United States v. Jimenez

14 F.4th 32

• Court: Court of Appeals for the First Circuit
• Decided: September 15, 2021
• Docket: 19-1465P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1465 UNITED STATES OF AMERICA,

Appellee,

v.

IVAN CRUZ-RIVERA,

Defendant, Appellant.

No. 19-1509 UNITED STATES OF AMERICA,

CARLOS JIMENEZ,

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Howard, Chief Judge, Thompson, Circuit Judge, and Katzmann, Judge.

 Of the United States Court of International Trade, sitting by designation. Syrie D. Fried, with whom Good Schneider Cormier & Fried was on brief, for appellant Cruz-Rivera. Jamesa J. Drake, with whom Drake Law LLC was on brief, for appellant Jimenez. Andrew C. Noll, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Robert A. Zink, Acting Deputy Assistant Attorney General, Michelle L. Dineen Jerrett and Donald C. Lockhart, Assistant United States Attorneys, Brian C. Rabbitt, Acting Assistant Attorney General, and Andrew E. Lelling, United States Attorney, were on brief, for appellee.

September 15, 2021

- 2 - KATZMANN, Judge. A jury convicted defendants Ivan Cruz-

Rivera ("Cruz-Rivera") and Carlos Jimenez ("Jimenez") each of one

count of conspiracy to possess with intent to distribute and to

distribute one hundred grams or more of heroin, in violation of 21

U.S.C. § 846, and one count of possession with intent to distribute

and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1).

Defendants now appeal, assigning error by the district court.

Before us are claims that (1) evidence obtained during a traffic

stop should have been suppressed, (2) the district court

erroneously limited cross-examination of a witness for the

government at trial, (3) the prosecutor unfairly misconstrued or

misstated facts not in evidence during closing arguments, (4) the

district court incorrectly instructed the jury in response to a

question, and (5) the district court erred in applying the

mandatory minimum sentence to Jimenez. We affirm.

I. BACKGROUND

A. Facts

The facts are largely undisputed. "We rehearse the

facts as found by the district court (explicitly or implicitly) at

the suppression hearing, consistent with record support." United

States v. Arnott, 758 F.3d 40, 41 (1st Cir. 2014) (citing United

States v. Gonzalez, 609 F.3d 13, 15 (1st Cir. 2010)). On October

4, 2013, the DEA's Central Massachusetts Federal Drug Task Force

set up a surveillance of a controlled purchase by a confidential

- 3 - source at 105-107 Union Street in Leominster, Massachusetts, a

property with several individual garage bays, as part of an

investigation into heroin distribution in the Worcester,

Massachusetts area. Equipped with audiovisual recording

equipment, body- and dash-cams, officers witnessed Jimenez,

accompanied by Cruz-Rivera, drive to the Union Street garages in

a gray Lexus. There, according to the government, they visited

Segundo Gutierrez, a known heroin dealer in Central Massachusetts,

who rented a garage bay at Union Street. Cruz-Rivera and Gutierrez

exchanged messages and phone calls on October 4, and in the days

prior.

Earlier on October 4, a confidential source working with

the Task Force visited Gutierrez's garage bay seeking to purchase

heroin. Gutierrez told the source that he did not have heroin but

would a short time later. The confidential source left the garage.

Task Force agents then witnessed Gutierrez wave a gray Lexus with

a New Jersey license plate into the Union Street garages. The men

spent nearly two hours at the garage, and left shortly after 2:00

p.m. During this time, several other cars came and went from the

Union Street garages. Upon exiting the Union Street garages,

Gutierrez directed the gray Lexus towards the highway. The

confidential source then returned to the garage, where Gutierrez

sold him over 125 grams of heroin in exchange for $7,500.

An officer on the surveillance team, Massachusetts State

- 4 - Trooper Jake Vitale, followed the Lexus after it left the Union

Street garages in the officer's unmarked vehicle. Vitale

communicated with the lead officer of the DEA investigation and

received instructions to stop the Lexus via a "walled-off" stop,

a stop not based on any information connected to the visit at the

Union Street garages. Trooper Vitale followed the Lexus for an

hour until it approached Route 84, and then, via the Massachusetts

State Police, informed State Trooper David DiCrescenzo of his

pursuit and investigation at the Union Street garages. Trooper

Vitale instructed Trooper DiCrescenzo to stop the vehicle in order

to identify the occupants, but to do so based on his own

development of probable cause. Trooper DiCrescenzo was trained

to conduct motor vehicle stops and criminal investigations and to

detect indicators of criminal activity, and had conducted a number

of narcotics investigations. After waiting in the median of Route

84 -- a road which Trooper DiCrescenzo testified was a known drug-

trafficking thoroughfare, -- he spotted and followed the Lexus

until, at about 3:15 p.m., he observed the Lexus change lanes

without using a turn signal within two to three lengths of a

vehicle in the middle lane. Trooper DiCrescenzo then stopped the

Lexus and identified the driver as Jimenez with Cruz-Rivera as

passenger. Trooper DiCrescenzo then questioned defendants, during

which time he witnessed defendants acting "extremely nervous" and

"physically shaking." After running the license plate of the

- 5 - Lexus and driver's license numbers for defendants in state

databases, Trooper DiCrescenzo asked Jimenez to step out of the

vehicle for further questioning by a guardrail, which lasted a

couple of minutes. The vehicle was coming from a known drug

distribution area. Jimenez provided inconsistent testimony about

his whereabouts that day and explained that he and Cruz-Rivera had

cash in the car for the purpose of purchasing a truck. After he

finished questioning Jimenez, Trooper DiCrescenzo placed Jimenez

in the back of his patrol car, informing him that it was for his

safety (as well as for Trooper DiCrescenzo's safety) and that he

was not under arrest. Trooper DiCrescenzo then asked Cruz-Rivera

to step out of the car for further questioning, part of which was

done via translation by another, Spanish-speaking officer over the

phone. Cruz-Rivera indicated that there was $1,000 in the car,

and pointed Trooper DiCrescenzo to a black bag on the back seat,

in which Trooper DiCrescenzo then witnessed bundles of cash secured

with elastic bands. Jimenez then consented to a search of the

vehicle. Upon searching the Lexus, officers discovered $44,000

in bundles of cash and three cell phones. Other officers arrived

at the scene to assist with the search, including a K-9 unit. The

officers seized the black bag containing the cash and one cell

phone, and two additional cell phones found under the front

passenger seat. Cruz-Rivera and Jimenez were then permitted to

leave in the Lexus. Gutierrez and Jimenez exchanged several phone

- 6 - calls that afternoon and evening. The next day, Cruz-Rivera and

Jimenez went to retrieve a receipt for the $44,000 in cash seized

during the stop.

B. Proceedings

In June 2016, Cruz-Rivera and Jimenez were charged by a

grand jury each of one count of conspiracy to possess with intent

to distribute and to distribute heroin, in violation of 21 U.S.C.

