the jury could have found that the seizure

began in the car, and there was ample evidence of a physical

struggle, leading to Correia's death. See supra Section II.F.2.ii.

Thus, we determine that the instructional error Coleman alleges

could not have altered the verdict here and would have been

harmless beyond a reasonable doubt. To be clear, we are not

suggesting that an error occurred as to this instruction.

ii. Consent

The district court did not err in denying Coleman's

request for an instruction about consent. Coleman requested the

district court to instruct the jury, both in the overview of the

elements of kidnapping and in the definition of the seizure

element, that the government must prove "that the defendant

unlawfully seized, confined, inveigled, decoyed, kidnapped,

abducted, or carried away the victim without her consent." The

court rejected this request and left out the phrase "without her

consent" in both places. It later gave an instruction about

consent as it related to the holding element. Coleman argues that

the refusal to give his proposed instruction was erroneous. The

government does not contest that Coleman's proposed instruction

was substantively correct but rather argues that the district court

"effectively" addressed consent with its own instruction.

- 96 - Coleman's requested instruction was substantively

correct as a matter of law. The Supreme Court has explained that

"the involuntariness of seizure and detention . . . is the very

essence of the crime of kidnapping." Chatwin, 326 U.S. at 460

(emphasis added); see also Powell, 226 F.3d at 1194 (finding an

instruction explaining that both seizure and detention require a

lack of consent sufficiently covered the lack of consent element).

Thus, it would have been appropriate to include an explicit

instruction regarding consent in describing both the seizure and

holding elements.

The district court did not err by refusing to include

Coleman's proposed instruction, however, because the proposed

instruction was already substantially covered by the court's other

instructions. In reference to the seizure element, the court

instructed the jury as follows:

The fact that the victim may have accompanied the defendant voluntarily at first does not necessarily mean that a kidnapping did not occur. Even if the victim accompanied the defendant voluntarily at first, circumstances might have changed, and the defendant at some later point may be found to have seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away the victim.

(Emphasis added). The concept of voluntariness comes from the

language used in Chatwin and, in our view, fairly covers the

concept of consent. See 326 U.S. at 464. By instructing the

jurors that they could find the seizure element met if

- 97 - circumstances changed after Correia voluntarily left with Coleman,

the court necessarily indicated that leaving voluntarily with

Coleman would not satisfy the seizure element.

Coleman separately argues that the district court's

instruction regarding voluntariness was improper because it

included a "factual scenario[]" and thus suggested the verdict.

We disagree that the instruction suggested the verdict. Instead,

it correctly explained that Correia could still be seized even if

she consented to walk to Coleman's car. Accordingly, we find no

error in the district court's treatment of the consent issue.

iii. Physical Force

The district court did not err by rejecting Coleman's

proposed instruction about a physical force requirement. Coleman

requested an instruction that "[t]o find the defendant inveigled

or decoyed the victim, you must be convinced beyond a reasonable

doubt that the defendant had the willingness and intent to use

physical force to complete the kidnapping if the deception failed."

Coleman cannot succeed on this challenge because his

proposed instruction was not a correct statement of law. The

federal kidnapping statute includes no physical force requirement,

and the words themselves -- "inveigle" and "decoy" -- do not

implicitly suggest such a requirement. Nor do the cases cited by

Coleman establish a physical force requirement. See United States

v. Boone, 959 F.2d 1550, 1555 (11th Cir. 1992) (requiring that a

- 98 - defendant have the intent to use physical or psychological force

to complete a kidnapping by inveiglement); United States v. Gillis,

938 F.3d 1181, 1207-09 (11th Cir. 2019) (discussing Boone); United

States v. Higgs, 353 F.3d 281, 313-14 (4th Cir. 2003) (applying

Boone's physical or psychological force test).

