United States v. Pires
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Opinion
United States Court of Appeals For the First Circuit
No. 24-1062
UNITED STATES OF AMERICA
Appellee,
v.
ADMILSON PIRES, a/k/a Mikey,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Gelpí, Kayatta, and Aframe, Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for appellant.
Karen Eisenstadt, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
May 28, 2025 GELPÍ, Circuit Judge. Following a four-day trial, a
jury convicted Defendant-Appellant Admilson Pires ("Pires") of
conspiracy to commit sex trafficking of a minor in violation of 18
U.S.C. § 1594(c) (Count I) and sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a)(1) and (b)(2) (Count II). Pires
appealed, arguing that the evidence was insufficient to support
his conspiracy conviction and that various alleged trial
errors -- namely, the erroneous admission of expert testimony and
certain statements by the government during summation -- tainted
the verdict. For the reasons explained below, we affirm.
I. BACKGROUND
On August 1, 2019, Norwood Police Department ("Norwood
PD") received a tip that Daisy -- a missing sixteen-year-old
girl -- was located, and being used for prostitution, at an
apartment in Norwood, Massachusetts. At the apartment, Norwood PD
officers found two women: the resident, Kathleen Burke ("Burke"),
and a woman who claimed to be a twenty-year-old named "Melissa."
Moments into the encounter, Norwood PD officers saw that "Melissa"
matched the photo on Daisy's missing person's notice, and after a
few minutes of conversing, "Melissa" provided officers with her
real name: Daisy.
After conversing some more with Burke and Daisy, Norwood
PD officers were given consent to search Burke's cell phone. They
then brought Daisy and Burke separately to the Norwood PD station,
- 2 - where Daisy told officers, among other things, that she had been
engaging in commercial sex. During Daisy's interview with Norwood
PD officers, Burke's cell phone received several phone calls and
text messages from two contacts -- "Eli 2" and "Mikey" -- who were
later identified as Sandro Rosa ("Eli")1 and Pires, respectively.
At 4:24 p.m., Pires texted, "Hey, w[h]at happened to Mellisa
[sic]," and about three hours later, Eli texted, "you fuck me over
[K]athy [(Burke)] every[]time." After interviewing Daisy, Norwood
PD officers returned her to her mother.
On December 9, 2020, a federal grand jury returned a
two-count indictment against Pires, charging him with conspiracy
to commit sex trafficking of a minor in violation of 18 U.S.C.
§ 1594(c) and sex trafficking of a minor in violation of 18 U.S.C.
§ 1591(a)(1) and (b)(2). Trial commenced on September 18, 2023,
and lasted four days. Eight witnesses testified, and when all was
said and done, the jury convicted Pires of both offenses. In
January 2024, the district court sentenced Pires to a term of 132
months' imprisonment on Count I and 132 months' imprisonment on
Count II, to be served consecutively. Pires appealed.
The resolution of the instant appeal centers on the
testimony of three witnesses -- Daisy, Burke, and FBI Special
Agent Daniel Garrabrant ("SA Garrabrant") -- and the parties'
1 Daisy knew Rosa only as Eli, and so that is how she referred to him. Here, too, we refer to Rosa as Eli.
- 3 - statements during summation. Rather than spell it all out here
(and then again below), we summarize the relevant events and
testimony in discussing each claim of error.
II. ARGUMENTS ON APPEAL
Pires raises three challenges on appeal. First, he
contends that his conspiracy conviction was not supported by
sufficient evidence. Second, he argues that some of SA
Garrabrant's testimony was erroneously admitted, corrupting the
jury's verdict on both Counts I and II. And third, he takes issue
with the government's statements during summation, which, he
insists, inflamed the emotions of the jury and impugned the role
of defense counsel, warranting reversal of both Counts I and II.
We address these challenges in turn.
III. SUFFICIENCY OF THE EVIDENCE
Pires's sufficiency challenge takes aim only at his
conspiracy conviction. 18 U.S.C. § 1594(c). He insists that there
is a dearth of evidence showing a conspiratorial agreement between
him and either of the coconspirators offered by the
government -- either Eli or Pires's uncle. Because we determine
that there was sufficient evidence from which a reasonable jury
could conclude beyond a reasonable doubt that Pires and Eli
conspired to violate § 1591(a)(1), the challenge fails. See United
States v. Pena, 24 F.4th 46, 74 (1st Cir. 2022) ("When a jury
returns a general guilty verdict on a [conspiracy] count, and there
- 4 - is sufficient evidence as to one of two alternative theories of
guilt in that count, . . . insufficiency of the evidence as to the
other theory of guilt will not undermine the conviction." (footnote
omitted)).
Both parties agree that the conspiratorial agreement
piece of Count I rests largely on Daisy's and Burke's testimony.
So that is where we turn our focus. As with all challenges to the
sufficiency of the evidence, "we recount the facts in the light
most favorable to the verdict." United States v. Buoi, 84 F.4th
31, 34 (1st Cir. 2023) (quoting United States v. Paz-Alvarez, 799
F.3d 12, 18 (1st Cir. 2015)).
A. Daisy's Testimony
We start with Daisy's testimony. Daisy began by
explaining that from middle school until ninth grade, she had a
"very toxic" relationship with her mother and stepfather. At
times, her mother would kick her out, so Daisy would end up in the
custody of the Massachusetts Department of Children and Families
("DCF") -- often in DCF-run group homes and sometimes in mental
healthcare facilities.
In January 2019, Daisy (fifteen years old at the time)
was in a DCF-run group home. With the help of her friend Jaleah
(also a minor), Daisy ran away from the group home. She went to
live at Jaleah's uncle's home in Brockton, Massachusetts. Daisy
lived there for about a month, during which time Jaleah taught her
- 5 - how to make money by posting explicit photos of herself on the
website "MegaPersonals." While there, Daisy also met Pires, who
was twenty-two years old at the time.
The day Daisy met Pires, she told him her age and showed
him her missing person's notice containing her age and birthdate.
That same day, Pires indicated to Daisy that he did not care about
her age, and the two had sex. During the few weeks that Daisy
remained in Brockton, she and Pires saw each other regularly,
engaging in sexual intercourse each time. When apart, they
communicated via phone call, text message, and Facebook. At some
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United States Court of Appeals For the First Circuit
No. 24-1062
UNITED STATES OF AMERICA
Appellee,
v.
ADMILSON PIRES, a/k/a Mikey,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Gelpí, Kayatta, and Aframe, Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for appellant.
Karen Eisenstadt, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
May 28, 2025 GELPÍ, Circuit Judge. Following a four-day trial, a
jury convicted Defendant-Appellant Admilson Pires ("Pires") of
conspiracy to commit sex trafficking of a minor in violation of 18
U.S.C. § 1594(c) (Count I) and sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a)(1) and (b)(2) (Count II). Pires
appealed, arguing that the evidence was insufficient to support
his conspiracy conviction and that various alleged trial
errors -- namely, the erroneous admission of expert testimony and
certain statements by the government during summation -- tainted
the verdict. For the reasons explained below, we affirm.
I. BACKGROUND
On August 1, 2019, Norwood Police Department ("Norwood
PD") received a tip that Daisy -- a missing sixteen-year-old
girl -- was located, and being used for prostitution, at an
apartment in Norwood, Massachusetts. At the apartment, Norwood PD
officers found two women: the resident, Kathleen Burke ("Burke"),
and a woman who claimed to be a twenty-year-old named "Melissa."
Moments into the encounter, Norwood PD officers saw that "Melissa"
matched the photo on Daisy's missing person's notice, and after a
few minutes of conversing, "Melissa" provided officers with her
real name: Daisy.
After conversing some more with Burke and Daisy, Norwood
PD officers were given consent to search Burke's cell phone. They
then brought Daisy and Burke separately to the Norwood PD station,
- 2 - where Daisy told officers, among other things, that she had been
engaging in commercial sex. During Daisy's interview with Norwood
PD officers, Burke's cell phone received several phone calls and
text messages from two contacts -- "Eli 2" and "Mikey" -- who were
later identified as Sandro Rosa ("Eli")1 and Pires, respectively.
At 4:24 p.m., Pires texted, "Hey, w[h]at happened to Mellisa
[sic]," and about three hours later, Eli texted, "you fuck me over
[K]athy [(Burke)] every[]time." After interviewing Daisy, Norwood
PD officers returned her to her mother.
On December 9, 2020, a federal grand jury returned a
two-count indictment against Pires, charging him with conspiracy
to commit sex trafficking of a minor in violation of 18 U.S.C.
§ 1594(c) and sex trafficking of a minor in violation of 18 U.S.C.
§ 1591(a)(1) and (b)(2). Trial commenced on September 18, 2023,
and lasted four days. Eight witnesses testified, and when all was
said and done, the jury convicted Pires of both offenses. In
January 2024, the district court sentenced Pires to a term of 132
months' imprisonment on Count I and 132 months' imprisonment on
Count II, to be served consecutively. Pires appealed.