§ 846, and one count of possession with intent to distribute and

distribution of heroin, in violation of 21 U.S.C. § 841(a)(1).

Prior to trial, Cruz-Rivera and Jimenez each moved to suppress

evidence seized and statements made to law enforcement officers

during the October 4, 2013, traffic stop. The district court

denied the motions to suppress. The case proceeded to trial where

the jury heard testimony from several witnessing officers and

Gutierrez, and reviewed body- and dash-cam footage and cell phone

records. Cruz-Rivera also testified in his defense, claiming that

the money seized by police was his own and that his visit to

Gutierrez was for the purposes of finding a truck that he could

purchase. The parties then presented closing arguments and the

jury deliberated, after which it found both Cruz-Rivera and Jimenez

guilty of conspiracy involving one hundred grams or more of heroin

(count 1) and possession with intent to distribute heroin (count

2). The district court sentenced Cruz-Rivera to seventy-six

months of imprisonment, followed by supervised release, and

- 7 - Jimenez to sixty months of imprisonment, followed by supervised

release.

II. DISCUSSION

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We review the district court's findings of fact for

clear error and accept all reasonable inferences that it has drawn.

See United States v. Coombs, 857 F.3d 439, 445–46 (1st Cir. 2017)

(citing United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994);

then citing United States v. Paneto, 661 F.3d 709, 711 (1st Cir.

2011)). We recount the facts here "in the light most favorable

to the suppression ruling" as one of the challenges addressed in

this opinion is to the admissibility of certain key evidence.

Arnott, 758 F.3d at 43 (first citing United States v. McGregor,

650 F.3d 813, 823–24 (1st Cir. 2011); and then citing United States

v. Owens, 167 F.3d 739, 743 (1st Cir. 1999)). We review the

district court's legal conclusions de novo. Id.

A. Suppression Ruling

First, defendants challenge the district court's pre-

trial rulings denying their motions to suppress evidence.

Specifically, they challenge the admission of evidence collected

as a result of the search of the car -- the bundled cash and cell

phones -- and challenge the admission of their statements during

the traffic stop into evidence. When reviewing a suppression

ruling, the district court's findings of fact are reviewed for

- 8 - clear error and "the court's legal conclusions, including its

answers to 'the ultimate questions of reasonable suspicion and

probable cause to make a warrantless search'" are reviewed de novo.

Id. (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).

Similarly, when reviewing whether a defendant was in custody for

Miranda purposes, factual questions are reviewed for clear error

and the ultimate legal question de novo. United States v.

Campbell, 741 F.3d 251, 265 (1st Cir. 2013) (citing United States

v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011)). Furthermore, we

review "the record evidence in the light most favorable to the

suppression ruling," and we can affirm "on any basis apparent in

the record." Arnott, 758 F.3d at 43. "Given the textured nature

of these inquiries, appellate courts must proceed circumspectly

and with regard for the district court's superior vantage point."

United States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007) (citing

Zapata, 18 F.3d at 975 (instructing that, when reviewing the

outcome of a motion to suppress, appellate courts must "exhibit

great respect for the presider's opportunity to hear the testimony,

observe the witnesses' demeanor, and evaluate the facts at first

hand")).

1. Evidence Seized During the Traffic Stop a. The district court ruling.

The district court, relying on Whren v. United States,

517 U.S. 806 (1996), concluded that the traffic stop was lawful in

- 9 - nature because Trooper DiCrescenzo observed two traffic violations

prior to stopping the Lexus. The district court found that "the

collective knowledge doctrine provided sufficient reason to stop

the motor vehicle and to search it."1 The court determined that

the DEA Task Force Officers surveilling the Union Street garages

possessed "ample probable cause" to believe that defendants were

engaged in criminal activity, that the car contained related drugs

and money, that this knowledge was imputed to Trooper DiCrescenzo

under the collective knowledge doctrine, which allowed the

evidence produced by the eventual stop to be seized and admitted

at trial.

1 The court found that [a]t the time that the Lexus was stopped, the DEA had been involved in investigation spanning over seventeen months during which six controlled purchases of heroin had taken place from an individual whom the task force believed was being supplied by Gutierrez, from the Union Street address. The CS [confidential source] went to that address and attempted to purchase 125 grams of heroin. Gutierrez told the CS that he was expecting a delivery by 1:30 p.m. The Task Force observed him on his cellphone giving directions, and shortly thereafter surveillance saw the Lexus enter the garages and leave 2 hours later. When the CS returned to the garage shortly after the Lexus left, he bought heroin and was told by Gutierrez that the marks on his face were from the mask that he was wearing while he processed the heroin. These facts provide ample probable cause for the stop and search.

- 10 - b. Basic principles.

The automobile exception to the Fourth Amendment's

warrant requirement permits officers to "seize and search an

automobile prior to obtaining a warrant where they have probable

cause to believe that the automobile contains contraband." United

States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014) (first citing

Robinson v. Cook, 706 F.3d 25, 31-32 (1st Cir. 2013); and then

citing Florida v. White, 526 U.S. 559, 563–64 (1999)). Police

have probable cause to search "where the known facts and

circumstances are sufficient to warrant a man of reasonable

prudence in the belief that contraband or evidence of a crime will

be found." Ornelas, 517 U.S. at 696; United States v. Azor, 881

F.3d 1, 8 (1st Cir. 2017). "Probable cause exists when 'the facts

and circumstances as to which police have reasonably trustworthy

information are sufficient to warrant a person of reasonable

caution in the belief that evidence of a crime will be found.'"

Silva, 742 F.3d at 7 (quoting Robinson, 706 F.3d at 32). Search

of a motor vehicle requires "particular facts indicating that, at

the time of search, the vehicle or a container within it carried

contraband, evidence of crime, or other seizable matter." United

States v. Infante-Ruiz, 13 F.3d 498, 502 (1st Cir. 1994).

A temporary detention of an individual during a traffic

stop by police constitutes a seizure to which the protections of

the Fourth Amendment apply. Delaware v. Prouse, 440 U.S. 648, 653

- 11 - (1979) (first citing United States v. Martinez-Fuerte, 428 U.S.

543, 556–58 (1976); then citing United States v. Brignoni-Ponce,

422 U.S. 873, 878 (1975); and then citing Terry v. Ohio, 392 U.S.

1, 16 (1968)). A warrantless traffic stop must "not be

'unreasonable' under the circumstances." Whren, 517 U.S. at 810.

"[T]he decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation has

occurred." Id. (citing Prouse, 440 U.S. at 659). A traffic stop

is a "relatively brief encounter" intended to "address the traffic

violation that warranted the stop" and may include "checking the

driver's license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile's

registration and proof of insurance." Rodriguez v. United States,

575 U.S. 348, 354–55 (2015) (first quoting Knowles v. Iowa, 525

U.S. 113, 117 (1998); then citing Illinois v. Caballes, 543 U.S.

