United States v. Pena

24 F.4th 46

• Court: Court of Appeals for the First Circuit
• Decided: January 21, 2022
• Docket: 19-1522P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1522

UNITED STATES OF AMERICA,

Appellee,

V.

JUAN PENA a/k/a JJ,

Defendant, Appellant.

NO. 20-1083

ROSNIL ORITZ a/k/a RICO,

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

Hon. William G. Young, District Judge

Before

Lynch and Kayatta, Circuit Judges, and Laplante, District Judge.

 Of the District of New Hampshire, sitting by designation. James L. Sultan, with whom Kerry A. Ferguson and Rankin & Sultan, were on brief, for appellant Juan Pena. Chauncey B. Wood, with whom Danya Fullerton and Wood & Nathanson, LLP were on brief, for appellant Rosnil Ortiz. Donald C. Lockhart, Assistant United States Attorney, for appellee the United States, with whom Nathanial R. Mendell, Acting United States Attorney, was on brief in No. 20-1083; Alexia R. De Vincentis, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, were on brief in No. 19-1522.

January 21, 2022

- 2 - Laplante, District Judge. Juan Pena and Rosnil Ortiz

(the "defendants") appeal their convictions for conspiring to

distribute 28 grams or more of cocaine base. During a joint

criminal jury trial held in 2018, the prosecution played for the

jury two video recordings showing Pena and Ortiz discussing and,

the next day, consummating a cocaine-base transaction with a

confidential police informant referred to herein as "R.E." But

because R.E. invoked his Fifth Amendment right against self-

incrimination, neither the prosecution nor the defendants were

able to question R.E. at trial about his role in the investigation.

Moreover, the district court made several evidentiary rulings

that, the defendants argue, restricted their ability to cross-

examine federal law enforcement officers about R.E.'s out-of-court

statements -- evidence which, if proffered for an admissible

purpose, could arguably undermine the credibility of the

underlying drug enforcement investigation in the eyes of the jury.

In separate appeals,1 Pena and Ortiz both contend that

the district court erred in allowing the jury to consider the

above-mentioned video recordings and the "out-of-court" statements

captured therein by ruling that they were coconspirator statements

1In addition to filing separate appeals, Pena and Ortiz submitted separate briefs. Because their appeals are from the same trial and share common themes, we address their arguments in one consolidated opinion.

- 3 - admissible under Federal Rule of Evidence 801(d)(2)(E).

Additionally, the defendants claim that the district court

infringed on their due process rights by limiting their ability to

cross-examine trial witnesses about R.E.'s out-of-court statements

to drug enforcement agents, by instructing the jury that it could

convict either defendant if that defendant had conspired to sell

cocaine base with an uncharged supplier known as "Black," and by

telling the jury mid-cross-examination that the use of undercover

informants in controlled drug purchases is an appropriate law

enforcement technique. As discussed below, neither Pena nor Ortiz

have met their appellate burden for any of these issues. Their

convictions are therefore affirmed.

I. Background

We draw the following facts from the record on appeal,

leaving some argument-specific details for later in the opinion.

A. The Prosecution's Case-in-Chief

In February 2018, Pena and Ortiz were jointly tried on

the sole count charged in the indictment -- specifically, that

during a time period ending on June 8, 2016, the two "knowingly

and intentionally" conspired "with each other, and with other

persons known and unknown to the Grand Jury," to distribute 28 or

more grams of a substance containing a detectable amount of cocaine

base, in violation of 21 U.S.C. § 846 and 21 U.S.C.

§ 841(b)(1)(B)(iii). As part of the prosecution’s case-in-chief, - 4 - it called three witnesses: Bureau of Alcohol, Tobacco, Firearms

and Explosives ("ATF") Special Agents Elliot Rizzo and John Mercer

-- the federal agents who conducted the drug buying operation at

issue -- and Homeland Security Investigations ("HSI") Agent

Kenneth LaBrie -- who processed the drug evidence obtained from

the controlled drug purchase. Notably absent from this list,

however, was the ATF's key undercover informant in its

investigation, R.E., who was terminated as a confidential

informant before trial by the ATF for violating his ATF cooperation

agreement. See Part I.B, infra.

In addition to questioning these witnesses, the

prosecution introduced video recordings (with audio) of two

meetings between the defendants and R.E. These meetings occurred

over the course of two days in January 2016.

1. Video of January 5 Parking Garage Meeting

In the first video -- capturing a January 5 meeting

between both defendants and R.E. in a Malden, Massachusetts parking

garage -- the following transpired:

Pena and Ortiz arrive together at a prearranged meeting

spot in a BMW to conduct a cocaine-base transaction. Upon

arriving, Pena exits the BMW, enters R.E.'s undercover vehicle,

and informs R.E. that he has less than the previously agreed-to

amount of drugs with him because the purported source of the

- 5 - supply, "Black," "thought" the deal was for "two baskets" (seven

grams) instead of the previously agreed-upon "sixty-two."2 Pena

then represents that earlier that day, "he" (presumably Black)

"was like, 'Yo, try to see if he'" (R.E.) "'even want that seven,'"

to which Pena purportedly demurred to Black: "'Why would he'"

(R.E.) "'want . . . a seven . . . [i]f . . . [h]e's buying a sixty-

two'"?

In the ensuing discussion as to when the full deal could

take place, Pena opens the passenger-side window of R.E.'s vehicle

and shouts to Ortiz, who is in the driver's seat of the BMW, "What

time can Black be here for sure?" Ortiz replies, "He's gonna come

right back . . . . Said that he could come back after traffic.

. . . Black is about his business." After R.E. explains that he

has a curfew, Ortiz says he will call Black. The parties then

agree to complete the deal later that day or, "if . . . [Black]

can't do it a little later," then "early" the next morning.

2. Video of January 6 Hotel Suite Meeting

In the second video -- capturing a meeting the next day

(January 6) in a Revere, Massachusetts hotel-room suite -- the

following transpired:

2As later explained by the testifying law enforcement agents, a "basket" and a "sixty-two" are common amounts of cocaine base bought and sold in the drug trade.

- 6 - R.E. enters the hotel suite, at the time occupied by

Pena, Ortiz, and an unidentified third male, to consummate the

previously negotiated cocaine deal. Shortly after R.E. arrives,

Pena steps into the bathroom with R.E., closes the door, turns on

the faucet, and flushes the toilet. Though the sound of flowing

water distorts the audio, Pena is seen in the mirror counting

money, purportedly in exchange for crack cocaine that is out of

the frame of the recording device.3

Upon exiting the bathroom, Pena and R.E. rejoin Ortiz

and the unidentified man to converse about several topics. During

this conversation, Ortiz reveals: "Yo, he" (the unidentified third

man in the room) "just said he had a whole bunch of dope, crack,

he pushing it." Ortiz also informs R.E. that his (Ortiz's)

"runner" was using a rental car obtained under his cousin's name.

R.E. then departs from the hotel room and returns to his car.

In the aftermath of this recorded meeting, ATF agents

recovered two plastic bags from R.E. The parties stipulated at

trial that the two bags contained, in total, 49.13 grams of cocaine

base.

3 At trial, the prosecution argued that Pena completed the transaction in the bathroom without Ortiz and the unidentified third man in the hotel room because the unidentified man was a competing drug dealer.

- 7 - 3. Admission of the Video Evidence

Defense counsel objected to the admission of both videos

before they were played at trial. Pena's counsel argued, among

other things, that none of the statements made by Pena or Ortiz in

the videos were admissible under Federal Rule of Evidence

801(d)(2)(E) because the prosecution had not established a

conspiracy "outside the four corners of the video." Ortiz's

counsel additionally asserted that, with respect to the January 6

hotel-room video, all statements made after the alleged bathroom

exchange were unfairly prejudicial and thus inadmissible under

Federal Rule of Evidence 403, characterizing them as racist,

misogynistic, or inflammatory in substance. Neither counsel

specifically objected, however, to the admissibility of any

recorded statements attributable to Black or the unidentified

third man in the hotel suite -- out-of-court statements the

defendants now claim for the first time to be inadmissible

hearsay.4 As such, the district court ruled that the prosecution

"Hearsay" generally refers to statements that (1) are 4

made outside of the courtroom and (2) are offered as evidence to prove the truth of whatever the statement asserts. Fed. R. Evid. 801. Statements that are made outside of court but are offered for some other purpose, such as context (or other purposes explained and defined by the courts), do not constitute hearsay, despite the occasional and often colloquial misuse of the term by some. As discussed in further detail herein, the Federal Rules of Evidence generally prohibit parties from using hearsay as evidence unless it falls into a "exception" provided in a federal statute or some other rule of court or evidence. Id. R. 802.

- 8 - could play all of the video and audio recording evidence, reserving

its determination on whether certain statements made therein by

the defendants were admissible as coconspirator statements under

Federal Rule of Evidence 801(d)(2)(E) until after the prosecution

rested.5

B. Limitations on Cross-Examination

Though defense counsel attempted to force R.E. to take

the stand, R.E. refused to testify, invoking (outside the presence

of the jury) his Fifth Amendment right against self-incrimination.

