United States v. Maldonado-Pena

4 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 2021
• Docket: 17-1432P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 17-1432

UNITED STATES,

Appellee,

v.

IDALIA MALDONADO-PEÑA,

Defendant, Appellant.

No. 17-1551

JUAN RIVERA-GEORGE, a/k/a TIO,

No. 17-1681

SUANETTE RAMOS-GONZALEZ, a/k/a SUEI, a/k/a SUANETTE GONZALEZ- RAMOS,

Defendant, Appellant. No. 18-1184

CARLOS RIVERA-ALEJANDRO,

No. 18-1496

JOEL RIVERA-ALEJANDRO, a/k/a "J",

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

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Mariángela Tirado-Vales for appellant Idalia Maldonado-Peña. José R. Olmo-Rodriguez for appellant Juan Rivera-George. Raymond L. Sanchez Maceira for appellant Suanette Ramos- Gonzalez. Rachel Brill for appellant Carlos Rivera-Alejandro. Rafael F. Castro Lang for appellant Joel Rivera-Alejandro. Daniel N. Lerman, United States Department of Justice, Criminal Division, Appellate Section, with whom W. Stephen Muldrow, United States Attorney, Mariana Bauza, Assistant United States Attorney, Brian A. Benczkowski, Assistant Attorney General, and John P. Cronan, Principal Deputy Assistant Attorney General, were on brief, for appellee.

June 30, 2021 THOMPSON, Circuit Judge.

OVERVIEW

These appeals arise from the drug conspiracy and

distribution convictions of five members of a vast drug trafficking

organization. Operating primarily out of the Los Claveles Housing

Project ("Los Claveles") and the general Villa Margarita Ward area

within the Municipality of Trujillo Alto, Puerto Rico, fifty-five

individuals were indicted on charges of conspiracy to distribute

heroin, cocaine, cocaine base (aka crack), marijuana, and

prescription pills between May 2006 and May 2009. The indictment

tagged each of the defendants before us with at least one role in

the conspiracy; hierarchical designations ranging from leader,

supervisor, drug owner, enforcer, runner, seller, or facilitator.

Subsets of the fifty-five were charged with "aiding and abetting

in the distribution of" one or more of heroin, cocaine base,

cocaine, or marijuana. Some were also charged with conspiracy "to

possess firearms in furtherance of drug trafficking crimes."

By the time a jury trial started in the summer of 2014

-- more than five years after the 2009 indictment (which certainly

raises our eyebrows) -- most of the defendants had pled guilty.

Four of them testified as cooperating witnesses ("CWs") for the

government. At the end of the trial in December 2015 only eight

defendants remained. The jury acquitted one defendant of all

- 4 - charges and convicted the other seven of some or all of the charges

against them.

Five of these defendants -- Joel Rivera-Alejandro,

Carlos Rivera-Alejandro, Juan Rivera-George, Suanette Ramos-

Gonzalez, and Idalia Maldonado-Peña -- have appealed their

convictions (and some their sentences) and we briefly introduce

them to you.

• Joel1 was charged as one of the two leaders of the conspiracy as well as an enforcer. He was convicted of two conspiracy charges and all substantive drug charges, and sentenced to 360 months' imprisonment, concurrent. • Carlos (Joel's brother) was identified as a supervisor, drug owner, seller, and enforcer. He was convicted on all counts against him and sentenced to 324 months' imprisonment, concurrent. • Juan was tagged as a runner for the conspiracy, convicted on all counts, and sentenced to 235 months' imprisonment, concurrent. • Suanette was charged for her roles as a seller and a facilitator and convicted of the drug conspiracy charge as well as the substantive marijuana distribution charge. Suanette was sentenced to 24 months' imprisonment, concurrent. • Idalia (Carlos's wife) was identified in the indictment as a seller and convicted on the cocaine base distribution charge. Idalia was sentenced to 60 months' imprisonment.

The five defendants in these consolidated appeals raise

a variety of challenges. In our review of their claims, we will

1We have used the defendants' first names throughout this opinion because two of them (brothers) share the same last name and a third has a similar surname. We intend no disrespect to the defendants by using their first names and we only use them to make it clear as to whom we are referring as we work our way through their arguments before us.

- 5 - start by addressing the speedy trial contentions before turning to

other purported trial errors. We'll provide the background

information necessary to place the issues and arguments in context

as we proceed.2 For those readers for whom what follows will be

tl;dr,3 the short version is that none of the issues raised by

these five defendants translate into reversible error warranting

vacatur of their convictions or sentences. Thus, we affirm the

whole kit and caboodle.

2 A quick aside about our presentation of the testimony and evidence at trial as we trudge through the issues. Only Juan and Suanette challenge the sufficiency of the evidence to support their convictions, and we don't address those issues until after we have worked through others, including challenges to several evidentiary decisions made during trial. Our presentation of the facts will be in a neutral, "balanced fashion," except where otherwise specified, especially because "the precise manner in which we chronicle the backstory has no impact on our decision." United States v. Zimny, 846 F.3d 458, 460 n.2 (1st Cir. 2017) (citing United States v. Vázquez–Larrauri, 778 F.3d 276, 280 (1st Cir. 2015), and United States v. Rodríguez–Soler, 773 F.3d 289, 290 (1st Cir. 2014)). When we reach Juan's and Suanette's sufficiency- of-the-evidence arguments, we'll recite "our summary of the facts in the light most favorable to the jury's verdict." United States v. Chan, 981 F.3d 39, 45 (1st Cir. 2020) (citing United States v. Charriez-Rolón, 923 F.3d 45, 47 (1st Cir. 2019)).

3 If "tl;dr" isn't familiar, it stands for "Too Long; Didn't Read" which, as defined by Urban Dictionary, is "used by someone who wrote a large post[]/article/whatever to show a brief summary of their post as it might be too long." https://www.urbandictionary.com/define.php?term=tl%3Bdr, last visited June 28, 2021.

- 6 - SPEEDY TRIAL

The defendants waited five years for trial (Joel & Carlos)

"[T]he right to a speedy and public trial" is guaranteed

to criminal defendants via the Sixth Amendment. United States v.

Lara, 970 F.3d 68, 80 (1st Cir. 2020) (quoting U.S. Const. amend.

VI). Therefore, criminal charges must be dismissed when the

government violates this right. Id. (quoting United States v.

Dowdell, 595 F.3d 50, 60 (1st Cir. 2010)). Joel and Carlos claim

that their constitutional right to a speedy trial was violated

because, after they were arrested and arraigned in mid-2009, the

trial (which took 128 days to complete) didn't start until five

years later.4

Below, the defendants voiced speedy trial complaints

during the pretrial period. In April 2013, Joel filed a motion to

dismiss his indictment alleging his constitutional right to a

speedy trial had been violated. Carlos joined the motion. The

magistrate judge to whom the motion was referred issued a Report

and Recommendation ("R&R") in July 2013. The magistrate judge

found the trial date had either been vacated or rescheduled eight

times and attributed much of the delay to change of plea motions

There was some mention of the Speedy Trial Act during the 4

trial phase and Juan provides one paragraph summarizing the statute in his brief but, on appeal, the defendants' arguments focus exclusively on the constitutional rather than the statutory right to a speedy trial.

- 7 - filed by forty of Joel's codefendants. He also cited the numerous

pretrial motions Joel filed requesting new counsel which resulted

in continuation motions so that each new counsel (three in all)

could get up to speed. The magistrate judge also determined Joel

had not shown prejudice from the delay and recommended the district

court deny the motion to dismiss.

Joel objected to the R&R (and Carlos adopted that

objection), focusing on the failure of the R&R to discuss the

numerous pretrial motions the government had filed up to that point

which had contributed to the delay of the trial's start date.

According to Joel, in the four years between his indictment and

his speedy trial motion to dismiss, he had filed 4 continuation

motions whereas the government had filed 22 motions to either

continue the trial date or extend the time to respond to a pending

motion. Joel further argued the length of the delay was

presumptively prejudicial as per our case law and the magistrate

judge should not have required him to show the ways in which he'd

been prejudiced. Responding to the objection, the trial judge

entered a one-paragraph order agreeing with the R&R and concluding

there had been no speedy trial violation.

On appeal, Joel and Carlos reprise their complaints.5

We have consistently reviewed a district court's resolution of a

5 Below, Juan and Suanette joined Joel's motion to dismiss for violation of their constitutional speedy trial rights, but

- 8 - defendant's motion to dismiss his indictment on the basis of a

Sixth Amendment violation of his right to a speedy trial for abuse

of discretion.6 Lara, 970 F.3d at 80. When we evaluate such a

challenge, we consider, primarily, four factors as set forth in

Barker v. Wingo, 407 U.S. 514, 530-32 (1972): "(1) 'the length of

delay'; (2) 'the reason assigned by the government for the delay';

(3) 'the defendant's responsibility to assert his right'; and (4)

'prejudice to the defendant, particularly to limit the possibility

that the defense will be impaired.'" Lara, 970 F.3d at 80 (quoting

United States v. Handa, 892 F.3d 95, 101 (1st Cir. 2018)).

However, "none of the four factors" is "either a necessary or

sufficient condition to the finding of a deprivation of the right

of speedy trial. Rather, they are related factors and must be

considered together with such other circumstances as may be

relevant." Barker, 407 U.S. at 533. Further, our case law tells

neither filed an objection to the R&R nor indicated he or she joined in Joel's objection. The R&R explicitly put them on notice that the failure to object within 14 days of the R&R would waive their right to appellate review. Therefore, despite Juan's cursory arguments here about this issue and Suanette's attempt to join the arguments on appeal, they have waived this issue. See United States v. Díaz-Rosado, 857 F.3d 89, 94 (1st Cir. 2017).

6 As we have mentioned in other opinions addressing a speedy trial violation argument, there is some debate about whether the abuse of discretion standard is the appropriate standard of review for this issue, but for various reasons it is the standard we have consistently applied. See Lara, 970 F.3d at 80; United States v. Irizarry-Colón, 848 F.3d 61, 68 (1st Cir. 2017). Here, the parties agree our review is governed by this standard, so we proceed with it once again.

- 9 - us to presume delays of one year or more are prejudicial and to

proceed with an analysis that "balance[s] all four of the factors

to determine whether there has been a violation, as [no one factor]

carries 'any talismanic power.'" Lara, 970 F.3d at 81 (quoting

Dowdell, 595 F.3d at 60).7 Additionally, the Supreme Court has

been clear that the inquiry into the four factors is completely

dependent on the circumstances of each individual case. See

Barker, 407 U.S. at 530-31. Joel and Carlos argue all four Barker

factors weigh in their favor. We turn now to examine them.

Everyone agrees that the first factor -- length of delay

-- weighs in Joel's and Carlos's favor. There is no doubt that

the time between the defendants' May 2009 indictments and the July

28, 2014 trial start date was more than one year.8

The second factor -- reasons for the delay -- is the

"focal inquiry." Lara, 970 F.3d at 82 (quoting United States v.

Souza, 749 F.3d 74, 82 (1st Cir. 2014)). Joel, joined by Carlos,

and the government are quick to point fingers at each other. Both

7 A quick aside: Joel also tries to bring in the length of time that passed between the jury's verdict and his sentencing hearing. However, the Supreme Court has clearly stated the Sixth Amendment's guarantee to a speedy trial does not "apply to the sentencing phase of a criminal prosecution[.]" Betterman v. Montana, 136 S. Ct. 1609, 1612 (2016) ("[O]nce a defendant has been found guilty at trial or has pleaded guilty to criminal charges[,]" the guarantee doesn't apply).

8 "The length of pretrial delay is calculated from either arrest or indictment, whichever occurs first." United States v. Casas, 425 F.3d 23, 33 (1st Cir. 2005).

- 10 - defendants argue the root of the delay was the government's

decision to indict and prosecute fifty-five defendants at the same

time, exacerbated by the government's many motions to continue the

trial date. According to Joel and Carlos, the delay was made more

egregious by the trial judge's decision to wait to begin the trial

until all the other defendants seeking to change their plea had

done so, as well as the length of time she took to resolve pretrial

motions such as Joel's motions to suppress. In particular, Carlos

points out that defendants shouldn't have to choose between filing

pretrial motions and getting to trial faster. The government

argues the defendants principally caused the delays because of

their numerous pretrial motions -- specifically, that the four

defendants who bring speedy-trial claims (Joel, Carlos, Suanette,

and Juan) filed ninety-nine pretrial motions -- and further say

Joel's repeated change of counsel contributed to the delay.

When it comes to the reasons for delays, "different

weights should be assigned to [the] different reasons" the

government points to as justification for the delays. Barker, 407

U.S. at 531. In Lara, we held this factor weighed against the

defendants there because their pretrial motions and those of other

codefendants were the primary reason for the delays, not government

foot-dragging. 970 F.3d at 82. In United States v. Casas, we

noted the government had a legitimate reason for the five-and-a-

half-year delay between the return of the indictment and the

- 11 - arraignment: the government's inability to find the defendant.

356 F.3d 104, 112-13 (1st Cir. 2004). Here, unlike these prior

cases, the five-year wait for trial was clearly caused by the

numerous motions of all stripes filed by both the government and

the defendants, including motions to suppress, discovery-related

motions, change of plea motions, motions to continue the trial

date, etc. Also contributing to the delay was the court's need on

several occasions to continue the proceedings to attend to change-

of-plea hearings from the other forty-seven indicted conspiracy

members. Accordingly, it is difficult to draw a line and attribute

trial delay to either the government or the defendants because

they both substantially contributed to it.

Joel pushes back and insists that this mega-prosecution

is the root cause of the impermissible, inordinate delay that

transpired here and this court, he urges, should not countenance

it. However, in considering a speedy trial challenge involving

the prosecution of ten drug trafficking conspirators, this court

deemed the joint proceeding an "efficient administration of

justice," even when the time from arrest to trial took over three

years. United States v. Casas, 425 F.3d 23, 33, 34 (1st Cir.

2005). Nonetheless, Joel argues the joint prosecution of fifty

persons here certainly did not lead to efficiency as he waited

more than five years to reach the first day of trial. As reasonably

viewed, the efficient administration of justice is at least

- 12 - questionable in this case and the delay causes us much concern.

But given our conclusion that both sides contributed to the delay,

we have no reason to reconsider Casas' efficiency rationale. So

on we go.

Moving to the third factor -- when and how Joel and

Carlos asserted their rights to a speedy trial -- we note they did

file an unsuccessful motion to dismiss on this basis, albeit almost

four years post-arraignment. Subsequently, Joel filed two notices

asserting his right to a speedy trial -- one in December 2013 and

another in May 2014 -- asking the district court to simply note

that he was asserting his right but not requesting a responsive

pleading from the government. In May 2015, after trial had been

underway for ten months, Carlos claimed a speedy trial violation

because he had already been detained for 72 months. This assertion

came after codefendant Suanette sought an eight-week trial break

due to pregnancy-related complications. In our view, in

considering Joel's and Carlos's efforts to assert their speedy

trial rights, while we cannot say they completely sat on their

rights, their efforts were, at best, rather anemic. Barker, 407

U.S. at 531-32 ("Whether and how a defendant asserts his right

. . . [and] [t]he strength of his efforts" reflects the degree of

prejudice to defendants.).

With respect to the fourth factor -- prejudice -- we

have previously "recognized three types of prejudice: 'oppressive

- 13 - pretrial incarceration, anxiety and concern of the accused, and

the possibility that the accused's defense will be impaired by

dimming memories and loss of exculpatory evidence.'" Lara, 970

F.3d at 82-83 (brackets omitted) (quoting Doggett v. United States,

505 U.S. 647, 654 (1992)). Out of the gate, the government says

that neither defendant explains how his defense was impaired --

i.e., prejudiced -- by the length of the delay. Nevertheless,

Carlos argues this court has never confronted a delay of this

length and given the presumption of prejudice beyond a one-year

delay, our analysis should begin and end there.

Beyond the extraordinary delay, Joel claims prejudice,

first citing the heightened and prolonged anxiety he experienced

because he thought the government was retaliating against him for

being acquitted in a Commonwealth death-penalty homicide trial.

Second, that the "oppressive conditions of confinement while [he]

was incarcerated" likewise need to factor into the prejudice

analysis.9

Joel points to United States v. Black, 918 F.3d 243,

264-65 (2d Cir. 2019), in support of his claim of prejudice. While

Black has the result Joel is looking for -- a dismissal due to

9 As the government points out, Joel did not identify how the conditions at the prison were inhumane for him, in particular because he didn't articulate any reasons specific to him, pointing instead to a newspaper article about the general conditions at the prison.

- 14 - speedy trial infractions of constitutional proportions -- the

reason for the sixty-eight-month delay between indictment and

trial in that case was attributed almost entirely to the

government. For years it was unable to settle on the charges and

it repeatedly flip-flopped on whether it was going to pursue the

death penalty. Id. at 248 (government ultimately filed a

superseding indictment with new charges almost three years after

the indictment was filed, then announced it would not seek the

death penalty). The defendants in Black also "repeatedly requested

a speedy trial." Id. at 249. The anxiety to the defendants in

Black caused by the uncertainty over whether they would face the

death penalty in the case for which they stood trial was of a

substantively different nature than the anxiety caused to Joel and

his codefendants from their long wait to be tried for drug

trafficking conspiracy.

While we clearly have grave concerns about the

government's approach in this case which resulted in a protracted

delay to verdict, we conclude the trial judge did not abuse her

discretion in denying Joel's motion, joined by Carlos, to dismiss

the indictment for violation of the Sixth Amendment's speedy trial

guarantee. Balancing all four Barker factors, the presumed

prejudice from the length of the delay is counterbalanced by Joel's

and Carlos's contributions to the pretrial delays as well as the

number of years they waited before asserting their speedy trial

- 15 - rights. See Lara, 970 F.3d at 80. As such, Joel and Carlos have

not shown how their ability to mount an adequate defense was

hampered by the delay or how the trial judge abused her discretion

by failing to so find.

That said, delaying the trial for those defendants who

chose to exercise their constitutional right to have the government

prove their guilt beyond a reasonable doubt while most of the rest

of the codefendants changed their pleas certainly raises genuine

concerns about the impact of the government's decision to charge

and monolithically process "mega-cases" on defendants' rights to

a speedy trial. This five-year gap between the indictment and the

start of trial does not sit well with us. Some of the defendants

spent this entire pretrial period detained while still presumed

innocent. When speedy trial rights claims are raised, drawing a

line and knowing when it has been crossed is circumstance-

dependent, but the defendants' five-year wait for trial was as

close as it comes to infringement. Despite their individual

contributions to some of the delay, each defendant was forced to

wait while forty-seven codefendants changed their pleas, changed

their counsel, new counsel got up to speed on the case, and the

judge processed and decided motions unrelated to them. Even though

the defendants made no showing of how their defenses were actually

impacted by the delay, at the very least witnesses' memories would

have dulled and faded over that time.