405, 407 (2005); then citing Prouse, 440 U.S. at 658–60). However,

such a stop can be extended where there is reasonable suspicion of

further criminal wrongdoing. United States v. Lee, 317 F.3d 26,

33 (1st Cir. 2003) (citing United States v. Velez-Saldana, 252

F.3d 49, 53 (1st Cir. 2001); United States v. Martinez-Molina, 64

F.3d 719, 727–30 (1st Cir. 1995)). "No simple, mechanical formula

tells us what reasonable suspicion is, though we know that it is

less than probable cause and more than a naked hunch . . . .

[C]ourts must gauge its presence in a commonsense, case-by-case

- 12 - way, taking in the whole picture." McGregor, 650 F.3d at 821. We

have said that the reasonableness "determination . . . entails a

measurable degree of deference to the perceptions of experienced

law enforcement officers." United States v. Ruidíaz, 529 F.3d 25,

29 (1st Cir. 2008) (citing Ornelas, 517 U.S. at 699; United States

v. Chhien, 266 F.3d 1, 8 (1st Cir. 2001)). Reasonable suspicion

is based on the totality of the circumstances. Florida v. Harris,

568 U.S. 237, 244 (2013); Infante-Ruiz, 13 F.3d at 502.

Reasonable suspicion or probable cause may be based on

the collective knowledge of several officers. United States v.

Hensley, 469 U.S. 221, 231–32 (1985); United States v. Barnes, 506

F.3d 58, 62–63 (1st Cir. 2007). In such cases, we "look to the

collective information known to the law enforcement officers

participating in the investigation rather than isolat[ing] the

information known by the individual arresting officer." Azor, 881

F.3d at 8 (citing Illinois v. Andrea, 463 U.S. 765, 772 n.5 (1983);

United States v. Fiasconaro, 315 F.3d 28, 36 (1st Cir. 2002));

Barnes, 506 F.3d at 62.

c. Analysis.

Both Cruz-Rivera and Jimenez argue that the district

court's conclusion that probable cause supported the traffic stop,

search, and detention of defendants was erroneous, viewed either

through Trooper DiCrescenzo's own reasonable suspicion during the

traffic stop or when considered in conjunction with the collective

- 13 - knowledge imparted to Trooper DiCrescenzo. Thus, they each

contend that the physical evidence collected and statements made

during the stop should have been suppressed. The government

counters that the district court did not err and that in any event

there was an alternative ground to sustain the denial of the motion

to suppress -- namely, that the reasonable suspicion that supported

the traffic stop evolved and ripened into probable cause to search

the vehicle as Trooper DiCrescenzo evaluated defendants' actions

and responses during the stop. We agree with the outcome reached

by the district court, but for reasons different from those

articulated in the suppression decision. Given that we can

sustain a ruling based on alternate grounds not articulated by the

trial court, so long as there is persuasive support for that

analysis in the record, we will do so here, particularly where

that route is more direct to the "same destination." Arnott, 758

F.3d at 43.

First, defendants' argument that it is important to

consider the differences between the "walled-off" stop here and a

traffic stop that begins without an "investigatory motive," is

unavailing. Under our case law, as defendants acknowledge, "[a]n

officer can stop a car if he sees a driver commit a traffic offense,

even if the stop is just an excuse to investigate something else."

McGregor, 650 F.3d at 820 (citing Whren, 517 U.S. at 810); see

also id. at 822 ("[C]ourts do not 'plumb[ ]' an officer's 'actual

- 14 - motive' in performing a reasonable-suspicion analysis." (second

alteration in original) (quoting Bolton v. Taylor, 367 F.3d 5, 7

(1st Cir. 2004))); Ruidíaz, 529 F.3d at 29 (reasonableness in the

traffic-stop context is "not dependent on an individual officer's

subjective motives"). Defendants acknowledge that Trooper

DiCrescenzo had a sufficient basis to initiate the traffic stop

based on the traffic violation.

Regardless of the collective knowledge of all officers

involved, Trooper DiCrescenzo alone had reasonable suspicion of a

drug offense from the outset of the traffic stop because Trooper

Vitale specifically told him that the vehicle came from Leominster

and likely had been involved in a drug transaction. Trooper

DiCrescenzo's knowledge of this information was relevant to his

assessment of the traffic stop and his investigation therefrom.

His training and experience in narcotics investigations and in

detecting indicators of criminal activity informed his judgments,

and, as noted, we give weight to them accordingly. See Ruidíaz,

529 F.3d at 29. While every case turns on its own facts, we are

informed by our decisions which have identified factual elements

similar to those present here in affirming reasonable suspicion

determinations. As has been noted, Trooper DiCrescenzo knew that

defendants were travelling on a known drug-trafficking

thoroughfare and were coming from a drug distribution area. Upon

approaching the vehicle, Trooper DiCrescenzo witnessed both

- 15 - defendants acting visibly nervous, and Jimenez's hands "physically

shaking." Defendants were more nervous than ordinary motorists,

and that nervousness persisted throughout the stop. See United

States v. Dion, 859 F.3d 114, 126-27 (1st Cir. 2017) (pointing to

a defendant's persistent nervousness, odd travel route and stated

purpose of travel along a drug-trafficking corridor to support

reasonable suspicion determination, and collecting cases doing the

same); Arnott, 758 F.3d at 44-45 (affirming determination that

reasonable suspicion arose when a suspected drug dealer was

monitored for a few weeks, an officer was told to undertake a

traffic stop after an apparent drug purchase, and the driver

appeared "unduly nervous" and his "hands were shaking").

Furthermore, Trooper DiCrescenzo's run of Jimenez's driver's

license and license plate showed that the license had also been

run by the Worcester Police Department, consistent with Trooper

Vitale's information about the vehicle's earlier whereabouts and

contrary to Jimenez's statement at the beginning of the traffic

stop that defendants had been visiting family in Lawrence. Upon

questioning Jimenez outside the Lexus, Trooper DiCrescenzo learned

that Jimenez, providing inconsistent answers, first could not name

the members of his family that he claimed to have visited and then

claimed that he and Cruz-Rivera were in Massachusetts to buy a

truck for which there was cash in the car. See United States v.