The resolution of the instant appeal centers on the
testimony of three witnesses -- Daisy, Burke, and FBI Special
Agent Daniel Garrabrant ("SA Garrabrant") -- and the parties'
1 Daisy knew Rosa only as Eli, and so that is how she referred to him. Here, too, we refer to Rosa as Eli.
- 3 - statements during summation. Rather than spell it all out here
(and then again below), we summarize the relevant events and
testimony in discussing each claim of error.
II. ARGUMENTS ON APPEAL
Pires raises three challenges on appeal. First, he
contends that his conspiracy conviction was not supported by
sufficient evidence. Second, he argues that some of SA
Garrabrant's testimony was erroneously admitted, corrupting the
jury's verdict on both Counts I and II. And third, he takes issue
with the government's statements during summation, which, he
insists, inflamed the emotions of the jury and impugned the role
of defense counsel, warranting reversal of both Counts I and II.
We address these challenges in turn.
III. SUFFICIENCY OF THE EVIDENCE
Pires's sufficiency challenge takes aim only at his
conspiracy conviction. 18 U.S.C. § 1594(c). He insists that there
is a dearth of evidence showing a conspiratorial agreement between
him and either of the coconspirators offered by the
government -- either Eli or Pires's uncle. Because we determine
that there was sufficient evidence from which a reasonable jury
could conclude beyond a reasonable doubt that Pires and Eli
conspired to violate § 1591(a)(1), the challenge fails. See United
States v. Pena, 24 F.4th 46, 74 (1st Cir. 2022) ("When a jury
returns a general guilty verdict on a [conspiracy] count, and there
- 4 - is sufficient evidence as to one of two alternative theories of
guilt in that count, . . . insufficiency of the evidence as to the
other theory of guilt will not undermine the conviction." (footnote
omitted)).
Both parties agree that the conspiratorial agreement
piece of Count I rests largely on Daisy's and Burke's testimony.
So that is where we turn our focus. As with all challenges to the
sufficiency of the evidence, "we recount the facts in the light
most favorable to the verdict." United States v. Buoi, 84 F.4th
31, 34 (1st Cir. 2023) (quoting United States v. Paz-Alvarez, 799
F.3d 12, 18 (1st Cir. 2015)).
A. Daisy's Testimony
We start with Daisy's testimony. Daisy began by
explaining that from middle school until ninth grade, she had a
"very toxic" relationship with her mother and stepfather. At
times, her mother would kick her out, so Daisy would end up in the
custody of the Massachusetts Department of Children and Families
("DCF") -- often in DCF-run group homes and sometimes in mental
healthcare facilities.
In January 2019, Daisy (fifteen years old at the time)
was in a DCF-run group home. With the help of her friend Jaleah
(also a minor), Daisy ran away from the group home. She went to
live at Jaleah's uncle's home in Brockton, Massachusetts. Daisy
lived there for about a month, during which time Jaleah taught her
- 5 - how to make money by posting explicit photos of herself on the
website "MegaPersonals." While there, Daisy also met Pires, who
was twenty-two years old at the time.
The day Daisy met Pires, she told him her age and showed
him her missing person's notice containing her age and birthdate.
That same day, Pires indicated to Daisy that he did not care about
her age, and the two had sex. During the few weeks that Daisy
remained in Brockton, she and Pires saw each other regularly,
engaging in sexual intercourse each time. When apart, they
communicated via phone call, text message, and Facebook. At some
point in February 2019, Pires told Daisy that he loved her.
That same month, Pires and Daisy's physical relationship
temporarily ended when Daisy went to live with another friend in
Fall River, Massachusetts. Law enforcement recovered her from
Fall River a few days after she moved there, and they brought her
back to Springfield, Massachusetts. Daisy did not go to her
mother's home immediately, opting instead to go to another group
home. At that group home, she remained in contact with Pires by
using the facility's phone.
Sometime prior to Daisy's sixteenth birthday in June
2019, she returned to her mother and stepfather's home in
Springfield, Massachusetts. She spent her birthday there but
remained in contact with Pires. Around this time, Pires and Daisy
both professed their love for each other, and Daisy told him that
- 6 - she did not want to live at home anymore and that she wanted to be
with him instead. Ultimately, Daisy fled home and went to live
with Pires at his mother's house.
While living with Daisy at his mother's house, Pires
organized Daisy's first instance of commercial sex. As Daisy
explained it, Pires -- jobless and wanting money -- looked at
Daisy's body and told her that he needed her "to sell that thing."
Shortly thereafter, Pires planned for Daisy to engage in commercial
sex with his uncle.
Pires followed through with the plan. Pires's uncle met
him and Daisy outside of Pires's mother's house. After Pires and
his uncle conversed in Cape Verdean Creole, Pires directed Daisy
to get in his uncle's car. Pires's uncle drove off, parked the
car, climbed into the backseat, and engaged in oral and vaginal
sex with Daisy. They then returned to Pires's mother's home, where
Pires was waiting outside to receive money from his uncle. This
encounter "made [Daisy] feel really shitty." Still, Pires
indicated to Daisy that he wanted her to "do another one." Daisy
responded that she did not want to do so because she was not
comfortable with it. Around that time, however, Daisy also
described the MegaPersonals website to Pires, and they created an
account on MegaPersonals.
Pires and Daisy lasted only about a week and a half at
Pires's mother's house before they were kicked out for not paying
- 7 - rent. Pires did not have a job, nor anywhere else to stay, so he
and Daisy spent their nights sleeping in cars in a parking lot.
At some point in July 2019, Pires's friend, Eli, offered
Pires and Daisy a place to stay in Norwood, Massachusetts. Daisy
knew Eli because he often was at Pires's mother's house. And Eli
knew Daisy was a runaway minor because he saw her missing person's
report. Notwithstanding this knowledge, Eli offered to house her
and Pires at Burke's apartment. Burke, Eli said to Pires and
Daisy, was "a crack head" and "his bitch" who "would do anything
for him." Pires told Daisy that Burke's apartment would be a
better place for Daisy to sell her body.
Pires and Eli brought Daisy to Burke's home. Before
arriving, Eli warned Pires and Daisy that Burke could not know
Daisy's real identity or age. So, together, Daisy, Pires, and Eli
concocted fake identities for Daisy and Pires: Daisy claimed to be
a twenty-one-year-old woman named Melissa, and Pires went by Mikey.
For about two weeks, Pires, Daisy, Eli, and Burke all
lived in Burke's one-bedroom apartment. Just after moving in,
Pires and Daisy began orchestrating commercial-sex transactions.
Pires and Daisy posted advertisements on the MegaPersonals
accounts they had created, offering Daisy for commercial sex. Both
Pires and Daisy communicated with customers, using their
respective phones as well as Burke's. Daisy engaged in commercial
sex with customers primarily in Burke's bedroom and, on some
- 8 - occasions, multiple times a day.2 The men would pay Daisy
afterward, and she would give the money to Pires. Eli and Pires
were not always at Burke's apartment when Daisy engaged in
commercial sex; however, they each were there during some of the
commercial-sex transactions. In fact, Pires told Daisy she could
not be too loud during commercial sex because "[h]e would get
jealous" if he heard her and thought she "was actually enjoying
it."
B. Burke's Testimony
Burke also testified about her involvement in the
relevant events. At the outset, she explained her relationship
with Eli. After meeting at a bar, she and Eli quickly developed
a relationship. It started out with Eli providing Burke free
drugs; specifically, crack cocaine. Burke, at the time, suffered
from a substance-use disorder, taking approximately "five hits [of
crack cocaine] a day." Eventually, her relationship with Eli
became sexual. And after about a month of knowing Burke, Eli
started to bring his friends to Burke's apartment to "[s]moke a
lot of [marijuana]." Eli did this two-to-three days per week.
One day, Eli showed up to Burke's apartment with his
friend "Mikey" (i.e., Pires). They asked Burke if Pires and his
Daisy testified that she and Pires slept on a mattress in 2
Burke's room. Burke confirmed this arrangement, later testifying that Pires and Daisy slept in her room and that she slept on her couch.
- 9 - friend could stay at Burke's apartment. After Burke consented,
Pires brought in "Melissa" (i.e., Daisy).
For approximately two weeks, Pires, Daisy, and Eli
stayed with Burke, during which time Burke learned that Daisy was
Pires's girlfriend. Pires told Burke as much, and moreover, he
and Daisy were intimate in front of Burke. Burke also testified
that she could hear them having sex because it was a small
apartment.
At some point, Burke started letting Pires and Daisy use
her phone, which they did "[a] lot." They consistently answered
text messages and phone calls using Burke's phone. Burke grew
suspicious that they were using the phone to engage in commercial
sex, and she confirmed that suspicion when Daisy had sex with a
man after stating that she "had an appointment." Burke further
testified that when Daisy engaged in commercial sex, Pires
generally would leave the apartment and return just after Daisy
received the money from the customer. Burke said that Daisy never
kept the money; instead, she always handed it over to Pires. Pires
was noticeably insistent with Daisy, Burke indicated, often
demanding that Daisy see more customers to make more money for
him. Although Burke admitted that she did not hear the details of
conversations between Pires and Eli regarding sex trafficking, she
said that "Eli knew everything that was going on, because it was
- 10 - just -- when you're in a small house, and that's what's going on,
everybody in the house knows about it."