- 16 - There is no perfect solution to efficiently prosecuting

alleged large drug distribution conspiracy cases, but the

government needs to better balance the efficiencies it enjoys by

prosecuting these so-called "mega cases" with the defendants'

rights to a speedy trial by considering ways to break those

indicted into groups which can reach the first day of trial (when

the defendants choose to exercise this right) sooner. Additionally

and importantly, we note that the government's speedy trial

argument as presented in its briefing makes clear that the

government's reading of Casas is simply incorrect. We did not

give our blessing there to multidefendant indictments regardless

of the consequences, nor did we bless years of delay caused by

allowing the time for codefendants' change of pleas to make it

easier for the government to use codefendant testimony. When the

government indicts, it should have enough evidence to prove the

case as to each and every defendant without delays such as occurred

here. When the government brings such large multidefendant

criminal prosecutions, it assumes a considerable risk of violating

the constitutional rights of defendants. It also risks losing

convictions on appeal because of its choices, which are not

necessary choices, to proceed with a sizable number of defendants

(and/or overcharging).

And one final speedy trial coda before moving on: it

would be wise for the district court to better strategize how to

- 17 - move such multi-party cases through the judicial system given the

constitutional (and statutory) implications attendant thereto.

When the Department of Justice presents the district court with

these very difficult-to-manage scenarios, the court has management

tools available to it to see that the cases are handled more

expeditiously. Such tools are known to the district courts and it

may well be there can be agreements as to procedures likely to

secure more expeditious handling. Given these clear words of

caution, we would not expect to see such unprecedented procedural

prosecutions in the future.

The trial lasted 18 months (Carlos)

After the trial started in July 2014, approximately 128

trial days were spread out over eighteen months, with the jury

rendering its verdict in January 2016. The trial judge completed

sentencing in May 2018. Carlos contends this "excessive trial

length" was a violation of his Fifth Amendment right to due

process. He argues he was prejudiced by the length of the trial,

once it finally began, because during deliberations the jurors had

to recall and process testimony they had heard over the course of

the prior year-and-a-half. Our search of the record suggests this

- 18 - is the first time Carlos is asserting such a due process

infringement and Carlos directs us to nothing to the contrary.10

Because Carlos pivots to a due process argument on

appeal, plain-error review applies -- "a standard that requires

him to prove four things: (1) an error, (2) that is clear or

obvious, (3) which affects his substantial rights . . . , and which

(4) seriously impugns the fairness, integrity, or public

reputation of the proceeding." United States v. Correa-Osorio,

784 F.3d 11, 17–18 (1st Cir. 2015).

Carlos presents a novel Fifth Amendment argument asking

us to adopt and apply a modified four-factor speedy trial

analytical framework to his due process claim. But he points to

The government generously opines Carlos asserted this claim 10

when he replied to codefendant Suanette's motion in the summer of 2015 requesting the eight-week trial recess. But a review of Carlos's response reveals he presented no such objection. Instead, Carlos only argued the court should reconsider his detention status and allow him bond during the break because the length of time he had been detained since his arraignment (72 months) violated his speedy trial rights. The trial judge denied the bond request. It is clear the judge understood Carlos to be making a speedy trial motion because she responded to it by distributing a table reflecting the calendar days since the trial began when a full day of trial had not occurred and the reasons why trial had not been held -- or held for only half a day -- on any given day. The reasons ranged from illness on the part of a juror, an attorney, and a defendant, to scheduling conflicts across the board. The trial judge noted that none of the defendants had objected to the trial interruptions as they occurred and reiterated her speedy trial conclusion from the earlier motion -- "[d]efendants cannot trigger excludable delays during the pretrial stage [referring to the pretrial motions] and simultaneously log them as speedy trial violations."

- 19 - no case -- binding or otherwise -- in which we or the Supreme Court

have done so. Consequently, there cannot be any clear or obvious

legal error on the part of the trial judge.11 See United States

v. McCullock, 991 F.3d 313, 322 (1st Cir. 2021) (an error is clear

or obvious when a trial judge disregards controlling precedent).

Therefore, Carlos's argument on this point stumbles at the

threshold.

MOTIONS TO SUPPRESS

In this section, we examine Juan's and Joel's arguments

that the trial judge erred in denying two motions to suppress.

The notebook from Juan's apartment (Juan)

Police found a notebook full of names and phone numbers

in Juan's apartment during a warrantless search. According to

Juan, this notebook, admitted into evidence at trial, should have

been suppressed as obtained in violation of his Fourth Amendment

rights because the Drug Enforcement Administration ("DEA") agent

who seized the notebook did so when Juan was not home and without

obtaining voluntary consent from his wife prior to the search. As

11 Moreover, it is unclear how Carlos considers the trial judge to have erred because, on appeal, he challenges neither the denial of his request for bond nor the judge's response to his speedy trial violation assertion based solely on the length of the trial. To be sure, the trial in this case was protracted and, as Carlos points out, there are many disadvantages to a criminal trial spreading over such a long period. However, as the trial judge pointed out, there were myriad reasons why the trial took so long.

- 20 - we explain below, Juan waived this argument, so we decline to reach

the merits.

After Juan filed a motion to suppress the notebook, a

magistrate judge listened to testimony from one of the DEA agents

and Juan's wife, and he ultimately recommended the district court

deny the motion after concluding the government had adequately

shown Juan's wife did voluntarily consent to the search. The

magistrate judge's R&R had the usual warning: the parties had 14

days to file any objections to it and failure to object within

that timeframe waived the right to appeal the order. Juan filed

no objection and the trial judge approved and adopted the R&R.

Our procedural rules and case law are crystal clear that

when, as here, a party fails to file an objection to an R&R, the

party has waived any review of the district court's decision.

United States v. Díaz-Rosado, 857 F.3d 89, 94 (1st Cir. 2017);

Fed. R. Crim. P. 59(a); see also Garayalde-Rijos v. Mun. of

Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014) (noting the party had

notice that the failure to object would result in waiver of further

review of the decision); Davet v. Maccarone, 973 F.2d 22, 31 (1st

Cir. 1992). We move on to the preserved suppression issue Joel

raises.

- 21 - The gun from Joel's father's car (Joel)

Before trial, Joel sought suppression of a gun seized

from the car he was driving when a law enforcement agent pulled

him over outside his home. On appeal, Joel challenges the trial

judge's denial of that motion.

"[W]hen we review a challenge to a district court's

denial of a motion to suppress, we are to 'view the facts in the

light most favorable to the district court's ruling' on the

motion." United States v. Rodríguez-Pacheco, 948 F.3d 1, 3 (1st

Cir. 2020) (quoting United States v. Camacho, 661 F.3d 718, 723

(1st Cir. 2011)). "[W]e recite the key facts as found by the

district court, consistent with the record support." Id.

(quoting United States v. Young, 835 F.3d 13, 15 (1st Cir. 2016)).

On February 26, 2009, agents from an investigative group

called the Carolina Strike Force ("CSF") set up surveillance of

the Los Claveles Public Housing Project in Trujillo Alto after

receiving a tip from a reliable informant that the leaders of the

drug trafficking organization under investigation met there on

Thursdays to pick up money from the previous week's drug sales.

The agents watched Joel drive into the housing complex in his

father's car and leave in it, heading in the direction of his house

in Villa Margarita. Officer Agustin Ortiz saw the car's windows

were likely tinted darker than allowed by Puerto Rico law, so he

- 22 - used his siren to initiate a stop. Instead of pulling over

immediately, Joel indicated with his hand that Officer Ortiz should

follow him. He eventually stopped at the gate in front of his

driveway. Several family members exited the house and walked

toward the car. Officer Evette Berrios Torres saw Joel trying to

move a black object on the floor of the driver's seat with his

foot while his mother was leaning against the car and trying to

pick something up with her hand. Recognizing the object was a

black pistol (which turned out to be a Glock model 26, .9 mm

pistol) Officer Berrios seized it. Joel was arrested.

In a motion to suppress the gun, Joel detailed the same

basic sequence of events as recited above and argued multiple

reasons why the warrantless search of the vehicle violated his

Fourth Amendment rights: law enforcement had no reasonable

suspicion there was contraband in the car, the traffic stop for

the allegedly illegal tint on the windows was clearly a pretext to

search the vehicle, and he was forcibly removed from the vehicle

after law enforcement opened the car door and saw the gun in plain

view. Joel attached three documents to his motion: the warrant

application and supporting affidavit for the car search (obtained

after Joel was pulled over and arrested), a written declaration by

Joel's father (who was at the house when Joel stopped the car and

saw the series of events unfold), and a photo of the driver's area

of the car (taken a few steps back from the open driver's side

- 23 - door). Joel did not request an evidentiary hearing. Joel's

father's recitation of what occurred during the traffic stop did

not conflict with law enforcement's rendition: he briefly stated

that, after Joel stopped his car at the front gate of their home,

"law enforcement personnel surround[ed] the vehicle and

instruct[ed] Joel to unlock the car door." "After Joel unlocked

the door, law enforcement personnel opened the car door and removed

him from the vehicle." Joel was not given a traffic ticket for

the tinted windows on this day and his father was not given such

a ticket for the vehicle at any other time.

The government opposed Joel's motion to suppress,

arguing, first, the dark tint on the windows gave Officer Ortiz

probable cause to stop the car and second, no Fourth Amendment

violation had occurred because the gun had been seen in plain view

and thus properly seized without searching the car. The trial

judge denied the motion to suppress in a written order, relying on

the documents Joel filed in support of his motion.12

During the trial, Puerto Rico Officer Ortiz (assigned to

the Bureau of Alcohol, Tobacco, Firearms ("ATF") as an

investigating agent but part of the CSF in 2008 and 2009) provided

The judge found there was no evidence the law enforcement 12

agents had exercised physical force and that Joel had conceded the gun was in plain view when the police opened the unlocked door. Regardless, the judge concluded the police had probable cause to search based on Joel's behavior from the first wail of the siren through to the seizure of the gun.

- 24 - more detail about how the gun was found in Joel's father's car.13

Officer Ortiz had been assigned to be in a police cruiser on the

day in question, ready to act if needed. In addition to describing

the sequence of events as laid out above, he stated he pulled the

car over both because the car had darkly tinted windows and because

he needed to confirm Joel was in the car. He testified that while

he did not test the tint level that day, he is trained in how to

test the tint on the windows and perceived a difference between

the tints on the front versus the back windows, with the front

window tinted impermissibly darker.

He testified that when Joel stopped the car in front of

the gate at the house, Joel opened the driver's side door and

placed his left leg outside of the car, while honking the horn and

calling out for someone to open the gate. Officer Ortiz told Joel

to turn off the car, but another officer opened the front passenger

door and turned off the ignition. Officer Ortiz said Joel's mother

came out of the house saying "leave my son alone," then indicated

she was going to faint, all the while leaning against the car and

reaching inside. Agent Berrios walked up to Officer Ortiz to help

with Joel's mother and Agent Berrios saw the firearm on the floor

13 We may consider this testimonial evidence from the trial because Joel renewed his suppression motion. See United States v. Howard, 687 F.3d 13, 17 (1st Cir. 2012); United States v. de Jesus- Rios, 990 F.2d 672, 675 n.2 (1st Cir. 1993).

- 25 - of the car, near Joel's right foot. According to Officer Ortiz,

"tactical operations [are] a heated, . . . hostile environment."

The situation was so heated, according to Officer Ortiz, that he

couldn't give the ticket for the dark tint on the windows and then

he forgot to issue the ticket once everyone was at the police

station. Following Officer Ortiz's testimony, Joel renewed his

motion to suppress the gun. Again, it was denied.

We have long-established standards for reviewing a

district court's denial of a motion to suppress: we consider the

motion anew, giving full deference to the district court's

findings of fact (disturbing them only if the record reveals the

findings were clearly wrong), and upholding the denial "if any

reasonable view of the record supports it." United States v.

Gonsalves, 859 F.3d 95, 103 (1st Cir. 2017). Stated slightly

differently, "[u]nder this rubric we can likewise affirm a denial

on any basis apparent in the record." Id. Applying this standard,

we affirm the denial of Joel's motion to suppress the gun.

We can quickly dispose of one argument Joel raises here:

that the trial judge erred by not conducting a pretrial hearing

before denying the motion to suppress, instead relying on the

search warrant application and supporting affidavit completed

after the warrantless stop. The government responds that Joel was

not entitled to a hearing on his motion because he hadn't pointed

to any disputed facts. Generally, the district court has

- 26 - discretion as to whether it holds an evidentiary hearing when

considering a motion to suppress evidence, so abuse of discretion

informs our review of the trial court's denial of an evidentiary

hearing. United States v. Ponzo, 853 F.3d 558, 572 (1st Cir.

2017). "A defendant has no right to an evidentiary hearing unless

he shows 'that material facts are in doubt or dispute, and that

such facts cannot reliably be resolved on a paper record' -- most

critically, he 'must show that there are factual disputes which,

if resolved in his favor, would entitle him to the requested

relief.'" Id. (quoting United States v. Francois, 715 F.3d 21, 32

(1st Cir. 2013)). Notably, Joel still has not pointed to any

material facts about the stop and seizure of the gun he believes

are in dispute. Additionally, Joel never requested a hearing,

either in his pretrial motion to suppress or when he renewed his

motion during trial. The trial judge did not, therefore, abuse

her discretion by not holding a hearing.

Aside from his procedural gripe, Joel argues Agent Ortiz

did not have any "specific articulable facts to justify" pulling

him over because the level of tint on the windows was merely a

disingenuous pretext for the stop. The government says the tinted

windows provided plenty justification. We agree. There is no

doubt that "[a]n officer can stop a car if he sees a driver commit

a traffic offense, even if the stop is an excuse to investigate

something else." United States v. McGregor, 650 F.3d 813, 820

- 27 - (1st Cir. 2011) (citing Whren v. United States, 517 U.S. 806, 810

(1996)). The officer can then order those inside the vehicle to

get out. Id. (citing Maryland v. Wilson, 519 U.S. 408, 410, 414-

15 (1997)). Officer Ortiz, based on his training and experience,

testified he initiated the traffic stop in part because he noticed

Joel's unlawfully tinted front window. This alone, under the

governing case law, is adequate justification for the stop.14

Joel raises no challenge to the seizure of the gun once

he stopped the car. And there is no dispute Officer Berrios saw

the gun on the floor of the driver's seat when Joel was exiting

the car, which the trial judge so found. The denial of Joel's

suppression motion is, therefore, affirmed.

EVIDENTIARY ISSUES

The defendants raise a litany of evidentiary issues,

which we address in turn. These issues include whether:

• the handwritten notes from law enforcement's interviews with codefendants should have been produced to the defendants; • the handwritten notes on a series of documents admitted as business records were properly admitted for a limited purpose; • the scope of cross-examination of some witnesses was improperly limited;

For the first time on appeal, Joel argues -- spilling lots 14

of ink -- that Officer Ortiz lacked probable cause to stop him because the supposed tip from an informant that the organization's leaders met at a specific location each Thursday flunked the long- established standards for reliability and credibility for tips. Bypassing forfeiture and plain error review, we decline to address Joel's argument because, as the government correctly points out, the stop was justified by the tinted windows infraction.

- 28 - • proffered impeachment testimony was erroneously disallowed; and • the trial judge should not have allowed multiple witnesses to testify about the same investigatory incident.

In order to sensibly address these issues, we need to introduce

four men who were indicted along with the defendants but pled

guilty before trial and became CWs for the government: Manuel

Ferrer Haddock ("Ferrer"), Jaime Lopez Canales ("Lopez"), Jamie

Rivera Nieves ("Rivera"), and Miguel Vega Delgado ("Vega").15

Testifying law enforcement agents involved in the investigation

also feature prominently in the evidentiary challenges raised in

this next section. We will provide a summary of their testimony

that is relevant to the evidentiary issues raised here as we go.

Rough notes from interviews with CWs (Suanette, Juan)

Law enforcement officers jotted down informal notes when

they formally interviewed CW Lopez and CW Ferrer. They then

prepared official reports which Suanette and Juan received. Both

defendants contend the "rough notes" should have been given to

them during the trial upon their request. Suanette's arguments

here focus on the notes' supposed value as exculpatory evidence

while Juan's claims hinge on an alleged Jencks Act violation.

Per "Spanish naming conventions, if a person has two 15

surnames, the first (which is the father's last name) is primary and the second (which is the mother's maiden name) is subordinate." United States v. Martínez-Benítez, 914 F.3d 1, 2 n.1 (1st Cir. 2019).

- 29 - CW Lopez (Suanette)

In August 2014, Suanette filed a motion to compel the

production of the "rough notes" from CW Lopez's interview.

Invoking both the Jencks Act (18 U.S.C. § 3500) and Brady v.

Maryland, 373 U.S. 83 (1963) (but not explaining how either

entitled her to the notes she sought), Suanette said these "rough

notes" were "fundamental in corroborating the witness information

in the DEA report and to verify" the consistency of CW Lopez's

testimony before the grand jury and trial jury. Suanette also

asked that, in the alternative, the notes be produced to the trial

court for in camera inspection before ruling.

At the court's request that Suanette explain her "need"

for the notes, Suanette provided additional details to support her

motion for production. Suanette admitted she'd received

"synops[e]s" of the Lopez interviews, but complained they were

insufficient because they captured the agents' "interpretation[]

of what . . . [Lopez] told them" and not the raw information

straight from his mouth. Also in her response, Suanette claimed

although she had evidence CW Lopez had not mentioned her during

his first interview she was also entitled to the rough notes from

his other four interviews because if Lopez did not name her in any

of these subsequent interviews then those notes would also be

exculpatory evidence.

- 30 - In a written order, the trial judge denied Suanette's

motion to compel, concluding neither the Jencks Act nor Brady

entitled her to the rough notes. Labeling "sheer speculation"

Suanette's argument that the agents' interview summaries might be

missing "evidence or information favorable to them of an

exculpatory nature," she concluded Suanette had not made a

"colorable [Brady] claim." With respect to Suanette's Jencks Act

contention, the judge concluded she would only be entitled to the

notes if CW Lopez actually adopted the contents of the agents'

interview notes as his own.

On appeal, Suanette again argues that, because the

official DEA report of all CW Lopez's interviews did not include

her name in connection with the conspiracy, the rough notes are

exculpatory as well as impeachment evidence that should have been

produced pursuant to Brady: exculpatory because the reasonable

inference from the failure to name her is that she was not involved

in the conspiracy and impeachment because the notes contradicted

CW Lopez's trial testimony. There, he testified that he bought

marijuana from Suanette at the drug point in Villa Margarita on

Amapola Street from 2007 to 2008 and she "collected the money"

from the customers while her husband handed over the product,

information which, if true, would have found its way into the rough

notes. Plus, according to Suanette, his testimony about her

alleged involvement supposedly conflicted with that of CW Vega.