Clark, 879 F.3d 1, 5 (1st Cir. 2018) (affirming reasonable

- 16 - suspicion where defendant provided dates of birth that were

"inconsistent with" initial date provided to officer); United

States v. Molina-Gómez, 781 F.3d 13, 20 (1st Cir. 2015) (affirming

reasonable suspicion where defendant "could not remember the last

name" of a "friend he was visiting"); United States v. Lamela, 942

F.2d 100, 102 (1st Cir. 1991) (affirming reasonable suspicion where

defendant provided "inconsistent responses to routine questions

relating to the purpose of his travel"). Trooper DiCrescenzo

observed that the purported travel plans "were inconsistent with

the normal family trip" –- "a very long trip, about 200 miles to

visit with a relative for two hours in Lawrence . . . [,] a known

drug distribution area," only "to turn around and drive 200 miles

back . . . seems strange." See United States v. Ramdihall, 859

F.3d 80, 92 (1st Cir. 2017) (relying in part on odd explanation of

travel plans to support reasonable suspicion); Dion, 859 F.3d at

126-27 (same). Taken in isolation, any one of these facts would

not necessarily support reasonable suspicion, see, e.g., Illinois

v. Wardlow, 528 U.S. 119, 124 (2000), but our task is not to

perform a "divide-and-conquer analysis," which would be counter to

our charge to look to the totality of the circumstances, United

States v. Arvizu, 534 U.S. 266, 274 (2002). See also Ruidíaz, 529

F.3d at 30 (observing that "a fact that is innocuous in itself may

in combination with other innocuous facts take on added

significance"). Thus, at this point in the stop, there was a

- 17 - sufficient basis for Trooper DiCrescenzo to have reasonable

suspicion of wrongdoing that supported his continued detention and

questioning of defendants.

Next, Trooper DiCrescenzo's further investigations

ripened his reasonable suspicion into probable cause. See

Martinez-Molina, 64 F.3d at 726 ("[P]robable cause is a fluid

concept -- turning on the assessment of probabilities in particular

factual contexts.") (quoting Illinois v. Gates, 462 U.S. 213, 232

(1983)). Trooper DiCrescenzo's reasonable suspicion prompted him

to pursue questioning that would allow him "to investigate

potential narcotics trafficking." In questioning Cruz-Rivera,

Trooper DiCrescenzo again heard that defendants had travelled only

to Lawrence and was shown the black bag in the car; however, that

bag revealed not the $1,000 that Cruz-Rivera stated was present in

the vehicle, but "obviously tens of thousands of dollars" in

bundles secured with elastic bands that based on his training and

experience Trooper DiCrescenzo associated with narcotics

trafficking. Taking a reasonable and lawful measure to protect

himself from possible harm, Trooper DiCrescenzo moved Cruz-Rivera

to the side when he obscured his view into the bag. See United

States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998) (officers

"must be permitted to take measures . . . they believe reasonably

necessary to protect themselves from harm, or to safeguard the

security of others"). Indeed, looking at the totality of the

- 18 - circumstances -- as we must -- a reasonable view of the record

evidence supports the conclusion that, at this point, Trooper

DiCrescenzo's reasonable suspicion that defendants were involved

in drug trafficking had ripened into probable cause, such that the

resulting search of the vehicle -- which Trooper DiCrescenzo

believed would yield evidence of criminal wrongdoing -- was

permissible. See Lee, 317 F.3d at 33; id. at 32 ("Probable cause

often accretes gradually as an investigation progresses . . . .

[T]he circumstances giving rise to reasonable suspicion . . . and

the developments that unfolded during the Terry stop furnished

probable cause for the appellant's arrest."); Dion, 859 F.3d at

133 (collecting cases where probable cause provided by various

facts including conflicting or inconsistent stories about travel

plans, and nervousness); United States v. Maldonado, 356 F.3d 130,

137 (1st Cir. 2004) (implausible explanations and incredible

travel tale supported probable cause).

Defendants' attempts to explain away Trooper

DiCrescenzo's basis for his reasonable suspicion and later

probable cause are unsuccessful. First, as we have noted,

reasonable suspicion is considered based on the totality of the

circumstances presented to a law enforcement officer, Harris, 568

U.S. at 244, with measurable deference given to the officer's view

of the situation, Ruidíaz, 529 F.3d at 29. This includes his

knowledge of the vehicle based on statements made directly to him

- 19 - by another officer and his own observations of defendants'

behavior. Defendants' efforts to parse actions and statements in

isolation are unavailing. See Terry, 392 U.S. at 22 (explaining

that each act may be "perhaps innocent in itself," but taken

together, the acts "warranted further investigation"); see also

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)

("[P]robable cause does not require officers to rule out a

suspect's innocent explanation for suspicious facts."). We find

unpersuasive defendants' reliance on Rodriguez v. United States,

where the Court stated that if a seizure is "justified only by a

police-observed traffic violation," officers may not prolong a

stop "absent the reasonable suspicion ordinarily demanded to

justify detaining an individual." 575 U.S. at 350, 355 (emphasis

added). Contrary to defendants' claims, and taking the facts in

the light most favorable to the suppression ruling, the traffic

stop here was not unreasonable because, far more than suspicion of

just a traffic infraction, Trooper DiCrescenzo had sufficient

reasonable suspicion of criminal activity to prolong the stop based

on Trooper Vitale's statement that the vehicle had been involved

in a drug transaction and subsequent investigation.

In short, we affirm the district court's decision not to

suppress evidence that resulted from the search of the vehicle

because we conclude that the officer had the requisite reasonable

suspicion to initiate the stop and that reasonable suspicion

- 20 - ripened into probable cause based on additional investigation. We

find no reason to reach the applicability of the collective

knowledge doctrine.

2. Statements Made During the Traffic Stop

Defendants also argue that, because the stop exceeded a

routine traffic stop, the questioning by Trooper DiCrescenzo was

a custodial interrogation requiring Miranda warnings. They

contend that their statements (including Jimenez's consent to the

search of the vehicle and subsequently obtained evidence) made

during the traffic stop should have been suppressed because Trooper

DiCrescenzo did not administer Miranda warnings to either

defendant.

Noting that "defendants argue that Trooper DiCrescenzo's

roadside conduct was a de facto arrest thus requiring the trooper

to provide them with Miranda warnings[,]" the district court did

not make an explicit ruling on whether those warnings were

required. Observing that a Terry stop can "morph into 'custody'

for Miranda purposes," and setting forth the factors that a court

must consider to determine whether there was "restraint on freedom

of movement associated with the formal arrest," the court stated

that "regardless of what the defendants said or did during the

stop, Trooper DiCrescenzo was going to search the motor vehicle.

His plan has no bearing on the question of whether the defendants

were in custody." In the district court's view, there was

- 21 - sufficient probable cause to make an arrest and search of the car

and, "[b]ecause there was, at a minimum, articulable and reasonable

suspicion that the defendants were engaged in criminal activity,

the authorities were entitled to stop the vehicle, detain the

occupants, and pursue a means of investigation that was likely to

confirm or dispel their suspicion." Hence, the district court

ruled defendants' statements made during that stop should not be

suppressed but were admissible at trial.

We conclude that Miranda warnings were not required.