Burke confessed that failing to intervene to stop the
commercial sex is one of her biggest regrets. She failed to do
so, however, because "[she] was so drugged up" on drugs that Eli
gave her, for the most part, for free.
C. Analysis
We review de novo a preserved challenge to the
sufficiency of the evidence.3 Buoi, 84 F.4th at 37. In so doing,
we "examine the evidence, both direct and circumstantial, in the
light most favorable to the prosecution and decide whether that
evidence, including all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude beyond a reasonable
doubt that the defendant committed the charged count or crime."
United States v. Santonastaso, 100 F.4th 62, 68 (1st Cir. 2024)
(quoting United States v. Cruz-Díaz, 550 F.3d 169, 172 n.3 (1st
Cir. 2008)). But "we do not view each piece of evidence
separately, re-weigh the evidence, or second-guess the jury's
credibility calls." United States v. Minor, 63 F.4th 112, 125
(1st Cir. 2023) (quoting United States v. Acevedo-Hernández, 898
F.3d 150, 161 (1st Cir. 2018)). "[W]e will reverse only if the
verdict is irrational." Buoi, 84 F.4th at 38 (alteration in
The government concedes that Pires preserved his challenge 3
to the sufficiency of the evidence.
- 11 - original) (quoting United States v. Connolly, 341 F.3d 16, 22 (1st
Cir. 2003)).
The thrust of Pires's argument as it relates to a
conspiracy with Eli is that there was insufficient evidence that
he reached an agreement with Eli to commit sex trafficking of
Daisy. Pires contends, rather, that the government has proven no
more than the fact that Eli gave his homeless friend (i.e., Pires)
a place to live, knowing that Pires was sex trafficking Daisy but
not necessarily intending it to happen. We disagree. There was
sufficient evidence to allow a rational factfinder to conclude
that Pires and Eli conspired to violate 18 U.S.C. § 1591(a)(1).
We begin with conspiracy principles. To prove a
conspiracy, "the government must show beyond a reasonable doubt
that the defendant and one or more coconspirators intended to agree
and . . . to commit the substantive criminal offense which was the
object of their unlawful agreement." United States v. Perrotta,
289 F.3d 155, 160 (1st Cir. 2002) (quoting United States v.
Escobar-de-Jesus, 187 F.3d 148, 175 (1st Cir. 1999)). "[T]he
fundamental characteristic of a conspiracy is a joint commitment
to an 'endeavor which, if completed, would satisfy all of the
elements of [the underlying substantive] criminal offense.'"
Ocasio v. United States, 578 U.S. 282, 287 (2016) (second
alteration in original) (quoting Salinas v. United States, 522
U.S. 52, 65 (1997)).
- 12 - The substantive underlying offense here -- sex
trafficking of a minor in violation of § 1591(a)(1) -- requires
proof in relevant part that someone: (1) knowingly (2) by means of
"interstate or foreign commerce," (3) "recruit[ed], entice[d],
harbor[ed], transport[ed], provide[d], obtain[ed], advertise[d],
maintain[ed], patronize[d], or solicit[ed] by any means a person,"
(4) "knowing . . . that the person has not attained the age of 18
years and will be caused to engage in a commercial sex act."4
Construed in the light most favorable to the verdict,
the evidence sufficed to establish that Eli conspired with Pires
to violate § 1591(a)(1) by knowingly "harbor[ing]" and
"maintain[ing]" Daisy with knowledge that she was under eighteen
years old and would be caused to engage in commercial sex. For
one thing, Pires conceded in his opening brief that "[t]here was
evidence that Eli knew that . . . Pires was trafficking Daisy and
that Eli helped them find a place to stay knowing that they would
continue these activities." And the record no doubt supports that
concession: Daisy testified that Eli saw her missing person's
notice, which contained her age; she testified that Eli was
sometimes there when she engaged in commercial sex; and Burke
4 We evaluate the sufficiency of the evidence against the statutory elements, not the jury instructions. See Musacchio v. United States, 577 U.S. 237, 243 (2016) ("We hold that . . . a sufficiency challenge should be assessed against the elements of the charged crime . . . .").
- 13 - testified that her apartment (where Daisy engaged in commercial
sex) was small enough that everyone inside it knew that Daisy was
engaging in commercial sex. What is more, evidence in the record
indicated that Eli's role went well beyond merely providing a
friend, Pires, with shelter: (1) Eli ideated the plan to move Pires
and Daisy to Burke's apartment; (2) he instructed Pires and Daisy
to conceal their identities from Burke, including by using fake
names and a fake age for Daisy;5 (3) after Pires talked with Eli
about the plan, Pires told Daisy that Burke's house would be a
better place to sell her body; (4) after Pires and Daisy moved
into Burke's small, one-bedroom apartment, Eli maintained the
status quo by continuing to supply Burke with drugs; and (5) after
Burke and Daisy were brought to the Norwood PD station, Eli texted
Burke "you fuck me over . . . every[]time."
Given that evidence, a jury could reasonably have
inferred that Eli tacitly agreed with Pires to harbor or maintain
Daisy knowing that she would engage in commercial sex. See United
States v. Alejandro-Montañez, 778 F.3d 352, 358 (1st Cir. 2015)
("The agreement . . . may consist of no more than a tacit
5 Pires argues that "[t]he fake name and age could have been to conceal Daisy's status as a minor and a runaway," not because, as the government would have it, Eli was trying to prevent Burke from finding out that Pires was sex trafficking a minor. That is an alternative explanation, to be sure, but in reviewing the sufficiency of the evidence, we draw all reasonable inferences in favor of the jury's verdict. See Muñoz-Martinez, 79 F.4th at 50.
- 14 - understanding." (citation omitted)); see also United States v.
Guzman-Ortiz, 975 F.3d 43, 48 (1st Cir. 2020) ("[D]ue to the
clandestine nature of criminal conspiracies, the law recognizes
that the illegal agreement may be either express or tacit and that
a common purpose and plan may be inferred from a development and
collocation of circumstance." (quotation marks and citation
We are unconvinced by Pires's arguments to the contrary.
First, Pires contends that Eli's mere knowledge of, or proximity
to, the illegal conduct is not by itself sufficient to establish
a conspiracy. In Pires's view, the government had to prove that
Eli acted with specific intent to cause Daisy to engage in
commercial sex. But even if we accept that contention (about which
we express no opinion), there was enough evidence, construed in
the light most favorable to the verdict, to demonstrate that Eli
did, in fact, have such an intent.
We have long recognized that in cases such as this, where
the government's evidence of a conspiratorial agreement rests
largely on circumstantial evidence, "[t]he attendant circumstances
tell the tale -- and the culpability of a[n alleged
coconspirator's] presence hinges upon whether the circumstances
fairly imply participatory involvement." Guzman-Ortiz, 975 F.3d
at 48 (quoting United States v. Echeverri, 982 F.2d 675, 678 (1st
Cir. 1993)). Far from incidental, Eli's involvement here was, as
- 15 - we outline above, instrumental, "undercut[ting Pires's] claim that
the evidence showed only [Eli's] 'mere presence' at a
conspiratorial event." United States v. Vázquez Rijos, 119 F.4th
94, 101 (1st Cir. 2024); cf. Guzman-Ortiz, 975 F.3d at 48. Simply
put, the jury was permitted to infer that Eli would not have
engaged in the aforementioned conduct unless he was conspiring
with Pires.6 See United States v. Flanders, 752 F.3d 1317, 1330
(11th Cir. 2014) (holding that "the jury could infer that [a
coconspirator] would not have known to [engage in certain conduct]
unless he were in on the [scheme]"); see also United States v.
Llinas, 373 F.3d 26, 32 (1st Cir. 2004) ("[A] jury is free to rely
on its common sense and may infer that criminal conspirators do
not involve innocent persons at critical stages of a [crime]."
(citation omitted)).
Second, Pires says there was no evidence suggesting that
Eli established his relationship with Burke for the sole or
specific purpose of harboring Daisy. Pires points to Eli and
Burke's preexisting arrangement: they knew each other months
6Both in his briefing and at oral argument, Pires points to the lack of direct evidence showing Eli's intent to join the conspiracy. But we are unmoved by this argument because circumstantial evidence alone may prove a conspiratorial agreement. See Guzman-Ortiz, 975 F.3d at 48; see also United States v. Adorno-Molina, 774 F.3d 116, 121 (1st Cir. 2014) ("[S]pecific intent 'may be established through circumstantial evidence alone.'" (quoting United States v. Cortés-Cabán, 691 F.3d 1, 15 (1st Cir. 2012))).
- 16 - before Pires stayed at her apartment, and throughout that time,
Eli provided Burke drugs in exchange for sex and a place for him
and his friends to hang out. The record evidence, however,
indicated that this preexisting relationship was precisely the
reason why Eli felt confident about offering Burke's abode to Pires
and Daisy in the first place. That is, Eli viewed Burke as "a
crack head" and "his bitch" who "would do anything for him," so
he, the jury could have inferred, felt confident that he and Pires
could harbor Daisy there. Pires cites no authority to support the
contention that, to conspire, Eli would have needed to change his
behavior or increase payments to Burke for the specific purpose of
harboring Daisy. Nor do we see good reason to require any such
change in the terms of his preexisting affairs.