- 31 - (We'll get into this supposed conflicting testimony a little later

when we address Suanette's sufficiency argument). By not having

this supposedly exculpatory evidence during the trial Suanette

says she was prejudiced.16 If there was doubt about the relevance

of the rough notes, the trial judge, at minimum, should have made

an in camera inspection of them.

The government responds that the trial judge did not

abuse her discretion when she denied Suanette's motion to compel

because the rough notes were immaterial and not likely exculpatory.

Immaterial because Suanette already knew and had evidence CW Lopez

never told law enforcement agents she was part of the drug

conspiracy -- her name was not on the list of alleged members of

the drug trafficking organization that law enforcement included in

their official report from the interviews with him. Further, as

the government points out, Suanette cross-examined CW Lopez at

length about whether he had mentioned her during his formal

interviews. The rough notes were also immaterial because CW Lopez

was not the only witness to testify about Suanette's drug

transactions.

We do not discern any argument on appeal challenging the 16

trial judge's conclusion that the rough notes sought were not discoverable pursuant to the Jencks Act. We read Suanette's argument to focus entirely on the value of the rough notes as exculpatory and impeachment evidence. But we will soon get into the Jencks Act when we address Juan's arguments about rough notes from CW Ferrer's interviews below.

- 32 - As for the trial judge's refusal to inspect the notes in

camera, the government says Brady does not allow fishing

expeditions and Suanette did not show the notes would contain

exculpatory or impeachment information that was not already in

other documents in her possession. As we view it, the government

has the better arguments on this issue, and we'll explain why after

first setting out the governing legal principles.

A trial judge's conclusion that information is not

exculpatory under Brady gets examined through an abuse-of-

discretion lens. United States v. Schneiderhan, 404 F.3d 73, 78

(1st Cir. 2005) (citing United States v. Rosario-Peralta, 175 F.3d

48, 55 (1st Cir. 1999)). To make an effective Brady claim, "[t]he

evidence at issue must be favorable to the accused, either because

it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the [government], either willfully or

inadvertently; and prejudice must have ensued." United States v.

Avilés-Colón, 536 F.3d 1, 19 (1st Cir. 2008) (quoting Strickler v.

Greene, 527 U.S. 263, 281-82 (1999)). "The import of withholding

evidence is heightened 'where the evidence is highly impeaching or

when the witness' testimony is uncorroborated and essential to the

conviction.'" Id. (emphasis omitted) (quoting Conley v. United

States, 415 F.3d 183, 189 (1st Cir. 2005)). "Suppressed

impeachment evidence is immaterial under Brady, however, if the

- 33 - evidence is cumulative or impeaches on a collateral issue." Id.

(quoting Conley, 415 F.3d at 189).

After reviewing the record as a whole, we do not see how

Suanette could have gained anything substantial from the

production of the rough notes from CW Lopez's interviews, even if,

had they been produced, they revealed no mention of Suanette's

name. Here's why: as Suanette herself discusses in her brief,

she asked one of the law enforcement agents who interviewed CW

Lopez if Lopez ever mentioned Suanette during his interviews. The

agent said he couldn't remember. When pressed again, the agent

agreed that he would have "[m]ost likely" written her name down if

CW Lopez had mentioned her. This exchange makes the precise point

Suanette says she needed to make.

Moreover -- and as the government indicates -- the DEA's

official report of the interviews with CW Lopez included a list of

the members of the drug trafficking organization under

investigation that CW Lopez fingered, and Suanette wasn't on that

list. We fail to see how the absence of her name from the rough

notes -- if that is what the rough notes actually confirmed --

could have had more qualitative value than the absence of her name

from the list of members in the DEA's summary report. In

consequence, the rough notes were immaterial and also cumulative

of other evidence in the record. Therefore, the trial judge's

- 34 - decision denying Suanette's motion to compel production of the

rough notes was hardly an abuse of her discretion.

CW Ferrer (Juan)

During the trial testimony of CW Ferrer, Juan's counsel,

pursuant to the Jencks Act, moved for production of the rough notes

from CW Ferrer's interviews with law enforcement agents. Juan's

counsel wanted more than the summaries already provided by the

government because, according to him, CW Ferrer was adding new

details to his testimony and because of this, he wanted the notes

to compare what CW Ferrer said back then to what he was saying in

court. The trial judge verbally denied the motion and addressed

it again when she ruled on Suanette's written motions for the

production of the rough notes from CW Lopez's interviews. In the

written order, the trial judge left the production issue open for

further consideration depending on how he answered a couple of

questions. Because the Jencks Act requires a witness to sign or

verify a third party's accounting of the witness's testimony, she

ruled she would ask CW Ferrer if the government agents read their

notes back to him during his interview and whether he had approved

the notes as read back.

During trial, the trial judge did precisely as she said

she would. CW Ferrer stated he could recall some notes read back

to him but not whether he approved them, or if he did, whether it

- 35 - was verbally or by signing something. He was interviewed on at

least seven occasions and did not recall what or how much was read

back to him on any given day, nor whether he had raised any

discrepancies between what he said and what was read back to him.

The trial judge declined to order production of the rough notes

because she lacked the required affirmative evidence that CW Ferrer

adopted the written notes as his own. Therefore, they did not

qualify as Jencks Act statements.

On appeal, Juan contests the trial court's findings. He

asserts CW Ferrer did in fact adopt the rough notes because he

testified that the notes were read back to him even if he could

not remember if he approved them verbally or in writing and did

not recall discussion of any discrepancies. Jencks requires

nothing more, he says. The government says that the trial judge

committed no error. Juan had all he needed to cross-examine Ferrer

about his interviews with the agents -- the DEA-6 report (the

official report of the investigation).

Our review of the trial judge's Jencks Act determination

is for abuse of discretion. See Schneiderhan, 404 F.3d at 78.

"The Jencks Act, 18 U.S.C. § 3500, in concert with Fed.

R. Crim. P. 26.2, controls the production of certain witness

statements in the government's possession." United States v.

Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998). "[T]o be

discoverable under the Jencks Act, a government record of a witness

- 36 - interview must be substantially a verbatim account." United States

v. Sepulveda, 15 F.3d 1161, 1179 (1st Cir. 1993) (citing United

States v. Newton, 891 F.2d 944, 953–54 (1st Cir. 1989)). In

addition -- and most importantly here -- "the account must have

been signed or otherwise verified by the witness himself." Id.

(citing United States v. Gonzalez-Sanchez, 825 F.2d 572, 586-87

(1st Cir. 1987)).17

"Where a defendant requests discovery of potential

Jencks material, our precedent requires the district judge to

conduct an independent investigation of any such materials and

determine whether these materials are discoverable under the

Jencks Act." United States v. Gonzalez-Melendez, 570 F.3d 1, 3

(1st Cir. 2009) (per curiam) (emphasis omitted).

This independent review may include such measures as in camera inspection of any disputed document(s), and conducting a hearing to evaluate extrinsic evidence, including taking the testimony of the witness whose

17 18 U.S.C. § 3500(b) provides that: After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Crucial for Juan's argument, however, is that a statement is defined in § 3500(e)(1) in relevant part as "a written statement made by said witness and signed or otherwise adopted or approved by him." (Emphasis added.)

- 37 - potential statements are at issue as well as the person who prepared the written document in which those statements appear.

Id. at 3 n.2 (citing Goldberg v. United States, 425 U.S. 94, 108-

09 (1976)). As we previously described, the trial judge did just

that: she undertook the required "independent investigation" when

she probed CW Ferrer's recollection and understanding of the

agents' interview notes. See id. at 3 (emphasis omitted). She

even expanded the inquiry by allowing Juan's attorney to ask

clarifying questions before explaining her Jencks Act ruling.

In support of his claim of error, Juan insists the facts

here are analogous to those in Goldberg, where a CW who had been

interviewed by prosecutors a few times prior to trial couldn't

perfectly recall whether the attorneys' handwritten notes were

read back to him or whether he was always asked if the notes were

accurate. 425 U.S. at 100-101. Even though the Goldberg court

remanded, this case is not helpful to Juan because the Supreme

Court was primarily focused on whether the notes were attorney

work product. Id. at 101-08. Indeed, part of the scope of the

ordered remand was for the trial court to determine, as a matter

of fact, whether the "notes were actually read back to [him] and

whether he adopted or approved them." Id. at 110. We conclude

then, as the trial judge did, that the government was not obligated

to produce these rough notes because the trial court's

investigation did not establish CW Ferrer approved the notes taken

- 38 - during his interviews and the notes did not therefore qualify as

statements pursuant to the Jencks Act. See Marrero-Ortiz, 160

F.3d at 775-76 (holding the government had no obligation to produce

rough notes taken by a government official during an interview

with an individual who testified for the government at trial

because there was no evidence on the record that the witness

adopted the notes). The trial judge did not abuse her discretion.

Business records from North Sight Communications (Joel, Carlos, Juan)

One piece of physical evidence admitted during trial was

a set of business records from North Sight Communications ("North

Sight"), a business with whom one of the members of the conspiracy

had an account for cell phones with a walkie-talkie-type

functionality. Some of the pages of the records had handwritten

notes, linking each specific device associated with the account to

a specific individual. Joel, Carlos, and Juan challenge the trial

judge's decision to admit these handwritten notes.

Here's how these notes and records were allowed: about

halfway through the trial, Angel Miranda, Vice President of North

Sight, testified that his company offered Motorola iDEN service,

which allowed a cellular phone to be used as a walkie-talkie as

well as a regular phone and, with the right plan, one phone could

radio broadcast to several other units at the same time. Miranda

explained that when a fleet (or large group) of devices was issued

- 39 - under one account, a North Sight employee made handwritten notes

as a regular course of business on the customer's printed account

documents connecting the name of each individual who had a device

with the device assigned to that individual. These handwritten

notes were made while the customer stood in front of the employee

and indicated who had which device listed on the account. These

hard copy invoices and other records on the account were then

stored in physical files.

The file for the account opened under the name Carlos

Rivera Rivera (aka Carlitos, Suanette's husband, one of the

individuals indicted along with the other defendants in this case)

included approximately 100 pages and was admitted as an exhibit at

trial, over the defendants' objections, under the business record

exception to the rule against hearsay. In line with Miranda's

description of North Sight's business practice, some of the pages

reflected handwritten names and numbers, including the first names

or nicknames of some of the defendants presently appealing.

The defendants objected on the basis that the

handwritten notations presented impermissible double hearsay.

After lengthy voir dire of the witness and much argument by

counsel, the trial judge concluded the "handwritten notes on those

pages [were] . . . probative of association between members of the

alleged conspiracy. There's no other possible probative value."

The trial judge proposed a limiting instruction for the jury to

- 40 - make it clear that the jury could only consider the handwritten

notes for the purpose of deciding whether the names reflected in

the notations might be associated with one another. According to

the trial judge, "there's no double hearsay problem if that's the

only purpose for which it's allowed." The trial judge issued two

written orders on this evidentiary ruling as well.

The trial judge issued the following limiting

instruction to the jury:

Members of the jury, I instruct you that you can consider all of the 105 pages of this Exhibit 177 for the truth of the data or the matters contained in those pages except for the annotations handwritten by the North Sight Communications employee whose source of information was an outsider and which appear at these particular pages, 33-34, 61, 69, 94-95, 99 and 101. These handwritten notes on these specific pages can only be considered by you, the jury, for the limited purpose of determining whether the same -- referring to the notes, handwritten notes -- establish association among the alleged members of the drug conspiracy as charged in the Indictment.

Joel asked the trial judge to reconsider her ruling and she

explained in an order considering his request that the admission

of the handwritten notes was "for the limited purpose of the jury

determining whether the records establish an association between

the alleged members of the drug conspiracy charged. This is no

different than tallies, logs, ledgers, contact lists . . . which

are admitted in determining association in criminal activity."

We review preserved objections to "[e]videntiary

rulings, including whether to admit evidence over a hearsay

- 41 - objection, . . . for abuse of discretion." United States v. Colón-

Díaz, 521 F.3d 29, 33 (1st Cir. 2008).

Juan, Carlos, and Joel all argue that the judge was wrong

to admit these handwritten notes for any purpose because the

accuracy and veracity of the notes could not be confirmed. These

defendants emphasize that, if the jury was allowed to consider

whether the notes showed association between the alleged

conspirators, then the jury would first have to consider the notes

to be true and accurate.

The government responds that the handwritten notations

were properly admitted with limitation to infer association

between the names in the notes and the defendants on trial as well

as the association between the alleged members of the conspiracy

-- the court's limiting instruction appropriately tailored these

purposes. This court, argues the government, has previously

allowed circumstantial evidence of association between alleged

coconspirators when, for example, a payroll list seized from a

defendant's bedroom was admitted for this limited purpose and the

jury was told not to consider it for the truth of the information

contained on it. United States v. Hensel, 699 F.2d 18, 33-35 (1st

Cir. 1983). The government also points us to the admission of a

hand-written drug ledger kept on a pad of paper by a codefendant

for the purpose of showing the existence of a drug conspiracy.

Casas, 356 F.3d at 124-25. Of course, as Juan and Joel point out,

- 42 - these cases involved a codefendant as the author of the writings,

whereas here there is no suggestion that a codefendant wrote the

notations on the admitted North Sight business records or even

verified what had been written. This is an important distinction,

which the trial judge did not appear to consider when articulating

her decision to allow the handwritten notes here.

We need not decide whether this distinction means the

trial judge erred when she admitted the exhibit for the limited

purpose expressed because, even if she erred, the error was

harmless and doesn't warrant disturbing the jury verdict.18 See

United States v. Laureano-Pérez, 797 F.3d 45, 68-69 (1st Cir. 2015)

(declining to decide whether an error had been made because the

error, if any, was harmless). Improperly admitted evidence "is

harmless if it is 'highly probable that the error did not influence

the verdict.'" United States v. Meises, 645 F.3d 5, 23 (1st Cir.

2011) (quoting United States v. Flores-de-Jesús, 569 F.3d 8, 27

18Juan's discussion of United States v. Blechman, an out-of- circuit case holding the trial court in that case erred by admitting online account records as a business record exception to the rule against hearsay, 657 F.3d 1052, 1056-58, 1066 (10th Cir. 2011), is not what persuades us there may have been error here. As the trial judge aptly distinguished in her order addressing Joel's request that she reconsider her ruling about the handwritten notes on the North Sight records, the district court in Blechman had admitted the documents as Federal Rule of Evidence 803(6) business records, whereas she acknowledged the double hearsay problem with the handwritten notes and did not admit them for that reason, but allowed the jury to see the notes for the expressly limited purpose she articulated.

- 43 - (1st Cir. 2009)); see also United States v. Montijo-Maysonet, 974

F.3d 34, 49 (1st Cir. 2020) (error may be considered harmless when

"the record minus the improper[ly admitted evidence] gives us 'fair

assurance . . . that the [jurors'] judgment was not substantially

swayed by the error'" (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946))). The harmlessness "inquiry requires a case-

specific examination of factors that include 'the centrality of

the tainted material,' its prejudicial impact, and any other

indications that 'the error affected the factfinder's resolution

of a material issue.'" Meises, 645 F.3d at 24 (quoting Sepúlveda,

15 F.3d at 1182). The burden to establish harmlessness falls on

the government, id.; the government carried this burden by pointing

to the ample other evidence that by itself convincingly established

the necessary connections among Juan, Carlos, and Joel, and with

other alleged members of the drug enterprise.

The government has shown that, without the exhibit in

question, there was other evidence that Juan, Carlos, and Joel

knew each other and associated with other alleged members of the

drug conspiracy. For example, with respect to Juan, one of the

testifying law enforcement agents (Special Agent Cedeño) told the

jury during trial that the notebook seized from the kitchen of

Juan's apartment included a list of names and phone numbers; the

names corresponded to nicknames of several of the other alleged

members of the organization. Another law enforcement agent

- 44 - testified about watching Juan's authority over other suspected

members during one part of the investigation when Juan ordered

these men to comply with that law enforcement agent's instructions

to the group of them. And CW Vega testified he observed Juan

receive pre-packaged drugs from other people CW Vega knew to be

members of the drug enterprise.

In addition, CW Ferrer testified about his participation

in meetings among alleged coconspirators including Juan, Carlos,

and Joel. One such meeting occurred when CW Ferrer and his cousin

were physically with Carlos and Joel; CW Ferrer testified he

watched Joel speak with Juan using a walkie-talkie type of function

on his cell phone to ask Juan questions about why Juan was not

with them in person. These examples of evidence in the record

show that apart from the handwritten notes the jury had other

convincing evidence from which to find the alleged members of the

drug enterprise knew each other and spent time together. As a

result, the government has shown that any error in admitting the

North Sight business records with the handwritten notations was

harmless because it was "highly probable" this single exhibit did

not sway the verdict. Id. at 23.

Limited cross-examinations (Idalia, Juan, Joel, Carlos)

Up next is whether the trial judge impermissibly limited

the scope of cross-examination of some of the witnesses. Idalia,

- 45 - Juan, Joel, and Carlos contend the trial judge did just that in

violation of their Sixth Amendment Confrontation Clause rights.

"The Confrontation Clause of the Sixth Amendment guarantees

criminal defendants the right to cross-examine witnesses who

testify against them," United States v. Casey, 825 F.3d 1, 23-24

(1st Cir. 2016) (citing United States v. Vega Molina, 407 F.3d

511, 522 (1st Cir. 2005)), so defendants can "test the

believability of a witness and the truth of his testimony," United

States v. Rivera-Donate, 682 F.3d 120, 126 (1st Cir. 2012) (quoting

United States v. González-Vázquez, 219 F.3d 37, 45 (1st Cir. 2000)

(internal quotation omitted)). "This right is not without limits,

however; the district court wields considerable discretion to

impose 'reasonable limits' on cross-examination." Casey, 825 F.3d

at 24 (quoting United States v. Raymond, 697 F.3d 32, 39-40 (1st

Cir. 2012)). "When a witness's credibility is at issue, the trial

court may limit cross-examination as long as the court

allows sufficient leeway to establish a reasonably complete

picture of the witness' veracity, bias, and motivation." Rivera-

Donate, 682 F.3d at 126 (quoting González-Vázquez, 219 F.3d at 45)

(internal quotation omitted). "We review de novo whether a

defendant was afforded a reasonable opportunity to impeach a

witness, and for abuse of discretion limitations the trial court

- 46 - imposed on that opportunity." Casey, 825 F.3d at 24 (citing

Raymond, 697 F.3d at 39-40).