Incriminating statements obtained during a custodial

interrogation, where "a person has been taken into custody or

otherwise deprived of his freedom of action in any significant

way," must be excluded from criminal prosecutions unless a

defendant has waived the Fifth Amendment privilege after being

warned of the right to remain silent. Miranda v. Arizona, 384

U.S. 436, 444 (1966). The custodial inquiry is an "objective,

suspect-focused" examination that is "informed by our assessment

of the reasonableness of the detaining officer['s] . . . actions

in response to developing conditions." United States v. Chaney,

647 F.3d 401, 409 (1st Cir. 2011). A finding of custody "depends

on the objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or

the person being questioned." United States v. Melo, 954 F.3d

334, 340 (1st Cir. 2020) (quoting Stansbury v. California, 511

- 22 - U.S. 318, 323 (1994) (per curiam)). And "[w]here an investigatory

stop is justified at its inception [(and we have just observed

this one was indeed justified)], it will generally not morph into

a de facto arrest as long as 'the actions undertaken by the

officer[s] following the stop were reasonably responsive to the

circumstances justifying the stop in the first place as augmented

by information gleaned by the officer[s] during the stop.'"

Chaney, 647 F.3d at 409 (quoting United States v. Trueber, 238

F.3d 79, 92 (1st Cir. 2001)).

In Berkemer v. McCarty, 468 U.S. 420, 440 (1984), the

Supreme Court ruled that Miranda warnings are not required in

"ordinary" traffic stops. However, as we have had occasion to

observe, "[n]otably, despite its holding that, generally, law

enforcement officers are not required to give Miranda warnings at

traffic stops, the [Berkemer] Court established no categorical

rule. Indeed, it held that Miranda warnings would be required 'as

soon as a suspect's freedom of action is curtailed to 'a degree

associated with formal arrest.'" Campbell, 741 F.3d at 266

(emphasis in original) (first quoting Berkemer, 468 U.S. at 440,

and then quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)

(per curiam)). Our task here is, as was set forth in Campbell,

"to determine whether the facts of a specific case indicate a

situation more akin to a routine traffic stop, at which Miranda

warnings are not required," or indicate that detention has

- 23 - escalated such that "a suspect has been 'subjected to restraints

comparable to those associated with a formal arrest,' at which

point Miranda warnings are required." Id. (quoting Berkemer, 468

U.S. at 441).

The need for a Miranda warning turns on whether

defendants here were in custody, but that determination is a two-

step process. See, e.g., Melo, 954 F.3d at 339 (observing that

the "inquiry into 'whether an individual's freedom of movement was

curtailed, however, is simply the first step in the analysis, not

the last,'" and "[o]nce we complete the freedom-of-movement step,

we must still ask 'the additional question whether the relevant

environment presents the same inherently coercive pressures as the

type of station house questioning at issue in Miranda.'" (quoting

Howes v. Fields, 565 U.S. 499, 509 (2012))).

For the first step, to "ascertain whether . . . a

'reasonable person [would] have felt he or she was not at liberty

to terminate the interrogation and leave[,]'" Howes, 565 U.S. at

509 (alteration in original) (quoting Thompson v. Keohane, 516

U.S. 99, 112 (1995)), we look to a number of factors "relevant

to this aspect of our custody analysis," Melo, 954 F.3d at 340.

These include "whether the suspect was questioned in familiar or

at least neutral surroundings, the number of law enforcement

officers present at the scene, the degree of physical restraint

placed upon the suspect, and the duration and character of the

- 24 - interrogation." Id. (quoting United States v. Masse, 816 F.2d

805, 809 (1st Cir. 1987)). In "evaluating all of the circumstances

surrounding the incident . . . . [,] no single element dictates

the outcome of this analysis." United States v. Jones, 187 F.3d

210, 218 (1st Cir. 1999) (quoting the Masse factors in an analysis

of traffic stop and custody).

We turn to the application of the custodial factors. As

to the first factor in our freedom of movement analysis -- whether

the questioning took place in familiar or at least neutral

surroundings –- we note that here it was Route 84. On this record,

it seems clear that these surroundings were not familiar to the

out-of-state defendants. Our case law often describes highways

and roadsides as neutral. See, e.g., Jones, 187 F.3d at 218

("Although the location apparently was not familiar to [the

defendant] and the area was not well-lit, a public highway is a

neutral setting that police officers are not in a position to

dominate as they are, for example, an interrogation room at a

jailhouse."); Berkemer, 468 U.S. at 421 ("[T]he typical traffic

stop is conducted in public, and the atmosphere surrounding it is

substantially less 'police dominated' than that surrounding the

kinds of interrogation at issue in Miranda and subsequent cases in

which Miranda has been applied."). However, that a highway is not

per se police-dominated in the same way that the interrogation

room in a station house is does not mean that it is per se neutral.

- 25 - Where, as here, the police are controlling the situation the

neutrality of the site is arguably brought into question.

With respect to the second factor -- the number of

officers –- under our case law, the presence here was not

excessive. For the relevant time frame, defendants were

questioned by one officer, Trooper DiCrescenzo, although briefly

aided by another translating officer via telephone. See, e.g.,

Campbell, 741 F.3d at 267 (finding four or five police officers

questioning three defendants not to be a custodial interrogation);

United States v. Crooker, 688 F.3d 1, 12 (1st Cir. 2012)

(determining a suspect was not in custody when "no more than two

agents were in direct conversation" with the suspect at one time).

Regarding the third factor, the degree of physical

restraint placed on the suspects, we note that after Trooper

DiCrescenzo had finished questioning Jimenez, he placed Jimenez in

the back seat of his cruiser, informing him that he was not under

arrest but was being placed in the vehicle for his safety (and

also for the trooper's). The result was that Jimenez was

physically locked in the back of the trooper's cruiser and unable

to let himself out, and Cruz-Rivera, deprived of his driver, was

thereby impacted. While Jimenez was in the back of the cruiser,

Trooper DiCrescenzo questioned Cruz-Rivera and continued his

investigation. Notably, because Jimenez's statements were made

prior to being placed in the patrol car, his physical restraint is

- 26 - arguably inconsequential. In any event, the cases analyzing

physical restraint in motor vehicle stop cases are, of course,

fact dependent. See, e.g., United States v. McCarthy, 77 F.3d

522, 532 (1st Cir. 1996) (although detention issue was

"exceptionally close," stop was not "needlessly intrusive" where

defendant, who was placed in back of the officer's vehicle, was

never handcuffed, there was no evidence that the officer ever drew

a gun, and where officers informed defendant that "although he was

not free to leave, he was not under arrest, and they were detaining

him for investigative purposes because a car identical to his . .

. had been involved in a bank robbery earlier that day"); United

States v. Dunbar, 553 F.3d 48, 56 (1st Cir. 2009) ("the fact that

[defendant] 'was placed in the back of a police cruiser does not

elevate the detention beyond a Terry stop'") (quoting Flowers v.

Fiore, 359 F.3d 24, 30 (1st Cir. 2004)); Ruidíaz, 529 F.3d at 32

("When a Terry stop is effected in connection with a traffic

violation and an officer's concern for his own safety is

implicated, it is within the officer's authority to order a

passenger out of the car as a security measure"; "an officer may

issue such an order as a matter of course; he does not need to

have an independent fear for his safety.") (citations omitted).