Third, Pires attempts to distinguish Eli's involvement
from other cases in which courts have found sufficient evidence of
conspiracies. Specifically, Pires cites a slew of out-of-circuit
cases, arguing that the government failed to show evidence that
Eli "help[ed] convince Daisy to participate in sex work, photograph
Daisy, post advertisements, communicate with potential buyers,
collect money from Daisy or . . . Pires, engage in other sex
trafficking, or communicate with Daisy or . . . Pires about sex
trafficking." See, e.g., United States v. Coulter, 57 F.4th 1168,
1180 (10th Cir. 2023); United States v. Wysinger, 64 F.4th 207,
213–14 (4th Cir. 2023); United States v. Mack, 808 F.3d 1074, 1081
- 17 - (6th Cir. 2015); Flanders, 752 F.3d at 1330; United States v.
Walsh, 827 F. App'x 30, 33 (2d Cir. 2020) (summary order).7 As we
note above, however, § 1591(a)(1) criminalizes a host of
conduct -- including "recruit[ing], entic[ing], harbor[ing],
transport[ing], provid[ing], obtain[ing], advertis[ing],
maintain[ing], patroniz[ing], or solicit[ing]." And liability
attaches to any of the acts in that disjunctive list of verbs.
See United States v. Brooks, 610 F.3d 1186, 1197 (9th Cir. 2010)
(rejecting defendant's argument that "there was no evidence that
he persuaded or enticed [the minors] to become involved in
prostitution" because the jury could find that defendant
"knowingly transported, as well as harbored, the girls").
At oral argument, Pires focused on the Fourth Circuit's 7
opinion vacating a conspiracy conviction in United States v. McMillan, 813 F. App'x 846 (4th Cir. 2020). But material factual distinctions render the decision inapposite. In McMillan, the government put forth evidence to show that (1) in May 2014, a prostitute left one pimp-defendant for another pimp-defendant; (2) at a later date, one defendant sometimes gave rides with no documented relationship to sex trafficking to the other one; and (3) after one defendant was arrested, the other defendant contacted him on Facebook allegedly to assist him in escaping jail. Id. at 849–50. The Fourth Circuit vacated the conviction because "there [wa]s neither direct nor circumstantial evidence sufficient to prove that Miller knew Jackson in May 2014 and intentionally released B.E. to him, that the rides Miller admitted to giving Jackson in the summer of 2014 were in support of Jackson's sex-trafficking activities, or that Miller and Jackson's Facebook correspondence in September 2014 was part of a plot to stymie the police investigation." Id. at 850. Here, conversely, the evidence the government laid out clearly established that Pires and Eli had a relationship that pre-dated the sex trafficking of Daisy, and that Eli's introduction and vouching secured the place needed for the trafficking operation.
- 18 - Likewise, here, the jury here could reasonably have found that Eli
knowingly harbored and maintained Daisy. It is thus of little
import that the cases Pires cites involve defendants who engaged
in different conduct prohibited by § 1591(a)(1).
Fourth, Pires points to our decision in United States v.
Canty, asserting that the government failed to establish
interdependence between him and Eli. See 37 F.4th 775, 795 (1st
Cir. 2022). That argument misses the mark. We assess
interdependence only to discern whether multiple actors' conduct
evinces "a single general agreement," United States v. Ramos-Baez,
86 F.4th 28, 51 (1st Cir. 2023) (quoting United States v. Portela,
167 F.3d 687, 695 (1st Cir. 1999)), to participate in a "single
overarching conspiracy" rather than "individual agreements with
various actors at different times," Canty, 37 F.4th at 793. We
need not engage in that inquiry here because, for the reasons we
give above, the evidence sufficiently demonstrated Eli's tacit
agreement to conspire specifically with Pires.8
IV. EVIDENTIARY CHALLENGES
We next turn to Pires's contention that the admission of
certain expert testimony corrupted the jury's verdict. Before
8Having identified sufficient evidence to establish a conspiracy between Pires and Eli, we decline to address Pires's challenge to the evidence underlying the conspiracy between Pires and his uncle. See Pena, 24 F.4th at 74.
- 19 - reaching the merits, we must determine whether Pires preserved his
objections. To do so, we recount the relevant history.
A. SA Garrabrant's Testimony and Pires's Objections
Prior to trial, the government indicated that it would
offer SA Garrabrant as an expert on:
(1) The types of victims that are commonly recruited by pimps to engage in commercial sex acts;
(2) The typical means sex traffickers use to target, recruit, manipulate, and maintain victims;
(3) The [c]ommon ways that sex traffickers maintain control over victims' actions and to prevent victims from leaving the relationship;
(4) The common reactions of victims of sex trafficking to the abuse;
(5) The logistics of a sex trafficking operation; [and]
(6) Terms utilized in the sex trafficking industry.
Pires filed a motion in limine objecting to the first four
categories of anticipated testimony. In his motion, Pires argued
that such testimony was irrelevant under Federal Rule of Evidence
("Rule") 401 and thus unhelpful to the jury under Rule 702. He
pressed, too, for exclusion of the testimony under Rule 403
because, he believed, the anticipated testimony amounted to
"highly prejudicial profiling," which "may in fact touch on the
evidence in [Pires's] case," and would "thus encourag[e] the
factfinder to infer guilt merely because his case may have
consistencies with other cases of this nature."
- 20 - During trial, but before SA Garrabrant took the stand,
Pires renewed his objections. He stated, in relevant part:
I'll just refresh my objection for the record. . . . The testimony that I'm primarily concerned about is testimony about common or typical traits of victims or common or typical traits of traffickers. . . .
So for the reasons I expressed in my brief, we would object to that. We think that there's no relevance to it. This is an individual case. This is about the evidence as to this victim and Mr. Pires. What might happen in other cases is not relevant, has no tendency to prove anything with respect to this case, and we foresee significant danger of undue prejudice, in that it both profiled the victim, implying that there are -- that alleged victims who may have certain traits are victims, and defendants who have certain traits or characteristics are traffickers. And for those reasons, we're objecting to testimony along those lines.
Then and there, the district court rejected Pires's
objections. It stated that the anticipated testimony would be
helpful to the jury in general and was different in kind from the
testimony described in the "profiling" cases Pires had cited. The
district court did, however, express concern about the
government's request to ask SA Garrabrant hypothetical questions.
To allay those concerns, the government indicated that it would
not ask such questions without first seeking the court's approval
at sidebar. The district court then stated that Pires's "rights
[we]re preserved."
- 21 - Not long after that colloquy, SA Garrabrant took the
stand. We summarize the portions of his testimony relevant to the
instant appeal.
At the outset, SA Garrabrant answered questions related
to his qualifications to testify as an expert. Pires had no
objection to SA Garrabrant's qualifications, but he reiterated his
"objection to the subject matter that we discussed previously."
The district court again overruled the objection. SA Garrabrant
then briefly explained that he had no familiarity with the case:
he did not review any reports related to the investigation, did
not speak to any witnesses, did not know the concerned individuals'
names, and was not in the courtroom while other witnesses
testified. He confirmed that he was "basically [t]here . . . to
testify blindly about what [he] kn[e]w about the commercial sex
trafficking trade."
Turning to the substance, SA Garrabrant described common
characteristics among the sex-trafficking victims that he had
interviewed. He opined that victims of sex trafficking are often
vulnerable due to trauma, mental health issues, substance-use
disorders, or a combination of all three. He said that those same
characteristics are common in minor victims. He further stated
that minors who "go through child services" or are "in and out of
shelters," are "very vulnerable" to sex trafficking. He explained
- 22 - that instability -- e.g., a lack of shelter, food, and
necessities -- "make[s] kids more vulnerable."
SA Garrabrant then shifted to delineating typical
patterns of pimps. Pimps, he noted, are typically "super
charismatic" individuals who exploit the vulnerabilities of their
victims, employing a grooming process to attract their victims.
He said that pimps typically begin the grooming process by
establishing strong relationships with the victims. For instance,
he elaborated, pimps might give victims a place to stay, buy them
food and clothes, or supply them with drugs to exploit
substance-use disorders.
SA Garrabrant opined, however, that the grooming process
differs based on the type of pimp. He stated that "finesse
pimping" typically involves a pimp with "great powers of
persuasion." Such pimps use persuasive tactics "to both recruit
and keep girls in the stable." By "stable," SA Garrabrant
clarified, he "mean[t] a group of girls -- like if you have three
girls working for the same pimp, that's called his stable."
He then contrasted finesse pimps with "gorilla pimps."
He explained that gorilla pimps "use a lot of finesse to get their
girls and recruit them," but unlike finesse pimps, gorilla pimps
"can be incredibly violent." Gorilla pimps, he added, often "steal
girls from other pimps, [and] they're more likely to
use . . . physically assaultive behavior." SA Garrabrant offered
- 23 - an example: "If a girl tries to leave, [a gorilla] pimp [is] going
to be extremely physically assaultive," by in some cases, "us[ing]
extreme forms of physical and sexual torture and abuse." He
explained that finesse pimps and gorilla pimps are in that way
"very different."
