United States Court of Appeals For the First Circuit
No. 16-2186
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN G. PEREZ-CUBERTIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
Julia Pamela Heit for appellant. John Patrick Taddei, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom John P. Cronan, Acting Assistant Attorney General, Criminal Division, U.S. Department of Justice, Nina Goodman, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana Bauzá-Almonte, Chief, Appellate Division, Assistant U.S. Attorney, Edward G. Veronda, Assistant U.S. Attorney, and Stuart J. Zander, Assistant U.S. Attorney, were on brief for appellee.
May 7, 2020 Per Curiam. A jury convicted Edwin Perez-Cubertier
("Perez") of four counts of possessing with intent to distribute
controlled substances in a protected area and conspiring to do the
same.1 See 21 U.S.C. §§ 841(a)(1), 846, 860. He now appeals his
conviction, raising two evidentiary issues and a constitutional
speedy trial claim. Because we conclude that the district court
did not plainly err with respect to any of Perez's challenges, we
affirm.
I.
On appeal of a jury verdict, we recite the facts,
consistent with record support, in the light most favorable to the
jury's verdict. See United States v. Lowe, 145 F.3d 45, 47-48
(1st Cir. 1998).
In June 2010, Perez was indicted for participating in a
large drug conspiracy conducted from 2006 to June 2010. The
indictment alleged that Perez conspired with more than seventy
others to possess with intent to distribute controlled substances
within one thousand feet of a public housing facility and that he
1 Appellant's name is spelled "Perez-Cubertier" on the cover page of his own brief and on the district court docket, although it is spelled "Perez-Couvertier" on his request for appointment of counsel on appeal and on the appellate docket and "Perez- Coubertier" at several points in the body of his brief. For the purposes of this opinion, we adopt the spelling of appellant's name reflected on the district court's docket.
- 2 - committed four counts of possessing with intent to distribute
controlled substances in the same area.
Within two weeks after the grand jury indicted Perez, a
cooperating witness notified Perez that he had been charged in the
indictment.2 Perez did not contact any law enforcement officers
and he did not hear from any law enforcement officers about the
charges until he was arrested in New York in 2014.
Before his trial, Perez filed a motion in limine seeking
to exclude video evidence of the murders of two co-conspirators,
"Shaggy" and "Papito," under Federal Rules of Evidence 404(b) and
403. The district court denied the motion.
At Perez's trial, in which he was the sole defendant,
the government presented evidence that, from 2006 to 2010, members
of a drug trafficking organization called "La ONU" controlled drug
transactions at the San Martin Public Housing Project ("San
Martin") in San Juan, Puerto Rico. According to government
witnesses, Perez served as a La ONU drug-point owner in San Martin
beginning in 2006. Drug-point owners arranged for drugs to be
supplied to runners for delivery to drug points where the drugs
2 Maria Lopez-Calderon, the cooperating witness, testified that she informed Perez of the charge against him sometime between the return of the indictment (on June 10, 2010) and her arrest (on June 14, 2010). In his reply brief, Perez challenges the veracity of Lopez-Calderon's testimony, but, as described infra note 9, the record does not support such a challenge.
- 3 - were sold. Witnesses testified that, as a drug-point owner, Perez
attended members-only meetings of La ONU. A drug ledger seized in
2008 listed Perez by a nickname, "Gamito," and indicated that he
had retrieved twenty dollars from one of La ONU's drug points.3
Video evidence showed Perez speaking with members of the
organization, including La ONU leaders Shaggy and Papito, near a
drug point in San Martin in October 2008. One cooperating witness
testified that anyone attending the meeting shown in the video
would have been a member of La ONU.
Although the government did not charge Perez as an
enforcer -- that is, a La ONU member tasked with "possess[ing],
carry[ing], brandish[ing], us[ing], and discharg[ing] firearms to
protect the leaders and members" of the organization -- it
presented evidence showing that Perez carried firearms as a part
of his role in the conspiracy. Witnesses also testified that he
was present during shootouts with rival drug organizations and
dealers.