As for the final factor -- the duration and character of

interrogation -- the duration was not excessive under our case

law. See, e.g., United States v. Hughes, 640 F.3d 428, 437 (1st

- 27 - Cir. 2011) (characterizing a ninety-minute interview as

"relatively short")). The questioning was complete just over a

half-hour after the initiation of the stop (regardless of the

longer duration of the stop in its entirety). Further, Trooper

DiCrescenzo's questioning lasted only a few minutes for each

defendant. There is no testimony suggesting the trooper was

hostile or made shows of force during the stop). In sum, "[t]here

is no indication that the stop lasted for an inappropriately long

period of time or that the officers acted with hostility toward

the defendants." Campbell, 741 F.3d at 267.

Although we have just surveyed the various custodial

factors, we need not tote up how defendants fare as to them. In

this case, we need not resolve the first step question of whether

defendants' freedom-of-movement was curtailed, because even

assuming arguendo that it was, we conclude that defendants do not

prevail with respect to the requisite second step of the custody

analysis. "[A] suspect's lack of freedom to go away does not

necessarily mean that questioning is custodial interrogation for

purposes of Miranda." United States v. Ellison, 632 F.3d 727, 729

(1st Cir. 2010). As we have noted, "whether an individual's

freedom of movement was curtailed" is just "the first step in the

analysis, not the last." Melo, 954 F.3d at 339 (quoting Howes,

565 U.S. at 509)). We still need to turn to "the additional

question whether the relevant environment presents the same

- 28 - inherently coercive pressures as the type of station house

questioning at issue in Miranda." Id. (quoting Howes, 565 U.S.

at 509); see also Maryland v. Shatzer, 559 U.S. 98, 113 (2010)

("[T]he freedom-of-movement test identifies only a necessary and

not a sufficient condition for Miranda custody."). The focus here

is whether a person would reasonably find the circumstances

coercive enough that the concern that drove Miranda comes into

play, Ellison, 632 F.3d at 729, i.e., whether there is enough

pressure on a person to sufficiently impair his free exercise of

his privilege against self-incrimination. This inquiry is the

crux of our analysis because Miranda "does not apply outside the

context of the inherently coercive custodial interrogations for

which it was designed." Minnesota v. Murphy, 465 U.S. 420, 430

(1984) (quoting Roberts v. United States, 445 U.S. 552, 560

(1980)); see also Campbell, 741 F.3d at 265. After all,

"'[c]ustody' for purposes of Miranda must be 'narrowly

circumscribed' to effectuate the precise purpose of the warnings."

Campbell, 741 F.3d at 265 (quoting Murphy, 465 U.S. at 430).

Bearing all of this in mind, the stop here, "given the

facts as found by the district court, 'lacked the coercive element

necessary to convert it into something more draconian,' based on

the totality of the circumstances." United States v. Fornia-

Castillo, 408 F.3d 52, 65 (1st Cir. 2005) (quoting Lee, 317 F.3d

at 32). In this regard, we are informed by comparing the

- 29 - circumstances before us with the many other cases where we have

deemed more restrictive settings noncustodial. See, e.g., Jones,

700 F.3d at 625 (1st Cir. 2012) ("[P]olice officers may use

multiple vehicles, multiple officers, handcuffs and drawn weapons

without turning a Terry stop into a de facto arrest."); Fornia-

Castillo, 408 F.3d at 64-65 (concluding that a suspect was not in

custody when a single officer stopped the suspect on a busy public

road, drew his gun in a defensive position, handcuffed the suspect

for ten to fifteen minutes, frisked the suspect, and questioned

the suspect while he was handcuffed); United States v. Maguire,

359 F.3d 71, 79 (1st Cir. 2004) (finding, on balance, no de facto

arrest because even though police had wrestled suspect to the

ground and an officer drew his weapon, the suspect hadn't been

"detained in a manner consistent with a formal arrest," the events

took place on a public street during "the light of day," (quoting

Trueber, 238 F.3d at 94) and no handcuffs were used); Lee, 317

F.3d at 31-32 (reasoning that even when officers drew their guns

and blocked the suspect's vehicle from leaving the scene, the

investigative stop did not amount to a de facto arrest). True, a

reasonable person in either Cruz-Rivera or Jimenez's position

would not have thought himself free to walk away -- it is

reasonable that they would have understood "something more than a

routine traffic stop was in progress" -- "[b]ut on the broad

spectrum from a speeding ticket to a grilling in the squad room,

- 30 - the events here were . . . short of any de facto arrest or custodial

interrogation," and, "given this, and that the circumstances were

not inherently coercive, no Miranda warning was required." United

States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005). In sum, while

the situation certainly had some arrest-like aspects to it, a

reasonable person in either defendant's position would not have

believed he was under arrest. Therefore, the district court

properly denied defendants' motion to suppress their statements

made during the stop.2

B. Cross-Examination

Next, Cruz-Rivera argues that the district court

impermissibly limited questioning of Gutierrez in violation of the

Confrontation Clause by not allowing full cross-examination on

Gutierrez's discussions with the government regarding his plea

deal and sentencing for two other federal drug offenses. During

Gutierrez's cross-examination by Cruz-Rivera, the district court

sustained objections by the government to limit questioning about

Gutierrez's plea deal and cooperation agreements for two other

drug offenses, so as to avoid him possibly recounting what his

2 Cruz-Rivera's reliance on United States v. Chhien, supra, is unpersuasive. While Chhien warned against the danger of a routine traffic stop being used as an excuse to interrogate an individual about unrelated suspected criminal offenses, this case falls squarely within Chhien's conclusion that an officer may conduct "[r]outine questioning . . . even when not directly related to the violations that induced the stop in the first place," such as about the driver's itinerary. 266 F.3d at 9.

- 31 - lawyers told him and thereby misleading the jury. Later, when

Cruz-Rivera returned to questioning on Gutierrez's understanding

of the sentencing guidelines, including attempting to question his

understanding of the detailed mechanics of guideline calculations,

the government again objected and, at sidebar, the district court

probed whether the testimony would confuse the jury. Gutierrez

then testified that he understood that his sentence was lower than

the high-end of the sentencing guidelines range.

"[W]e consider de novo whether the strictures of the

Confrontation Clause have been met." United States v. Díaz, 670

F.3d 332, 344 (1st Cir. 2012) (quoting United States v. Vega

Molina, 407 F.3d 511, 522 (1st Cir. 2005)). Where there has been

no violation of the Confrontation Clause, we review limitations

placed on cross-examination for an abuse of discretion. United

States v. Jiménez-Bencevi, 788 F.3d 7, 21 (1st Cir. 2015) (citing

United States v. Martínez-Vives, 475 F.3d 48, 53 (1st Cir. 2007)).