Homing in on finesse pimping, SA Garrabrant underscored
a common dynamic between finesse pimps and their victims: the
victims often view the pimps as their "boyfriend[s]." Pimps find
this dynamic important because it establishes trust between them
and the victims. And so, he emphasized, when the police show up,
victims are less likely to "tell on [their] boyfriend[s]."
SA Garrabrant then described the purpose of the grooming
process. After having established a strong relationship with the
victims, finesse pimps typically persuade them to begin engaging
in commercial sex. "[G]etting them to that point," SA Garrabrant
stated, is the goal of the grooming process. Once that "first
date"9 occurs, in SA Garrabrant's experience, a pimp has a stronger
grasp on the victim. As SA Garrabrant put it, "a pimp will tell
you . . . [,] once that first date is done, [the victim is] mine."
After that, SA Garrabrant indicated, sex traffickers
commonly focus on maintaining control over the victims. Generally,
9 SA Garrabrant defined a "date" as a commercial sex transaction, specifically, "the act of the female meeting the male for a sexual engagement."
- 24 - they give victims "street name[s]" and cut off the victims from
their support systems, which increases victims' reliance on
traffickers. In addition, even though the victims engage in
commercial sex, SA Garrabrant said, pimps continue to reinforce
that they are the victims' boyfriends, by, for example, continuing
to have intimate sexual relationships with the victims. In so
doing, SA Garrabrant explained, the pimps attempt to create
"completely dependent" victims, making "it[] really, really hard
[for the victims] to leave."
Next, SA Garrabrant explained how pimps regulate the
commercial-sex trade. Pimps, he said, often control the finances.
"[A] lot of pimps," he added, "will strip search girls and make
sure they're not hiding any money," and there are "repercussions"
"if [the victims] get caught hiding money." The pimps also often
set the rates customers must pay in exchange for commercial sex.
Moreover, SA Garrabrant testified, pimps often prohibit victims
from engaging in commercial sex with Black men. SA Garrabrant
stated that "sometimes [he]'ll see in an ad[vertisement that] the
girl will post 'no black men.'" That is because, SA Garrabrant
elaborated, it is common for pimps to attempt to steal sex workers
from other pimps, and pimps perceive minority men as more of a
threat to steal the victims.
SA Garrabrant finally testified about the common
reactions of victims after they have been rescued or interviewed
- 25 - by law enforcement. Victims "very rare[ly]" incriminate their
pimps immediately after they have been rescued by law enforcement.
This hesitance to confide in law enforcement, SA Garrabrant opined,
is a result of the pimps' efforts to reinforce the victims'
reliance on them.
Pires did not contemporaneously object to any of SA
Garrabrant's testimony.
B. Preservation
On appeal, Pires takes aim at two buckets of SA
Garrabrant's testimony. The first bucket relates to SA
Garrabrant's testimony about typical patterns used by sex
traffickers and typical dynamics between sex traffickers and their
victims (we refer to this as "typical-patterns-and-dynamics
testimony"). The second bucket concerns SA Garrabrant's testimony
regarding "gorilla pimps," or pimps who use violence and abuse to
coerce and control sex workers (we call this the "gorilla-pimp
testimony").
The government does not dispute that Pires preserved his
objections as to the typical-patterns-and-dynamics testimony, so
the challenge is preserved. See United States v. Encarnación-Ruiz,
787 F.3d 581, 586 (1st Cir. 2015) ("When the government fails to
request plain error review, we, and many of our sister circuits,
review the claim under the standard of review that is applied when
the issue is properly preserved below." (collecting cases)). But
- 26 - the parties do spar over whether Pires preserved his challenge to
the gorilla-pimp testimony. For its part, the government argues
that Pires's pre-testimony objections were different from the
arguments he now presses. Pires counters that he preserved that
argument when he objected -- before trial and at trial before SA
Garrabrant offered any expert testimony -- to the general
relevance of SA Garrabrant's anticipated testimony.
Ordinarily, a defendant must timely -- and
specifically -- raise an evidentiary objection to preserve his or
her appellate rights. See Fed. R. Evid. 103; see also United
States v. Encarnacion, 26 F.4th 490, 503–04 (1st Cir. 2022)
("Ordinarily, a defendant must object to particular evidence at
trial in order to preserve his appellate rights."). Thus,
determining whether a party preserved a claim for appeal is often
a straightforward task: the party either objected below or didn't.
See, e.g., United States v. Pérez-Greaux, 83 F.4th 1, 31 (1st Cir.
2023). We do, however, permit a defendant to raise an evidentiary
"objection before trial by a motion in limine." Encarnacion, 26
F.4th at 504. And if "the district court's rejection of the
defendant's position is unconditional, the defendant's objection
may be deemed preserved even if not raised again at trial." Id.
But when the ruling is "preliminary, conditional, or 'tentative'"
and "'clearly invites the party to offer the evidence at
trial,' . . . the [defendant] has an obligation to raise [the
- 27 - objection] again to preserve the claim." United States v. Grullon,
996 F.3d 21, 30–31 (1st Cir. 2021) (quoting United States v.
Almeida, 748 F.3d 41, 50 (1st Cir. 2014)). Critically, we have
said -- indeed, "emphasize[d]" -- that Rule 103 places the onus on
the objecting party "to clarify whether an in limine or other
evidentiary ruling is definitive when there is doubt on that
point." United States v. Takesian, 945 F.3d 553, 562 (1st Cir.
2019) (quoting Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003)).
Here, we hold that Pires failed to preserve his claim of
error as to the gorilla-pimp testimony for two independent reasons.
First, Pires nowhere "argue[s] that th[e] rulings [on the motion
in limine] were final rather than tentative, so [his] failure to
renew his objection at trial triggers plain error review on
appeal." Almeida, 748 F.3d at 50. Second, even if unconditional
as to SA Garrabrant's anticipated testimony, Pires offered only a
general relevance objection that does not suffice to cover the
specific challenges he raises on appeal.
We expand on the latter. Our starting point is our
discussion in United States v. Rivera Rangel, where we aptly
stated:
The fact that a party has preserved an objection does not mean that, on appeal, the party can raise any conceivable ground in support of that objection. In the context of a ruling admitting evidence, we have explained that a "lack of specificity bars the party aggrieved by the admission of the evidence from raising more particularized points for the first time on
- 28 - appeal." . . . [A] contrary holding would enable a party to retrench after an adverse jury verdict and ask an appellate court to view the trial judge's evidentiary rulings through a new and different lens. This sort of second-guessing is antithetic to the core purpose of procedural default rules.
466 F.3d 158, 162 (1st Cir. 2006) (citation omitted).
That rationale is determinative here. Recall Pires's
pre-trial objections. In his motion in limine, he explained that
he was objecting to four broad categories of anticipated testimony.
He emphasized his "grave[] concern[] that SA Garrabrant's
'generalized' testimony may in fact touch on the evidence in his
case, thus encouraging the factfinder to infer guilt merely because
his case may have consistencies with other cases of this nature."
(Emphasis added.) During trial, but before SA Garrabrant
testified, Pires twice reiterated his objection, noting that he
was "primarily concerned about [the] testimony about common or
typical traits of victims or common or typical traits of
traffickers" because he "fores[aw] significant danger of undue
prejudice, in that it both profiled the victim, implying that there
are -- that alleged victims who may have certain traits are
victims, and defendants who have certain traits or characteristics
are traffickers." Nowhere did Pires object that SA Garrabrant's
testimony would impermissibly touch on conduct in which Pires did
not engage. Overruling the objection, the district court stated:
"I don't think it's the kind of profiling that the cases [Pires]
- 29 - cited talked about. I think it's different. I think it will be
helpful to the jury in general." Shortly thereafter, the district
court stated, "Your rights are preserved, by the way."
To the extent Pires interpreted the district court's
ruling as definitively resolving any future relevance objection,
he is wrong. Sure, the district court said that Pires's rights
were preserved. But the district court reached its decision before
SA Garrabrant offered any expert testimony and after having heard
only Pires's general relevance objection and his more specific
objections about the profling nature of the anticipated testimony.
So, when the district court qualified its pre-testimony ruling
that it did not think the anticipated testimony constituted
profiling and that the testimony "w[ould] be helpful to the jury
in general" (emphasis added), the court was, at most, holding that
the anticipated testimony would not constitute profiling and the
four objected-to categories of anticipated testimony generally fit
the case. Nothing more. Far from ordaining as relevant all of SA
Garrabrant's testimony to follow, that ruling left to Pires the
duty to level specific objections to otherwise objectionable
testimony elicited at trial in accordance with Rule 103. Plainly
stated, even if the district court's ruling preserved Pires's
objections on some grounds, Pires's general and conclusory
invocation of the word "relevance" in his pre-testimony objection
did not preserve his claim as to the gorilla-pimp testimony. See
- 30 - id. ("[A] 'lack of specificity bars the party aggrieved by the
admission of the evidence from raising more particularized points
for the first time on appeal.'" (citation omitted)).
Similar to what we said in Rivera Rangel, see id., a
contrary holding here would eviscerate Rule 103(a) and its
underlying purposes: "to allow the judge to avoid error" at trial
and "get the ruling right," United States v. O'Brien, 435 F.3d 36,
39 (1st Cir. 2006), and to permit the government to "cure[] the
objection by introducing" the evidence in an appropriate manner,
United States v. Bailey, 270 F.3d 83, 87–88 (1st Cir. 2001).