In Chatwin, the Court concluded that there was "no proof

that [any defendant] willfully intended through force, fear or

deception to confine the girl against her desires." 326 U.S. at

460. This conclusion strongly suggests that a kidnapping through

inveiglement or decoy could be established where the kidnapper

only used deception to confine a victim. Because neither the

statute nor the relevant case law supports a physical force

requirement, the district court did not err in rejecting Coleman's

proposed instruction. Further, whether the statute's text

requires psychological force is not at issue in this case, so we

do not reach that question.

2. The Holding and Purpose Elements Instructions

Coleman raises two challenges related to the holding

element instructions. The district court instructed the jury as

follows:

[T]he government must prove that the defendant held or detained the victim against her will for "ransom, reward, or otherwise."

Here, the government alleges that the victim was held not for "ransom or reward," but

- 99 - "otherwise" -- that is, for one or more other purposes.

The term "otherwise" can include holding or detaining a person (1) for purposes of sexual gratification or (2) to prevent detection of a crime or a report to law enforcement.

Coleman argues that the district court's instruction was

erroneous because it bolstered the government's case and permitted

a conviction for any reason, such as anger, confusion, or fear.

He contends that the district court instead should have adopted

his proposed instruction, which would have replaced "otherwise"

with "other benefit [to Coleman]" and excluded the sentence

beginning with "[t]he term otherwise."39

Coleman's preferred instruction was substantively

correct as a matter of law, but it was also captured by the word

"otherwise." In Gooch, the Supreme Court explained that by adding

the phrase "or otherwise" to the language of the federal kidnapping

statute, "Congress intended to prevent transportation in

interstate or foreign commerce of persons who were being unlawfully

restrained in order that the captor might secure some benefit to

himself." 297 U.S. at 128. It further concluded that this intent

Coleman's requested instruction also included a sentence 39

stating that "otherwise" cannot be for sexual gratification. He argues on appeal that this instruction was necessary to rectify the alleged errors related to the indictment, including what he claims was a Presentment Clause violation. For the reasons we discussed earlier, see supra Section II.A, the indictment was sufficient and there was no Presentment Clause violation here. Accordingly, a curative instruction was not necessary.

- 100 - was "adequately expressed by the words of the enactment." Id.

Thus, we understand the language "or otherwise" to have captured

the same meaning as "other benefit." Further, we do not agree

with Coleman's one-sentence argument that the jury could have

interpreted "or otherwise" to mean on the basis of his anger, fear,

or confusion. The district court's instruction that "or otherwise"

is "for one or more purposes" made clear that "or otherwise" does

not include action on an emotion.

district court erred by failing to give the Berry instruction he

requested. Coleman had asked the court to instruct the jury that

it must find Correia had been "held or detained against her will

without her consent for an appreciable period of time that is

beyond that inherent in her death and alleged sexual assault."

The district court declined to give that instruction and instead

instructed the jury only that Correia must have been "held or

detained for an appreciable period against her will." For the

reasons we provided in rejecting Coleman's argument that there was

insufficient evidence of an appreciable hold, see supra Section

II.F.2.i, we also conclude that this proposed instruction was not

substantively correct as a statement of law, and thus the district

court did not err in omitting it.

- 101 - 3. The Consciousness of Guilt Instruction

Coleman argues that the district court erred in refusing

to adopt each of his proposed changes to the instruction on intent.

The court instructed the jury on assessing Coleman's intent as

In assessing the defendant's intent, you may consider evidence that he took certain actions or engaged in certain conduct after the crime was alleged to have been committed. Such actions or conduct may indicate that the defendant thought he was guilty of one or more crimes and was trying to avoid detection and punishment. You are not required to draw such an inference, but you may do so if it is reasonable to do so under the circumstances. Mere flight, without more, is not necessarily indicative of feelings of guilt. It is up to you to decide what weight, if any, to give to any such evidence.