CW Vega (Idalia)

Idalia argues the trial judge infringed her

Confrontation Clause rights when Idalia was not permitted to

question CW Vega about whether he had met with the prosecutors

outside the courtroom after he started testifying. Here's how

this controversy unfolded during trial: CW Vega was one of the

witnesses who testified about his observations of, and

interactions with, Idalia. When he first testified about the

timing and frequency of his crack cocaine purchases from Idalia at

the residence she shared with her husband, codefendant Carlos,

during the summer of 2006, CW Vega said he bought crack from a

"woman" but he was not asked if the woman from whom he bought the

crack was in the courtroom and he did not offer an in-court

identification on his own. He indicated he had not known -- or

ever found out -- who the "woman" was the first time he encountered

her when he'd approached Carlos's house looking to buy crack from

Carlos but bought instead from the woman who'd emerged from the

house when he had yelled for Carlos. CW Vega also testified that

he bought vials of crack from this woman at this house around

sixteen times over a one-to-two month period and, during this same

- 47 - period, he also bought vials of crack from Carlos from this same

house.

A few days into his testimony (he testified on at least

nine separate days), the prosecutor sought to introduce a photo of

Idalia. Idalia's attorney objected because CW Vega had not

identified Idalia a few days prior when he had been testifying

about his crack purchases from the woman at Carlos's house. At

the court's suggestion, the prosecutor asked CW Vega if the woman

from whom he had purchased the crack was in the courtroom and he

identified Idalia without any detectable hesitation in open court.

The next morning, Idalia's counsel raised a concern

about potential prosecutorial misconduct after a codefendant's

counsel reported to her that his client had seen two of the

prosecutors leave the room in the courthouse where testifying

witnesses typically cooled their heels when they weren't on the

stand. The codefendant was clear that she had not seen CW Vega

(or anyone else) in the room, but Idalia's counsel expressed a

concern that, because CW Vega initially testified he had not known

the identity of the woman at Carlos's house who sold him crack in

June 2006 but a few days into his testimony identified Idalia in

court as that woman, the prosecutors had influenced his memory and

subsequent identification of her.

One of the prosecutors volunteered that she had been in

the witness room with CW Vega a couple of times to discuss

- 48 - scheduling and dietary matters but adamantly denied discussing any

part of his testimony with him. The trial judge lightly

reprimanded Idalia's counsel for jumping to conclusions without a

stronger basis because seeing prosecutors emerge from a room

holding trial papers did not in and of itself mean there was any

misconduct. The trial judge also reminded Idalia's counsel that

she would have an opportunity to cross-examine CW Vega about his

in-court identification.

During Idalia's cross-examination, CW Vega answered "no"

when first asked whether he had met with the prosecutors during

his testimony. After CW Vega confirmed his testimony with respect

to not knowing the identity of the woman the first night a woman

sold him the vials of crack at Carlos's house and then identifying

Idalia when asked if he saw the same woman in the courtroom, Idalia

asked whether he had met with the prosecutors during the lunch

recess immediately prior to his in-court identification of Idalia.

The trial judge did not allow CW Vega to answer the question,

removed the jury from the courtroom, and admonished Idalia's

counsel for her inquiry into this subject when the trial judge had

already inquired and resolved it when she determined there was no

indication of any actual misconduct.

On appeal, Idalia asserts the trial judge erred by not

allowing her to cross-examine CW Vega about his suspected lie when

he said he had not met with prosecutors during the course of his

- 49 - several days of testimony. Idalia contends that, beyond the issue

of impeaching CW Vega's credibility, the limit placed on her cross-

examination meant she could not explore his "reliability and

potential suggestiveness." Idalia refers to this issue in her

brief as a violation of her "due process" rights but her analysis

is actually structured as a Sixth Amendment Confrontation Clause

challenge, so we shall follow her lead and proceed under this

latter framework.

The government counters Idalia had been permitted to

cross-examine CW Vega extensively about his interactions with the

woman who sold him crack as well as his subsequent identification

of this woman as Idalia. As such, says the government, the trial

judge did not abuse her discretion to reasonably limit the scope

of cross-examination.

After reviewing the transcript of CW Vega's testimony on

direct and cross-examination, in our view, there is no doubt Idalia

was provided an adequate, reasonable opportunity to impeach CW

Vega's direct testimony about his interactions with -- and

identification of -- the woman from whom he bought the vials of

crack. Idalia asked a series of detailed questions checking his

testimony from the day he discussed his purchases to the day he

identified Idalia in court. Idalia also asked a long series of

questions delving into the history of CW Vega's drug use and

effects he experienced while using drugs.

- 50 - When the trial judge cut off Idalia's attempt to bring

up the conversations in the witness room between CW Vega and the

prosecutors, she explained her concern that the trial would turn

into an evidentiary hearing about the dubious conversation and she

did not think such inquiry was justified based on what Idalia's

codefendant reported observing and what the prosecutor

acknowledged. But Idalia was permitted to continue her cross-

examination after the trial judge told counsel to refrain from the

inquiry about the witness room. Moreover, as Idalia herself points

out, CW Vega's credibility was laid to bare when he admitted during

cross-examination by counsel for a codefendant that he had deceived

both probation officers and judges in the past, which she concludes

must mean he has no trouble with lying to authority. Therefore,

CW Vega's credibility and reliability were explored during his

cross-examinations by more than one codefendant's attorney and the

jury had abundant information from which to decide whether he

testified truthfully about his identification of Idalia as the

woman who sold crack to him.19 For all of these reasons, the record

19 Juan also makes a cursory statement that the trial judge erred by not allowing him to inquire about CW Vega's meetings with the prosecutors during his cross-examination of this witness and that this inquiry would have resulted in a successful impeachment of Vega's testimony. As the government points out, however, Juan's contention on this matter is waived for his failure to flesh out the argument. See Chan, 981 F.3d at 50 n.4 (citing Rodríguez v. Mun. of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("[W]e deem waived claims not made or claims adverted to in a cursory fashion, unaccompanied by developed argument.")). And as we have just

- 51 - shows the trial judge gave Idalia plenty of leeway to impeach CW

Vega's identification of Idalia as one of the people from whom he

bought crack. The reasonable limitations she placed on the scope

of the cross-examination were not an abuse of discretion. See

Casey, 825 F.3d at 24.

Sergeant Rivera Vélez (Juan)

We turn now to Juan's complaint that the trial judge did

not allow him to explore, during cross-examination, a meeting a

trial witness had with the prosecutors during a court recess after

the witness had started testifying. Puerto Rico Police Sergeant

Luis Rivera Vélez was the first witness to testify at the trial.

After a couple of days of testimony, the government disclosed to

the trial judge, outside the presence of the jury, that it had met

with this witness the morning of his second day of testimony to

review and cut down the number of exhibits the government was

admitting into evidence through him. Apparently there was some

confusion on the government's part about whether it had been

allowed to meet with its witness in the middle of his direct

testimony. But after hearing the government's disclosure and

explanation for what happened, the trial judge ultimately decided

the government and the witness had genuinely misunderstood the

written, the trial judge did not abuse her discretion when she did not allow this line of inquiry during the defendants' respective cross-examinations of this witness.

- 52 - court's instructions and had not violated a court order when they

met to discuss the trial exhibits.

During Juan's cross-examination of Sergeant Rivera, the

trial judge interrupted his inquiry about whether the sergeant

recalled the trial judge's instruction during the first day of

testimony about not discussing the testimony with anyone. During

a conversation at side bar, the trial judge admonished Juan's

counsel for his attempt to impeach the witness based on an event

that had been discussed, researched, and determined to have been

the result of some confusion on the part of the government's

attorneys and not of misconduct on the part of either the

government or the witness. The trial judge ruled that, absent

some indication that the witness had met with the government after

the discussion following the government's own admission about the

misunderstanding, Juan's counsel could not exploit the early

misunderstanding as part of his attempt to impeach the witness's

credibility.

Juan frames his complaint about the limitation on the

scope of cross-examination as a violation of his right to confront

Sergeant Rivera. Without citing any case law, Juan asserts the

cross-examination would have been relevant to show the witness had

a tendency to ignore the law, including the trial judge's explicit

instructions. The government responds that Sergeant Rivera was

not at fault for meeting with the government mid-testimony because,

- 53 - as the trial judge explicitly found, he had been guided by the

government's misunderstanding of the rules. The government also

argues -- and the transcripts confirm -- that Juan and his

codefendants were permitted to cross-examine Sergeant Rivera at

length about various topics discussed during the direct

examination.

After reviewing the testimony and discussion around this

testimony, it is clear Juan had a full opportunity to cross-examine

this witness and that the trial judge placed a reasonable and

permissible limitation on the scope of Juan's cross-examination.

We perceive no abuse of discretion here either. See Casey, 825

F.3d at 24.

Other witnesses (Joel and Carlos)

Joel argues (and Carlos joins) his confrontation rights

were infringed when the trial judge limited the scope of cross-

examination and/or re-cross-examination for five of the

government's witnesses. Joel contends the limitations improperly

prevented him and his codefendants from developing their defense

theory that other drug points were operating in the same area where

they were accused of operating. Joel provides five examples of

where he tried, during cross-examination, to elicit information

- 54 - about how other organizations' drugs were packaged but the trial

judge cut it off as irrelevant and collateral.

The government picks apart these five examples by

pointing out that the defendants did in fact have the opportunity

to cross-examine the witnesses they now claim they were precluded

from questioning. Moreover, the government argues there were

several witnesses who did testify about different drug packaging

types and colors and, ultimately, that the jury got to hear the

defendants' theory about more than one drug enterprise operating

out of the same areas. A review of the trial transcripts supports

the government's assertions here. Even when the trial judge

sustained an objection from the government after Joel or a

codefendant asked a specific question about other drug points or

drug packaging details, the government asserts -- and the record

shows -- that the defense got its main point across.20 This

20 Thetrial judge did sustain several objections during cross- examination and re-cross-examination about the details of other possible drug points at or around Los Claveles as beyond the scope of the direct or re-direct examination and such is a valid reason to sustain the objection. See United States v. Weekes, 611 F.3d 68, 70 (1st Cir. 2010) (Souter, J.) (holding no abuse of discretion when defendant was not allowed to cross-examine a witness about a matter outside the scope of the witness's direct testimony but other witnesses were questioned about that matter); United States v. Kenrick, 221 F.3d 19, 33 (1st Cir. 2000) (en banc) (acknowledging district court's "'extensive discretion' in controlling re-cross-examination"), abrogated on other grounds by Loughrin v. United States, 573 U.S. 351 (2014).

- 55 - particular drug trafficking enterprise on trial was not the only

game in town.

As we stated above, "the district court wields

considerable discretion to impose 'reasonable limits' on cross-

examination." Casey, 825 F.3d at 24 (quoting Raymond, 697 F.3d at

39-40). Reviewing de novo whether Joel and the other defendants

were given a reasonable opportunity to question each of the

witnesses discussed in Joel's brief and the limitations on the

scope of the cross or re-cross for abuse of discretion, we see the

transcripts are replete with examples of these witnesses

acknowledging other drug points operated by different people in

areas similar to where the defendants before us were accused of

operating their drug trafficking business. See id. In addition,

we see no abuse of the trial judge's discretion to limit the scope

of their cross-examination and re-cross-examination of these

witnesses.

Excluded defense witnesses (Juan)

Juan challenges the trial judge's decision not to allow

him to present witnesses to impeach certain testimony offered by

CW Ferrer. To place Juan's challenge in context, here is the short

version of what happened at trial. CW Ferrer testified (among

many other topics) about his drug addiction and that he supported

his drug addiction by "selling drugs; sometimes my grandma would

- 56 - give me some money, and, well, I would just hustle around. And I

had a legal job." When another defense counsel explored the

details of the "legal job" during cross-examination, CW Ferrer

testified that he had worked at a restaurant and as a security

guard. Juan eventually attempted to bring in witnesses whose

proffered testimony was to prove CW Ferrer had not worked at two

of the locations at which he claimed to have been employed in 2006

and 2008. Citing impermissible character evidence and collateral

impeachment, the government objected. After considering Juan's

proffer, the trial judge concluded these witnesses would not be

allowed to testify. Their testimonies, she reasoned, fell squarely

within the rule against impeachment by collateral evidence, had no

other relevance or probative value, and would not have been

material to the guilt or innocence of any defendant.

Before us, Juan challenges those conclusions and argues

he should have been allowed to call those witnesses who could

expose Ferrer's lies about his work history -- lies designed to

minimize this CW's role in the conspiracy and hide the fact that

he was -- in Juan's words -- a "major drug trafficker" for the

organization. For its part, the government countered that Juan's

proffered evidence would have been "the very definition of

collateral." We agree.

"A matter is collateral if 'the matter itself is not

relevant in the litigation to establish a fact of consequence,

- 57 - i.e., not relevant for a purpose other than mere contradiction of

the in-court testimony of the witness.'" United States v. Marino,

277 F.3d 11, 24 (1st Cir. 2002) (quoting United States v.

Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993)). In general, a party

may not present extrinsic evidence for the sole purpose of

impeaching a witness on a collateral matter. Id. The decision on

whether a matter is collateral or material is within the district

court's discretion. United States v. DeCologero, 530 F.3d 36, 60

(1st Cir. 2008). Like the trial judge, we fail to see how CW

Ferrer's employment contemporaneous with his participation in a

drug distribution conspiracy has any bearing on the issue of Juan's

own culpability in that same conspiracy.21

Moreover, as Juan admits, he was allowed to and in fact

did cross-examine CW Ferrer about the witness's employment

history. In sum, the trial judge did not abuse her discretion

when she precluded Juan's proffered impeachment witnesses from

testifying.

Juan tries to carve a space for his excluded witnesses by 21

arguing that the truthfulness of CW Ferrer's statement regarding his "legal job" became a legitimate issue to explore as soon as CW Ferrer testified on direct, in response to the government's questions, to this employment history. The government, however, eliminates that space when it points out that CW Ferrer stated he paid for his drugs by selling drugs and holding a "legal job" but that the prosecutor did not ask any follow-up questions about his "legal job," only his selling activity. The government states -- and this is supported by the trial transcripts -- that CW Ferrer only stated details of these "legal jobs" after he was asked about them on cross-examination.

- 58 - Repetitive testimony (Joel & Carlos)

In Joel and Carlos's final evidentiary issue, they

contend the trial lasted 128 days in part because the trial judge

allowed the government to present needlessly long and repetitive

testimony about a few specific events, unearthed during the

investigation, which ultimately had an unduly prejudicial effect

on them in violation of Federal Rule of Evidence 403.22 Joel

(joined by Carlos) provides three examples:

• Five law enforcement agents testified about the same surveillance day which yielded a military box with drugs inside and a video taken of Joel yelling "snitch you are going to die" to an unidentified listener. • Five law enforcement agents testified about the discovery of the gun in Joel's father's car the day that Joel was pulled over. • Four agents testified about a shooting incident on the basketball court in Villa Margarita in which Joel got shot in the arm and went to the hospital.23

22Federal Rule of Evidence 403 says "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of [among other reasons] needlessly presenting cumulative evidence." 23 In considering Carlos's argument here, we note Joel presents only conclusory arguments about the repetitive or cumulative nature of the bulk of the testimony at issue. He provides lists of transcript pages for the witnesses he asserts provided the cumulative testimony for each incident, but he doesn't describe how the various testimonies are repetitive to the point of substantially outweighing their probative value. He also does not refer us to any case precedent in which we found a Rule 403 error where a few witnesses have testified about the same event and the district court declined to strike or disallow the testimony.

- 59 - In response, the government, siding with the trial

judge's reasoning, says the testimony about these events was not

needlessly repetitive or cumulative just because more than one

witness testified about the same event since each witness added a

different part or perspective of the incident. Each witness here

challenged as needlessly cumulative was in fact needed to share

either different personal observations or vantage points of the

incident in question or to testify to a distinct temporal part of

the day the event occurred.

"Evidence is cumulative if repetitive, and if 'the small

increment of probability it adds may not warrant the time spent in

introducing it.'" Elwood v. Pina, 815 F.2d 173, 178 (1st Cir.

1987) (quoting 1 Weinstein's Evidence ¶ 401[07] at 401–47–48

(1985)). Rule 403 allows a trial judge "to 'exclude relevant

evidence if its probative value is substantially outweighed by a

danger of' certain pitfalls, including . . . 'needlessly presenting

cumulative evidence.'" United States v. Mehanna, 735 F.3d 32, 59

(1st Cir. 2013) (quoting Fed. R. Evid. 403). Abuse of discretion

guides our review of the district court's Rule 403 determination.24

24 The government suggests our review of the supposedly cumulative testimony about the shooting incident on the basketball court should be for plain error because Joel did not object to the various law enforcement agent testimonies regarding this incident on a Rule 403 basis. Because the trial judge recognized Joel's standing objection throughout the trial to repetitive or cumulative evidence and because we find no abuse of discretion in allowing each of the witnesses Joel mentions to testify about the

- 60 - United States v. Dudley, 804 F.3d 506, 515 (1st Cir. 2015). "An

abuse of discretion showing is not an easy one to make. We afford

deference to the district court's weighing of probative value

versus unfair effect, only in 'extraordinarily compelling

circumstances' reversing that 'on-the-spot judgment' from 'the

vista of a cold appellate record.'" United States v. DiRosa, 761

F.3d 144, 154 (1st Cir. 2014) (quoting United States v. Doe, 741

F.3d 217, 229 (1st Cir. 2013)). In doing so, we acknowledge the

trial judge's "better position to assess the admissibility of the

evidence in the context of the particular case before it."

Mehanna, 735 F.3d at 59 (quoting Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 387 (2008)).

There is no debate that the trial judge has "considerable

latitude in Rule 403 rulings." United States v. King, 827 F.2d

864, 867 (1st Cir. 1987). And it is true, as Carlos points out,

that we have previously upheld a district court's decision to

exclude cumulative evidence on Rule 403 grounds as an appropriate

discretionary call. See id. But such an exclusionary call did

not happen here -- just the opposite -- so saying we've upheld

discretionary exclusionary rulings in the past without adequately

explaining why it was error here to allow the evidence is not

events Joel raises here, we do not conduct a separate plain error analysis for the overruled objections during the testimony about the shooting incidents.

- 61 - helpful to Carlos's cause. We have surveyed the testimonies Joel

contests and as in other cases we have examined, we find that

"[a]lthough [defendants] can point to instances in which the same

story was told more than once, such repetition" here "encompassed

new and relevant details." United States v. Muñoz-Franco, 487

F.3d 25, 67 (1st Cir. 2007). Additionally, Carlos fails to show

prejudice. See id. (noting "no indication" that "the arguably

cumulative nature of the evidence affected the outcome of the trial

in any way"). To whatever extent the testimonies from witnesses

overlapped, the trial judge did not abuse her discretion by

allowing each of the witnesses, who added to the story, to testify

over Joel's cumulative evidence objection.

With that conclusion, we move on to the next set of

issues.