Government witnesses testified that, in late 2008,
another drug-point owner killed Perez's brother, who had also been
involved in La ONU. Afterward, Perez told a co-conspirator that
he "was going to go for a while." In February 2009, Perez moved
3 Perez testified that the handwriting on the ledger did not say "Gamito," but because we recite the facts in the light most favorable to the jury's verdict, we adopt the description provided by the government witness. See Lowe, 145 F.3d at 47-48.
- 4 - to New York, purportedly due to both concerns for his own safety
and the medical needs of his son, who suffers from cerebral palsy
and Dandy Walker Syndrome.
The government also presented evidence that, in June
2009, a La ONU member murdered Shaggy and Papito at the request of
a La ONU leader, "Pitufo," who had learned that Shaggy and Papito
were planning to kill him. The government attempted to introduce
a video of the murders, but Perez, renewing his pretrial motion in
limine, objected to the admission of the video but not the
testimony about the murders. The district court reversed its
earlier ruling, prohibiting presentation of the video but allowing
testimony regarding the murders.
Perez testified in his defense that he never
participated in La ONU, let alone served as a drug-point owner.
He admitted, however, that he had previously participated in a
drug conspiracy in the years 2000 to 2001; his daughter and brother
lived in San Martin during the relevant period; he knew about the
drug conspiracy run by La ONU; his nickname was Gamito; and he was
close friends with Shaggy and Papito, whom he knew to be leaders
in La ONU.
The jury returned a guilty verdict as to all five counts
and Perez timely appealed. He now argues that, because he withdrew
from the conspiracy at the end of 2008, the district court should
have excluded evidence of the conspiracy's activities occurring
- 5 - afterward or, alternatively, instructed the jury to ignore such
evidence. Further, he contends that the district court improperly
admitted evidence of the murders as well as other evidence of La
ONU members' violent acts, as such evidence was barred by Federal
Rules of Evidence 404(b) and 403. Finally, he asserts that the
four-and-a-half-year delay between his June 2010 indictment and
December 2014 arrest violated his Sixth Amendment right to a speedy
trial.
II.
We first address Perez's claim that the district court
should have excluded evidence of the conspiracy's activities after
2008 or instructed the jury to ignore such evidence. In essence,
Perez asserts that, because he withdrew from the conspiracy "at
least by the end of 2008," the post-2008 evidence was irrelevant
as to the charges against him or, at least, "highly prejudicial."4
Because Perez neither objected to the admission of the post-2008
evidence based on withdrawal, nor requested a limiting
instruction,5 our review is for plain error. See Fed. R. Evid.
4 Perez does not identify a specific evidentiary rule in arguing that the post-2008 evidence was inadmissible or should have been accompanied by limiting instructions. Without deciding whether this omission waives the argument, we assume that Perez's claim concerns the requirements of Federal Rules of Evidence 402 and 403, which provide for the exclusion of evidence when it is irrelevant or its probative value is "substantially outweighed" by, inter alia, the danger of unfair prejudice. 5 Perez invokes the notion of withdrawal solely to support
- 6 - 103(e); United States v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001).
To establish plain error, Perez "must show '(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. Williams, 717 F.3d
35, 42 (1st Cir. 2013) (quoting United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001)).
Perez has not met this standard. We may find plain error
only if the record so clearly showed Perez's withdrawal from the
conspiracy by 2008 that it was obvious error for the district court
to allow the jury to consider, without limitation, evidence of the
conspiracy's post-2008 criminal activity. In support of his
argument, Perez notes that the government offered no direct
evidence that he engaged in the conspiracy after 2008, and, indeed,
he left for New York in early 2009.
But "[m]ere cessation of activity in furtherance of [a]
conspiracy does not constitute withdrawal." United States v.
Ciresi, 697 F.3d 19, 27 (1st Cir. 2012) (first alteration in
his evidentiary argument that the district court should have excluded the post-2008 evidence or instructed the jury to disregard it. He did not argue in the district court, and does not argue on appeal, that the evidence presented at trial was insufficient to support findings of guilt on the charges against him because he had withdrawn from the conspiracy. We therefore address his argument solely as an evidentiary matter.