R.E. was thus deemed legally unavailable as a witness.6 Defense

counsel accordingly relied on cross-examination of prosecution

5This is an accepted practice in our Circuit. "As a predicate for admitting evidence" under Rule 801(d)(2)(E), a "trial court must conclude that 'it is more likely than not that the declarant and the defendant were members of a conspiracy when the [out-of-court] statement was made, and that the statement was in furtherance of the conspiracy.'" United States v. Geronimo, 330 F.3d 67, 75 (1st Cir. 2003) (quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)). In this Circuit, this determination is commonly referred to as a Petrozziello ruling. "Significantly, the trial court is not required to decide the Petrozziello question prior to admitting [purported coconspirator] statements under Rule 801(d)(2)(E), but may 'admit the statements provisionally, subject to its final Petrozziello determination at the close of all the evidence.'" United States v. Newton, 326 F.3d 253, 257 (1st Cir. 2003) (quoting United States v. Isabel, 945 F.2d 1193, 1199 n.10 (1st Cir. 1991)). 6Neither defendant sought due-process immunization of R.E. to elicit his testimony about purportedly exculpatory events. See United States v. Berroa, 856 F.3d 141, 159 (1st Cir. 2017) ("Trial courts have the ability to grant immunity to a witness upon a showing that the government's refusal to provide said immunity violated the defendant's due process rights.").

- 9 - witnesses to elicit testimony about R.E.'s credibility and the

defense theory that he had framed the defendants, including that

R.E. had been paid more than $60,000 as an ATF informant in various

investigations, had been responsible for bringing the defendants

to the agents' attention, had not met Pena or Ortiz prior to

January 5, and had been terminated as a confidential informant for

committing an act of domestic violence, which violated his

cooperation agreement with ATF.

In addition to these elicited facts, defense counsel

also attempted to question the testifying ATF agents about two

statements R.E. made after the alleged January 6 drug transaction.

First, Ortiz's counsel attempted to question Agent Mercer about a

threat R.E. made after he was terminated that, if called as a

witness (in criminal cases generally, not just this case), he would

testify that he was not searched prior to controlled drug

purchases.7 The prosecution objected to the question on hearsay

grounds. At sidebar, Ortiz's counsel argued that R.E.'s threat

should be admitted under the hearsay exception set forth in Federal

Rule of Evidence 804(b)(3) (statements against interest) because

the threat purportedly exposed R.E., who was deemed legally

7Per the prosecution's pre-trial disclosures, the government stated R.E. made this threat after the ATF declined to give R.E. a ride to a hearing because of his terminated status.

- 10 - unavailable under the Rule, to an allegation of perjury.8 The

district court disagreed and sustained the prosecution's

objection, ruling that the post-termination statement was "all

extraneous" and "hearsay."9

Thereafter, Ortiz's counsel attempted to question Agent

Mercer about a subsequent January 23, 2016 controlled drug purchase

not charged in the indictment, at which R.E. had inaccurately

reported Ortiz as present, even though GPS data from an electronic

bracelet worn by Ortiz pursuant to a Massachusetts-state-

probationary sentence placed him elsewhere during that time. To

start this line of questioning, Ortiz's counsel showed Agent Mercer

a copy of the ATF report for the uncharged January 23 controlled

drug purchase before asking whether R.E. had told Agent Mercer

that he (R.E.) had met with Ortiz on January 23. The prosecution

objected on hearsay grounds. The district court sustained the

8Pena's counsel remained silent as to whether he joined Ortiz's counsel in this argument. 9While the court addresses this issue infra, see Part II.B.1, it is difficult to know whether this threat by R.E. constituted hearsay because the record does not indicate the purpose for which it was offered. If it was offered to prove that R.E. issued a threat to sabotage the prosecution, his threat was not offered for its truth, but rather to undermine his credibility, and was thus not hearsay. Fed. R. Evid. 802. If it was offered to prove that the ATF did not search R.E. in connection with controlled purchases, then it was arguably offered for its truth and may have constituted hearsay possibly subject to an exception. See Fed. R. Evid. 803, 804. This ambiguity ultimately does not impact our ruling. Either way, there was no reversible error.

- 11 - objection, stating "he's not here, so that's sustained. Strike it

out. We're on another day. Another deal."10 When Ortiz's counsel

asked Agent Mercer if he thought R.E. was going to meet with Ortiz

on January 23, the prosecution voiced a similar objection, which

the district court again sustained.

Ortiz's counsel then requested a sidebar discussion,

during which he proffered that he would establish that Agent Mercer

had initially misidentified Ortiz as a seller in his report for

the uncharged January 23 controlled drug purchase, even though

R.E. never received drugs from Ortiz on that date. This prompted

the district court to explain that laying a proper foundation might

change its ruling:

Well, assuming you can lay a proper foundation, I suppose you can get this. . . . [T]he most I can see here is a mistake. People make mistakes. But if you want to show him [Mercer] making a mistake, or to be in a position to argue that he made mistakes on what the case was focused upon, I think you have a right to do that. But I think you want to have him go step by step.

Here, again, defense counsel certainly was not 10

offering R.E.'s statement for its truth. The suggested inference, in fact, was precisely the opposite (either a mistake or an attempted set-up on R.E.'s part). To the extent the question called for inadmissible evidence, the rule against hearsay does not appear to be grounds for exclusion. But as discussed infra, see Part II.B, this technical detail does not result in reversible error. Additionally, the district court adjusted the ruling soon after, potentially admitting the evidence.

- 12 - The district court then questioned rhetorically whether it would

be possible for Ortiz's counsel to lay a proper foundation, but

nevertheless ruled that it was not going to foreclose the issue.

After sidebar, Ortiz's counsel asked Agent Mercer

whether, "at one point," he (Mercer) had "stated that [Ortiz] did

sell drugs . . . on January 23?" The prosecution objected as to

hearsay, and the district court sustained the objection, stating

"I've told you what you can do with respect to that date." Rather

than change his question, Ortiz's counsel elected to "move on."

C. Sua Sponte Comments on Controlled Drug Purchases

In the course of cross-examination, Ortiz's counsel also

questioned Agent Mercer about his role in directing the controlled

drug purchases, including his role in determining the quantities

of drugs to purchase. As part of that interaction, counsel asked

Agent Mercer whether "[w]eight under the laws . . . matter[s]."

Agent Mercer responded, "They do, but if someone's a multiple

convicted felon with multiple drug convictions, a small amount of

drugs is . . . ." At this point, the district court interrupted

and made the following statement:

Let's not beat around the bush. Weight matters under the guidelines that are given to judges in imposing sentence, and so people in law enforcement take that into account, and the more drugs that are taken off the street, that has a public policy purpose.

You're not directly involved in that, but we may ask you, if you believe that one or both of these fellows is guilty, what is the appropriate weight to be attributed

- 13 - to them, and that's the reason for this discussion. That's the legal background there.

It is appropriate to enforce the laws through undercover informants and controlled buys. That's appropriate. It's a lawful law enforcement technique.

Neither defendant's counsel objected to these comments.

Minutes later, the district court asked Agent Mercer a

juror's written question about how he "determine[d] the amount of

contraband, the drugs you instructed the informant to purchase."

Agent Mercer explained "we requested a [sixty-two] on that date

[because it is a] common amount in the trade, and it would get us

to where we needed to be for those defendants." The district court

inquired: "Where did you think you needed to be?" Agent Mercer

responded, "We needed to be over [fifty] grams." The district

court asked, "feeding into what I've already said to the jury about

the sentencing structures[,] . . . you had those in mind?" Agent

Mercer replied, "Of course."

D. Petrozziello Ruling and Subsequent Guilty Verdict

At the close of the prosecution's case, the district

court found, pursuant to Petrozziello, 548 F.2d at 23, that the

prosecution had established by a preponderance of the evidence

that "the statements of the two individuals" (Pena and Ortiz) were

"in fact co-conspirator statements." Despite submitting thorough

pretrial briefing on the matter, the defendants did not object to

the district court's final Petrozziello ruling, as required to

preserve their Rule 801(d)(2)(E) arguments for appeal. See Part - 14 - II.A.2, infra. Nor did they seek a ruling on the exclusion of

recorded, out-of-court statements attributable to Black or the

unidentified man.

On the third day of trial, the defendants rested without

calling any witnesses.

The jury found both defendants guilty. After denying

the defendants' post-conviction motions for judgments of acquittal

or for a new trial, the district court sentenced Pena and Ortiz to

seventy-one (71) months and seventy-eight (78) months of

imprisonment, respectively.

II. Analysis

Pena and Ortiz ask this Court to reverse the verdicts

against them and order new trials on essentially three grounds.