Moreover, such a rule would "increase the heavy burdens already
imposed on trial judges in criminal cases," who would have to sua
sponte anticipate any potential relevance issues without the aid
of a contemporaneous objection. United States v. De La Cruz, 902
F.2d 121, 124 (1st Cir. 1990) (citation omitted). We refuse to
approve such a practice.
Therefore, unlike Pires's preserved objection to the
typical-patterns-and-dynamics testimony, Pires's objection to the
gorilla-pimp testimony is unpreserved. Turning now to the
substance of Pires's evidentiary challenges, we accordingly review
his challenge to the typical-patterns-and-dynamics testimony for
abuse of discretion and his challenge to the gorilla-pimp testimony
for plain error.
- 31 - C. Typical-Patterns-and-Dynamics Testimony
We first consider Pires's objections as outlined in his
motion in limine. Specifically, Pires argues that the
typical-patterns-and-dynamics testimony (1) was inadmissible
under Rules 702 and 401; (2) amounted to impermissible "profiling"
testimony; and (3) improperly "bolster[ed]" the credibility of
certain witnesses.
As we note above, because the government did not argue
Pires failed to preserve this objection, we review for abuse of
discretion. See Encarnación-Ruiz, 787 F.3d at 586. Under that
standard, we afford broad discretion to the "district judge, who
sees and hears the challenged evidence first hand in the context
of the overall trial." United States v. Gordon, 954 F.3d 315, 327
(1st Cir. 2020) (quoting United States v. Montas, 41 F.3d 775, 783
(1st Cir. 1994)). We will overturn the district court's
evidentiary determination "only if it represents a manifest abuse
of discretion." Id.
1. Objection Under Rules 702 and 401
Invoking Rules 702 and 401, Pires argues that the
district court should have prohibited SA Garrabrant from
testifying about typical sex-trafficking patterns and common
dynamics between sex traffickers and their victims. According to
Pires, that testimony did not help the jury understand an opaque
industry and was irrelevant. Although we have not yet had occasion
- 32 - to decide whether sex-trafficking-pattern testimony, like SA
Garrabrant's, is permissible under Rule 702, our precedent
inevitably leads to the conclusion that it is.
The admissibility of expert testimony is governed by
Rule 702, which provided at the time of Pires's trial:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702 (2011); 10 see also Fed. R. Evid. 401 (the general
relevance rule). The Supreme Court has interpreted Rule 702 as
"assign[ing] a 'gatekeeping role for the judge' to determine that
'an expert's testimony both rests on a reliable foundation and is
relevant to the task at hand.'" Martínez v. United States, 33
F.4th 20, 24 (1st Cir. 2022) (quoting Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993)). We do not, however,
As we noted in D'Pergo Custom Guitars, Inc. v. Sweetwater 10
Sound, Inc., Rule 702 was amended in December 2023. 111 F.4th 125, 140 n.11 (1st Cir. 2024). Because that amendment occurred after Pires's trial, "we apply the version of Rule 702 in effect at the time of the . . . trial." Id.
- 33 - permit expert testimony "when its 'subject . . . is well within
the bounds of a jury's ordinary experience' and so it 'has little
probative value' but 'might unduly influence the jury's own
assessment of the inference that is being urged.'" Gordon, 954
F.3d at 327 (quoting Montas, 41 F.3d at 784).
To that end, consider first whether the sex-trafficking
industry and methods used by sex traffickers are beyond the ken of
laypeople. District courts making that determination are guided
by a "common sense inquiry." Montas, 41 F.3d at 783 (citation
omitted). Common sense, along with our precedent, dictates that
the intricacies of the sex-trafficking industry and the typical
dynamics between pimps and prostitutes fall well outside the
understanding of the average juror.
For decades in our circuit, "[w]e have admitted expert
testimony regarding the operation of criminal schemes and
activities in a variety of contexts." Gordon, 954 F.3d at 327
(quoting Montas, 41 F.3d at 783). We have held to be beyond the
ken of an average juror expert testimony about the "typical methods
of drug dealers," United States v. Monell, 801 F.3d 34, 45 (1st
Cir. 2015); "the nature of narcotics trafficking by vessels,"
United States v. Peña-Santo, 809 F.3d 686, 694–95 (1st Cir. 2015);
and "certain roles in . . . [a] crime family's 'extensive criminal
organization,'" Montas, 41 F.3d 783 (quoting United States v.
Angiulo, 897 F.2d 1169, 1189 (1st Cir. 1990)). We have said the
- 34 - same for expert testimony regarding "the behavioral reactions of
abuse victims." United States v. Alzanki, 54 F.3d 994, 1006 (1st
Cir. 1995). More recently, we explained that the average juror
"would [not] be familiar with prototypical grooming behavior by an
individual seeking out sex with minors." United States v.
Soler-Montalvo, 44 F.4th 1, 17 (1st Cir. 2022). SA Garrabrant's
typical-patterns-and-dynamics testimony is no exception; the
testimony falls outside the common knowledge of the average
layperson.
Such testimony was plainly relevant, too. It, among
other things, described the sex-trafficking industry and
illuminated how Pires's romantic relationship with Daisy "could be
part of a seduction technique." United States v. Romero, 189 F.3d
576, 585 (7th Cir. 1999); cf. also Soler-Montalvo, 44 F.4th at 15,
16–17 (calling expert testimony about "patterns of online
predators" "highly relevant to and probative of the key issue in
the case" where it, conversely, "sought to explain . . . how
seemingly sinister conduct could be part of innocent sexual
fantasy"). It, moreover, may have helped the jury assess Daisy's
credibility, which Pires sought to undermine throughout trial "by
pointing out the inconsistencies in [her] testimon[y], and by
intimating that [she] would not have remained with [Pires] if he
had mistreated [her] as [she] claimed." United States v. Anderson,
560 F.3d 275, 281–82 (5th Cir. 2009) (quoting United States v.
- 35 - Anderson, 851 F.2d 384, 393 (D.C. Cir. 1988)); see also United
States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001) (explaining
the jury might be "in the dark" about pimp-victim relationships
and thus "may be unprepared to assess the veracity of an alleged
pimp, prostitute, or other witness testifying about
prostitution"); United States v. Rivera, No. 22-2780, 2024 WL
2813548, at *2 (2d Cir. June 3, 2024) (summary order) (approving
expert testimony about "trauma bonding" because it "would help
jurors understand . . . why a sex trafficking victim might express
affection for their trafficker").
The overwhelming weight of authority from our sister
circuits further supports the admissibility of such expert
testimony as well. See, e.g., United States v. Robinson, 993 F.3d
839, 849 (10th Cir. 2021) (special agent testimony about "pimping
and prostitution culture" "provided a basis on which the jury could
infer that Defendant recruited a vulnerable girl seeking structure
and stability in her life"); United States v. Young, 955 F.3d 608,
615 (7th Cir. 2020) (testimony that "defined key terms and
explained common sex-trafficking dynamics"); United States v.
Szczerba, 897 F.3d 929, 939–40 (8th Cir. 2018) (testimony regarding
"what pimps and prostitutes 'typically' do," including testimony
about "how pimps recruit, control, coerce, and advertise
prostitutes" and "practices [pimps] commonly use[]"); Brooks, 610
F.3d at 1196 (testimony about, among other things, pimps' methods
- 36 - of "isolat[ing] new prostitutes from familiar areas"); Anderson,
560 F.3d at 281 (testimony about "typical characteristics of
adolescent prostitutes and . . . the behavior of pimps"); Taylor,
239 F.3d at 998 (similar); Anderson, 851 F.2d at 393–94 (similar);
United States v. Jenkins, No. 21-4447, 2024 WL 4891180, at *6 (4th
Cir. Nov. 26, 2024) (broad testimony "about the 'typical human
trafficking experiences of its victims and the common behaviors of
traffickers'" (citations omitted)); United States v. Warren, 774
F. App'x 778, 782 (4th Cir. 2019) (per curiam) (similar).
Given our precedent and that of our sister circuits, we
hold that the district court did not abuse its discretion when it
denied Pires's motion in limine to prohibit SA Garrabrant's
typical-patterns-and-dynamics testimony.
2. Profiling Objection
We turn next to Pires's claim that SA Garrabrant's
testimony amounted to impermissible "profiling." By that, Pires
means that SA Garrabrant's typical-patterns-and-dynamics testimony
improperly "encouraged the jury to convict [Pires] because the
conduct described by witnesses mirrored what SA Garrabrant
described as 'typical' sex trafficking." We are unpersuaded.
At the outset, we concur with the D.C. Circuit that "the
'profile' label is not helpful in distinguishing admissible from
inadmissible expert testimony." United States v. Long, 328 F.3d
655, 666 (D.C. Cir. 2003), abrogation on other grounds recognized
- 37 - by United States v. Mohammed, 89 F.4th 158, 164 (D.C. Cir. 2023).