- 7 - original) (quoting United States v. Juodakis, 834 F.2d 1099, 1102
(1st Cir. 1987) (per curiam)). To prove withdrawal, the defendant
ordinarily must present "evidence that [he] confessed his
involvement in the conspiracy to the government or announced his
withdrawal to his coconspirators." United States v. George, 761
F.3d 42, 55 (1st Cir. 2014). The record here, at best, suggests
the "[m]ere cessation" of Perez's active participation in an
ongoing conspiracy. Ciresi, 697 F.3d at 27; see also United States
v. Munoz, 36 F.3d 1229, 1234 (1st Cir. 1994) (holding that lack of
evidence of defendant's activities during last two weeks of
conspiracy did not demonstrate withdrawal from conspiracy);
George, 761 F.3d at 55-56 (concluding that admission of co-
conspirator's statement was not clear error because defendant's
cessation of activity on behalf of conspiracy "constitute[d]
inaction rather than affirmative steps to distance himself from
his prior involvement" (quoting United States v. Guevara, 706 F.3d
38, 46 n.9 (1st Cir. 2013))).
Even if Perez's relocation to New York removed him from
day-to-day collaboration with others involved in the conspiracy,
there is no evidence that he communicated "to his co-conspirators
that he ha[d] abandoned the [conspiracy] and its goals," Juodakis,
834 F.2d at 1102. In fact, Perez himself notes that some of his
co-conspirators understood that his safety concerns, rather than
a repudiation of the conspiracy, motivated the move.
- 8 - In sum, given the absence of evidence showing that Perez
had accomplished a withdrawal from the conspiracy, the district
court's decision to admit the post-2008 evidence, and later not
instruct the jury to ignore it, was not plain error.
III.
Perez next contends that the district court improperly
admitted evidence of his co-conspirators' violent acts, which he
claims was inadmissible under Rules 404(b) and 403. According to
Perez, the district court should have excluded the testimony
related to Shaggy and Papito's murders as well as a co-
conspirator's statement that, to join La ONU, potential members
were required to kill someone.6
6 Perez also purports to challenge the admission of "[o]ther prejudicial testimony" related to "enemy competitors coming into the projects that would be fired at or beaten up; that [two co- conspirators] gave orders to have their competitors killed; [and that] members of the organization would ride in cars and have shootouts with people who were their enemies when there were battles over the drug points," but he fails to discuss his objections to this evidence with any particularity. Perez's cursory discussion of this evidence, coupled with his failure to identify relevant portions of the trial transcript, "'hamstrings' our ability to review the issues intelligently." González-Ríos v. Hewlett Packard PR Co., 749 F.3d 15, 20 (1st Cir. 2014) (alteration omitted) (quoting Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d 11, 15 (1st Cir. 1996)). We therefore do not reach Perez's challenge to the admission of the "[o]ther prejudicial testimony" his brief references. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting "settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").
- 9 - Perez forfeited his objection to the admission of the
murder-related testimony and waived his objection to the admission
of the co-conspirator's statement. As for the murders of Shaggy
and Papito, the record reveals that although Perez's counsel
renewed her objection to the video of the murders, she did not
object to testimony about the murders. Indeed, in excluding the
video, the district court stated, "I don't think [the government]
need[s] the video . . . . [The witness] can testify--," at which
point Perez's counsel interjected, "[t]hat they were killed and
whatever on whatever date." As for the testimony about having to
kill someone to join La ONU, not only did Perez's counsel fail to
object to the abbreviated testimony on direct examination, but she
also re-elicited the testimony during her cross-examination, thus
waiving any challenge to its admission.7 See United States v.