Coleman had requested three additions to the instruction, which

the court did not adopt. His suggestions would have resulted in

the following complete instruction:

In assessing the defendant's intent, you may consider evidence that he took certain actions or engaged in certain conduct after the crime was alleged to have been committed. Such actions or conduct may indicate that the defendant thought he was guilty of the crime charged and was trying to avoid detection and punishment. You are not required to draw such an inference, but you may do so if it is reasonable to do so under the circumstances. Mere flight, without more, is not necessarily indicative of feelings of guilt. It is possible that the fleeing person is innocent but believes that contact with police could be dangerous. It is up to you to decide what weight, if any, to give to any such evidence,

- 102 - but "consciousness of guilt" evidence is never enough by itself to convict a person of a crime.

(Emphasis added).

Assuming that Coleman's suggested additions were

substantively correct as a matter of law, he has developed no

argument as to why their omission "seriously impaired [his] ability

to present his defense." Figueroa-Lugo, 793 F.3d at 191. He makes

no argument as to his first proposed addition at all, and thus we

deem that claim of error waived. See Zannino, 895 F.2d at 17.

Regarding the second requested addition, Coleman remained free to

argue the point. He articulates no reason why this statement

needed to be included in the jury instructions, which already

stated that "mere flight, without more, is not necessarily

indicative of feelings of guilt." Finally, regarding the third

requested addition, the district court instructed the jury on the

requirements of the kidnapping statute in detail. There is no

reason to think the jury would have thought "consciousness of

guilt" alone was enough to convict.

4. Other Challenges to the Jury Instructions

Coleman raises four additional challenges to the jury

instructions. None of these challenges are meritorious.

First, Coleman requested that the district court

instruct the jury, three times, that "[t]estimony or other evidence

that has been struck is not evidence and cannot be considered by

- 103 - you." The court gave this instruction only once, when it explained

what is not evidence. It chose not to include a similar statement

in its instructions regarding improper considerations and what is

evidence because it considered that "exceedingly redundant."

There is no disagreement that Coleman's proposed instruction was

correct as a matter of law, but we see no reason why the district

court was required to provide the same instruction three times

over.

Second, Coleman requested that the district court refer

to him as Mr. Coleman and Correia as Ms. Correia, rather than as

defendant and victim, throughout the instructions. Coleman's

one-sentence argument on this point in his brief fails to persuade

us that the court erred.

Third, Coleman argues that the district court's

instruction on reaching a verdict was coercive. The court

Each of you must decide the case for yourself, but you should do so only after considering all the evidence, discussing it fully with the other jurors, and listening to the views of the other jurors.

Do not be afraid to change your opinion if you think you are wrong, but do not come to a decision simply because other jurors think it is right.

It [is] important that you reach a verdict if you can do so conscientiously. You should not hesitate to reconsider your views from time to

- 104 - time and to change them if you are persuaded that this is appropriate.

It is important that you attempt to return a verdict, of course, but only if each of you can do so after having made your own conscientious determination. Do not surrender an honest conviction as to the weight and effect of the evidence simply to reach a verdict.

Coleman objected to the inclusion of the last two paragraphs of

this instruction. He contends that instructing the jury that it

was "important" to reach a verdict and that individual jurors

should "reconsider" their views was coercive and inappropriate

before a deadlock. In his view, the instruction created Allen

charge concerns.

An Allen charge is "a supplemental instruction that a

judge may give to a jury when it is deadlocked in its

deliberations." United States v. Amaro-Santiago, 824 F.3d 154,

161 (1st Cir. 2016) (citing Allen v. United States, 164 U.S. 492

(1896)). An Allen charge can have a coercive effect, so we require

an Allen charge to include "three . . . elements to moderate any

prejudice." Id. at 163 (quoting United States v. Hernández-Albino,

177 F.3d 33, 38 (1st Cir. 1999)). "Specifically, it must '(1)

communicate the possibility of the majority and minority of the

jury reexamining their personal verdicts; (2) restate the

government's maintenance of the burden of proof; and (3) inform

- 105 - the jury that they may fail to agree unanimously.'" Id. (quoting

United States v. Peake, 804 F.3d 81, 98 (1st Cir. 2015)).