Instead, courts must look to "the Federal Rules of Evidence and
the purpose for which the evidence is offered: whether it is
designed improperly to illuminate the defendant's character or
propensity to engage in criminal activity, or whether instead it
seeks to aid the jury in understanding a pattern of behavior beyond
its ken." Id.
One problem: Pires does not cite a specific Rule to
support his contention, and several of our sister circuits have
addressed so-called "profiling" objections under different Rules.
See, e.g., United States v. Sosa, 897 F.3d 615, 619 (5th Cir. 2018)
(analyzing a "profiling" objection under Rule 704); United States
v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990) (same, under Rule
403); United States v. Gillespie, 852 F.2d 475, 479–80 (9th Cir.
1988) (same, under Rule 404).11 Under any of those Rules, however,
Pires's challenge fails.
11 In support of his "profiling" argument, Pires also cites to the Second Circuit's decision in United States v. Mejia, 545 F.3d 179 (2d Cir. 2008). But that case made no mention of profiling. To be sure, the court did caution against the dangers of admitting factual testimony under the guise of expert testimony. See id. at 190 ("An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization's hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence."). The issue with the expert testimony there, however, was that it concerned factual matters "well within the grasp of the average juror." Id. at 194. As such, the testimony was inadmissible because of Rule 702's requirement that it be based on "scientific, technical, or other
- 38 - Start with Rule 704(b). It "prohibits an expert witness
from testifying that a 'defendant did or did not have the mental
state or condition that constitutes an element of the crime
charged.'" Peña-Santo, 809 F.3d at 694 (quoting Rule 704(b)).
Pires argues that SA Garrabrant's testimony regarding typical
sex-trafficking patterns implicitly suggested to the jury that
Pires acted as a sex trafficker. But that challenge falls flat
for an elementary reason: "Rule 704(b) applies only to opinions
about the defendant," and since SA Garrabrant "did not express an
opinion about [Pires him]self . . . , his testimony did not
violate Rule 704(b)." Diaz v. United States, 602 U.S. 526, 534
(2024) (emphasis added).
Turn then to Rule 404(a). Citing United States v.
Gillespie, Pires ostensibly argues that SA Garrabrant's testimony
violated Rule 404(a) by impugning Pires's character. See 852 F.2d
at 479. But the expert testimony in Gillespie is distinguishable.
There, the expert testified about the background "characteristics
of a molester," and the government used said testimony as
substantive evidence of guilt. Id. at 480 (emphasis added). Here,
specialized knowledge" -- not because it impermissibly profiled the defendant. Id.
Here, SA Garrabrant came nowhere close to "substitut[ing] expert testimony for factual evidence of" the underlying crime. Id. at 195. Indeed, he explained at the beginning of his examination that he had no familiarity with the facts of the case or even the names of the concerned individuals.
- 39 - to the contrary, SA Garrabrant's testimony touched on the patterns
employed by -- i.e., the modus operandi (m.o.) of -- child sex
traffickers. Cf. United States v. Cross, 928 F.2d 1030, 1050 n.66
(11th Cir. 1991) (distinguishing Gillespie). We routinely permit
experts to opine on the m.o. of certain types of criminal activity.
See, e.g., Soler-Montalvo, 44 F.4th at 17 (approving expert
testimony about "whether [the defendant's] actions were consistent
with patterns of known pedophiles or child molesters, similar to
testimony on whether a defendant's actions are consistent with the
patterns of other drug dealers in a case charging intentional
distribution of drug"). And because the government used SA
Garrabrant's typical-patterns-and-dynamics testimony in that
way -- rather than to show that Pires's "poor character made him
likely to" engage in sex trafficking of minors -- it did not run
afoul of Rule 404. United States v. Williams, 900 F.3d 486, 491
(7th Cir. 2018) (Barrett, J.); see also id. at 490–91 (rejecting
defendant's argument under Rule 404 where government used expert
"testimony to show that [defendant's] actions were consistent with
common tactics that pedophiles used to lure their victims"); Long,
328 F.3d at 667–68 (approving "expert testimony regarding the modus
operandi" of sexual predators over Rule 404(a) objection). So we
reject Pires's challenge under Rule 404(a).12
Although it appears SA Garrabrant made passing reference 12
to certain characteristics of sex traffickers -- e.g., "super
- 40 - Finally, we analyze Pires's profiling objection under
Rule 403. "[T]he standard for exclusion under Rule 403 is a high
one." Soler-Montalvo, 44 F.4th at 16. The Rule "permits exclusion
not when the evidence is merely outweighed by the dangers of its
admission, but only when it is 'substantially outweighed.'" Id.
(quoting Fed. R. Evid. 403). To support his Rule 403-based
argument, Pires invokes the Fourth Circuit's decision in United
States v. Simpson, where the panel held that the district court
abused its discretion by admitting testimony about the defendant
fitting the "drug courier profile" without the presence of any
factual "evidence linking [the defendant] to the drug trade." 910
F.2d at 157. The problem there, though, was not the expert
testimony itself; it was how the expert testimony, standing alone,
had no probative value in the absence of any supportive factual
evidence.13 As the Fourth Circuit explained:
The relevant issues in dispute at [the defendant's] trial were his knowing possession of a gun and his intent to board the shuttle to New York. The drug courier testimony had very little probative value to offer on these issues while the government made [the defendant's] status as a drug courier the centerpiece of its case.
charismatic," "a great talker," "very good at reading people," and "really good at understanding vulnerabilities and . . . manipulating" -- Pires does not contend that the government argued or introduced any evidence at trial suggesting that he had such characteristics. 13Notably, the Fourth Circuit acknowledged that "[i]f there were any evidence linking [the defendant] to the drug trade, the probative value of th[e] testimony might" be sufficient to outweigh the prejudicial effect under Rule 403. Simpson, 910 F.2d at 157.
- 41 - Id. at 158. "Under th[o]se circumstances," the Fourth Circuit
concluded, "the inherent risk of inflaming the jury, and of
misleading it into focusing on the government's unsubstantiated
and uncharged allegations of drug crimes, was unacceptably high."
Id. Not so here. The government charged Pires with the
substantive offense of sex trafficking a minor and conspiracy to
commit that offense, and SA Garrabrant's testimony, in conjunction
with Daisy's and Burke's testimony, was probative of topics
directly at issue in the trial -- i.e., common tactics used by sex
traffickers, the types of victims commonly exploited, and a common
dynamic between victims and their traffickers.
Our decision in Soler-Montalvo buttresses that
conclusion. 44 F.4th at 14–18. There, the defendant appealed his
conviction for attempting to persuade, induce, or entice a minor
to engage in criminal sexual activity. Id. at 6. Among other
arguments on appeal, the defendant contended that the district
court erred when it excluded the expert testimony of a psychologist
who "would have compared the conversations and surrounding
circumstances of th[e] case to the patterns of online predators
and identified inconsistencies, thus suggesting that [the
defendant's] actions did not accord with those of a typical
predator." Id. at 14–15. We agreed with the defendant. After
concluding that such expert testimony did not violate Rule 704(b),
- 42 - we turned to Rule 403's "balancing test." Id. at 16. And, under
that rubric, we held that the psychologist-expert's
"not-a-typical-predator testimony was highly relevant to and
probative of the key issue in the case." Id. at 16–17. That is,
the "excluded testimony bore directly on the credibility of [the
defendant's] testimony concerning his state of mind and sought to
explain (just in the converse of oft-admitted government-expert
testimony) how seemingly sinister conduct could be part of innocent
sexual fantasy." Id. at 17 (citing Long, 328 F.3d at 666–68); see
also id. ("Testimony that [the defendant's] actions were
inconsistent with the typical m.o. of one attempting to entice a
minor -- as opposed to engaging in role-play with a consenting
adult -- [wa]s highly relevant to th[e] charge.").
So too here. SA Garrabrant's testimony about patterns
of child sex traffickers and the techniques they use to attract,
groom, and then control victims -- in other words, "the typical
m.o. of" child sex traffickers -- was highly relevant to the
charges in this case. Id.
Of course, Rule 403's balancing act requires an
evaluation of the countervailing interests. Where, as here, the
objecting party is faced with highly probative evidence, we expect
them to point out "great" "countervailing interests weighing
against . . . admission" to exclude the testimony under Rule 403.
Id. at 18. For substantially the reasons we provide above, Pires
- 43 - has failed to do so. Therefore, his profiling challenge under
Rule 403's rubric also fails.
3. Bolstering Objection
Pires's last challenge to SA Garrabrant's
typical-patterns-and-dynamics testimony is that it impermissibly
bolstered the prosecution's witnesses. That argument is
unavailing.
"An expert's opinion that another witness is lying or
telling the truth is ordinarily inadmissible . . . because the
opinion exceeds the scope of the expert's specialized knowledge
and therefore merely informs the jury that it should reach a
particular conclusion." United States v. Teganya, 997 F.3d 424,
430 (1st Cir. 2021) (quoting United States v. Gonzalez-Maldonado,
115 F.3d 9, 16 (1st Cir. 1997)). Nevertheless, it is well within
a district court's discretion to permit expert testimony that
"merely provid[es] context that might prove counter-intuitive to
a layperson," without specific reference to another witness's or
victim's testimony. Id. Of particular relevance here, we have
permitted over a "bolstering" objection expert testimony regarding
"the behavioral reactions of abuse victims," explaining that
"[t]he overwhelming weight of authority" favors admissibility.