Reda, 787 F.3d 625, 630 (1st Cir. 2015) ("In this circuit,
7 If Perez's counsel had elicited the testimony on cross- examination to undermine its veracity, we might have a different view about the waiver issue. Indeed, where unfavorable testimony is first elicited on direct examination, frequently that testimony will need to be brought up again on cross-examination to recast it in a more favorable light. However, that was not the case here. The mention of the requirement to kill someone on direct was cut off by the prosecutor, and the cross-examination testimony called greater attention to it. Specifically, when the prosecutor asked what aspiring drug-point owners had to do, Lopez-Calderon answered, "[D]ifferent things. If they had to have somebody killed--." The prosecutor did not explore the issue further, but Perez's counsel asked Lopez-Calderon on cross-examination whether one of the jobs a person would have to do to become a drug-point owner "would be to have somebody killed." Lopez-Calderon responded, "[o]n occasions, yes."
- 10 - 'ordinarily, a party who elicits evidence would waive any claim
that its admission was error.'" (alteration omitted) (quoting
United States v. Harris, 660 F.3d 47, 52 (1st Cir. 2011)). We
accordingly limit our inquiry to whether the district court plainly
erred in admitting the murder-related testimony. See United States
v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005).
The district court did not plainly err in admitting the
murder-related testimony because neither Rule 404(b) nor Rule 403
indisputably barred such evidence. Rule 404(b) prohibits the
admission of evidence of "crime[s], wrong[s], or other act[s]"
offered to prove a person's character. Fed. R. Evid. 404(b)(1).
But the rule applies only "to evidence of other bad acts or
crimes," not to evidence of the crime charged. United States v.
Arboleda, 929 F.2d 858, 866 (1st Cir. 1991). Thus, in another
drug conspiracy case, we upheld against a preserved challenge the
admission of evidence of an uncharged murder committed by a co-
conspirator. See United States v. Ofray-Campos, 534 F.3d 1, 35
(1st Cir. 2008). There, we explained that, because the indictment
charged the co-conspirator as "an enforcer" or "hit man" for the
conspiracy, the evidence of the murder provided "direct proof of
the means used to carry out the conspiracy," rather than proof of
a distinct bad act falling within the ambit of Rule 404(b). Id.
Other circuits have likewise upheld against preserved challenges
the admission of evidence of violent conduct as direct proof of a
- 11 - drug conspiracy. See, e.g., United States v. McGill, 815 F.3d
846, 881-82 (D.C. Cir. 2016) (upholding the admission of evidence
of uncharged assaults and attempted murder as direct proof of a
narcotics distribution conspiracy, as the charged conspiracy's
"broad scope" encompassed violent acts undertaken to, among other
things, "enforc[e] internal discipline").
There is, at best for Perez, "a reasonable dispute" as
to whether the testimony about Shaggy and Papito's murders was
direct evidence of the charged conspiracy, and that "devastates
his position" on plain error review. See United States v. Jones,
748 F.3d 64, 70 (1st Cir. 2014). Here, as in Ofray-Campos, the
charged conspiracy's goal was drug distribution, but the alleged
means by which members pursued that goal were violent. According
to the indictment, La ONU members "use[d] force, violence, and
intimidation in order to . . . discipline members of their own
drug trafficking organization." In particular, leaders authorized
disciplinary action and other members carried out those orders.
Pitufo was a leader of La ONU at the time that he ordered the
murders of Shaggy and Papito.8 As such, testimony about Pitufo's
order and its execution could reasonably be viewed as offering
8The indictment refers to two individuals nicknamed "Pitufo," one labeled as a leader and the other as an enforcer. Although neither party makes clear which Pitufo killed Shaggy and Papito, Perez's briefing indicates that the Pitufo who ordered the murders was a leader at the time he ordered the murders.
- 12 - "direct proof of the means used to carry out the conspiracy" and
illustrating the conspiracy's internal systems of discipline. See
Ofray-Campos, 534 F.3d at 35; see also McGill, 815 F.3d at 881-
82. Rule 404(b) thus did not indisputably apply to, let alone
bar, the testimony about Shaggy and Papito's murders, so the
district court did not plainly err with respect to Rule 404(b) in
admitting the testimony.
Nor did the admission of the murder-related testimony
constitute plain error under Rule 403, which permits courts to
exclude relevant evidence if its probative value is substantially
outweighed by, among other things, a danger of unfair prejudice.