First, they contend that the district court erred in admitting

certain portions of the January 5 and 6 videos and the audio

statements therein. Second, they argue that the district court

denied them their constitutional rights to confront witnesses and

to present a complete defense by refusing to permit either

defendant to cross-examine Agent Mercer about statements made by

R.E. after the January 5 and 6 controlled drug purchase. Third,

they claim that the district court deprived them of their right to

an impartial tribunal by instructing the jury mid-cross-

examination that it was proper for law enforcement agents to use

- 15 - confidential informants and to take drug weight into account when

directing controlled drug purchases. The defendants maintain that

these alleged errors individually and cumulatively entitle them to

new trials. As discussed below, they do not.

A. Admission of Video and Audio Evidence

We first turn to Pena and Ortiz's respective grievances

concerning the video and audio evidence of their controlled drug

sale to R.E. Pena, fixating on statements attributable to Ortiz,

Black, and the unidentified man in the January 5 and 6 videos,

contends that the district court erroneously admitted these

individuals' purported hearsay statements into evidence under

Federal Rule of Evidence 801(d)(2)(E) (coconspirator "exception"

to hearsay). Ortiz, focusing on the prejudicial effect of these

statements, by comparison, argues that the district court abused

its discretion under Federal Rules of Evidence 403 (unfair

prejudice) and 404(b) ("bad acts" evidence) by allowing the

prosecution to play the January 6 audio in its entirety. We

disagree on all fronts, finding no reversible error in any of the

defendants' hearsay or unfair prejudice arguments.

1. Coconspirator Statements (Pena)

Pena asserts that the district court erred by admitting

into evidence purported hearsay statements from three individuals

-- "Black," the unidentified man in the hotel suite, and his co-

defendant, Ortiz, each of whom were arguably members of a - 16 - conspiracy with Pena to sell cocaine base11 -- under Rule

801(d)(2)(E). Because Pena did not object to the admission of

these purported hearsay statements "at the close of evidence" when

the district court made its final Rule 801(d)(2)(E) determination

under United States v. Petrozziello, we review for plain error.

United States v. Leoner-Aguirre, 939 F.3d 310, 320 (1st Cir. 2019);

see also Fed. R. Crim. P. 52(b) (plain error rule). "Under that

grueling standard, we can reverse only if the appellant

demonstrates '(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings.'" United

States v. Perez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

Under Rule 801(d)(2)(E), an out-of-court statement made

by a party's coconspirator "during and in furtherance of the

conspiracy" does not constitute inadmissible hearsay, even when

admitted for its truth. E.g., United States v. Bradshaw, 281 F.3d

278, 283 (1st Cir. 2002). To avoid the hearsay barrier, the

statement's proponent must establish by a preponderance of the

11At trial, the prosecution opted to argue that the third unidentified man was not a member of the conspiracy charged in the superseding indictment, despite its pretrial position that the man's statements were admissible as coconspirator statements under Rule 801(d)(2)(E).

- 17 - evidence "that a conspiracy embracing both the declarant and the

defendant existed, and that the declarant uttered the statement

during and in furtherance of the conspiracy." Id. (quoting United

States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993)).

"The first half of this two-part requirement demands the

introduction of extrinsic evidence." United States v. Piper, 298

F.3d 47, 52 (1st Cir. 2002). While the trial court may consider

the contents of an alleged coconspirator's statements as evidence

of a conspiracy, to ensure admissibility, the statement's

proponent must also present some other evidence "sufficient to

delineate the conspiracy and corroborate the declarant's and the

defendant's roles in it." Id.; see also United States v. Portela,

167 F.3d 687, 703 (1st Cir. 1999). Of course, the proponent need

not meet these conditions if a statement is not offered for its

truth. See Fed. R. Evid. 801(c)(2). Here, none of the statements

Pena identifies were admitted in plain error.

a. Statements by the third man in the hotel suite

As an initial matter, we need not consider whether the

prosecution met its burden under Rule 801(d)(2)(E) as to the

unidentified third man in the hotel suite because his statement,

as recounted by Ortiz, that he was pushing drugs, was relevant and

admissible for a non-hearsay purpose: to explain why Pena completed

the January 6 drug transaction in the bathroom without the

unidentified man or Ortiz. For an out-of-court statement to

- 18 - constitute hearsay, and thus be deemed inadmissible under Rule

802, the statement must be offered to prove the truth of the matter

it asserts. United States v. Soto, 799 F.3d 68, 89 (1st Cir.

2015); see also Fed. R. Evid. 801(c) (defining hearsay). "Out-

of-court statements offered not to prove the truth of the matter

asserted but merely to show context -- such as a statement offered

for the limited purpose of showing what effect the statement had

on the listener -- are," by definition, "not hearsay" and thus not

excludable under Rule 802. United States v. Cruz-Díaz, 550 F.3d

169, 176 (1st Cir. 2008) (citing United States v. Castro-Lara, 970

F.2d 976, 981 (1st Cir. 1992)).

Though Pena posits that the jury may have considered the

unidentified man's statement beyond the limited purpose for which

it was offered, he fails to explain how such consideration

constitutes plain error when neither he nor Ortiz requested a

limiting instruction under Federal Rule of Evidence 105 or

otherwise raised the potential hearsay issue at any time prior to

the guilty verdict. Cf. United States v. Lebrón Cepeda, 324 F.3d

52, 60 (1st Cir. 2003) (noting that "it would be most unusual for

us to find that a district court erred in failing to give a limiting

instruction that was never requested" regarding an extra-judicial

statement by the appellant's codefendant implicating both

defendants). In the absence of cited authority, we are also

unpersuaded by Pena's claim that the prosecution was required to

- 19 - present a witness to explain the effect the unidentified man's

statement had on Pena or Ortiz before it could be deemed non-

hearsay.

Because the prosecution introduced the unidentified

third man's statement not for its truth -- that is, to prove that

the man was in fact "pushing . . . a whole bunch of dope" or

"crack" -- but rather to explain that Pena wanted to avoid the

involvement of a potentially competing drug dealer, the statement

did not constitute hearsay as defined by Rule 801(c). The

prosecution accordingly was not required to show that the out-of-

court statement was admissible under Rule 801(d)(2)(E). See United

States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001). We thus find

no plain error.

b. Statements by Ortiz

Turning to Ortiz's statements, we reject Pena's

contention that the prosecution failed to present evidence

extrinsically corroborating that he and Ortiz were members of a

drug selling conspiracy. Stated plainly, Pena's own recorded

interactions with Ortiz -- admissible as opposing party statements

under Federal Rule of Evidence 801(d)(2)(A), see United States v.

Ruiz, 999 F.3d 742, 748-49 (1st Cir. 2021) -- provided sufficient

extrinsic evidence to corroborate that Ortiz uttered his

challenged statements in furtherance of a conspiracy with Pena to

sell cocaine base. According to Pena's own statements, he and

- 20 - Ortiz met with R.E. on January 5 to transact a sale of "two baskets"

of crack cocaine, which he presumably had on his person, in lieu

of an originally arranged "sixty-two." These statements

corroborate the drug conspiracy actions of Ortiz, who drove Pena

to the Malden parking garage meeting, communicated directly with

Pena and R.E. -- a man the defense maintains Ortiz never previously

met -- about Black (the purported source of supply per Pena's

statements) being "about his business," and declared that he would

call Black to set up a second time and place to meet. Ortiz was

also present in the hotel room on January 6 and saw Pena and R.E.

go to the bathroom together to consummate the drug transaction

negotiated the previous day. Though this extrinsic evidence is

certainly not overwhelming, it is easily sufficient to withstand

plain error review.

c. Statements by Black

The admission of Black's purported "double-hearsay"

statements12 presents a more difficult evidentiary question, but

ultimately does little to undermine the defendants' convictions.

In an argument presented for the first time on appeal, Pena

contends that the prosecution presented no extrinsic evidence

These statements include: "[Black] thought it was two 12

baskets"; "[Black] was like, 'Yo, try to see if he even want that seven'"; "[Black] [s]aid he could come back after traffic"; and "[Black] wants to do like six, seven [p.m.]."

- 21 - whatsoever about Black at trial, preventing admission of Black's

out-of-court statements under Rule 801(d)(2)(E). The United

States disagrees, arguing that under this Court's decision in

United States v. Merritt, 945 F.3d 578, 586 (1st Cir. 2019), cert.

denied, 140 S. Ct. 2783 (2020), Pena and Ortiz's own conduct

extrinsically corroborated the existence of a drug selling

conspiracy that included the defendants and Black as

coconspirators. We review the admission of statements

attributable to Black for plain error.

While this case's facts present a closer question than

those in Merritt, we need not decide whether Pena and Ortiz's

conduct provided sufficient corroborating evidence of a conspiracy

for purposes of Rule 801(d)(2)(E). This is because Pena has failed

to show that, under the plain error standard, any of Black's

statements, as recounted by the defendants on the video, clearly

constituted hearsay that was admitted in plain error. See F. R.

Evid. 802 (rule against hearsay).

Simply put, only one of Black's statements --

specifically, that he thought the negotiated deal "was two baskets"

-- was arguably offered to prove the truth of the matter asserted.13

13The record does not indicate how Pena knew what Black thought – for example, whether Black told him his thoughts or whether Pena inferred Black's thoughts from his actions – adding a further complication to Pena's appellate hearsay argument.