The Sixth Amendment's Confrontation Clause protects the right of

defendants "to cross-examine witnesses who testify against them,"

United States v. Casey, 825 F.3d 1, 23–24 (1st Cir. 2016), within

reasonable limits to avoid "harassment, prejudice, confusion of

the issues, the witness' safety, or interrogation that is

repetitive or only marginally relevant," Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986). A violation of the Confrontation Clause

exists where a jury "might have received a significantly different

- 32 - impression" of the witness's testimony or credibility if the

defendant had been permitted full cross-examination. Id. at 680.

See also United States v. Acevedo-Hernández, 898 F.3d 150, 168

(1st Cir. 2018) (applying the harmless error rule to admission of

testimony).

We conclude that the district court did not err in

limiting cross-examination to avoid Gutierrez testifying about the

contents of the sentencing guidelines or his out-of-court

conversations and to prevent potential juror confusion. See

Shannon v. United States, 512 U.S. 573, 579 (1994) ("providing

jurors sentencing information . . . creates a strong possibility

of confusion" because the jury has "no sentencing function"). The

district court's concern regarding the potential for juror

confusion did not constitute an abuse of discretion. In fact, the

court allowed Cruz-Rivera's questions on Gutierrez's possible bias

because of his lower sentence through cooperation with the

government. Defense counsel was still able to elicit Gutierrez's

testimony about his understanding that his cooperation with

investigators could result in a reduced sentence for his drug-

trafficking offenses. Furthermore, in closing argument, Cruz-

Rivera argued that the jury should not find Gutierrez's testimony

credible, in part, because he knew that his cooperation with the

government would result in him getting a lesser sentence. Thus,

there was no harm to Cruz-Rivera because Gutierrez's potential

- 33 - bias was exposed through this testimony even though Cruz-Rivera

did not get to ask every question desired, therefore, Cruz-Rivera's

Confrontation Clause argument fails. See Delaware v. Fensterer,

474 U.S. 15, 20 (1985) (per curiam) ("[T]he Confrontation Clause

guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish."). This result is not

surprising in light of our decisions in similar cases. See United

States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995)

(finding no Confrontation Clause violation where a district court

limited testimony regarding sentencing); Jiménez-Bencevi, 788 F.3d

at 21–22 (same).

We discern no abuse of discretion in the district court's

limitation on Gutierrez's cross-examination by defendants.

C. Closing Argument

Third, Cruz-Rivera argues that the prosecutor in closing

argument improperly made statements that referred to facts not in

evidence. According to Cruz-Rivera, the prosecutor made four

erroneous statements to which he objected: (1) in describing

Gutierrez's testimony, the prosecutor referred to a location

associated with drug-dealing when Gutierrez's testimony indicated

that the location named referred to an individual, (2) in using an

audiovisual aide, the prosecution added a written caption to video

evidence, (3) the prosecutor suggested the jury should interpret

- 34 - translated recorded statements from Gutierrez regarding "the truck

from there" as a reference to drugs coming from Puerto Rico, and

(4) the prosecutor argued that, had defendants gone with Gutierrez

to find a truck as Cruz-Rivera claimed, the surveillance team would

have seen and testified to that fact when in fact one of the

investigators testified that he did see Gutierrez leave the garage

with two men during the surveillance. He contends that those

statements were not harmless despite the district court's

instruction that closing arguments are not evidence because of the

credibility determinations the jury was required to make.

In making closing arguments, a prosecutor "cannot refer

to facts not in evidence," but may "ask jurors to draw reasonable

inferences from the evidence." United States v. Ponzo, 853 F.3d

558, 583 (1st Cir. 2017) (first citing United States v. Auch, 187

F.3d 125, 129 (1st Cir. 1999); then quoting United States v.

Meadows, 571 F.3d 131, 145 (1st Cir. 2009)). Where a timely

objection is lodged to a statement made by the government in

closing argument, "[w]e review de novo whether the challenged

portion of the government's closing argument was improper and, if

so, whether it was harmful." United States v. González-Pérez, 778

F.3d 3, 19 (1st Cir. 2015) (alteration in original) (quoting United

States v. Appolon, 695 F.3d 44, 66 (1st Cir. 2012)). That is to

say, "we may reverse [the] convictions on the basis of the

prosecutor's remarks only if they were 'both inappropriate and

- 35 - prejudicial.'" United States v. Amaro-Santiago, 824 F.3d 154, 158

(1st Cir. 2016) (quoting United States v. Matías, 707 F.3d 1, 5

(1st Cir. 2013)). We have "fashioned a three prong test for

examining whether the [remarks] 'so poisoned the well' that the

trial's outcome was likely affected, thus warranting a new trial."

United States v. Joyner, 191 F.3d 47, 54 (1st Cir. 1999) (citing

United States v. Capone, 683 F.2d 582, 586-87 (1st Cir. 1982)).

"We examine: (1) whether the prosecutor's conduct was isolated

and/or deliberate; (2) whether the trial court gave a strong and

explicit cautionary instruction; and (3) whether it is likely that

any prejudice surviving the judge's instruction could have

affected the outcome of the case." Id. (citing United States v.

Hodge-Balwing, 952 F.2d 607, 610 (1st Cir. 1991)). We thus review

the challenged remarks under the three-pronged test.

First, while Cruz-Rivera identifies four statements by

the prosecutor that he claims introduced facts not in evidence, we

disagree with those characterizations. As to the first statement,

regarding Gutierrez's reference to "Centro," which he claimed was

a nickname for a person based on where that individual lived, the

prosecutor's statement that Gutierrez "was talking about centro,

not the center translation, but centro, a location, a place for

drug dealing, a person," was a summary of Gutierrez's testimony

that was not clearly incorrect in a way that rises to the level of

introducing facts not in evidence. Similarly, the caption on the

- 36 - video evidence was a summary of Gutierrez's testimony and did not

constitute facts not in evidence.

As to the prosecutor's suggestion to the jury that it

interpret Gutierrez's testimony regarding "the truck from there"

as a reference to drugs coming from Puerto Rico, this was not a

statement of facts not in evidence, or a statement of fact at all.

Rather, the prosecutor was asking the jury to make an inference

based on the evidence that was presented. This was not an error.

See Ponzo, 853 F.3d at 583.

Finally, the prosecutor's contention that the jury

should conclude that Gutierrez and defendants had not left the

garage as Cruz-Rivera claimed based on the surveillance team's

observations comes closest to introducing facts not in evidence.

While the government's evidence ambiguously identified the

presence of two trucks at the Union Street garages during the

surveillance, the government addressed this confusion through

additional questioning of the testifying officers to clarify that

the surveillance team confirmed that the second truck spotted was

not Gutierrez's as Cruz-Rivera claimed. Thus, even this statement

is not clearly a misstatement of the facts in evidence. In any

event, this one arguable misstatement was isolated, the district

court instructed the jury that closing arguments were not evidence,

and the statement was far from so poisoning the well as to warrant

a new trial. See Joyner, 191 F.3d at 54. Because the statement

- 37 - was harmless, we will not disturb the convictions on this basis.