See Fed. R. Evid. 403. Regardless of the standard of review, we
review a district court's Rule 403 ruling "from the vista of a
cold appellate record" and thus reverse such rulings "only rarely
and in extraordinarily compelling circumstances." United States
v. Vázquez-Larrauri, 778 F.3d 276, 288 (1st Cir. 2015) (alteration
omitted) (quoting United States v. Vizcarrondo-Casanova, 763 F.3d
89, 94 (1st Cir. 2014)); see also United States v. Rodriguez-
Estrada, 877 F.2d 153, 156 (1st Cir. 1989) ("When all is said and
done, the district court must be ceded considerable latitude in
steadying the balance which Rule 403 demands.").
No such circumstances are present here. Concerns about
unfair prejudice arise when evidence "invites the jury to render
a verdict on an improper emotional basis" or when the evidence is
- 13 - so "shocking or heinous" that it is "likely to inflame the jury."
See United States v. Laureano-Pérez, 797 F.3d 45, 63 (1st Cir.
2015) (quoting United States v. Varoudakis, 233 F.3d 113, 122 (1st
Cir. 2000)). The testimony challenged here does not approach this
standard: the government aptly characterizes the testimony as
lacking "any detail" regarding the murders. Indeed, Perez neither
contests this portrayal nor cites to the relevant portion of the
transcript. See United States v. Rivera Calderón, 578 F.3d 78, 98
(1st Cir. 2009) (finding no error in admission of testimony
describing uncharged murders "matter-of-factly, . . . leaving out
graphic details" in a drug conspiracy trial); Vázquez-Larrauri,
778 F.3d at 288-89 (holding that district court did not plainly
err or abuse its discretion in admitting testimony that was not
"overly graphic" about an uncharged murder in a drug conspiracy
case). The district court thus did not plainly err under either
Rule 404(b) or Rule 403 in admitting the testimony.
IV.
Last, Perez insists that the government violated his
Sixth Amendment right to a speedy trial by arresting him five years
after the grand jury indicted him. The parties agree that Perez
did not preserve this argument and that this court therefore
reviews his claim for plain error. We accordingly assume without
deciding that our review is for plain error. See, e.g., United
States v. Mosteller, 741 F.3d 503, 508 n.6 (4th Cir. 2014)
- 14 - (reviewing constitutional speedy-trial arguments raised for the
first time on appeal for plain error).
The Sixth Amendment guarantees that, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy . . .
trial." U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S. 514
(1972), the Supreme Court established a four-part balancing test
to determine whether a defendant's constitutional speedy trial
right has been abridged, requiring assessment of (1) whether delay
before trial was unusually long; (2) whether the government or the
defendant is more to blame for that delay; (3) whether the
defendant timely asserted his right to a speedy trial; and (4)
whether he suffered prejudice as a result of the delay. See
Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker,
407 U.S. at 530). "These factors cannot be plugged into a formula
that operates with scientific precision[,]" and instead "must be
considered on a case-by-case basis 'together with such other
circumstances as may be relevant.'" United States v. Mala, 7 F.3d
1058, 1061 (1st Cir. 1993) (quoting Barker, 407 U.S. at 533).
The district court did not plainly err in permitting the
government's case to proceed despite the four-and-a-half-year
delay between Perez's indictment and arrest. The parties agree
that the first factor -- the length of the delay -- favors Perez.
See, e.g., United States v. Handa, 892 F.3d 95, 101-02 (1st Cir.
2018) (noting that "[w]hile 'there is no bright-line time limit'"
- 15 - applied in assessing speedy trial violations, "a 'delay of around
one year is considered presumptively prejudicial'" (alterations
omitted) (quoting United States v. Irizarry-Colón, 848 F.3d 61, 68
(1st Cir. 2017)).