- 22 - We address that statement infra. Other statements concerning

Black, however, were evidentiarily benign. Pena's statement to

Ortiz -- "What time can Black be here for sure?" -- for example,

was not an assertion at all, but a question. Likewise, Ortiz's

responses that "Black [wa]s about his business" and "want[ed] to

do like six, seven [p.m.]" were not offered to show that Black was

in fact about his business (whatever that may be) or in fact met

with the defendants at that later time; instead, these statements

-- true or not -- explained why Pena and Ortiz needed to postpone

the drug transaction until the next day -- to provide the

previously agreed-upon "sixty two." See Cruz-Díaz, 550 F.3d at

176 (explaining that an out-of-court statement made by a co-

defendant to authorities was not offered for its truth when it was

offered "to explain why the FBI and police did not pursue other

investigatory options after apprehending the defendants"). The

same can be said about Black thinking the deal was for "two

baskets." Because the statement shows the reason Pena gave --

true or false -- for having only seven grams of cocaine base on

his person for the cancelled January 5 parking garage transaction,

rather than the agreed-upon sixty-two, it was not clearly

inadmissible.

Notably, neither Pena nor Ortiz specifically objected to

the admission of Black's statements under Rule 801 or any other

evidentiary principle at any point at trial, depriving this Court

- 23 - of a clear record for appellate review. Nor did they request an

instruction under Rule 105 limiting the jury's consideration of

these statements solely to contextual matters like those described

above, rather than the additional question of whether Black, a

possible member of the defendants' drug distribution conspiracy,

indeed thought the drug deal between the defendants and R.E. was

for two baskets (seven grams) of cocaine base.

But even if we assumed that Pena is correct that the

district court clearly erred by failing to exclude Black's out-

of-court statement about drug quantities (even though Pena failed

to recognize and raise the issue himself at trial), Pena has not

shown how this purported error would entitle him to a new trial

under the demanding third and fourth prongs of plain error review.

This is because, given the evidence admitted at trial, excluding

statements about intended drug quantity, Pena has failed to show

a reasonable probability that the verdict would have been different

for the crime charged: conspiring "with each other" or "with other

persons known and unknown . . . to distribute a controlled

substance" (emphasis added).14 As Pena implicitly concedes, the

14As noted in Part I.A, supra, the indictment charged the defendants with conspiring "with each other, and with persons known and unknown" (emphasis added). Though it may seem counterintuitive, "the law is well established that where an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained on proof of only one of the means, and accordingly the jury instruction may properly be framed in the disjunctive." United States v. García-Torres, 341 - 24 - bulk of the evidence against him and Ortiz arose from their own

recorded words and actions, which were entirely proper for the

jury to consider as evidence of a drug-distribution conspiracy.

This video evidence showed both defendants actively working

together at the same times and places to sell nearly fifty grams

of cocaine base in furtherance of a drug-distribution conspiracy.

Without Black's statements, the jury could still have easily

inferred the existence of a conspiracy to distribute from the

quantity of cocaine base recovered from the controlled drug

purchase -- a quantity far larger than is customary for personal

use -- and the large cash exchange observed between Pena and R.E.

See United States v. Rivera-Ruiz, 244 F.3d 263, 269 (1st Cir.

2001); United States v. de Jesus-Rios, 990 F.2d 672, 680 (1st Cir.

1993).

"When a jury returns a general verdict of guilty on a

single count charging more than one criminal act," just like the

general verdict in this case, our precedent makes clear that the

verdict will "stand[] if the evidence sufficiently supports any of

the acts charged." United States v. Nieves-Burgos, 62 F.3d 431,

434 (1st Cir. 1995); see also United States v. Sweeney, 887 F.3d

F.3d 61, 66 (1st Cir. 2003) (quoting United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000)). Said more plainly, when an indictment uses the conjunctive "and" in a charge, it operates as a disjunctive "or." Id.

- 25 - 529, 541 (1st Cir. 2018) (same). Given the evidence described

above, the district court's detailed conspiracy instructions to

the jury, and the general guilty verdict forms returned against

both defendants, we are not persuaded that the defendants'

convictions, if allowed to stand, would impair the fairness,

integrity, or public reputation of the defendants' criminal

proceedings.15 See Sweeney, 887 F.3d at 541; United States v.

Kelley, 471 F. App'x 840, 845 (11th Cir. 2012) (affirming

conviction where the prosecution presented two bases for a

conspiracy charge, each covering different objects and

coconspirators, and the evidence was sufficient to support at least

one base). Accordingly, we find no reversible error as to the

hearsay-related sufficiency arguments raised by Pena and proceed

to Ortiz's perceived evidentiary issues.

2. January 6 Audio Evidence (Ortiz)

In addition to Pena's hearsay-based sufficiency

arguments, Ortiz separately contends that the district court

erroneously admitted into evidence the full audio from the

15Indeed, because the jury found both Pena and Ortiz guilty, we think it is highly unlikely that the jury convicted the two of them for participating in separate conspiracies with Black, as necessarily required to support their reversible error argument, rather than a singular conspiracy that included at least Pena and Ortiz. We nevertheless address the validity of a conviction based on a conspiracy that included Black below, finding no error. See Part II.C.2, infra.

- 26 - January 6 video recording, in which the defendants, R.E., and the

unidentified man used racial and misogynistic epithets while

discussing crimes unrelated to this case. In Ortiz's view, this

"bad acts" audio evidence was irrelevant to any material issue at

trial and was not admissible for any purpose under Federal Rule of

Evidence 404(b). Additionally, he asserts that the admission of

the audio was highly prejudicial, in violation of Federal Rule of

Evidence 403, particularly given the prosecution's closing

argument, in which it used the objected-to audio to attack the

plausibility of Ortiz's "mere-presence" defense (that is, he was

merely present at the drug transaction).

Ortiz's arguments here implicate two separate standards

of review. Because he objected to the introduction of this

evidence at trial only under Rule 403, and not as "other acts"

evidence under Rule 404(b), we review the district court's Rule

403 ruling for abuse of discretion and his newfound argument under

Rule 404(b) for plain error. United States v. Pena-Santo, 809

F.3d 686, 694 (1st Cir. 2015) (citing United States v. Casas, 356

F.3d 104, 113 (1st Cir. 2004). We fail to find such error on this

issue.

"[W]here a defendant challenges a district court's

admission of [other] bad acts evidence [under Rule 404(b)], the

first question for a reviewing court is whether the objected-to

evidence 'has "special relevance"' to the case, by which we mean

- 27 - that the objected-to evidence 'is relevant for any purpose apart

from showing propensity to commit a crime.'" United States v.

Habibi, 783 F.3d 1, 2 (1st Cir. 2015) (quoting United States v.

Doe, 741 F.3d 217, 229 (1st Cir. 2013)); see also Fed. R. Evid.

404(b)(1) (generally prohibiting propensity evidence). "In

particular, the Federal Rules of Evidence specifically enumerate

a number of purposes for which" evidence of a crime, wrong, or

other act may be used, including "'proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.'" Habibi, 783 F.3d at 2 (quoting

Fed. R. Evid. 404(b)(2)); see also United States v. Landry, 631

F.3d 597, 602 (1st Cir. 2011) (explaining that Rule 404(b)'s list

of permissible purposes is illustrative and not exhaustive).

Here, we agree that the post-transaction audio had

special relevance by serving at least two purposes permitted by

Rule 404(b): rebutting Ortiz's mere-presence defense and

demonstrating Ortiz's familiarity with drug transactions. In this

objected-to audio, Ortiz admitted to drug dealing, having "a

runner," and renting cars under other people's names. He also

revealed that the unidentified third man in the hotel room was a

drug dealer, credibly explaining, in the prosecution's view, why

Pena and R.E. completed the deal in the bathroom (to avoid the

prying eyes and ears of a potential competitor). Because Ortiz

did not personally participate in the bathroom deal, it was

- 28 - arguably important that the prosecution rebut any possible

inference that Ortiz was merely present or some unknowing

participant in a drug deal between Pena and R.E., rather than a

member of a drug selling conspiracy. Ortiz's own words, recorded

in the objected-to January 6 audio, arguably did just that. Or,

put in the language of Rule 404(b), Ortiz's statements, made

immediately after and in the same hotel suite in which a

substantial drug transaction was occurring, showed that he likely

knew the subject that drew these individuals together in that room,

and was not present at the drug transaction because of mere

accident or mistake.

Our inquiry does not stop, however, with a finding that

the objected-to audio had the requisite "special relevance" under

Rule 404(b). Habibi, 783 F.3d at 4. A reviewing court must also

evaluate the evidence's admissibility under Rule 403,

specifically, whether its "probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence." See Fed. R. Evid.

403. In doing so, we are mindful that "district courts are

afforded 'especially wide latitude' in balancing the relative

probative and prejudicial values of evidence." Habibi, 783 F.3d

at 4 (quoting United States v. Li, 206 F.3d 78, 84 (1st Cir.