D. District Court's Response to the Jury

Next, Jimenez argues that the district court incorrectly

instructed the jury in response to a question asked during

deliberations. After initially being instructed on the elements

of conspiracy of and possession with intent to distribute at least

one hundred grams of heroin, the jury asked two questions regarding

conspiracy. Relevant here is the second question:

If you are aware that money confiscated during a traffic stop is illegal drug money, and you participate in the attempted retrieval of the confiscated money, are you a willful participant in the conspiracy agreement?

In response, the district court instructed the jurors:

[I]t's going to be very frustrating, and I apologize, but what I'm going to ask you to do -- well, first of all, the answer is it depends, okay. And that is not the answer that I think you wanted to hear, but it depends upon a bunch of things. It depends upon the facts as you have found them and taking these facts and applying them to the instructions on -- that I gave you on the crime of conspiracy. Okay. Now, I wish I could be more specific than that, but I can't because the instructions are an accurate recitation of the law, and you have to take those instructions and apply them to the facts as you find them to be.

Both before and after the district court answered the jurors'

question, Jimenez objected and noted that his position was that

"No" was the appropriate answer. On appeal, Jimenez argues that

the answer of "it depends" was legally incorrect because it either

- 38 - was an improper opinion on a hypothetical fact pattern or the

district court erroneously instructed the jury that retrieval of

the receipt for the cash confiscated during the traffic stop means

that Jimenez was a co-conspirator to the narcotics crime.

When evaluating preserved challenges, we consider de

novo whether the district court misstated the law and review for

abuse of discretion whether the district court adequately

explained the law. United States v. Monteiro, 871 F.3d 99, 114

(1st Cir. 2017); United States v. Symonevich, 688 F.3d 12, 24 (1st

Cir. 2012).

We conclude that the district court did not misstate the

law because the jury's question was inherently fact-bound. See

United States v. Upton, 559 F.3d 3, 11 (1st Cir. 2009)

("Determining the contours of the conspiracy ordinarily is a

factual matter entrusted largely to the jury."). An answer that

waded into the facts would have impermissibly intruded on the

jury's "constitutional responsibility" "to determine the facts"

and "to apply the law to those facts." United States v. Gaudin,

515 U.S. 506, 514 (1995). The district court sufficiently

explained to the jury that a finding of conspiracy depends on its

factual findings and did not abuse its discretion in answering the

jury's question. Rather, the district court correctly

"exercise[d] caution" when answering a question that may have been

dispositive to the jury's decision. United States v. Roberson,

- 39 - 459 F.3d 39, 46 (1st Cir. 2006). Accordingly, we find no merit

in the claim that the district court's response to the jury

warrants disturbing the convictions.

E. Jimenez's Sentence

Finally, Jimenez argues that the district court erred in

applying the mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(B)(i). Section 841(b)(1)(B) mandates a five-year

minimum sentence for any violation of section 841(a) involving one

hundred grams or more of heroin. At sentencing, the district

court adopted the recommendation of the presentence report that

Jimenez receive the mandatory minimum based on the jury's finding

that Jimenez possessed or distributed one hundred grams or more of

heroin. On appeal, Jimenez argues that the district court erred

in applying the mandatory minimum sentence because the verdict

indicates that Jimenez was convicted on an aiding and abetting

theory and, thus, lacked knowledge of the drug quantity. In other

words, Jimenez argues that he lacked the requisite mental state

for application of the mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(B)(i).

Jimenez's argument cannot overcome binding precedent.

In United States v. Collazo-Aponte, we held that drug quantity is

not "an element of the offense to which the mens rea requirements

should apply." 281 F.3d 320, 326 (1st Cir. 2002). Instead,

Section 841(b)'s "plain language" requires "the government to

- 40 - prove only that the offense 'involved' a particular type and

quantity of drug, not that the defendant knew that he was

distributing that particular drug type and quantity." Id. (citing

United States v. Sheppard, 219 F.3d 766, 768 n.2, 770 (8th Cir.

2000)). As we have noted, the law of precedent is a bedrock to

our system of adjudication. See United States v. Barbosa, 896

F.3d 60, 74 (1st Cir. 2018). While that doctrine admits of

exceptions in very limited circumstances, defendants' arguments

based on subsequent Supreme Court cases, citing principally Rehaif

v. United States, 139 S. Ct. 2191, 2195 (2019), Elonis v. United

States, 135 S. Ct. 2001, 2009 (2015), and Alleyne v. United

States, 570 U.S. 99, 114–15 (2013), do not "offer[] a sound reason

for believing that the former panel, in light of fresh

developments, would change its collective mind." Barbosa, 896

F.3d at 74. 3 Indeed, every other circuit to have considered

whether section 841(b) required that a defendant have knowledge of

the specific quantity has rejected that claim. See United States

v. King, 345 F.3d 149, 152–53 (2d Cir. 2003) (per curiam); United

States v. Barbosa, 271 F.3d 438, 457–58 (3d Cir. 2001); United

States v. Brower, 336 F.3d 274, 276–77 (4th Cir. 2003); United

States v. Gamez-Gonzalez, 319 F.3d 695, 699–700 (5th Cir. 2003)

3As Jimenez notes, in a recent unpublished decision, a panel of this court rejected an argument that Collazo-Aponte should be revisited and overturned. See United States v. Mejía-Romero, 822 Fed. App'x 1, 3 (1st Cir. 2020) (unpublished).

- 41 - (dictum); United States v. Villarce, 323 F.3d 435, 438-39 (6th

Cir. 2003); United States v. Carrera, 259 F.3d 818, 830 (7th Cir.

2001); Sheppard, 219 F.3d at 768 n.2; United States v. Collazo,

984 F.3d 1308, 1326-29 (9th Cir. 2021) (en banc); United States v.

Briseno, 163 F. App'x 658, 665–66 (10th Cir. 2006) (unpublished);

United States v. Sanders, 668 F.3d 1298, 1310 (11th Cir. 2012)

(per curiam); United States v. Branham, 515 F.3d 1268, 1275–76

(D.C. Cir. 2008). We conclude that the holding of Collazo-Aponte,

that "the government [must] prove only that the offense 'involved'

a particular type and quantity of [a proscribed] drug, not that

the defendant knew that he was distributing that particular drug

type and quantity," controls our review of convictions on three

drug-trafficking counts. 281 F.3d at 326.4 We affirm the district

court's application of the mandatory sentencing guidelines on that

basis.

III. CONCLUSION

For the reasons stated above, the judgments of

conviction are affirmed.

4Jimenez suggests that the jury's determination on the conspiracy count that one hundred grams of heroin was not foreseeable to him necessarily meant that he lacked requisite knowledge of the circumstances of the offense, and thus could not be liable as an aider and abettor on the substantive count. Therefore, he contends, the jury must have found him liable under a constructive possession theory. We are not persuaded by this argument because under any theory of liability, the jury was not required to find that Jimenez had knowledge of the drug quantity.

- 42 -