We assume, favorably to Perez, that the second factor
-- the reason for the delay -- weighs slightly against the
government. Whereas deliberate delays designed to hamper a defense
constitute weighty evidence in favor of the defendant,
prosecutorial negligence carries less weight in the speedy trial
analysis. See United States v. Johnson, 579 F.2d 122, 123 (1st
Cir. 1978); cf. Doggett, 505 U.S. at 652-53 (weighing against the
government its failure to make any serious efforts to locate
defendant for six years, even if its "lethargy may have reflected
no more than [the defendant's] relative unimportance in the world
of drug trafficking"). Perez has presented no proof of
deliberateness in the government's conduct and the government has
offered no explanation for the period of inactivity between the
indictment and Perez's arrest. We decline to decide which party
bears the burden of persuasion on plain error review and similarly
refrain from resolving whether silence coupled with a four-and-a-
half-year delay establishes official negligence under the plain
error standard. Cf. Barker, 407 U.S. at 531 (in addressing speedy
trial claim de novo, focusing on "the reason the government assigns
to justify the delay"). Compare United States v. Mensah-Yawson,
- 16 - 489 F. App'x 606, 610-11 (3d Cir. 2012) (placing burden of
persuasion for second factor on government on plain error review),
with United States v. Williams, 683 F. App'x 376, 384 (6th Cir.
2017) (determining, on plain error review, that second factor
favored neither party where "the record before [the court] [was]
silent as to the reasons for the actual delay," "largely due to
the fact that [the defendant] did not bring a speedy-trial claim
at or before trial"). We instead assume, favorably to Perez,
that this delay resulted from prosecutorial negligence, leading us
to slightly favor Perez on the second factor.
But the third factor -- whether the defendant asserted
his speedy trial right -- significantly undermines Perez's claim.
His failure to raise his Sixth Amendment claim at any point before
this appeal is "entitled to strong evidentiary weight" in
determining whether he has been deprived of his constitutional
rights. Barker, 407 U.S. at 531-32. Although a defendant "has no
duty to bring himself to trial" and does not waive his Sixth
Amendment claim by not raising it in district court, he does have
some responsibility to assert his speedy trial claim. See Look v.
Amaral, 725 F.2d 4, 6-7 (1st Cir. 1984) (noting that, absent an
inquiry by the defendant into "the status of the action against
him," the "circumstances strongly suggest . . . that [the
defendant] gambled with his right, hoping . . . that either his
case would be overlooked or that, unreminded, the [government's]
- 17 - delay would ripen into a period that would improve his chances for
acquittal on [S]ixth [A]mendment grounds"). Here, testimony
adduced at trial indicates that Perez was aware of the charges
against him as early as mid-2010,9 yet he apparently made no inquiry
over the following years. As such, the third factor counsels
against finding that he was deprived of his speedy trial rights.
The fourth factor -- prejudice to the defendant --
similarly weighs against Perez. "The prejudice prong seeks to
protect three interests: avoidance of oppressive pretrial
incarceration, minimizing anxiety and concern, and limiting the
possibility that the defense will be impaired." United States v.
Carpenter, 781 F.3d 599, 614 (1st Cir. 2015). "As a general rule,
the defendant bears the burden of alleging and proving specific
ways in which the delay attributable to the [government] unfairly
compromised his ability to defend himself"; however, such
9 As noted supra note 2, Perez challenges the veracity of this testimony in his reply brief, arguing that "[a] reading of Perez'[s] entire testimony reasonably establishes that he had no [] knowledge [of the charges]." This argument stands in direct tension with Perez's assertion that pre-arrest knowledge of the charges caused him anxiety that is cognizable under Barker's prejudice prong. Moreover, we disagree with Perez's characterization of the record. Perez never testified about the alleged conversation in which Lopez-Calderon informed him of the charges, and although he did testify that he lived his life openly in New York and was not hiding between the time of his indictment and arrest, that testimony in no way suggests that he was unaware of the charges against him. Thus, Lopez-Calderon's testimony that she informed Perez of the charges against him shortly after the indictment stands uncontested.
- 18 - prejudice may sometimes be presumed "[i]n aggravated cases,
involving grossly excessive delay." Rashad v. Walsh, 300 F.3d 27,
34 (1st Cir. 2002).