2000)). As such, "[o]nly rarely -- and in extraordinarily

- 29 - compelling circumstances -- will [this Court of Appeals], from the

vista of a cold appellate record, reverse a district court's [mid-

trial] judgment[s] concerning the relative weighing of probative

value and unfair effect." Id. (first alteration in original)

(quoting Li, 206 F.3d at 84-85); see also United States v.

Burdulis, 753 F.3d 255, 263 (1st Cir. 2014) (explaining that

reversal under Rule 403 is appropriate only if the reviewing court

is "left with a 'definite and firm conviction that the court made

a clear error of judgment'" (quoting United States v. Trenkler, 61

F.3d 45, 57 (1st Cir. 1995))).

This is not such a case. Though the objected-to audio

certainly had a potential for prejudice, it was also relevant to

refuting Ortiz's mere presence defense -- an issue Ortiz's closing

put before the jury -- as well as any potential argument that R.E.

framed, or had the opportunity to set up, Pena or Ortiz. As such,

we are not convinced, on this record and under this standard of

review, that the district court erred in its weighing of probative

value and unfair prejudice. See United States v. Currier, 836

F.2d 11, 18 (1st Cir. 1987) ("That the recording disclosed

appellant using expletives and sexually explicit language does not

make it unfairly prejudicial."); Li, 206 F.3d at 85 ("[T]o be

excluded, the evidence must [] not only be prejudicial, but

unfairly prejudicial, and must not only outweigh probative value,

but substantially outweigh probative value." (emphases in

- 30 - original) (citing United States v. Rivera, 83 F.3d 542, 545 (1st

Cir. 1996))). We accordingly find no reversible error in the

admission of the January 6 video's post-transaction audio.

Next, we turn to Pena and Ortiz's arguments concerning

their ability to present a full defense. The defendants contend

that the district court's limitations on the cross-examination of

Agent Mercer -- which, in their view, effectively foreclosed

evidence of R.E.'s incorrect or deceptive implication of Ortiz in

the uncharged January 23, 2016 controlled drug purchase, and R.E.'s

post-termination threat to testify that he was not searched prior

to controlled drug purchases -- unreasonably deprived them of an

adequate opportunity to impeach Agent Mercer or R.E.'s

credibility.16 Both assert that, under the Sixth Amendment's

Confrontation Clause, the Fourteenth Amendment's Due Process

16The defendants also assert that they were unfairly limited in their ability to cross-examine witnesses about a claim by R.E. in a separate case that he had a drug-hiding spot (commonly referred to as a "hide") in his car. Neither defendant, however, attempted to question any witness about R.E.'s supposed hide. As such, this claim of error is forfeited. See United States v. Raymond, 697 F.3d 32, 37 (1st Cir. 2012). And, as discussed below, even if the defendants had preserved this issue, they have not shown how R.E.'s out-of-court statements would have been admissible under any of the Federal Rules of Evidence or other evidentiary doctrines. Nor have they explained how the exclusion of such evidence was prejudicial in light of their ability to cross-examine each testifying DEA agent about the searches of R.E.’s undercover vehicle before and after each controlled drug purchase. We thus find no error, plain or otherwise.

- 31 - Clause, and, by extension, Federal Rules of Evidence 806 and

608(b), they had the right to cross-examine witnesses about

specific events that were probative of R.E.'s character for

untruthfulness in order to attack Agent Mercer and R.E.'s

credibility.

At trial, the district court was not presented with, and

therefore did not rule on, these specific constitutional and

evidentiary issues. Instead, the United States contemporaneously

objected to questions as to R.E.'s January 23 controlled drug

purchase and R.E.'s post-termination threat on insufficient

foundation (Federal Rule of Evidence 602) and prejudice (Rule 403)

grounds. The district court sustained the objections and thus

prevented defense counsel's specific line of questioning solely on

these grounds (as opposed to constitutional or other evidentiary

grounds), absent some further proffer of relevance and foundation.

It further ruled that R.E.'s threat, as defense counsel intended

to use it, was "extraneous" and "hearsay." As such, we review the

district court's evidentiary rulings on these extrajudicial

statements' inadmissibility for abuse of discretion.17 See United

Pena did not attempt to cross-examine Agent Mercer on 17

the topics he claims were improperly curtailed and did not join in Ortiz's objection when, during Ortiz's cross-examination, the limitations were imposed. Because Pena cannot now "piggyback" on Ortiz's objections, we review his challenge (as opposed to Ortiz's challenge) to the district court's rulings as to the curtailed topics for plain error. See United States v. Padilla-Galarza, 990 F.3d 60, 82 n.8 (1st Cir. 2021) ("[A] codefendant's objection, - 32 - States v. Casey, 825 F.3d 1, 24 (1st Cir. 2016). We review the

unpreserved constitutional implications of those rulings for plain

error. See United States v. Soto, 720 F.3d 51, 57 (1st Cir. 2013).

1. Admissibility of R.E.'s Statements under Rules 806 and 608(b) (Pena and Ortiz)

Both the Sixth Amendment's Confrontation Clause and the

Fourteenth Amendment's Due Process Clause guarantee criminal

defendants the right to confront adverse witnesses through cross-

examination, as well as a meaningful opportunity to present a

complete defense. See Crane v. Kentucky, 476 U.S. 683, 690 (1986);

United States v. Jiménez-Bencevi, 788 F.3d 7, 20-21 (1st Cir.

2015); United States v. Sanabria, 645 F.3d 505, 513-14 (1st Cir.

2011). But the mere assertion of these rights does not

automatically ensure the admissibility of testimony or other

evidence that could effectuate these rights or otherwise support

a defense theory. United States v. Pires, 642 F.3d 1, 13 (1st

Cir. 2011); see also Casey, 825 F.3d at 24 (noting that these

rights are "not without limits"). Indeed, while "[f]ew rights are

more fundamental than that of an accused to present witnesses [and

evidence] in his own defense," the accused, in exercising these

rights, "must comply with established rules of procedure and

evidence designed to assure both fairness and reliability in the

without more, does not preserve any other defendant's claim of error."). This has no effect on our ruling.

- 33 - ascertainment of guilt and innocence." Chambers v. Mississippi,

410 U.S. 284, 302 (1973). Put more plainly, "the right to present

a defense does not trump valid rules of evidence." Pires, 642

F.3d at 13; accord Taylor v. Illinois, 484 U.S. 400, 410 (1988)

("The accused does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible under

standard rules of evidence.").

The defendants contend that, under Federal Rule of

Evidence 806, they were entitled to attack both Agent Mercer and

R.E.'s credibility by asking Agent Mercer about specific instances

of R.E.'s conduct that were probative on the issue, just as if

R.E. had in fact testified as a witness.18 In their view, these

specific instances -- consisting of R.E.'s false or incorrect claim

18 With respect to matters of character or credibility, the Federal Rules of Evidence "generally discourage[]" the circumstantial use of character evidence, despite its slight probative value, because of the serious risks of undue prejudice, confusion of issues, and unnecessary delay such use carries. Fed. R. Evid. 404 advisory committee's notes to 2006 amendment. Accordingly, the Rules set forth very limited instances in which character evidence may be used. See Fed. R. Evid. 404(a)(3). One permissible use is attacking a witness's character for truthfulness or untruthfulness, commonly referred to as a witness's credibility, by inquiring into specific instances of a witness's conduct. See Fed. R. Evid. 608. And under Rule 806, a party may similarly attack the credibility of out-of-court statements attributable to a non-witness, just as if that non- witness had testified under Rule 608, so long as certain pre- conditions are met. We address whether those pre-conditions were satisfied in this case in the following paragraphs.

- 34 - that Ortiz was present at the uncharged January 23 controlled drug

purchase and R.E.'s post-termination threat to testify that he was

not searched prior to controlled purchases -- purportedly

demonstrated that the ATF's investigation of the defendants was

unreliable. They also maintain that these extrajudicial

statements corroborated the defense theory of an alleged set-up by

R.E. At trial, neither defendant argued that Rule 806 provided a

basis for admitting R.E.'s out-of-court statements, arguing

instead that R.E.'s statements were against his interest and thus

admissible under Rule 804. But even if they had, we would not

find reversible error.

Rule 806 does not provide defendants with an

unrestricted right to introduce out-of-court statements under the

guise of attacking or defending a non-witness's credibility. To

the contrary, its application is limited by its language: A

"declarant's credibility may be attacked, and then supported, by

any evidence that would be admissible for those purposes if the

declarant had testified as a witness" only "when a hearsay

statement . . . has been admitted into evidence." Fed. R. Evid.