UNFAIR TRIAL (Joel, Carlos, Juan, Idalia)

Four defendants assert they were denied a fair trial for

several reasons and because of purported errors by the trial

judge.25 They claim they had to contend with:

• a biased and prejudiced jury,

25Carlos mentions the denial of due process in his broad summary of his arguments, asserting the bias of the trial judge and the lack of access to daily trial transcripts denied him due process, but he does not flesh out an argument about how his due process rights were implicated here. Similarly, Joel makes a one phrase claim that the "multiple errors" throughout the trial "deprived [him] of his constitutional due process right to a fair trial" but doesn't develop any argument about due process per se.

- 62 - • a biased trial judge, and • a series of improper prosecutorial tactics.26

We'll delve into each of these arguments in turn, first setting

the scene for each claim.

Jury bias

Joel, Carlos, Juan, and Idalia each argue there was at

least one incident during the trial that either 1) showed the jury

was biased against them or 2) caused the jury to be biased against

them and their codefendants. Premise one is based upon two

separate notes written to the trial judge during trial. Premise

two arises from one juror's disclosure that he had recognized one

of the law enforcement witnesses. Before sifting through the

details of what happened at trial, we first spell out some general

principles that guide our thinking.

"'All would agree that an impartial jury is an integral

component of a fair trial' and must be 'jealously safeguarded.'"

Sampson v. United States, 724 F.3d 150, 160 (1st Cir. 2013)

(alteration adopted) (quoting Neron v. Tierney, 841 F.2d 1197,

1200-01 (1st Cir. 1988)). That said, "[a] district court has

broad, though not unlimited, discretion to determine the extent

Accordingly, our discussion in this section goes with their primary framing of this issue as whether either were denied a fair trial in any of the ways they argue to us. The defendants add to this fair trial grievance list the 26

variety of evidentiary challenges we have already discussed and rejected.

- 63 - and nature of its inquiry into allegations of juror bias." United

States v. Corbin, 590 F.2d 398, 400 (1st Cir. 1979) (citations

omitted). We review the trial judge's approach and resolution to

allegations of jury bias for abuse of discretion. United States

v. Ramírez-Rivera, 800 F.3d 1, 38 (1st Cir. 2015).

"[D]efendants seeking to establish juror misconduct bear

an initial burden only of coming forward with a 'colorable or

plausible' claim." United States v. French, 904 F.3d 111, 117

(1st Cir. 2018) (French I) (quoting United States v. Zimny, 846

F.3d 458, 464 (1st Cir. 2017)). "Once defendants have met this

burden, an 'unflagging duty' falls to the district court to

investigate the claim." Id. (quoting Zimny, 846 F.3d at 464).

"The type of investigation the district court chooses to conduct

is within the district court's discretion; it may hold a formal

evidentiary hearing, but depending on the circumstances, such a

hearing may not be required." Id. (citing Zimny, 846 F.3d at 465);

see also United States v. French, 977 F.3d 114, 122 (1st Cir. 2020)

(French II) (referring to a "formal evidentiary hearing" as "the

gold standard for an inquiry into alleged juror misconduct" but

reaffirming that "a full evidentiary proceeding in response to an

allegation of juror bias" is "not required")). "[T]he court's

primary obligation is to fashion a responsible procedure for

ascertaining whether misconduct actually occurred and if so,

- 64 - whether it was prejudicial." French I, 904 F.3d at 117 (quoting

Zimny, 846 F.3d at 465).

So long as the district judge erects, and employs, a suitable framework for investigating the allegation and gauging its effects, and thereafter spells out her findings with adequate specificity to permit informed appellate review, the court's "determination . . . deserves great respect and . . . should not be disturbed in the absence of a patent abuse of discretion."

French II, 977 F.3d at 122 (brackets omitted) (quoting United

States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990)).

Notes from jurors (Idalia, Juan, Carlos, Joel)

Idalia argues that two notes from the jury sent to the

judge during trial make evident she did not receive a fair trial

because these notes showed juror bias and the trial judge did not

adequately examine or consider these bias indicators when brought

to her attention.27 We'll start by telling you what these notes

were about and how the trial judge responded to them.

A couple of weeks into the trial, the judge received a

note from one juror, who wrote that she felt "uncomfortable with

27 Joel, Carlos, and Juan also mention these jury notes in their briefs as part of their broader arguments about the ways in which they claim they were denied a fair trial, but other than asserting the trial judge failed to adequately inquire and/or examine the extent of the jurors' prejudice against them, they do not develop their argument as much as Idalia, so we focus on her take of this issue. In fact, Carlos and Juan do not provide any argument about why these notes or the trial judge's manner of addressing them should disturb the guilty verdicts against them, so they have waived this particular issue.

- 65 - the intimidating looks" from Joel's attorney and Carlos's

attorney. Idalia's attorney asked the trial judge to excuse this

juror, which the judge declined to do, explaining it would be like

punishing the juror for bringing a concern to the attention of the

court. The judge discussed how to phrase the response to the juror

with the attorneys but stated she would not hold a hearing to ask

the juror whether the juror had shared the concerns with other

jurors or whether the juror's concerns were affecting the

evaluation of the evidence unless the same concern was raised

again. The judge provided the attorneys with an opportunity to

object to the wording of her response, but after the attorneys

spoke with their respective clients about the proposed response,

everyone agreed to the trial judge's wording without further ado.

The response returned to the juror read:

I have received your note and discussed it with counsel. Regarding atty. Milanés and atty Burgos their response to your note is that they meant no disrespect to you and neither had nor have any intention to intimidate you. If there is any instance in which you need to address the court, feel free to do that.

There was a brief discussion about whether to admonish

the juror not to discuss this concern with any other juror, but

the trial judge decided she did not want to assume the juror had

already spoken about it and did not want to discourage bringing

these kinds of concerns to the court's attention. The trial judge

- 66 - also reminded Joel's attorney not to look at the jury when he

questioned witnesses, as had apparently been his trend so far.

The trial judge received the second note at issue at the

end of the first day of closing arguments after the court session

had ended. The jury had collectively sent a note asking if the

judge could ensure they left the courthouse before the defendants

and the defendants' family members "in order to avoid any

encounters which are occurring on a daily basis." The trial judge

responded to the note asking the jury to "advise to which

defendants you are referring to when you mention encounters that

are occurring on a daily basis." The jury replied it was referring

to Suanette and Idalia and their family members. When the trial

judge discussed the notes with counsel, Idalia's attorney

expressed concern that this note meant the jury was biased against

the defendants. She did not, however, request a hearing to further

explore the jurors' request. The trial judge remarked that counsel

was reading more into the note than what the jury had actually

written and reminded all the attorneys that their clients were

entitled to a fair trial but not a perfect one. The trial then

continued with closing arguments.

Idalia filed a written motion for reconsideration, again

expressing her concern about the ability of the jury to be

impartial and asking the trial judge to conduct further inquiry

into the jury note. And depending on how the jurors responded,

- 67 - Idalia sought to poll each juror to assess whether anyone's

impartiality had been compromised. The judge denied the motion in

a written order, stating the jury had not referred to any specific

incidents with the defendants and had simply asked to be allowed

to leave the courthouse at the end of the day ahead of the

defendants. The judge wrote: "There is no reason to read into

this request the concerns of bias and lack of impartiality by the

jurors that the two defendants are injecting into it. Nor have

jurors voiced any concerns for their safety whatsoever."

On appeal, Idalia states the trial judge abused her

discretion by not conducting a deeper inquiry into the jury's

concerns expressed in these two notes, resulting in a verdict

against her rendered by a partial jury. The government counters

that the trial judge responded appropriately to each note. As for

the note about the intimidating looks from two attorneys, the

government is skeptical that the note could have implied any

prejudice to Idalia because, importantly, her attorney wasn't one

of the two mentioned. With respect to the note requesting a head

start out of the building at the end of each day, the government

argues the trial judge responded promptly to find out to which

defendants the note referred and that Idalia has not provided any

reason to doubt the judge's conclusion that the jury had not been

tainted by their encounters with Idalia and Suanette as they left

the building.

- 68 - We agree with the government that there is no indication

the trial judge abused her discretion when she denied Idalia's

requests for hearings to further inquire about the two notes

submitted by the jury.28 See French I, 904 F.3d at 117. The record

shows the trial judge brought the jury's respective concerns to

the defendants as soon as was possible, carefully considered the

best response, and allowed the defendants and their counsel to

assist with the responses. Given the trial judge's wide discretion

to decide how to investigate a defendant's concerns about jury

bias, we conclude her response to the defendants' concerns was

both reasonable and appropriately measured. We espy no error and

move on to the next argument about jury bias.

Basketball (Joel)

Two months into trial, one of the jurors submitted a

written note to the trial judge, telling her he recognized a

witness who had testified the day before as one of the men with

whom he played in the same regular pick-up basketball games. The

juror wrote the note to bring his recognition of the witness to

the trial judge's attention and to raise a concern that other

28The government makes no waiver argument as to either note so we proceed to resolve these juror note issues on the merits.

- 69 - players in the basketball league may be witnesses because he

understood many of the players were involved in law enforcement.

The trial judge brought the juror into the courtroom to

explore on the record this juror's connection to the witness. In

response to the trial judge's questions, he indicated he'd been

playing in this over-35 league for about a year. Twice a week or

so he showed up at the court -- located behind the police station

in Trujillo Alto -- and played with and against whomever else

showed up that night as well. The juror told the trial judge he'd

played with this witness five to ten times total but didn't know

him personally and had never discussed this case with him or any

other police officer. The juror hadn't recognized the witness's

name when it was read as a part of a list of witnesses during voir

dire because, as he told the judge, he didn't know any of the other

players personally and couldn't provide anyone's full name. When

the witness in question took the stand the day before, however,

the juror recognized him. He didn't alert the court immediately

because he didn't know how to do so during open court. Instead,

he told the court security officer at the end of the day who

suggested the juror write the note that made its way to the trial

judge.

The trial judge concluded neither the juror nor the

witness engaged in any misconduct and the juror had an adequate

explanation about how he brought the issue to the trial judge's

- 70 - attention. The trial judge denied the defendants' request to

excuse the juror because she concluded the proper remedy was to

instruct the juror not to play basketball with this group until

the trial was over rather than dismiss him from the jury.

The next day, the judge called the juror back for another

conversation at the bench. She asked the juror whether he would

give more weight or credibility to the police officer's testimony

because they had played basketball together. The juror said no

because he doesn't know anything about the witness other than what

he had seen on the basketball court and had no reason to give more

weight to his testimony than to another witness based on the

experiences on the basketball court. Following this exchange, the

juror departed the courtroom and the trial judge invited further

comment from all counsel. The prosecutor declined and counsel for

Joel, Carlos, and Juan raised no additional demur.

Now before us, Joel argues the trial judge abused her

discretion by refusing to dismiss this juror. Joel says the

juror's "failure to inform" the court that he played basketball

with police officers "reflected bias in favo[r] of the police with

whom he played every week."29

29Carlos states in his brief that he joins Joel's argument on this issue, but he does not provide any independent or additional argument. We pause for a moment to remind the defendants -- many of whom joined in various arguments by their codefendants -- that they cannot simply state a blanket intention to join another's argument and leave it at that. Adoption by

- 71 - The government argues the trial judge did not abuse her

discretion when she denied the defendants' request to dismiss the

juror because the issue was brought promptly to her attention, she

conducted an in-depth inquiry into the connection between the juror

and the witness, and appropriately concluded the juror was not

biased by his "casual" connection to this witness.

We can agree with Joel on one point: a "juror's

interpersonal relationships" are an important factor to consider.

But this situation is a far cry from the case Joel cites in support

of his argument. In French I, a defense counsel learned after the

conviction and sentencing of his client for marijuana production

and distribution conspiracy that one of the jurors had lied on her

jury questionnaire and during voir dire when she had not disclosed

that her son had been convicted a few times of offenses related to

his use and distribution of marijuana and cocaine. 904 F.3d at

114-15. The trial judge denied the codefendants' motion for a new

reference can be a risky move because it is well-known that it "cannot occur in a vacuum and the arguments must actually be transferable from the proponent's to the adopter's case." United States v. Brown, 669 F.3d 10, 16 n.5 (1st Cir. 2012) (citing Casas, 425 F.3d at 30 n.2). A statement of intention to join another's argument without providing any independent argument about the issue whatsoever will often result in waiver. See id. Juan, for his part, includes this incident as part of a list of reasons why he did not receive a fair trial from an impartial jury but doesn't provide any developed argument around this incident in particular. Both Carlos and Juan have therefore waived this particular issue. See id.; Chan, 981 F.3d at 50 n.4.

- 72 - trial and request for an evidentiary hearing, but we reversed and

remanded after holding that an investigation into the juror's

misconduct had been warranted. Id. at 116, 120. The defendants

appealed again when upon remand the judge again denied their motion

for a new trial following an evidentiary hearing to determine

whether the juror had in fact engaged in misconduct and whether

the misconduct, if any, was prejudicial to the defendant. French

II, 977 F.3d at 121-22. We affirmed the district court's denial,

rejecting the defendants' arguments that the court's investigation

had not been thorough or structured enough. Id. at 122. We also

stated that "'[t]he touchstone' of our appellate review is

'reasonableness.'" Id. at 122 (quoting United States v. Paniagua-

Ramos, 251 F.3d 242, 249 (1st Cir. 2001)).

Here, the juror's misconduct, as the defendants see it,

was not disclosing his basketball-playing activities and not

recognizing the name of one of the witnesses as one of the players

who plays in the informal, pick-up basketball games during voir

dire. But after the juror notified the trial judge that he had

recognized the witness on the stand, the trial judge immediately

questioned the juror, at length, twice. The trial judge was

reasonably satisfied that the juror credibly denied having any

personal relationship with the witness, and that he had not

intentionally misled the court during voir dire. Also reasonable

was the trial judge's determination that the juror was not going

- 73 - to favor the witness's testimony because of the time he had spent

with the witness playing basketball. The trial judge's actions

and decisions here do not reflect any abuse in her exercise of the

wide discretion she had to decide how to investigate a claim of

juror misconduct. See French I, 904 F.3d at 117.

Next up: the third and final claim of jury bias.

Knowing some defendants were detained (Joel & Carlos)

Three times during the trial, the defendants raised

concerns to the trial judge that the jurors had either seen them

in handcuffs or deduced some of them were detained pending the

outcome of the trial based on a newspaper article published during

the trial. We describe each incident before getting into the

arguments Joel and Carlos make about why the trial judge didn't

address each appropriately.

Incident number 1 - whether some jurors saw some

defendants handcuffed in the courthouse elevator: one mid-trial

day (in September 2015), as the jurors left the courtroom, they

may have caught sight of some defendants, in handcuffs, in an

elevator on their way to the courthouse cell block. The defendants

asked the trial judge to ask the jurors about what they saw and to

declare a mistrial if warranted. The judge ultimately did not

question the jurors, but she held an evidentiary hearing at which

she heard testimony from four of the defendants about this

- 74 - encounter and she considered video evidence from the courthouse

hallways which captured the juror's movements with respect to the

defendants' positions in the elevator.

After the hearing, the trial judge determined that if

any of the jurors saw the defendants in handcuffs, it was for a

brief moment only and, regardless, "none of the jurors exchanged

looks with the defendants." She concluded the encounter did not

warrant a mistrial because this was not a happenstance in which

the jurors had seen the defendants shackled or gagged. She

compared the quick glance one juror made in the direction of the

elevator (which she observed in the video) to the quick glimpses

the jurors had caught in United States v. Ayres, in which we held

that a "quick glimpse once or twice of the defendants in handcuffs

out of court . . . would hardly dilute their presumption of

innocence" because a moment's view of defendants in handcuffs is

far different from cases in which the jurors saw a defendant

shackled for longer periods of time or were "repeatedly reminded

of the defendants' confinement." 725 F.2d 806, 812-13 (1st Cir.

1984).

Incident number 2 - whether some jurors saw defendants

handcuffed in the courtroom: near the end of trial (in December

2015), during a lunchtime recess, the courtroom door was ajar for

some moments when a trial spectator left the courtroom while some

defendants were in handcuffs in the courtroom and the jury was

- 75 - walking in the hallway past the courtroom door. The defendants

requested a mistrial. The trial judge held a hearing, heard the

defendants' versions of events, considered courtroom security

video footage, then concluded none of the jurors could have seen

inside the courtroom for more than "a matter of seconds" and "[n]o

reasonable minded person who view[ed] the videos in an impartial

manner could conclude" the jurors saw the defendants handcuffed.

The defendants also tried to provide the trial judge with

photographic and videographic evidence that purported to reenact

the scene, but the trial judge refused to consider these

reenactments and ultimately denied the motion for mistrial.

Incident number 3 - whether the jurors read a newspaper

article from which they might have deduced some of the defendants

in their trial were detained: also towards the end of trial, an

article published in a local newspaper disclosed that two drug

trials had been suspended by the court for a few days after a

gastroenteritis virus started spreading through the detention

center where many defendants in those trials were being held. Joel

and Carlos filed a motion for a hearing to determine whether a

mistrial would be required and asked that the trial judge poll the

jurors to find out whether they had seen the article and inferred

from it that Joel and Carlos were two of the defendants referred

to in the article. The judge denied the motion because the article

had not named the cases or the defendants involved, rendering Joel

- 76 - and Carlos's concerns too speculative. She also commented that

Joel and Carlos's concern over the potential release of their

identities was not completely credible because they had filed a

motion two days later on the public docket of their case

complaining about the conditions of the detention center in which

they were being held. The trial judge also distinguished a juror's

knowledge of a defendant's detention from a juror seeing a

defendant shackled and handcuffed in a courtroom, which she

concluded had not occurred.

The denial of a motion for mistrial is reviewed for abuse

of discretion. Gonsalves, 859 F.3d at 107. As we indicated above,

"[c]onducting an inquiry into a colorable question of jury taint

is a delicate matter, and there is no pat procedure for such an

inquiry." United States v. Bradshaw, 281 F.3d 278, 290 (1st Cir.

2002) (citing Evans v. Young, 854 F.2d 1081, 1083–84 (7th Cir.

1988)). "[T]he trial court has wide discretion to fashion an

appropriate procedure for assessing whether the jury has been

exposed to substantively damaging information, and if so, whether

cognizable prejudice is an inevitable and ineradicable concomitant

of that exposure." Id.

Joel and Carlos argue to us that the trial judge was

wrong not to ask the jurors whether they saw defendants handcuffed

and, if so, what and who they saw, as well as whether they had

- 77 - seen the newspaper article.30 We note, however, that, in response

to both courthouse incidents, the trial judge conducted an

evidentiary hearing to investigate whether the jury could have

seen or did see the defendants in handcuffs. This, as we earlier

noted, is "the gold standard" for an inquiry into an incident that

could create or lead to juror bias. French II, 977 F.3d at 122.

While the trial judge did not bring jurors in to question them,

she did consider testimony from the defendants as well as

photographs and/or video footage from courthouse security cameras

and provided detailed written summaries about what the defendants

told her during the hearing and what she found after reviewing the

videos.