We find no error in the district court's instruction on

reaching a verdict. Coleman selectively quotes language from the

charge in his brief but, when viewed in full, the instruction

suggests only that each juror should keep an open mind and consider

the views of other jurors. The court's mild instruction on

deliberation also does not raise Allen charge concerns. The

instruction repeats twice that jurors should not change their mind

or surrender their own opinions for the sake of a verdict. It is

hard to discern any coercive effect from the instruction,

especially at the point that the instruction was given -- prior to

deliberation, when no minority and majority could have formed.

Further, the mitigating language required of a true Allen charge

would be confusing here: deliberations had not begun; the court's

charge already addressed the government's burden of proof; and the

charge made clear that the jury did not have to reach unanimity in

the last paragraph.

Fourth, Coleman argues that the district court's failure

to instruct the jury that the government had to prove Correia's

death resulted from her kidnapping was erroneous. The court

The fifth element of the crime of kidnapping that the government must prove is that the

- 106 - defendant's acts resulted in the victim's death.

To satisfy this element, the government must prove that the victim is dead, and that her death resulted from the willful and intentional conduct of the defendant. To establish that the defendant's conduct resulted in the death of the victim, the government must prove that but for the defendant's actions, the victim would not have died.

Coleman proposed an instruction replacing the reference

to "the defendant's acts" in the first sentence with "the

defendant's kidnapping" and the reference to "the willful and

intentional conduct of the defendant" with "the willful and

intentional kidnapping by the defendant." The government does not

contest that Coleman's instruction was accurate.

Coleman's instruction is substantively correct. See

United States v. Rodríguez-Santos, 56 F.4th 206, 215 (1st Cir.

2022) (the "death resulted" element of the federal kidnapping

statute requires that "kidnapping is a but-for cause of the death"

(citation omitted)). Nevertheless, we agree with the government

that the context preceding this instruction made clear that "the

defendant's acts" were those acts related to the offense of

kidnapping.

H. Sentencing

Coleman challenges his sentence, arguing that the

district court should not have applied a cross-reference that

raised the base offense level. He concedes that applying the

- 107 - cross-reference had no effect on his sentence because the federal

kidnapping statute mandates a life sentence for kidnapping

resulting in death. However, he appealed to preserve his argument

in case relief is available in the future.

The U.S. Sentencing Guidelines set the base offense

level for kidnapping at 32. See U.S.S.G. § 2A4.1(a). There is,

however, a cross-reference that states "[i]f the victim was killed

under circumstances that would constitute murder under 18 U.S.C.

§ 1111," the sentencing guidelines for first degree murder apply.

U.S.S.G. § 2A4.1(c). Under § 1111, "[e]very murder . . . committed

in the perpetration of . . . kidnapping" is first degree murder.

18 U.S.C. § 1111(a). First degree murder carries a base offense

level of 43. See U.S.S.G. § 2A1.1(a).

The district court concluded, over Coleman's objection,

that the cross-reference applied because Coleman's actions

constituted first degree murder and set the base offense level at

43. The court noted that the disagreement over the base offense

level is "entirely technical" because 18 U.S.C. § 1201(a) requires

life imprisonment.40

Coleman argues to us, as he did to the district court,

that the cross-reference does not apply because he did not kidnap

or sexually assault Correia. His argument on this point is

The statute also allows for the death penalty, but the 40

government did not seek the death penalty in Coleman's case.

- 108 - entirely coterminous with his sufficiency of the evidence

arguments. Having rejected Coleman's sufficiency arguments, we

now reject his challenge to the district court's application of

the sentencing guidelines.

I. Cumulative Error

Coleman contends that even if none of the district

court's errors during the trial individually required reversal,

the errors require reversal under the cumulative error doctrine.

We review claims of cumulative error "against the background of

the case as a whole" and place

particular weight [on] factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose (including the efficacy -- or lack of efficacy -- of any remedial efforts); and the strength of the government's case.

Sepulveda, 15 F.3d at 1196.

The cumulative error doctrine does not require reversal

here, because we have found no errors that could have had a

cumulative effect. Having spent considerable time with the record,

it is clear to us that the district court rendered deliberate and

well-reasoned rulings throughout this complex case.