806 (emphases added). As such, Rule 806 only allows an attack on

a non-testifying declarant's credibility if the declarant's out-

of-court statement is admitted into evidence for its truth. See

Fields v. City of Chicago, 981 F.3d 534, 550 (7th Cir. 2020)

(affirming the use of an unavailable witness's affidavit to impeach

- 35 - the declarant's hearsay statements, as the hearsay statements were

used for their truth, despite the defendants' claim that the

statements were used only for non-hearsay purposes). Otherwise,

the out-of-court statement would not constitute admissible

hearsay. Fed. R. Evid. 801(c) (defining hearsay).

Here, no out-of-court statements by R.E. were introduced

or admitted for their truth. Instead, the prosecution introduced

R.E.'s video-recorded statements for the permissible, non-hearsay

purpose of providing context for the actions taken and the oral

assertions made by the defendants (both to R.E. and in response to

R.E.) in furtherance of the defendants' alleged conspiracy to

distribute cocaine base. See, e.g., United States v. Occhiuto,

784 F.3d 862, 868 n.2 (1st Cir. 2015) (holding that recordings of

an informant's statements are admissible for the non-hearsay

purpose of providing context for conversations between the

informant and defendants); United States v. Hicks, 575 F.3d 130,

143 (1st Cir. 2009) (same). At all relevant times, R.E. spoke and

acted as a government operative. As such, his recorded statements

were not admitted to show, for example, that he actually had

conspiratorial intent. And while neither Pena nor Ortiz requested

an instruction under Federal Rule of Evidence 105 to explicitly

limit the jury's consideration of R.E.'s actions and statements to

responsive context alone, rather than for their truth (which,

again, we emphasize, was unlikely given the district court's clear

- 36 - instruction that R.E. was "faking it"), they cannot by their own

error or intended omission create a "hearsay" backdoor for

attacking R.E.'s credibility through Rule 806. Cf. United States

v. Walter, 434 F.3d 30, 35 (1st Cir. 2006) (rejecting argument

that the district court erred by not issuing sua sponte a limiting

instruction advising the jury that it could use an informant's

statements only for context and not for substantive purposes).

The same is true for the cross-examination of Agent

Mercer. Though Agent Mercer's credibility was at issue (a point

the prosecution concedes), the defendants, as the parties

attempting to introduce R.E.'s post-January 6 statements, were

still required, as a threshold issue, to point to some recognized

method in the Rules of Evidence or some other valid evidentiary

doctrine for impeaching Agent Mercer with R.E.'s out-of-court

statements. They did not do so.19 No out-of-court statements by

On appeal, Pena argues for the first time (albeit in 19

the alternative) that R.E.'s January 23 misidentification and his post-termination threat were not hearsay if they were offered for their falsity rather than their truth. This Court has repeatedly held, "consistent with the express command of Federal Rule of Evidence 103(a)(1)(B), that 'objections to evidentiary proffers must be reasonably specific in order to preserve a right to appellate review.'" United States v. Gordon, 875 F.3d 26, 30 (1st Cir. 2017) (quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994)). "Although surrounding circumstances sometimes may dress an otherwise bare objection and make the reason for the objection obvious, see Fed. R. Evid. 103(a)(1)(B), that principle does not apply where, as here, the record suggests a multitude of possible grounds for the objection." Id. We thus assess Pena's unpreserved objection only for plain error. Id. His new-found objection fails to clear this high bar, as he has not explained - 37 - Agent Mercer were admitted. Nor did Agent Mercer testify to any

fact that was based, in part, on hearsay information from R.E. As

such, we do not see how Rule 806 (impeaching hearsay declarant's

statements), much less Rule 608(b) (impeaching witness testimony),

provided a vehicle for introducing R.E.'s out-of-court statements

in the cross-examination of Agent Mercer. Accordingly, the

district court did not abuse its discretion (or, with respect to

Pena's appeal, commit plain error) in precluding counsel's

specific lines of questioning under the rule against hearsay, see

Fed. R. Evid. 802.

2. Excluding R.E.'s Statements under Rule 403 (Pena and Ortiz)

Putting aside the admissibility of R.E.'s statements

under impeachment rules like Rules 806 and 608, the defendants

also fail to persuade us that the district court erred by excluding

R.E.'s out-of-court statements on separate grounds, specifically

under Rule 403. As discussed above, the right to confront and to

cross-examine -- while "an essential and fundamental requirement

for the kind of fair trial which is this country's constitutional

goal" -- "may, in appropriate cases, bow to accommodate other

how R.E.'s supposedly false statements, if admitted for their falsity, impugned Agent Mercer's credibility or otherwise proved (or disproved) any material issue in a drug-conspiracy case built primarily on undisputed video evidence. Accordingly, he has not shown a reasonable probability that, but for the admission of the R.E. statements, the trial outcome would have been different.

- 38 - legitimate interests in the criminal trial process." Chambers,

410 U.S. at 295 (quoting Pointer v. Texas, 380 U.S. 400, 405

(1965)). Under Rule 403, for example, a district court may exclude

relevant evidence if its "probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the

needlessly presenting cumulative evidence." Fed. R. Evid. 403.

We generally "accord the trial court 'especially wide latitude' in

Rule 403 balancing," Rivera, 83 F.3d at 545 (quoting United States

v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995)), as well as in

imposing "'reasonable limits' on cross-examination," Casey, 825

F.3d at 24 (quoting Raymond, 697 F.3d at 39-40).

Though Pena and Ortiz frame their evidentiary grievances

as a constitutional issue, neither defendant develops any argument

that meaningfully distinguishes their grievances from the more

conventional assertion that the district court failed to properly

weigh the probative value of R.E.'s extrajudicial statements --

statements that the district court ruled to be "extraneous,"

implicitly invoking Federal Rule of Evidence 403. Instead, they

repeat their position that the ATF's willingness to work with R.E.

-- despite him being "the kind of person who threatened to commit

perjury . . . after he had been terminated as a paid informant for

lying and other misconduct" -- spoke to the overall integrity, or

lack thereof, of the ATF's investigation. See Pena's Reply at 15.

- 39 - They further maintain that R.E. was a critical witness against

them, even though he did not actually testify at trial. As such,

they contend that it was error to preclude cross-examination about

R.E. See id. at 16-17. Again, we disagree.

As an initial matter, we do not question that R.E.'s

extrajudicial statements bore some relevance to the prosecution's

case or the defense's theories.20 Nevertheless, the probative

value of his out-of-court statements was severely undermined by

the nature of the prosecution's case. Despite the defendants'

argument to the contrary, the prosecution's case did not turn on

the credibility of R.E., who never testified in the trial.

Instead, the prosecution's case revolved around undisputed,

authentic video and audio recordings that the jurors viewed for

themselves.21 The admission of R.E.'s January 23 misidentification

For example, R.E.'s (presumably false) statement that 20

he was not searched prior to controlled buys was arguably probative of whether the nearly 50 grams of cocaine recovered from his person after the January 6 controlled drug purchase was sold to him by the defendants rather than acquired at some point prior to the controlled drug purchase.

To support his position, Ortiz points to Johnson v. 21

Brewer, 521 F.2d 556 (8th Cir. 1975), in which the Eighth Circuit Court of Appeals reversed a drug possession conviction where the district court had excluded evidence of how a testifying informant, who was the sole witness to the crime, had previously framed an individual in another criminal case. Id. at 562. Unlike in Brewer, R.E. did not testify at trial and was not the only witness to the drug deal that furthered the alleged drug distribution conspiracy charged. Instead, video and audio evidence captured both the defendants' conversations – conspiratorial actions in and - 40 - (intentional or not) would have done little to help the defendants,

as they were clearly shown and heard in both video recordings --

conversations, which, we stress, were conspiratorial acts in and

of themselves -- negotiating, and then consummating, a cocaine

base sale. Indeed, the defendants never dispute this fact or argue

that R.E.'s excluded out-of-court statements would help dispute

it. Further, the defendants were able to elicit on cross

examination several facts about R.E. and his relationship with the

investigating agents -- including that R.E. had been paid a

substantial sum to serve as an informant and had been terminated

for committing a domestic violence crime -- all of which likely

undercut R.E.'s credibility as a reliable source in the eyes of

the jury.

On the other side of the balancing, the potential for

confusion arising from mini-trials on (1) whether R.E.

intentionally or accidentally misidentified Ortiz as participating

in an uncharged drug transaction on January 23, and (2) whether

R.E. maliciously or sincerely claimed that he was not searched

prior to controlled drug purchases, was apparent. See, e.g.,

United States v. DeCologero, 530 F.3d 36, 60 (1st Cir. 2008)

("[T]he trial judge . . . has discretion under Rule 403 to exclude

of themselves – as well as the drug deal that resulted. Brewer is thus inapposite.

- 41 - [extrinsic evidence showing bias] if it would distract from the

main issues of the case." (citing United States v. Gomes, 177 F.3d

76, 81 (1st Cir. 1999))). The district court repeatedly aired

this concern at trial, noting that the evidence presented needed

to pertain to "this case, not other cases." We broadly defer to

these in-the-trenches determinations and have heard no compelling

reasons for overturning them.