The defendants do not claim the trial judge was clearly

wrong with any of her factual determinations after the hearings -

- the standard of review we would apply to her findings. See

Bradshaw, 281 F.3d at 291 ("[W]e accept the trial court's factual

findings only to the extent that they are not clearly erroneous."

(citation omitted)). Instead, they insist she needed to make a

Idalia also mentions, in a footnote, the defendants' 30

collective request for a mistrial after members of the jury saw the defendants in handcuffs, which the trial judge denied. Idalia does not make any argument that the denial of the motion for mistrial was in error, so we will not undertake a review of this ruling on her behalf. Juan, for his part, also lumps these events into his list of reasons why he did not receive a fair trial from an impartial jury but once again doesn't provide any developed argument around this incident in particular.

- 78 - direct inquiry to the jurors to find out what they saw. The

government counters that she conducted an appropriate inquiry into

these two incidents and her findings are unassailable.

True, the trial judge, in her written orders explaining

the denial of the motions for mistrial, did not expressly address

the defendants' requests to question the members of the jury.

However, her written "statements of reasons" indicate and

demonstrate her detailed consideration about whether the jurors

could have seen the defendants during the two incidents. In other

words, she answered the question of whether the jury had possibly

viewed the defendants in cuffs another way. That she did not bring

jurors in for questioning was not an abuse of her discretion to

determine how to investigate these possible sources of bias. See

Bradshaw, 281 F.3d at 290.31

Turning our attention briefly to the newspaper article,

the trial judge also did not err by choosing not to ask the jurors

about whether they had read it. As the government argues, if the

jurors read the article, then, at worst, they may have inferred

that a defendant in this trial was being detained, but mere

awareness that one or more defendants were detained during the

31 To be sure, "[c]are should be taken whenever reasonably possible to prevent the jurors from viewing a defendant handcuffed while the defendant is on trial. In the absence of a showing of prejudice, however, a fleeting glance by jurors of a defendant outside the courtroom in handcuffs does not justify a new trial." Ayres, 725 F.2d at 813.

- 79 - trial is not sufficiently prejudicial to require a mistrial. See

Ayres, 725 F.2d at 812-13; see also United States v. Deandrade,

600 F.3d 115, 119 (2d Cir. 2010) ("[A] brief and fleeting comment

on the defendant's incarceration during trial, without more, does

not impair the presumption of innocence to such an extent that a

mistrial is required."). Asking the jurors one-by-one whether

they saw it would have only served to tip them off that the article

existed.

All in all, there was no hint the trial judge abused her

discretion when she investigated and addressed the defendants'

various jury bias concerns.

Judicial Bias (Joel & Carlos)

We now turn our attention to whether the trial judge

showed bias against some of the defendants' trial attorneys.

Several times throughout the trial, the judge admonished some of

the defense counsel's behavior in open court, whether for laughing,

talking, or otherwise disrupting or interrupting the proceedings.

Several times, counsel brought concerns to the court that she was

treating them differently than the government's attorneys to the

detriment of the defendants. Joel and Carlos now contend her bias

toward their trial attorneys resulted in an unfair trial.

For example, in September 2014, Carlos's trial counsel

filed a miscellaneous motion asking the trial judge to note his

- 80 - concern that her tone and demeanor (including facial expressions

and looks reflecting "impatience, annoyance, and ire") with and

towards him was markedly different from the way she treated the

government's attorneys and could be interpreted by the jury as

"animosity" against the defense. The trial judge noted counsel's

"subjective perceptions" and concern in a written order entered on

the docket stating she had needed to address the defense attorneys'

"courtroom manners" outside the presence of the jury and repeating

that she had had "no issues" with the defendants' courtroom

behavior. When the trial judge read her order into the record,

she added:

And I reaffirm, I have absolutely no partiality toward the Government or the defendants. I have said the defendants have always displayed utmost respect. They have been exemplary in their behavior. Unfortunately, their attorneys do not show the same respect for the [c]ourt that their clients do. When you measure up to them, you won't need this, you won't need this kind of statement from the [c]ourt. It is not the defendants; it is you.

A second example is from January 2015, when Carlos's

trial counsel again raised a concern that the trial judge was

treating him differently from the government's attorneys and asked

her to declare a mistrial because her "rebuking tone, menacing

looks and accompanying body language" towards him were not looked

on favorably by the jury. In the alternative, Carlos's counsel

asked the judge to "refrain[] from engaging defense attorneys in

that tone, with that body language, and that sort of look[]." The

- 81 - trial judge denied the oral motion, commenting that she had been

working hard to ensure the trial was fair to the defendants but

that some of the defendants' attorney's behavior had been less

than exemplary. The trial judge stated she had no bias against

any of the defendants and was explaining each of her evidentiary

rulings in detail so that all the parties understood the decisions

she was making throughout the trial.

A third example occurred in February 2015, when, in the

middle of testimony on direct examination from a law enforcement

officer, the trial judge said "Mr. Burgos" (Carlos's trial

counsel's name) twice to get him to stop whatever he was doing at

counsel table at the time. The testifying officer subsequently,

and outside of the jury's presence, accused Mr. Burgos of making

a disparaging remark -- calling the officer "smartass" while he

was testifying. Mr. Burgos admitted to conferring with co-counsel

during the witness's testimony but categorically denied making any

remarks towards the witness. The trial judge took Mr. Burgos at

his word but warned him that she would take further action if any

other witnesses made a similar complaint about his courtroom

behavior.

The trial transcripts are replete with examples of the

trial judge commenting on Mr. Burgos's behavior. Several times

throughout witness testimony, hearings held to address issues

which arose during trial, and during bench conferences, the trial

- 82 - judge asked Mr. Burgos (in addition to other attorneys) to stop

laughing or otherwise disrupting what she and others were trying

to listen to.

Before us, Carlos argues that the trial judge repeatedly

mistreated Mr. Burgos in front of the jury, discrediting him

several times throughout the trial, which served to deprive his

client of a fair trial. Joel, who likewise voices fair trial

concerns, acknowledges that, using the cold appellate record, it

is hard to show the way in which the trial judge's looks and tone

toward Mr. Burgos and some of the other attorneys prejudiced the

defendants, but also argues the judge's attitude towards Mr. Burgos

was clearly noted by the jury, which created prejudice against the

defendants.

"When addressing allegations of judicial bias, we

consider 'whether the comments were improper and, if so, whether

the complaining party can show serious prejudice.'" United States

v. Ayala-Vazquez, 751 F.3d 1, 24 (1st Cir. 2014) (quoting

DeCologero, 530 F.3d at 56). "[W]e consider isolated incidents in

light of the entire transcript so as to guard against magnification

on appeal of instances which were of little importance in their

setting." United States v. Espinal-Almeida, 699 F.3d 588, 607

(1st Cir. 2012) (brackets omitted) (quoting United States v. Ofray-

Campos, 534 F.3d 1, 33 (1st Cir. 2008)). "Clearly a trial judge

should be fair and impartial in her comments during a jury trial

- 83 - because a fair trial in a fair tribunal is a basic requirement of

due process." Id. (citing United States v. de la Cruz–Paulino, 61

F.3d 986, 997 (1st Cir. 1995)). "However, a finding of partiality

should be reached only from an abiding impression left from a

reading of the entire record." Id. (quoting de la Cruz-Paulino,

61 F.3d at 997). "And even an imperfect trial is not necessarily

an unfair trial." Ayala-Vazquez, 751 F.3d at 24 (citing Espinal–

Almeida, 699 F.3d at 608).

"As a general rule, a judge's mid-trial remarks critical

of counsel are insufficient to sustain a claim of judicial bias or

partiality against the client." Logue v. Dore, 103 F.3d 1040,

1046 (1st Cir. 1997) (citing Liteky v. United States, 510 U.S.

540, 555 (1994)). As in Logue, the comments and demeanor the

defendants complain of here were interspersed throughout the

trial, sometimes at sidebar or when the jury was not in the room

and sometimes in the presence of the jury. "Statements that are

made by a judge in the jury's presence are, of course, subjected

to stricter scrutiny." Id. There were clearly several incidents

where the trial judge admonished Mr. Burgos, both in and out of

the presence of the jury. The incidents described above illustrate

Carlos and Joel's general concerns. The record is clear that there

was no love lost between Mr. Burgos and the trial judge. But, as

the government points out, the direct reprimands and discussions

regarding Mr. Burgos's courtroom behavior were mostly conducted

- 84 - outside the presence of the jury. We further note that this is

not a situation in which the trial judge impermissibly hijacked

witness questioning or made inappropriate commentary about any

defendant or vouched for a witness's credibility. See United

States v. Raymundí-Hernández, 984 F.3d 127, 152-57 (1st Cir. 2020)

(reversing convictions because the trial judge's comments during

trial and sua sponte cross-examination-like questioning of a key

defense witness indicated a pro-prosecution bias and likely

affected the outcome of the trial). Lastly, after reviewing the

trial transcripts, we note that some of the trial judge's

admonitions to Mr. Burgos may well have been justified by his

courtroom behavior.

To the extent any of the trial judge's demeanor or

commentary may have come close to crossing the line, we observe

that her end-of-trial instructions to the jury addressed her

reproaches to counsel:

It is the duty of the [c]ourt to admonish an attorney, members of the jury, who out of zeal for his or her cause, does something which the [c]ourt deems is not in keeping with the rules of evidence or with the rules of procedure. You are to draw no inference against the party represented by an attorney to whom an admonish [sic] of the [c]ourt was addressed during the trial of this case.

The government argues that if the jury perceived any animosity, it

was cured by the trial judge's instruction to the jury. We agree.

"In assessing the impact of a judge's actions, jury

- 85 - instructions can be a means of allaying potential prejudice."

Logue, 103 F.3d at 1046-47. In our view, this instruction was

"sufficient to palliate any untoward effects" from the trial

judge's words, tone, or demeanor towards defendants' attorneys

throughout the trial. Id. at 1047.

Examining the record as a whole, we conclude that the

judge's statements on the record and demeanor in the courtroom did

not indicate judicial partiality against the defendants or in favor

of the government and "did not compromise the fundamental fairness

of the proceedings." Logue, 103 F.3d at 1046; see also United

States v. Rodríguez-Rivera, 473 F.3d 21, 28 (1st Cir. 2007).

Prosecutors' tactics (Joel & Carlos)

Joel (joined by Carlos) asserts the prosecutors engaged

in several improper tactics throughout the trial, all of which (in

their view) add to the pile of reasons how and why their trial was

ultimately unfair. The government treats their arguments as

alleging prosecutorial misconduct and while neither defendant

specifically frames this issue in those precise terms, we agree

that we should address the arguments using our well-established

framework for reviewing claims of prosecutor misconduct. "We

review preserved claims de novo and unpreserved claims for plain

error." United States v. Rosario-Pérez, 957 F.3d 277, 299 (1st

Cir. 2020) (citing United States v. Sepúlveda-Hernández, 752 F.3d

- 86 - 22, 31 (1st Cir. 2014)). "Either way, we may first consider

whether the government's conduct was, in fact, improper." Id.

(citing United States v. Duval, 496 F.3d 64, 78 (1st Cir. 2007)).

"If so, we will only reverse if the misconduct 'so poisoned the

well that the trial's outcome was likely affected.'" Id. (quoting

United States v. Vázquez-Larrauri, 778 F.3d 276, 283 (1st Cir.

2015)). "Four factors guide our analysis: (1) the severity of

the prosecutor's misconduct, including whether it was deliberate

or accidental; (2) the context in which the misconduct occurred;

(3) whether the judge gave curative instructions and the likely

effect of such instructions; and (4) the strength of the evidence

against the defendant." Id. (quoting Vázquez-Larrauri, 778 F.3d

at 283).

We briefly summarize the ways in which Joel and Carlos

assert the prosecutors misbehaved throughout the trial. We also

provide the government's explanation about why and how each

instance did not actually amount to misconduct by the prosecutors

in this case. To cut to the chase, our examination of each incident

alleged by Joel and Carlos has not uncovered any misconduct on the

part of the prosecutors. Here's what's alleged:

• Allowing Sergeant Rivera to testify about the drug distribution activities of two codefendants who were not part of the trial when this witness did not have personal knowledge about these activities and was relying on what others had told him. As the government points out (and the trial transcripts confirm), the basis for this witness's knowledge was revealed while he was on the stand and the prosecutor

- 87 - admitted she was mistaken by her belief that he'd had personal knowledge about the activities of the two codefendants in question. In addition, the trial judge struck the testimony and instructed the jury that they were to disregard it. • Speaking with Sergeant Rivera mid-testimony and refusing to turn over the reports from his interviews with the defendants so Joel wouldn't have the benefit of these reports to prepare his cross-examination. The government's misunderstanding regarding the trial judge's order not to meet with witnesses once their testimony had begun has already been examined supra. In response to Joel's accusation that the government withheld Rivera's reports from various interviews with witnesses, the government asserts the record clearly reflects that the reports Joel sought either did not exist because Rivera had not written them, or Joel acknowledged he had ultimately received the report. As the government argues, there is no indication of prosecutorial misconduct here either because the government complied with all the discovery orders. • Referring to Joel as the operator of the drug trafficking organization with a few different witnesses. The government asserts -- and the trial transcripts show -- either the witness volunteered Joel's role as part of an answer to a question, the witness was testifying to Joel's own description of his role, or the prosecutor's question implying Joel was a leader was posed during the grand jury proceedings and only came out during the trial through proper memory refreshing for the particular witness. The government also shows us where the jury heard unchallenged testimony several times from witnesses that Joel was the leader of the enterprise. • Asking CW Ferrer during re-direct examination about other defendants who had pled guilty. The government argues there was no misconduct when the government asked CW Ferrer about whether another codefendant had pled guilty because Joel had introduced this series of questions when, during his cross- examination, he started inquiring about how much jail time Ferrer had received upon his own guilty plea and whether other codefendants had also simply been sentenced to time served.

As we previewed above, our review of the record reveals each of

these claims "lack[s] arguable merit" because none shows actual

- 88 - prosecutorial misconduct. See Rosario-Pérez, 957 F.3d at 299.

So, we do not explore them any further.32

32There are two more "unfair trial" arguments to bring to the reader's attention, each relegated to this footnote because neither is sufficiently developed for our review. First, Carlos says he was unfairly disadvantaged during trial by not having access to daily trial transcripts. He asserts the trial might have been shorter if he and his codefendants had access to daily transcripts because the length of the bench conferences and arguments over specific testimony would have been shorter if they had been able to consult the transcripts of the testimony they were arguing over. During the trial, the judge granted a motion filed by Suanette -- joined by Carlos and other defendants -- for access to the transcripts the government had already ordered. Carlos asserts she gave him and his codefendants a hard time about their request for transcripts but there is no indication in the briefing or the discussion about Suanette's motion that the trial judge denied a request for daily transcripts. And Carlos acknowledges that indigent defendants are not automatically entitled to free daily transcripts. See 18 U.S.C. § 3006A. Instead, Carlos states that, in order to mount an "adequate defense," daily transcripts should be one of the entitlements included within a defendant's constitutional rights. In the absence of a developed record or argument, however, all we can do is acknowledge this was one of the ways in which Carlos says there were cumulative errors in his trial requiring reversal and a combination of errors depriving him of a fair trial. Second, Juan mentions "inhumane conditions" several times throughout the factual and procedural summary in his brief, mentioning the times he was feeling ill or was sleep deprived or had inadequate food, but he does not tie these claims to any of his arguments about how he was denied a fair trial or how or why these events would be a reason to vacate his convictions or warrant a new trial. Carlos, in his brief, states that he "adopts" Juan's claims about "the documented and debilitating conditions of confinement" but also does not develop any argument on this topic. As the government asserts in response, these claims are therefore waived. See Chan, 981 F.3d at 50 n.4.

- 89 - Cumulative error (Joel, Carlos, Juan)

Joel, Carlos, and Juan also argue that the combined

effect of the errors they say were made during trial (including

the purported evidentiary errors and the ways in which they claim

they were denied a fair trial) leads to the inescapable conclusion

that they are entitled to a new trial. Joel's list of errors he

claims add up to cumulative error include jury bias, judicial bias,

improper prosecutorial tactics, evidentiary errors, and the denial

of the motion to suppress the gun found in his father's car. Juan

says the cumulative effect of the evidentiary errors he raised in

addition to the list of ways he asserts (without explaining why)

he was denied a fair trial will justify setting aside his

convictions. Carlos, for his part, asserts the combination of the

trial errors, including those related to jury bias, judicial bias,

improper prosecutor tactics, evidentiary errors, and insufficient

access to transcripts all deprived him of a fair trial.

When we are presented with a cumulative error argument,

"[w]e review the rulings for abuse of discretion before deciding

what cumulative effect any errors may have had." United States v.

Centeno-González, 989 F.3d 36, 50 (1st Cir. 2021) (quoting United

States v. Perez-Montañez, 202 F.3d 434, 439 (1st Cir. 2000)). "In

doing so, we 'must consider each such claim against the background

of the case as a whole, paying particular weight to factors such

- 90 - as the nature and number of the errors committed; their

interrelationship, if any . . . ; and the strength of the

government's case.'" Id. (ellipsis in original) (quoting

Sepulveda, 15 F.3d at 1196). Joel, Carlos, and Juan's cumulative

error claims fail because we have not found any errors in any of

the ways they contend they were denied a fair trial and the one

potential evidentiary error (admitting the handwritten notations

on the North Sight Communications business records) was harmless.

See id. at 50.

And with that, we move on to the evidentiary sufficiency

arguments.

SUFFICIENCY OF THE EVIDENCE

Suanette and Juan each argue they were entitled to

judgments of acquittal on all the counts with which they were

charged. Recall Suanette was convicted of conspiracy to distribute

narcotics as a seller and a facilitator as well as of aiding and

abetting the distribution of marijuana. Juan was charged with and

convicted of two conspiracy counts (to distribute narcotics in the

role of a "runner" and to possess firearms in furtherance of drug

trafficking) and four aiding-and-abetting-drug-distribution

counts (heroin, crack cocaine, powder cocaine, and marijuana).

Both defendants moved for judgments of acquittal at the end of the

government's presentation of evidence and again at the end of all

- 91 - the defendants' presentations of evidence. The trial judge denied

both motions.

"Because the defendants made the same arguments before

the district court (therefore preserving this legal issue for our

review), our task is to consider afresh their arguments about why

they say they are entitled to judgments of acquittal." United

States v. Chan, 981 F.3d 39, 51 (1st Cir. 2020). "That is, we

give no deference to the district court's assessment of the same

arguments when it evaluated the defendants' motions for judgments

of acquittal." Id. "To complete our review, we 'consider all the

evidence, direct and circumstantial, in the light most favorable

to the prosecution, draw all reasonable inferences consistent with

the verdict, and avoid credibility judgments, to determine whether

a rational jury could have found the defendants guilty beyond a

reasonable doubt.'" Id. at 55 (cleaned up) (quoting United States

v. Negrón-Sostre, 790 F.3d 295, 307 (1st Cir. 2015)). If we agree

with the defendants that the trial judge erred when she denied

their motions for judgments of acquittal, then we must order

acquittal. Montijo-Maysonet, 974 F.3d at 41

("[T]he Double Jeopardy Clause precludes a second trial once the

reviewing court has found the evidence legally insufficient."