Here, the only prejudice Perez has alleged is anxiety
and fear concerning his arrest and the prospect that his arrest
"would upend his life and that of his family."10 " A defendant must
struggle to satisfy the prejudice prong after conviction, when two
of the three factors relevant to the prejudice analysis --
excessive pre-trial incarceration and impairment of an effective
defense -- are of little or no relevance." Carpenter, 781 F.3d at
614. Moreover, assertions of apprehension or agitation resulting
from pre-trial knowledge of the pending charges are not enough;
rather, the anxiety must become "undue pressure[]" more severe
than the stress that "normally attends the initiation and pendency
10 Perez claims that "witnesses could have easily become unavailable to him, memories could have been impaired due to the passage of time or evidence can become unavailable." But, because we do not presume prejudice on plain error review of a Sixth Amendment claim, we conclude that such hypothetical damage to Perez's defense does not suffice. Cf. United States v. Olano, 507 U.S. 725, 739-41 (1993) (finding that defendants failed to meet their burden to show prejudice under the plain error test where they made "no specific showing" of harm). The outcome of the speedy trial analysis is likewise unchanged by two arguments that Perez raises for the first time in his reply brief: that his young, disabled son will be harmed by Perez's imprisonment and that he might have been able to secure a plea deal if arrested promptly. Because these arguments made their debut in his reply brief, we deem them waived. See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("[W]e do not consider arguments for reversing a decision of a district court when the argument is not raised in a party's opening brief.").
- 19 - of criminal charges." United States v. Henson, 945 F.2d 430, 438
(1st Cir. 1991). While we do not doubt that Perez's fears were
acute, he fails to offer any way in which they constituted an
"undue pressure" or were more severe than the fears that are
endemic to criminal prosecutions. See Carpenter, 781 F.3d at 615
("While [appellant] argues convincingly that he has suffered great
stress throughout the proceedings, he does not demonstrate why his
anxiety was greater than that suffered by many other defendants,
other than that it continued longer."). As such, the final factor
of the speedy trial balancing test militates against reversal.
Taken together, the four Barker factors do not
indisputably establish that the government violated Perez's Sixth
Amendment speedy trial right.11 See United States v. Rice, 746
F.3d 1074, 1081-82 (D.C. Cir. 2014) (holding that failure to
dismiss indictment was not plain error where only some of the
Barker factors favored defendant). The district court's failure
to dismiss the indictment thus did not constitute plain error.12
11 Perez invites us, in the alternative, to remand his case to the district court so that the factors discussed above "can fairly be explored." "[N]o decision cited to us" -- indeed, Perez cites none in the one sentence he dedicates to his request in his opening brief -- "and none of which we are aware, establishes a basis" for such an order. See Cheshire Med. Ctr. v. W.R. Grace & Co., 49 F.3d 26, 31 (1st Cir. 1995). We therefore decline his request. 12Both with respect to his speedy trial claim and at various points in his evidentiary objections, Perez argues that his trial counsel's failure to raise those issues demonstrates that he
- 20 - See Jones, 748 F.3d at 70 ("[A]n error open to reasonable dispute
is not plain error.").
For the foregoing reasons, we affirm Perez's conviction
and sentence. So ordered.
received constitutionally ineffective assistance of counsel. His contentions regarding his attorney's deficiencies are far from clear, however. Even if Perez articulated his argument more clearly, we would find no reason to review his claim here. As we recently reiterated: "We have held with a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court." In adopting this prudential praxis, we have reasoned that "such claims typically require the resolution of factual issues that cannot efficaciously be addressed in the first instance by an appellate tribunal." . . . Unless "the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration" of a claim of ineffective assistance, a criminal defendant who wishes to pursue such a claim must do so in a collateral proceeding. United States v. Santana-Dones, 920 F.3d 70, 82 (1st Cir. 2019) (internal citations omitted) (first quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993); then quoting United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991)). The limited development of this issue in Perez's brief, and his failure to point to specific portions of the record that support his ineffective assistance of counsel claim, result in inadequate detail to evaluate why his trial counsel made or did not make certain decisions.
- 21 -