In sum, even if Rule 806, Rule 608(b), or some other

evidentiary doctrine provided a proper basis for introducing

R.E.'s out-of-court statements -- hearsay or otherwise -- it was

still within the broad discretion afforded to the district court

under this Circuit's precedent and, more generally, Rule 403, to

conclude that R.E.'s statements were "extraneous." We do not reach

a different conclusion simply because the defendants have recast

their evidentiary disagreements in constitutional terms.

Accordingly, we find that the exclusion of R.E.'s statements, as

the defendants intended to use them, did not abridge the

defendants' constitutional rights to confront witnesses and to

present a complete defense. We find no reversible error.

C. Instructions to the Jury

Pena and Ortiz further contend that the district court

deprived them of their right to a trial by an impartial tribunal

by telling the jury, sua sponte and mid-cross-examination, that

"[i]t is appropriate to enforce the laws through undercover

- 42 - informants and controlled buys" and to take drug weight into

account when doing so. Additionally, Ortiz asserts that the

district court erred by instructing the jury that it could find

Pena or Ortiz individually guilty of conspiring to distribute with

Black, even if they did not conspire with each other, and by

failing to provide other conspiracy-related instructions. As

discussed below, we find no reversible error.

1. Judicial Comments Regarding Undercover Informants and Controlled Drug Purchases (Pena and Ortiz)

We begin by addressing the district court's sua sponte

comments regarding the propriety of controlled drug purchases.

The defendants each contend that these comments crossed the line

by strengthening the prosecution's case and creating an appearance

of bias in the prosecution's favor. In Pena's view, the district

court's comments "effectively insulated" R.E. and the

prosecution's reliance on him from any "meaningful scrutiny" and

"did so in the face of the defense['s] efforts to put before the

jury evidence of R.E.'s bad acts and dishonesty." Ortiz similarly

asserts that the comments "unfairly bolstered the credibility of

[Agent] Mercer, R.E., and the government's tactics," which were

focal points of the defense's strategy. Viewing the district

judge's comments in the context of the trial as a whole, we are

not persuaded.

- 43 - "It is well settled that the district court is more than

a 'mere moderator' in a federal jury trial," United States v.

Rivera-Rodríguez, 761 F.3d 105, 110-11 (1st Cir. 2014) (quoting

Quercia v. United States, 289 U.S. 466, 469 (1933)), and has the

authority to, among other things, question witnesses and comment

on the evidence. See United States v. Ayala-Vazquez, 751 F.3d 1,

24 (1st Cir. 2014) (citing Logue v. Dore, 103 F.3d 1040, 1045 (1st

Cir. 1997)). In doing so, judges must safeguard defendants' due

process rights to a "fair trial in a fair tribunal." Id. at 23-

24 (quoting United States v. de la Cruz-Paulino, 61 F.3d 986, 997

(1st Cir. 1995)). To that end, judges "must remain constantly

vigilant to ensure they do not infringe upon the province of the

jury by commenting or appearing to comment (positively or

negatively) on a witness's credibility" and "must guard against

adding to the evidence or smoothing the pathway to a verdict in

favor of either side." Id. at 28.

"Where, as here, a convicted defendant claims that the

trial court overstepped its bounds and gave an appearance of

judicial bias that requires a new trial, 'we consider whether the

comments were improper and, if so, whether the complaining party

can show serious prejudice.'" Rivera-Rodriguez, 761 F.3d at 111

(quoting Ayala-Vazquez, 751 F.3d at 24). Serious prejudice

requires "a reasonable probability that, but for [the error

claimed], the result of the proceeding would have been different."

- 44 - Id. at 112 (alteration in original) (quoting United States v.

Hebshie, 549 F.3d 30, 44 (1st Cir. 2008)). In addition, we

consider the comment's cumulative effect in the context of the

trial as a whole. See id. at 113. This is true whether the claim

is preserved or not. Id. at 112 n.7. Where the claim is

unpreserved, however -- as the defendants concede is the case here

-- the defendant must also demonstrate that the error was clear or

obvious. See United States v. Santana-Pérez, 619 F.3d 117, 126

(1st Cir. 2010) (finding no clear or obvious error where "any

signals the court may have given about its views [we]re susceptible

of multiple interpretations on the cold record").

Neither Pena nor Ortiz point to any authority from this

Circuit that demonstrates the district court's purported error was

clear or obvious. Though other circuit courts, such as the Eighth

Circuit Court of Appeals, have at times expressed a concern that

statements like those here "could signal indirect judicial

approval of the [prosecution's] management of the investigation,"

see United States v. Strubberg, 929 F.3d 969, 978 (8th Cir. 2019),

at least one circuit court of appeals has held that a similar

comment -- that the government's use of deceptive investigative

practice was lawful -- is within the trial judge's discretion and

is not prejudicial under appropriate circumstances, see United

States v. McKnight, 665 F.3d 786, 793-94 (7th Cir. 2011). Given

the absence of any controlling authority, and the mix of persuasive

- 45 - authority, we fail to share the defendants' view that any error in

the district court's comments was either clear or obvious. See

United States v. Romero, 906 F.3d 196, 209 (1st Cir. 2018)

("[D]ifferent precedents on the question at hand preclude [a

defendant] from showing that any error (if error there was) was

plain.").

We are also unconvinced that the sua sponte comments

seriously prejudiced either the proceedings against the defendants

or the jury's verdict, particularly given the court's other

cautionary instructions and the strong evidence against the

defendants. This Court has "long recognized . . . that 'within

wide margins, the potential for prejudice stemming from improper

testimony or comments can be satisfactorily dispelled by

appropriate curative'" or cautionary instructions. Ayala-Vazquez,

751 F.3d at 26 (quoting United States v. Pagán-Ferrer, 736 F.3d

573, 587 (1st Cir. 2013)). In Ayala-Vazquez, for example, this

Court found that two defendants were unable to show they were

prejudiced by a trial judge's comments where they failed to timely

object to them, the court gave multiple cautionary instructions to

the jury after the fact, and the evidence against the defendants

was overwhelming. Id. at 27-29.

Here, Pena and Ortiz similarly failed to object to the

district court's comments on drug quantity and the propriety of

undercover controlled drug purchases. Moreover, they failed to

- 46 - otherwise raise the issue to the district court at any time prior

to appeal, including when the district court asked Agent Mercer

juror-provided questions on how ATF agents determined the amount

of drugs R.E. should purchase and whether ATF agents had sentencing

consequences in mind when determining what quantities to purchase.

Perhaps this is because the district court's questions advanced

the precise point that defense counsel was seeking to make:

specifically, that ATF agents had the potential severity of

sentencing in mind in setting up the controlled drug purchase.

Regardless, in cross-examining Agent Mercer or in closing, defense

counsel were perfectly free to suggest that the ATF's tactics

showed that the ATF possessed ill intent towards the defendants or

that ATF agents improperly manipulated the evidence to effectuate

a more severe sentence. Despite having several opportunities,

they chose not to. The district court, on the other hand,

repeatedly emphasized to the jury throughout the proceedings that

it was up to the jury alone to find the facts. Absent any argument

to the contrary, we presume that the jury followed the district

court's cautionary instructions, Ayala-Vazquez, 751 F.3d at 26;

accord United States v. Sampson, 486 F.3d 13, 47 (1st Cir. 2007),

cutting against a finding of prejudice.

Given the defendants' failure to object, the court's

cautionary instructions to the jury, and, perhaps most

importantly, the strength of the evidence against Pena and Ortiz,

- 47 - we are not persuaded that Pena or Ortiz suffered serious prejudice

as a result of the district court's comments about drug weight and

the general use of undercover informants in controlled drug

purchases. As such, even if the district court's comments

constituted error (a question we need not answer today), those

assumedly erroneously comments were harmless on this record.

2. Sufficient Evidence of a Conspiracy Involving Black (Ortiz)

Turning to Ortiz's individual jury instruction

challenges: Ortiz first contends that the district court erred by

instructing the jury that it could find him (or Pena) guilty if

they found he (or Pena) conspired to distribute with Black because

the prosecution (in Ortiz's view) introduced no evidence

demonstrating the existence of a conspiracy encompassing Black.

Ortiz asserts that, at most, the evidence showed that he and Pena

purchased drugs from Black, but proved no agreement to redistribute

drugs outside that transaction. We review his challenge to the

sufficiency of the evidence de novo, evaluating the evidence and

all plausible inferences therefrom in the light most favorable to

the verdict to determine whether a rational factfinder could

conclude beyond a reasonable doubt that Ortiz (or Pena) committed

the charged crime. See United States v. Torres Monje, 989 F.3d

25, 27 (1st Cir. 2021). We disagree with Ortiz's view of the

record evidence as well as his argument for error.