(quoting Burks v. United States, 437 U.S. 1, 18 (1978))).33

33 We would usually tackle the sufficiency-of-the-evidence arguments at the front end of our opinion because successful

- 92 - Suanette's and Juan's primary involvement in the drug

trafficking organization were in two separate locations and the

evidence of their respective roles came from different witnesses.

So we'll address their challenges to the sufficiency of the

evidence to support their convictions separately.

Suanette's convictions

The testimony about Suanette's involvement in the drug

trafficking organization came from two of the CWs we've encountered

already: Lopez and Vega.34 They each testified about their

personal observations of Suanette providing sellers within the

organization with baggies of marijuana as well as working side-

by-side with her husband and codefendant Carlitos. CW Lopez

testified that he was a drug addict who bought and sold marijuana

and cocaine at the Villa Margarita "curve" on Amapola Street. In

2005 or 2006, CW Lopez watched the drug distribution hierarchy and

process while he built a fence for Carlos (the defendant on appeal

before us). Lopez

could see the sellers when [Carlos] would give them their shifts, when he would give them material to sell. . . .

sufficiency challenges have double jeopardy implications, see Montijo-Maysonet, 974 F.3d at 41, but we cover these claims of error here in chronological order to the phase in which the trial judge ruled on these motions because only two of the five defendants raised these arguments before us and because we affirm the trial judge's denial of the motions for judgments of acquittal.

34A quick reminder that we are now reciting "our summary of the facts in the light most favorable to the jury's verdict." Chan, 981 F.3d at 45 (citing Charriez-Rolón, 923 F.3d at 47).

- 93 - [W]hen they finished working, they could come to the area in front of his house to do the tally, they would go to the carport in Joel's house, and there they would tally up. And anything regarding the drug point, well, [Carlos] was the man.

After CW Lopez finished building the fence, he became a lookout

for the curve drug point, a "runner" (according to Lopez, that's

someone who picked up money from clients, bought the drugs, then

delivered the drugs back to the clients),35 a direct seller, and a

buyer. CW Lopez described the recharge process: when a seller

ran low on product (whether heroin, cocaine, or marijuana), the

seller would ask for a "recharge" through a handheld radio.

Carlitos resupplied marijuana. CW Lopez testified he bought

marijuana from Suanette at the drug point in Villa Margarita on

Amapola Street from 2007 to 2008. According to CW Lopez, he did

not observe Suanette resupply marijuana to the drug point, but

"[she] always accompanied Carlitos when he was selling and she

collected the money. If you went to buy, she would be the one

collecting the money."

CW Vega testified he worked as a seller for the drug

organization and sold marijuana from the abandoned house at the

"curve." CW Vega often saw Carlitos in a truck and sometimes saw

Suanette drive the same truck, especially when CW Vega had radioed

Carlitos about needing to be resupplied because she often delivered

35 Other folks add additional responsibilities to this "runner" job description, as we'll touch on later.

- 94 - the next batch of marijuana in that truck after Joel had called CW

Vega to tell him the new inventory was on its way. CW Vega said

Suanette delivered around 80 baggies of marijuana around 7:30 a.m.

four times a week in 2007 and the beginning of 2008. CW Vega also

testified he did not see Suanette sell marijuana to customers at

the drug point, but he paid her for the resupply by handing money

to the lookout on duty who gave the money to Suanette.

The trial judge denied Suanette's first motion for

judgment of acquittal in a written order, explaining that

Suanette's assistance to her husband Carlitos at the drug point,

her interaction as seller to CW Lopez, and her role as resupplier

for Vega was enough to show she was "part of the organized

structure and coordination of the drug point and that she worked

with and assisted these other defendants in the possession with

intent to distribute all types of drugs sold." After the jury

rendered its verdict on January 5, 2016, Suanette filed a written

Rule 29 motion for a judgment of acquittal which the trial judge

denied without explanation.

On appeal, Suanette argues the government failed to

prove she either conspired to distribute narcotics or aided and

abetted the marijuana distribution.

Conspiracy to distribute narcotics

"To convict someone of [drug-conspiracy], the government

must prove beyond a reasonable doubt that he knew about and

- 95 - voluntarily participated in the conspiracy, 'intending to commit

the underlying substantive offense.'" United States v. Acosta-

Colón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United States v.

Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "[P]roof may come

from direct evidence or circumstantial evidence, like inferences

drawn 'from members' words and actions and from the interdependence

of activities and persons involved.'" Id. (quoting Ortiz de Jesús,

230 F.3d at 5).

Suanette contends there was insufficient evidence to

convict her of conspiracy because living with Carlitos did not

mean she had joined the conspiracy, she was indifferent to the

success of the drug selling enterprise, she had no interdependence

with any members of the conspiracy, she didn't know what the others

were doing, and there was no evidence she associated with anyone

else in the conspiracy. The government responds there was

sufficient evidence to convict Suanette of conspiring to traffic

marijuana from Lopez's and Vega's testimony. The government says

their testimony shows she was directly involved in dealing drugs

and helping Carlitos and Vega with their drug sales. In our view,

the government has the better argument. Two witnesses testified

Suanette either resupplied or directly sold marijuana to them at

one of the organization's drug hubs, that sometimes she was on her

own, and sometimes she was with Carlitos, who had also been charged

with the conspiracy to traffic drugs.

- 96 - Suanette also makes a broad argument that the testimony

from one CW contradicted the other because one testified she

resupplied him with baggies of marijuana to sell and the other CW

testified she did not resupply him, but she did sell directly to

him either on her own or when she was with Carlitos. Suanette's

argument doesn't help convince us there was insufficient evidence.

When we view the testimony in the light most favorable to the

prosecution (as we must, see Chan, 981 F.3d at 51), a rational

jury could have easily concluded each CW simply had different

interactions and experiences with her. CW Lopez and CW Vega

observed her actions from their respective roles and positions

within the organization. Each of their testimonies, on their own,

could have been sufficient to convict her because they both

observed her engage in the sale of marijuana: she delivered the

inventory of marijuana for CW Vega to sell a few times a week, and

she sold marijuana to CW Lopez by collecting the money while her

husband handed the drugs to him.

Suanette also protests that "[m]ere association with a

conspirator is not enough to prove beyond a reasonable doubt that

[she] is also a co-conspirator." True, but CW Lopez's and CW

Vega's testimony goes beyond mere association. Each of these

witnesses testified that she either handed marijuana to them or a

coconspirator standing nearby or took money from them while her

husband handed the marijuana over to them. Their testimony

- 97 - demonstrates she purposefully and willingly interacted with them.

There is, therefore, sufficient evidence to sustain her conviction

for the drug distribution conspiracy. See Acosta-Colón, 741 F.3d

at 190-91.

Aiding and abetting distribution of marijuana

Suanette states in her brief that there was insufficient

evidence to convict her of aiding and abetting the distribution of

marijuana but her entire argument seems to focus on her insistence

that there was insufficient evidence to sustain her conviction for

the conspiracy count. Giving her the benefit of the doubt, we

briefly state that there certainly was sufficient evidence to find

her guilty beyond a reasonable doubt of the aiding and abetting

charge. The government argues the same evidence that convicted

her of the conspiracy count is sufficient to prove beyond a

reasonable doubt that she aided and abetted the distribution of

marijuana. We agree.

To convict Suanette of aiding and abetting in the

distribution of marijuana, the government needed to prove she

"'associated h[er]self with the venture,' 'participated in [the

venture] as something that [s]he wished to bring about,' and that

[s]he 'sought by [her] actions to make the venture succeed.'"

United States v. Monteiro, 871 F.3d 99, 109 (1st Cir. 2017)

(quoting Negrón-Sostre, 790 F.3d at 311). The testimony from CW

Lopez and CW Vega clearly shows she was more than merely present

- 98 - for the interactions they had with her; she actively engaged in

the distribution of marijuana when she resupplied CW Vega four

times a week at the same time on each of those days and participated

in the sale of marijuana to CW Lopez when she took the money he

tendered when he bought from her and Carlitos. Cf. Negrón-Sostre,

790 F.3d at 311-12 (mere presence is insufficient to prove aiding

and abetting possession with intent to distribute). We affirm her

conviction for aiding and abetting the distribution of marijuana

and move on to Juan's arguments about the lack of evidence

supporting his convictions.

Juan's convictions

The testimony about Juan's actions included CWs and law

enforcement agents. CW Ferrer testified about his experiences at

Los Claveles, a tower of apartments where he often spent time with

his cousin, Julio Alexis, and watched his cousin buy marijuana

from the lobby. CW Ferrer also bought marijuana for others who

were scared to go into this apartment building. Over time, CW

Ferrer often helped during his cousin's shifts by giving customers

the marijuana they bought while his cousin took the money. CW

Ferrer testified he met Juan for the first time in January 2008,

when he went to Juan's apartment with his cousin, who had just

finished a shift and needed to do his "tally." (A tally, CW Ferrer

explained, is when the seller returns the drug inventory he or she

did not sell during a shift back to the runner along with the money

- 99 - collected from sales throughout the shift.) CW Ferrer watched his

cousin record the number of baggies of marijuana and cocaine, vials

of crack, and aluminum folds of heroin.

CW Ferrer also testified that he went to Villa Margarita

in the summer of 2008 with his cousin when Juan asked the cousin

to take the tally there. When CW Ferrer and his cousin arrived at

Villa Margarita, Joel called Juan using the walkie-talkie function

on a cell phone to find out why Juan had not brought the tally

over himself. CW Ferrer testified the tally his cousin handed to

Joel included money, marijuana, cocaine, crack vials, and aluminum

packets of heroin. CW Ferrer went back to Villa Margarita another

time with his cousin, again on Juan's request.

CW Vega also testified about Juan's actions. When Vega

was working for the enterprise as a lookout at Villa Margarita in

May 2008, he saw Juan several times. On one occasion, other

members of the enterprise handed Juan packages of heroin,

marijuana, and crack cocaine, which Juan placed in the seat of the

motorcycle he had arrived on before riding off in the direction of

Los Claveles. CW Vega also saw Juan at Los Claveles when Vega was

there to buy drugs. CW Vega testified he watched Juan get off an

elevator and ask the man from whom CW Vega was buying to give him

(Juan) the tally; the seller gave Juan money and Juan gave the

seller a package with vials of crack.

- 100 - Members of law enforcement also testified about Juan's

actions. When Agent Evette Berrios Torres went to Villa Margarita

in July 2008 as part of her investigation of drug trafficking and

organized crime in that area, she observed Juan command the men he

was with to cooperate with her and the other agents at the scene,

leading by example when he walked up to her vehicle and placed his

hands on the hood and ordering the others to do the same. According

to Agent Berrios, they complied.

On appeal, Juan argues there was insufficient evidence

to prove his guilt beyond a reasonable doubt and he identifies a

lot of evidence against him as unreliable or not credible. He

claims that the "main evidence" against him was CW Ferrer's

testimony, which Juan brands as "[u]nreliable, uncorroborated,

vague and scant." He also claims that CW Vega's testimony was

vague and not credible. The government, for its part, argues that

Juan's arguments boil down to his contention that the testimony of

the CWs should not have been believed. We won't spend a boat load

of time here examining Juan's claims because a defendant cannot

win a sufficiency-of-the-evidence challenge by claiming (as Juan

does) the witnesses against him were not credible. Our framework

for reviewing this kind of challenge means we give the government

the benefit of the doubt and resolve any questions of witness

credibility against the defendant. United States v. Cruz-Ramos,

- 101 - 987 F.3d 27, 38 (1st Cir. 2021); United States v. Manor, 633 F.3d

11, 13 (1st Cir. 2011).

The government says there was sufficient evidence to

convict Juan of conspiracy because it showed he was running the

Los Claveles drug point for the drug trafficking organization.

The government also argues that there was sufficient evidence to

convict Juan of aiding and abetting drug trafficking because there

was much eyewitness testimony that he managed the sale of several

types of drugs from the Los Claveles drug point along with Joel

and other members of the organization.

To the extent Juan is arguing that CW Ferrer's testimony

was insufficient because it was uncorroborated, we can also head

this off immediately because it is well-settled that "[t]estimony

from even just one witness can support a conviction." Negrón-

Sostre, 790 F.3d at 307 (quoting United States v. Alejandro-

Montañez, 778 F.3d 352, 357 (1st Cir. 2015)). There was sufficient

evidence on CW Ferrer's testimony alone to uphold Juan's conspiracy

and aiding-and-abetting-the-distribution convictions. But more

than one witness testified about Juan's involvement with the drug

trafficking organization; CW Vega also testified about two

specific instances of watching Juan receive packages of drugs or

money in direct exchange for a package of drugs and Agent Berrios

watched several men fall into line when Juan clearly had authority

- 102 - to tell them what to do when she and her agents met them at Villa

Margarita.

The testimony also demonstrates there was sufficient

evidence to convict Juan of the conspiracy count because Juan

clearly "knew about and voluntarily participated in the

conspiracy, 'intending to commit the underlying substantive

offense.'" Acosta-Colón, 741 F.3d at 190 (quoting Ortiz de Jesús,

230 F.3d at 5). The testimony summarized above also demonstrates

there was sufficient evidence to convict Juan of the four aiding

and abetting counts because Juan clearly "'associated himself with

the venture,' 'participated in [the venture] as something that he

wished to bring about,' and 'sought by his actions to make the

venture succeed.'" Monteiro, 871 F.3d at 109 (brackets in

original) (quoting Negrón-Sostre, 790 F.3d at 311).36

36Juan does not address his count of conviction for conspiracy to possess a firearm in furtherance of a drug trafficking crime, so he has waived any argument about the sufficiency of the evidence for that crime. See, e.g., Cruz-Ramos, 987 F.3d at 35 n.5 (citing Rodríguez, 659 F.3d at 175). Juan also provides a laundry list of other evidence from trial and asserts, without any supporting case law whatsoever, why these pieces of evidence cannot support his conviction. We decline to address these assertions because he did not provide any developed argument about them. See Chan, 981 F.3d at 50 n.4 (citing Rodríguez, 659 F.3d at 175 ("It should go without saying that we deem waived claims not made or claims adverted to in a cursory fashion, unaccompanied by developed argument."); Holloway v. United States, 845 F.3d 487, 491 n.4 (1st Cir. 2017) (stating an argument was waived when party failed to provide any legal citations to support its argument)). Finally, Juan writes a few lines suggesting his drug-related convictions should be dismissed because the indictment specified

- 103 - Juan's convictions affirmed, we move on to the

sentencing issues.

SENTENCING

Joel, Carlos, Juan, and Idalia all challenge the methods

the trial judge used to calculate the drug quantities attributable

to each of them when she determined their individual guidelines

sentencing ranges ("GSRs") before imposing their individual

sentences. Before tackling their respective arguments, we provide

some basic sentencing principles which govern the way we consider

their arguments.

Our overall task when we examine a sentence or, as here,

the sentencing process, is to consider whether the sentence is

reasonable. Typically, our reasonableness review "is bifurcated,

requiring us to ensure that the sentence is both procedurally and

substantively reasonable." United States v. Arsenault, 833 F.3d

24, 28 (1st Cir. 2016) (citing United States v. Mendez, 802 F.3d

93, 97 (1st Cir. 2015)). "We ordinarily review both procedural

and substantive reasonableness [arguments] under a deferential

the location of his activities as within 1,000 feet of a public housing authority but Los Claveles is private property outside the purview of 18 U.S.C. § 860(a). The indictment actually charges him and the others with distribution "within 1000 feet of a playground in Los Claveles Housing Project and in around the Villa Margarita Ward . . . ," not a housing facility. Regardless, any argument or claim he intended to make on this basis is waived because it is perfunctory and undeveloped. See id.

- 104 - abuse-of-discretion standard." Id. (citing United States v.

Maisonet–González, 785 F.3d 757, 762 (1st Cir. 2015), cert. denied

sub nom. Maisonet v. United States, 136 S. Ct. 263 (2015)).

"However, when assessing procedural reasonableness, this

[c]ourt engages in a multifaceted abuse-of-discretion standard

whereby 'we afford de novo review to the sentencing court's

interpretation and application of the sentencing guidelines,

[examine] the court's factfinding for clear error, and evaluate

its judgment calls for abuse of discretion.'" Id. (quoting United

States v. Ruiz–Huertas, 792 F.3d 223, 226 (1st. Cir. 2015)). "And

we will find an abuse of discretion only when left with a definite

conviction that 'no reasonable person could agree with the judge's

decision.'" McCullock, 991 F.3d at 317 (quoting Cruz-Ramos, 987

F.3d at 41). One of the ways in which a district court can commit

a procedural error in sentencing is to improperly calculate the

GSR. United States v. Lee, 892 F.3d 488, 491 (1st Cir. 2018).

Drug Quantity (Joel & Carlos)

Joel and Carlos37 both challenge the trial judge's

findings of the drug quantities she used to calculate their GSR

Joel was sentenced to 360 months on each of the following 37

four counts: conspiracy to distribute narcotics, aiding and abetting the distribution of heroin, aiding and abetting the distribution of crack cocaine, and aiding and abetting the distribution of powder cocaine; 120 months on the count for aiding and abetting the distribution of marijuana; and 240 months on the count for conspiracy to possess a firearm in furtherance of a drug

- 105 - and determine their respective sentences. Before delving into the

arguments, we lay the groundwork for our review by summarizing

Joel's and Carlos's objections and motions leading up to their

sentencing hearings.

The presentencing report ("PSR") suggested a finding of

25,446.49 kg of marijuana for the three-year conspiracy (after

converting the suggested quantities of the other drugs at play as

instructed in U.S.S.G. § 2D1.1, App. Note 8(D)). Before his

sentencing hearing, Carlos filed an objection to the drug quantity

included in the PSR, arguing this quantity was based on unreliable

testimony from CW Vega. According to Carlos, CW Vega testified to

different drug amounts during cross-examination than he did during

his direct testimony. Carlos also argued that CW Vega's testimony

regarding drug quantities only covered a portion of the three-year

conspiracy and that Vega couldn't provide accurate quantities

because his role shifted throughout the conspiracy from lookout to

seller, meaning his testimony about quantities couldn't be

extrapolated to calculate the total quantity for the entire three-

trafficking crime, all to be served concurrently. Carlos, who was also convicted of all six counts charged, was sentenced to 324 months on each of the following counts: conspiracy to distribute narcotics, and aiding and abetting the distribution of heroin, crack cocaine, and powder cocaine, respectively; 120 months on the count for aiding and abetting the distribution of marijuana, and 240 months on the count for conspiracy to possess a firearm in furtherance of a drug trafficking crime, all to be served concurrently.