J. Coleman's Pro Se Brief

To the extent that arguments in Coleman's pro se brief

overlap with or relate to arguments in his counseled brief, we

have addressed those arguments throughout this opinion. We now

- 109 - address the unique claims raised in his pro se brief. We find

none of these additional claims persuasive.

First, Coleman contends that the government suppressed

exculpatory evidence from Correia's cellphone. This argument

appears to arise from confusion over the testimony at trial.

Correia's cellphone was not recovered with her body. An FBI agent

testified at Coleman's trial that Correia's phone was "found," but

by that statement he meant that the phone was activated by

someone -- wherever it had been abandoned -- not that the FBI had

recovered it. The same agent confirmed he had only Correia's phone

records. The government reiterated in its response to Coleman's

pro se brief that the phone was never obtained by law enforcement.

Accordingly, there is no basis for the exculpatory evidence claim.

Second, Coleman argues that his trial counsel was

ineffective for failing to analyze his Google location data.

Together with his brief, he provided us with an estimate of his

car's velocity at various points based on the location data

presented at trial. He argues that these estimates support his

theory that he and Correia got into a physical altercation after

the 12-minute stop on Tremont Street. Because Coleman did not

raise this claim with the district court, we dismiss it without

prejudice to his right to pursue post-conviction relief under 28

U.S.C. § 2255 in that court. See United States v. Padilla-Galarza,

990 F.3d 60, 93-94 (1st Cir. 2021).

- 110 - Third, Coleman raises several statutory and

constitutional challenges to the federal kidnapping statute, 18

U.S.C. § 1201(a)(1), all related to whether the victim must be

alive when interstate transportation begins. Because these

arguments were not raised in the district court, we review them

for plain error. See United States v. Candelario-Ramos, 45 F.4th

521, 524 (1st Cir. 2022). But Coleman "makes no attempt to show

how his . . . claim[s] satisf[y] the demanding plain-error

standard -- his brief fails to even mention plain error, let alone

argue for its application here." Id. at 525 (quoting United States

v. Cruz-Ramos, 987 F.3d 27, 40 (1st Cir. 2021)). Thus, he has

waived this claim. See id.

That said, there was no plain error as to any of these

particular claims. Coleman argues that the statute should not be

interpreted to permit federal jurisdiction when the victim was

dead before interstate travel began.41 But he concedes that the

statute was amended to rebuff exactly the interpretation that he

urges, by removing language that required the victim to be alive

at the start of interstate travel. See Adam Walsh Child Protection

41 Section 1201 is structured to include both general elements -- i.e., seizure, hold, and purpose -- as well as five jurisdictional hooks. The first jurisdictional hook, applicable here, is based on the use of interstate commerce and applies when the victim is transported in interstate commerce, "regardless of whether [she] was alive when transported across a State boundary." 18 U.S.C. § 1201(a)(1).

- 111 - and Safety Act of 2006, Pub. L. 109-248, § 213, 120 Stat. 587, 616

(striking "if the person was alive when the transportation began"

from 18 U.S.C. § 1201(a)(1)).42 Coleman also argues that the

removal of the "alive when transportation began" language from the

statute makes it unconstitutionally vague, facially and as-applied

to him. But the thrust of his argument is that the statute has a

broad application; the mere fact that a statute is broad does not,

on its own, establish that it is vague.

III. CONCLUSION

For all these reasons, we affirm Coleman's conviction

and sentence.

42Based on his interpretation of the statute, Coleman argues that the indictment failed to charge the jurisdictional element by omitting when Correia died. The indictment did not need to establish when Correia died. The indictment charged that Correia was "willfully transported in interstate commerce." Coleman makes a related argument that the government failed to show sufficient evidence of the jurisdictional element because under its own theory, Correia had died before Coleman traveled outside of Massachusetts. But as we have just explained, the interstate travel after Correia died satisfied the jurisdictional element of 18 U.S.C. § 1201(a)(1).

- 112 -