- 48 - From the outset, Ortiz's sufficiency arguments as to a

conspiracy with Black are unpersuasive, as our conclusion that

there was sufficient evidence of a conspiracy to distribute between

Pena and Ortiz (even without Black) undercuts any argument that a

new trial is warranted. When a jury returns a general guilty

verdict on a sole count,22 and there is sufficient evidence as to

one of two alternative theories of guilt in that count, as was the

case here, see Part II.A.1, supra (discussing the more-than-

sufficient evidence of a conspiracy between Pena and Ortiz),

insufficiency of the evidence as to the other theory of guilt will

not undermine the conviction. Sweeney, 887 F.3d at 541 (citing

Nieves-Burgos, 62 F.3d at 434)); see also Griffin v. United States,

502 U.S. 46, 59-60 (1991); Kelley, 471 F. App'x at 845 (applying

principle in a conspiracy case).

Our ruling, however, need not rest on such a formalistic

basis, as the prosecution presented evidence sufficient for the

jury to find that Pena or Ortiz also conspired with Black. As

discussed above, the January 5 audio recording captured the

defendants discussing their purported supplier, who, as narrated

by Pena and Ortiz, (1) thought R.E. (who was the defendants'

Ortiz and Pena did not request jury instructions or a 22

special verdict form requiring findings as to separate conspiracies or specific identities of co-conspirators. There was thus no opportunity for the jury to express whether or not either defendant conspired with Black.

- 49 - customer, not Black's) only wanted "two baskets" of cocaine,

(2) "f**ked" up the amount of cocaine, (3) instructed Pena to "try

to see if [R.E.] even want that seven," and (4) "[s]aid that he

could come back after traffic." These statements, admitted into

evidence without an objection specific to Black or a limiting

instruction, provided key context for why the initial transaction

was delayed to January 6. See Part II.B.I, supra. Additionally,

because they were admitted without limitation, they could "be used

by the jury on any issue in the case." Correa v. Hosp. San

Francisco, 69 F.3d 1184, 1191 (1st Cir. 1995); see also Castro-

Lara, 970 F.2d at 981 ("[O]nce the testimony was received into

evidence generally, without objection or limitation, the jury was

entitled to draw all reasonable inferences from it."). Based on

these statements, the jury could infer that Ortiz and Pena were in

regular contact with Black, and were aware of his general

whereabouts, his habits and preferences, and that he was "about

his business" (which the jury could readily deduce from the context

of the conversation to be the business of drug trafficking). The

jury could also surmise that Black was aware he was selling drugs

to a third party through Ortiz and Pena, given the quantities of

drugs at play and his instructing Pena "to see if [R.E.] even want

that seven."

The fact that the defendants now claim on appeal,

incorrectly in our view, see Part II.A.1, supra, that some of these

- 50 - statements constituted inadmissible hearsay does not alter this

calculus: "[I]f no objection is raised, [hearsay] is admissible."

Gordon, 875 F.3d at 30. Moreover, we find no plain error with the

statements' admission. Accordingly, the jury could consider

Black's statements not just for context, but for any fact of

consequence, including Black's membership in the charged

conspiracy. And this evidence against Black was more than

sufficient to create a reasonable inference of Black's

participation in a drug-distribution conspiracy (or multiple

conspiracies) with either or both defendants. We therefore find

no reversible error here.

3. Notice and Ambiguity of the Black-Conspiracy Instruction (Ortiz)

Ortiz also contends (1) that he was unfairly surprised

by the "Black-conspiracy" instruction, and (2) that the jury could

have interpreted the Black-conspiracy instruction to mean that

they could convict Ortiz if they simply found a buyer-seller

relationship between Ortiz and Black. We reiterate that any claim

of error regarding the district court's conspiracy instructions as

to Black lacks merit given the sufficiency of the evidence of a

conspiracy between Pena and Ortiz. His notice and ambiguity

arguments similarly lack merit.

Despite Ortiz's purported surprise, the indictment

charged Ortiz and Pena with conspiracy to distribute cocaine base

- 51 - "with each other, and with other persons known and unknown"

(emphasis added). There can be no serious argument that Black did

not fall within the category of persons known and unknown, and

"the law is well established that where an indictment charges in

the conjunctive several means of violating a statute, a conviction

may be obtained on proof of only one of the means, and accordingly

the jury instruction may properly be framed in the disjunctive."

Garcia-Torres, 341 F.3d at 66 (1st Cir. 2003) (quoting Simpson,

228 F.3d at 1300).

Additionally, the district court's conspiracy

instructions stated in no ambiguous terms that if the jury found

that one of the defendants made a "genuine" and "knowing" agreement

to purchase drugs for a drug deal from Black, "that would be enough

[to prove a conspiracy with Black] if there was an actual agreement

between Black and the [defendant] . . . to supply the drugs which

were going to be distributed." These instructions do not suggest

that anything less than a conspiracy between Ortiz and Black would

be sufficient to convict. No reversible error involving these

instructions occurred. See also United States v. Dellosantos, 649

F.3d 109, 115 (1st Cir. 2011) (defining proof of a criminal

agreement as the "the sine qua non of a conspiracy" charge

(internal citation omitted)).

- 52 - 4. Denied Request for Multiple-Conspiracy and Buyer-Seller Instructions (Ortiz)

Last, Ortiz argues that the district court erred by not

giving both a multiple-conspiracy and a buyer-seller instruction,

in addition to its other conspiracy-related instructions. As Ortiz

did not request either instruction at trial, we review for plain

error. United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009)

(citing United States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008)).

"A multiple-conspiracy instruction is warranted 'if, on

the evidence adduced at trial, a reasonable jury could find more

than one such illicit agreement, or could find an agreement

different from the one charged.'" United States v. Walker-

Couvertier, 860 F.3d 1, 16 (1st Cir. 2017) (quoting United States

v. Niemi, 579 F.3d 123, 126 (1st Cir. 2009)). A buyer-seller

instruction is warranted, by comparison, "only if the record, taken

in the light most congenial to [the defense's] theory of the case,

could plausibly support" that "a buyer and seller in a single drug

transaction [we]re not invariably part of a drug conspiracy."

United States v. Martínez-Medina, 279 F.3d 105, 120 (1st Cir. 2002)

(citing United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.

1988)); see also United States v. Moran, 984 F.2d 1299, 1302 (1st

Cir. 1993) ("a single drug sale does not automatically make buyer

and seller co-conspirators" (citing United States v. DeLutis, 722

F.2d 902, 906 (1st Cir. 1983))).

- 53 - As to the multi-conspiracy instruction, Ortiz renews his

argument, previously rejected, that the jury should not have been

permitted to convict on the basis of a conspiracy between Ortiz

and Black because it was not properly charged in the indictment.

Given our prior discussion, little more need be said. The

indictment charged the defendants with conspiring with each other,

and with other persons known and unknown, to distribute cocaine.

Under this charge, the jury could have convicted Ortiz if they

found that the prosecution had proved beyond a reasonable doubt

the existence of a conspiracy between him and Pena, him and Black,

or among all three.

As to the latter, Ortiz argues that a buyer-seller

instruction was warranted because the evidence as to an Ortiz-

Black conspiracy was just as suggestive of a buyer-seller

relationship as it was of a conspiracy. To support his argument,

he points to United States v. Gee, 226 F.3d 885 (7th Cir. 2000),

in which the Seventh Circuit Court of Appeals held that a buyer-

seller instruction was warranted because the evidence of a

conspiracy, deemed "circumstantial and not overwhelming," was

equally "consistent with a buyer-seller relationship." Id. at

895. Those are not the circumstances of this case.

Here, the evidence directly showed that Black was aware

of Pena and Ortiz's intent to resell the "sixty-two," going so far

as to instructing them to see if R.E. would accept "two baskets"

- 54 - instead. That request, combined with the sheer quantity of drugs

contemplated in the sale, strongly undermined any suggestion that

Pena and Ortiz were the final purchasers or that the drug purchase

was purely for personal use. See United States v. Mitchell, 596

F.3d 18, 24 (1st Cir. 2010) ("A 'classic' buyer-seller relationship

is a single sale, for personal use, without prearrangement."

(citing Moran, 984 F.2d at 1304)); United States v. Innamorati,

996 F.2d 456, 484 (1st Cir. 1993) ("[C]ourts that have approved

the 'buyer-seller' instruction have restricted its use to cases in

which the evidence showed only a single or a very limited number

of sales for personal use."). Because the evidence of record did

not plausibly support a finding that Black and Ortiz had a mere

buyer-seller relationship, see Martínez-Medina, 279 F.3d at 120

(no buyer-seller instruction warranted where "overwhelming

evidence showed that [co-defendants] agreed to import drugs with

the intent to distribute them"), we find no reversible error with

the district court's exclusion of a buyer-seller instruction.

D. Cumulative Error

Finally, the defendants raise the issue of cumulative

error. Because "we find that the district court's actions were

not errors[,] . . . we need not conduct a cumulative error

analysis" and decline to do so. Rivera-Rodríguez, 761 F.3d at

128; see also United States v. Stokes, 124 F.3d 39, 43 (1st Cir.

- 55 - 1997) ("By definition, cumulative-error analysis is inappropriate

when a party complains of the cumulative effect of non-errors.").

III. Conclusion

For the foregoing reasons, we AFFIRM Pena and Ortiz's

convictions.

- 56 -