- 106 - year timespan of the charged conspiracy. Joel, for his part, also

filed an objection to his own amended PSR, expressly adopting

Carlos's arguments regarding extrapolation from CW Vega's

testimony.

The trial judge overruled both objections, finding CW

Vega's testimony reliable on the whole despite the occasional

discrepancies in precise amounts. Addressing Carlos's and Joel's

objections to using this testimony to extrapolate the total

quantity for the length of the conspiracy, the judge stated the

probation office used drug quantities from all four CWs and

plausibly extrapolated from the testimonies to provide a

conservative total quantity for sentencing purposes.

At the subsequent sentencing hearings, the judge

attributed 25,446.49 kg of marijuana to Joel and to Carlos.38 For

Carlos, the judge calculated a total offense level of 41 with a

criminal history category ("CHC") of I for a GSR of 324 to 405

months and ultimately sentenced him to 324 months. For Joel, the

judge calculated a total offense level of 42 with a CHC of II for

38This quantity was the total quantity estimated in each PSR as attributable to the three-year conspiracy after the various controlled substances were converted to equivalent marijuana quantities as instructed in U.S.S.G. § 2D1.1(c), App. note 8(D), for purposes of determining the base offense level.

- 107 - a GSR of 360 months to life and ultimately sentenced him to 360

months.39

On appeal, Joel and Carlos continue to press their

argument that the only evidence of the drug quantities sold was

testimony from CW Vega who, they say, did not provide reliable

testimony because, throughout his testimony, he was inconsistent

about how much he typically sold each shift he worked. Both also

insist that the other CWs did not provide daily sales figures.

Both appellants rely on United States v. Rivera-Maldonado, where

we warned that "[t]he potential for grave error where one

conclusory estimate serves as the multiplier for another . . . may

undermine the reasonable reliability essential to a fair

sentencing system." 194 F.3d 224, 233 (1st Cir. 1999) (remanding

for resentencing because the drug quantity used to determine the

base offense level was based on a pyramid of unreliable

inferences). Carlos specifically argues that the trial judge's

calculation of the drug quantity by multiplying small amounts

seized across dozens of days of investigations in order to reach

a daily sales figure is the kind of grave error we warned about in

Rivera-Maldonado.

Joel's counsel renewed the objection to the drug quantity 39

during the sentencing hearing. Carlos's counsel did not lodge any additional objections during the sentencing hearing.

- 108 - The government responds that the judge used a reasoned

estimate of the drug quantity attributable to Joel and Carlos when

she adopted the PSR's calculations because the probation office's

calculation, while largely informed by CW Vega's testimony, was

corroborated by other CWs' testimony regarding sales volumes. The

government points out that, even if CW Vega's testimony had been

entirely consistent between direct and cross-examination, the

probation office's calculations of drug quantity were below the

lowest quantity to which he testified. The government also

emphasizes that the quantities calculated in the PSRs were

conservative in other ways too, such as using only the estimated

quantities of drugs sold at Villa Margarita and not adding

quantities from sales at Los Claveles, considering the two-shift

selling operation at Villa Margarita (as opposed to a single shift)

as starting later in time than the testimony supported, halving

the quantities sold during the day vs. night shifts, and using

only sales figures for "slow" days (rather than the higher

quantities supported by the testimonies for "busy" days).

"When making a drug quantity finding, the sentencing

court's responsibility is to 'make reasonable estimates of drug

quantities, provided they are supported by a preponderance of the

evidence.'" Lee, 892 F.3d at 491 (quoting United States v. Mills,

710 F.3d 5, 15 (1st Cir. 2013)). "We review those estimates

'deferentially, reversing only for clear error.'" Id. (quoting

- 109 - Mills, 710 F.3d at 15). "We will only find clear error when our

review of the whole record 'forms a strong, unyielding belief that

a mistake has been made.'" Id. at 491-92 (alteration adopted)

(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st

Cir. 1990)).

A defendant who is convicted of conspiracy to distribute

controlled substances will be held responsible "not only for the

drugs he actually handled but also for the full amount of drugs

that he could reasonably have anticipated would be within the ambit

of the conspiracy." United States v. Correa-Alicea, 585 F.3d 484,

489 (1st Cir. 2009) (quoting United States v. Santos, 357 F.3d

136, 140 (1st Cir. 2004)). Although the court "may rely on

reasonable estimates and averages" to reach "its drug-quantity

determinations", those estimates must possess "adequate indicia of

reliability" and "demonstrate record support," Rivera-Maldonado,

194 F.3d at 228 (internal citations omitted); a "hunch or

intuition" won't cut it, Correa-Alicea, 585 F.3d at 489 (quoting

Marrero-Ortiz, 160 F.3d at 780). When we review the district

court's factual finding as to drug quantity for clear error, we

are looking for "whether the government presented sufficient

reliable information to permit the court reasonably to conclude

that [the appellants were] responsible for a quantity of drugs at

least equal to the quantity threshold for the assigned base offense

level." Correa-Alicea, 585 F.3d at 489 (quoting United States v.

- 110 - Barnett, 989 F.2d 546, 553 (1st Cir. 1993)). We have previously

recognized that "an estimate of drug quantity may be unreliable if

based on an extrapolation from too small a sample." Id. (citing

Rivera-Maldonado, 194 F.3d at 231 (holding a dozen controlled buys

over a six-month period was not sufficiently reliable for

estimating the overall drug quantity)).

The drug quantity the trial judge used to determine the

applicable base offense level for Joel and Carlos was based on

much more than a small sample of drugs seized by the government.

The CWs testified at length about the operational details of their

drug trafficking organization, including where the drugs were sold

and how the sellers were organized first in one day shift but

eventually evolved into a 24-hour operation with a day shift and

a night shift. CW Vega testified in detail about how much he sold

on each day of the week, depending on the time of day. While he

did not testify to the same exact quantities when cross-examined,

he provided the same general quantity range and, as the government

points out, the PSR explicitly explains how it included

conservative estimates for the length of time the sales were made

24 hours/day as opposed to 12 hours/day and the quantity of each

drug sold per day.

The extrapolation of the drug quantities attributable to

the entire length of the conspiracy was clearly based on

information from CW Vega and informed by the testimony from other

- 111 - CWs as well as testimony from the government's experts, and we

have no concerns that there are any grave errors in the calculation

of the total quantity attributed to the conspirators. See Rivera-

Maldonado, 194 F.3d at 233. In our opinion, the judge's drug

quantity finding was based on sufficiently reliable information

and we have no reason to believe a mistake or clear error was made

in the calculation of the total drug quantity. See Correa-Alicea,

585 F.3d at 489.

Juan

Juan raises different arguments than Joel and Carlos in

his challenge to his 235-month sentence.40 Prior to the sentencing

hearing, Juan asserted he should only be held responsible for the

drug sales at Los Claveles and not the sales at Villa Margarita

because, according to him, there was no evidence linking him to

Villa Margarita. He also asserted that there was no way for the

court to determine the drug quantity for purposes of calculating

his sentence because there was no testimony at trial about the

quantity of the drugs sold at Los Claveles. During his sentencing

hearing, Juan relied on the written memorandum he'd already filed.

40 Juan was sentenced to 235 months on his convictions for conspiracy to distribute narcotics, conspiracy to possess a firearm in furtherance of a drug trafficking crime, and aiding and abetting the distribution of powder cocaine, crack cocaine, and heroin. Juan was also sentenced to 120 months on his conviction for aiding and abetting the distribution of marijuana, to be served concurrently with the sentence for the other counts of conviction.

- 112 - The government argued the evidence at trial revealed Juan was a

high-level runner for the organization who was clearly instructing

other members of the conspiracy about where to go and what to sell,

and that the Los Claveles and Villa Margarita drug points were

part of the same operation with the same main operators, including

Juan. On appeal, Juan contends his sentence was unreasonable for

the same reasons he articulated in his sentencing memorandum.

As we previously stated, we review preserved sentencing

arguments for abuse of discretion, reviewing the findings of fact

for clear error and any conclusion regarding the governing

sentencing laws de novo. Arsenault, 833 F.3d at 28. Juan argues

that his sentence is procedurally unreasonable because the judge

used the drug quantity evidence from sales at the "curve" to

calculate his sentence. Juan says this evidence doesn't reflect

his personal involvement in the conspiracy because he had allegedly

worked as a runner at Los Claveles, not at the "curve," so the

quantities for drug sales at the "curve" were not attributable to

him in the absence of evidence connecting him to drug trafficking

at the "curve."

Juan's right that "when a district court determines drug

quantity for the purpose of sentencing a defendant convicted of

participating in a drug trafficking conspiracy, the court is

required to make an individualized finding as to drug amounts

attributable to, or foreseeable by, that defendant." United States

- 113 - v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004). But this is

not the same thing as requiring that "the defendant must have

personally handled the drugs for which he is held responsible,"

which we don't. Id. at 103 n.2 (citing U.S.S.G. § 1B1.3). "A

defendant may be held responsible for drugs involved in his

'relevant conduct' [and] 'such conduct may include a defendant's

own acts or the acts of others.'" Id. (first quoting U.S.S.G.

§ 1B1.3, then quoting United States v. Laboy, 351 F.3d 578, 578

(1st Cir. 2003)).

As the government points out, in a drug conspiracy, the

quantities of drugs sold by others operating within the enterprise

are attributable to a defendant as long as the sales were a

reasonably foreseeable consequence of the enterprise. United

States v. Ramírez-Negrón, 751 F.3d 42, 53 (1st Cir. 2014) ("A

defendant may be held responsible only for drug quantities

'foreseeable to [that] individual.'" (quoting United States v.

Correy, 570 F.3d 373, 380 (1st Cir. 2009))). "Foreseeability

encompasses 'not only . . . the drugs the defendant actually

handled but also . . . the full amount of drugs that he could

reasonably have anticipated would be within the ambit of the

conspiracy.'" Id. (brackets omitted) (quoting Santos, 357 F.3d at

140).

Both the Villa Margarita and Los Claveles drug points

were part of the single conspiracy for which Juan was charged and

- 114 - convicted; as summarized supra when we reviewed Juan's challenge

to the sufficiency of the evidence to support his convictions,

there was testimony to support Juan's movements and actions at and

between both locations. It was therefore reasonably foreseeable

that, while Juan primarily worked at Los Claveles, the sales at

Villa Margarita would be both attributable and attributed to him.

The trial judge did not abuse her discretion by using the drug

quantities calculated from the sales at Villa Margarita when she

calculated and imposed Juan's sentence.41

Idalia

Idalia challenges the trial judge's attribution of her

husband's crack sales to her. The evidence at trial showed Idalia

directly sold vials of crack from her home, and at times completed

the sales transactions when a customer was looking for her husband,

Carlos. Idalia was sentenced to sixty months for her one count of

conviction for aiding and abetting the possession with intent to

distribute fifty grams or more of crack within 1,000 feet of a

protected facility.

41 Juan also states that his sentence was substantively unreasonable because some of the similarly situated codefendants (including other alleged drug runners) received more lenient sentences. Other than listing some of these codefendants' names, alleged role in the conspiracy, and ultimate sentence, Juan doesn't develop this argument. It is therefore waived. See Chan, 981 F.3d at 50 n.4.

- 115 - Prior to her sentencing hearing, Idalia successfully

challenged the PSR's recommendation that the court calculate her

GSR using the amount of crack attributable to the entire

conspiracy. The trial judge sustained her objection to the extent

Idalia had not been convicted of the conspiracy charge but found

the estimated amount of crack sold to CW Vega by Carlos was

properly attributable to Idalia because her one count of conviction

included aiding and abetting the distribution of crack cocaine.

At the sentencing hearing, Idalia pressed her objection to the

inclusion of the crack sold by Carlos in the court's finding of

the amount of crack for which she was held responsible for

sentencing purposes. She argued there was no indication CW Vega

had bought crack from both her and Carlos at the same time --

always from either one or the other when the other was not present.

In response, the trial judge noted CW Vega's testimony that he

first bought from Idalia after she emerged from the house she

shared with Carlos in response to Vega calling for Carlos and that

he always bought from Carlos and Idalia from the yard of their

house. The judge relied on U.S.S.G. § 1B1.3, which provides the

relevant conduct for the determination of the GSR. See Sections

1B1.1, 1B1.2(b). Idalia was on the hook for:

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or

- 116 - enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were-- (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.]

Section 1B1.3.

On appeal, Idalia continues her battle against the

calculation of her GSR including the sales by Carlos to CW Vega

during the time in which she also sold crack to Vega. She argues

that her sentence is unreasonable as a result of this attribution,

especially because the trial judge rounded up to two months of

Carlos's sales to her when CW Vega's testimony indicated she might

have only sold to him during a one-month period. The round up,

according to Idalia, constitutes clear error on the part of the

judge. The government responds that CW Vega's testimony reflected

a two-month purchasing timeframe and argues that, as a matter of

law, Carlos's sales to Vega during these two months were properly

included in the total quantity attributed to Idalia for the purpose

of calculating her GSR.

As we have previously stated, "[t]he district court's

finding as to the amount of drugs reasonably foreseeable to [a

defendant] need only be supported by a preponderance of the

- 117 - evidence and need not be exact so long as the approximation

represents a reasoned estimate." United States v. Ortiz-Torres,

449 F.3d 61, 79 (1st Cir. 2006) (citing Santos, 357 F.3d at 141).

In addition, "[w]e will set aside a drug-quantity calculation only

if clearly erroneous; if there are two reasonable views of the

record, the district court's choice between the two cannot be

considered clearly erroneous." Id. (citing Santos, 357 F.3d at

141).

Idalia, quoting United States v. Ortiz, 966 F.2d 707,

712 (1st Cir. 1992), points out that "the line that separates mere

presence from culpable presence is a thin one, often difficult to

plot." Indeed, we have also stated that "mere association between

the principal and those accused of aiding and abetting is not

sufficient to establish guilt; nor is mere presence at the scene

and knowledge that a crime was to be committed sufficient to

establish aiding and abetting." Id. (alteration adopted) (quoting

United States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977)).

However, these statements of black letter law related to the

substantive charge of aiding and abetting won't help her here.

There is no doubt she was on the hook for the crack sold by her

partner at the same location and to the same person when it came

to determining a reasonable sentence to impose for her aiding and

abetting conviction. See U.S.S.G. § 1B1.3. The sentencing

guidelines are clear, so the trial judge was not wrong to include

- 118 - Carlos's crack sales to CW Vega during the time period the latter

identified as also buying crack from Idalia when the trial judge

calculated the total drug quantity attributable to Idalia.

Turning our attention to Idalia's argument that the

trial judge clearly erred by using a two-month period to estimate

the total quantity of crack attributable to Idalia for sentencing

purposes, the government points out that Idalia did not

specifically challenge the one- vs. two-month period during the

sentencing proceedings. Because her challenge to the manner in

which the trial judge calculated the total drug quantity

attributable to her is well-preserved, we'll give her the benefit

of the doubt about the preservation of this argument here for our

review.

CW Vega first testified he bought crack from Idalia and

Carlos for "a short while" starting in June 2006. When pressed by

the prosecutor to be more specific about the time, he said "I would

go to the drug point daily, so I would say about a month, two

months" for a total of fifteen times after the first time he bought

vials of crack from Idalia on the front porch. CW Vega also

testified that he bought orange-capped vials of crack cocaine from

Carlos -- in the yard of Carlos's house -- during "the same time

of the two months" as when he bought from Idalia -- from the porch

of the same house. The trial judge's decision to use the two-

month period for calculating the GSR was not wrong, never mind

- 119 - clearly wrong, because this time period and subsequent estimated

quantity was supported by a preponderance of the evidence. See

Ortiz-Torres, 449 F.3d at 79. Idalia's challenge to the procedural

reasonableness of her sentence therefore fails.

Crack:Powder (Carlos)

In addition to his drug quantity argument, Carlos also

challenges the district court's denial of his request that it use

a 1:1 ratio for crack cocaine:powder cocaine instead of the 18:1

ratio provided in the drug equivalency table in the 2016 U.S.

Sentencing Guidelines, § 2D1.1, App. Note 8(D).42 The trial judge

denied Carlos's motion because she was not convinced the ratio

should be reduced at all in light of the § 3553 factors and

"objectives of sentencing policy." Before us, Carlos argues the

judge should have used her discretion to apply a 1:1 ratio because

the use of the smaller ratio would have had a big impact on his

GSR and, according to him, there is increasing support for courts

to vary from the 18:1 ratio in the guidelines. Carlos also says

the trial judge did not give an adequate explanation for her

42Pursuant to the drug equivalency table in the 2016 U.S.S.G. § 2D1.1, App. Note 8(D), the court is to convert 1 gram of cocaine base to 3,571 grams of marijuana but 1 gram of powder cocaine to 200 grams of marijuana when it calculates the total drug quantity attributable to a defendant. Herein lies the 18:1 ratio.

- 120 - refusal to use the requested 1:1 ratio.43 The government responds

that the trial judge did indeed provide her reasons for denying

Carlos's motion and was not required to vary from the ratio

provided in the guidelines. We agree and explain below why we

leave Carlos's sentence as we have found it.

As part of the trial court's wide discretion in

sentencing, the Supreme Court has acknowledged the "district

courts' authority to vary from the crack cocaine Guidelines based

on policy disagreement with them, and not simply based on an

individualized determination that they yield an excessive sentence

in a particular case." Spears v. United States, 555 U.S. 261, 264

(2009) (emphasis in original). Despite Carlos's insistence that

the judge should have used a 1:1 ratio when determining the total

drug quantity here, there is no question that the judge had the

discretion to stick to the 18:1 ratio in the guidelines and did

not abuse her discretion by deciding not to vary from the

applicable drug equivalency table. See id. While there is an

acknowledged disparity in sentencing created by such a divergent

conversion scheme for crack vs. powder cocaine, Dorsey v. United

The government says Carlos has not preserved this argument 43

for our review because Carlos's ratio-based arguments to the trial judge during the sentencing phase did not frame this issue in terms of procedural unreasonableness. We disagree and proceed with our standard abuse of discretion lens of review because we don't see a pivot in the framing of Carlos's argument in his brief before us.

- 121 - States, 567 U.S. 260, 266, 268 (2012), we need not and do not get

into that policy controversy here, despite Carlos's invitation to

follow a couple of district court judges who have chosen to vary

from the drug equivalency ratios captured in the sentencing

guidelines. The trial judge did not abuse her discretion when she

denied Carlos's motion to use a 1:1 crack to powder cocaine ratio.

WRAP UP

For the reasons we stated and explained for each of the

issues discussed above, we affirm all the defendants' convictions

and sentences.

- 122 -