Alzanki, 54 F.3d at 1006;14 see also United States v. Johnson, 860
Pires tries to distinguish Alzanki by pointing to the 14
expert's credentials in that case. To the extent Pires seeks to
- 44 - F.3d 1133, 1140 (8th Cir. 2017) (approving "expert testimony about
how individuals generally react to sexual abuse," which may "help[]
jurors evaluate the alleged victim's behavior").
That is precisely what SA Garrabrant did here. He
described typical traits of victims and explained why they often
form strong bonds with their pimps. He explained how such bonds
often discourage victims from running away from or exposing the
pimps. He likewise informed the jury why sex workers commonly
question customers about their racial identities. True, SA
Garrabrant's testimony tended to support Daisy's story even though
SA Garrabrant neither mentioned her nor claimed to comment on the
specific facts of this case. But improper witness bolstering
occurs when an expert "testif[ies] that [a] particular
victim/witness could be believed." Hoult v. Hoult, 57 F.3d 1, 7
(1st Cir. 1995); see also Teganya, 997 F.3d at 430 (rejecting a
bolstering argument where expert "did not purport to be
testifying . . . about [defendant] specifically"); Johnson, 860
F.3d at 1140–41 (noting that the expert cannot "impermissibly
'vouch' for the victim by, for example, diagnosing the victim with
challenge SA Garrabrant's credentials, the argument is waived. He did not object to SA Garrabrant's credentials below, nor has he developed any such contention on appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 45 - sexual abuse or expressing an opinion that sexual abuse has in
fact occurred"). SA Garrabrant did no such thing.
D. Gorilla-Pimp Testimony
Next, Pires contends that the district court erred by
permitting SA Garrabrant to testify about gorilla pimps.
Specifically, Pires takes exception to SA Garrabrant's testimony
describing the term "stables" of women, indicating that sex
traffickers sometimes "steal" sex workers from each other, and
referring to certain pimps as violent toward sex workers. Pires
says that such testimony was irrelevant under Rule 401 and thus
unhelpful to the jury under Rule 702 and that, even if relevant,
the testimony's probative value was substantially outweighed by a
danger of undue prejudice under Rule 403.
We review these arguments for plain error because, as we
conclude above, Pires failed to preserve them below.15 Under our
plain error review, Pires faces the "heavy burden of showing
(1) that an error occurred; (2) that the error was clear or
obvious; (3) that the error affected his substantial rights; and
(4) that the error also seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
15Pires does not conduct any analysis under our plain error standard in his original brief. The government argues that that omission means the claim of error is waived. We need not decide this point because, even on plain error review, Pires's challenge fails.
- 46 - States v. Latorre-Cacho, 874 F.3d 299, 303 (1st Cir. 2017) (quoting
United States v. Prieto, 812 F.3d 6, 17 (1st Cir. 2016)).
Before reaching the analysis, we must frame the
question. The question is not whether the district court abused
its discretion by admitting irrelevant testimony that unduly
prejudiced Pires over a contemporaneous objection. Rather, the
issue before us is whether the district court clearly or obviously
erred by failing to sua sponte strike, or give a curative
instruction after SA Garrabrant offered, the gorilla-pimp
testimony.
Viewed through that lens, we cannot say that the district
court erred, let alone plainly or obviously so. "The general rule
seems to be that a cautionary instruction should be given, if
requested, but the failure of the trial court to give one sua
sponte is not reversible error." United States v. Rivera-Santiago,
872 F.2d 1073, 1083–84 (1st Cir. 1989) (collecting cases). The
same rule applies where counselled defendants make the "seemingly
plausible strategic choice[]" not to object to the admission of
objectionable evidence. United States v. LeMoure, 474 F.3d 37, 44
(1st Cir. 2007) ("[I]f counsel has not objected to evidence . . . ,
it does not necessarily follow that the judge has erred by
tolerating the evidence . . . ."). "[O]ne could describe such
choices as waivers of claims of error, [while] others might say
- 47 - that there is no error at all when counsel is content and foregoes
an optional objection." Id. (citation omitted).
While perhaps harsh, this rule is undergirded by weighty
principles. For one thing, lawyers sometimes make strategic
choices not to object, "think[ing] that 'objectionable' testimony
from an adverse witness helps more than it hurts or that a
cautionary instruction will underscore testimony best ignored."
Id. And trial judges, saddled with the heavy burden of
"superintending a fast-paced criminal trial," cannot play mind
reader: from their perch, it is not "easy to know . . . how sua
sponte interference . . . can disrupt counsel's own strategy, even
when the purpose of the judge is to help rather than to hinder."
United States v. Cudlitz, 72 F.3d 992, 1002 (1st Cir. 1996). Given
these practical considerations, we are "extremely reluctant" to
"mandat[e] that the district courts act sua sponte to override
seemingly plausible strategic choices on the part of counselled
defendants." De La Cruz, 902 F.2d at 124.
With that background in mind, we cannot say that, in the
context of this case, the district court clearly or obviously erred
by failing to sua sponte strike, or give a curative instruction
after, SA Garrabrant's gorilla-pimp testimony.
Recall the context. Prior to SA Garrabrant's taking the
stand, Pires objected, citing "grave[] concern[]" that SA
Garrabrant's testimony would too closely resemble "the evidence in
- 48 - [t]his case, thus encouraging the factfinder to infer guilt merely
because his case may have consistencies with other cases of this
nature." (Emphasis added.) He reiterated this same objection
twice.
Recall, too, what occurred when SA Garrabrant ultimately
took the stand at trial. He testified about some conduct that
closely resembled Pires's and other conduct that did
not -- specifically, he contrasted "gorilla" pimps, who are
violent toward and strip search sex workers, with finesse pimps
and defined the term "stable[s]" of women. In a similar manner,
he described typical dynamics between pimps and sex workers, some
of which tracked Pires's relationship with Daisy and some of which
did not.
Rather than timely and specifically objecting during the
direct examination, Pires opted to wait until cross-examination to
draw out distinctions between SA Garrabrant's testimony and the
facts of the case. For instance, he asked SA Garrabrant about:
(1) pimps doing "[b]ody cavity searches" and "[v]ery invasive
type[s] of stuff" to keep money from sex workers; (2) methods pimps
commonly use to exert control over victims, including controlling
sleeping schedules, isolating victims from family and friends,
prohibiting victims from associating with other men, and taking
possessions away; and (3) pimps wanting sex workers who are
"compliant," "rule follower[s]," and "not too headstrong." And,
- 49 - in closing, Pires sought to capitalize on these distinctions.
Pires specifically sought to paint himself as a man who: (1) had
one girlfriend (not stables of women); (2) never strip searched
Daisy for money (indeed, he let her have money); (3) did not shower
Daisy with gifts; and (4) did not isolate Daisy. Pires explained
to the jury that SA Garrabrant's testimony was about "professional"
or "predatory pimps" who take young girls from youth shelters or
suburbs "into the city and win[e] and din[e] them"; "us[e] violence
and threats against women and their families"; or "travel women
around or put them up in hotels, cavity searching and strip
searching their women after dates." Those patterns, Pires argued,
are "[h]orrible situations that have nothing to do with this case."
In light of Pires's conduct before and during
trial -- i.e., his pre-testimony objections, lack of
contemporaneous objections, cross-examination, and closing
arguments -- the district court reasonably could have understood
Pires to be making a strategic choice to use SA Garrabrant's
allegedly objectionable testimony to show how Pires's "actions
were not consistent with illegal activity." Soler-Montalvo, 44
F.4th at 15; see also De La Cruz, 902 F.2d at 124 (holding no
reversible error where, "for tactical reasons, defendant may have"
chosen not to object). Thus, we discern no error, let alone clear
or obvious error, on the district court's part.
- 50 - A note of caution. There certainly was a risk that SA
Garrabrant's gorilla-pimp testimony could amount to "unfair
prejudice," especially because of "the sordid and disturbing
nature of [the] subject matter." Anderson, 851 F.2d at 393.
Indeed, we think that, if Pires had contemporaneously objected at
trial, it would have been proper for the district court to strike
the testimony or give a curative instruction. But Pires did not
do so. See Cudlitz, 72 F.3d at 1002 ("[W]e think that while a
cautionary instruction would plainly be proper at the time that
the question is asked and denied, its omission is not normally
error where no such contemporaneous instruction was requested.").
And although we will not lightly infer that a criminal defendant's
non-objection amounts to a plausible strategic decision, the
context here reasonably indicates that Pires's non-objection was
a considered part of his trial strategy. District courts are not
required to sua sponte intervene in such circumstances.
V. STATEMENTS DURING SUMMATION
Pires's final challenge takes aim at some of the
prosecutor's statements during closing and rebuttal. We recite
the relevant events prior to and during summation.
As part of the government's case in chief, it called
Daisy, who underwent direct and cross-examination. Once she
finished testifying, she was dismissed from the witness stand.
But shortly afterward, the district court received documents from
- 51 - DCF in response to a subpoena issued by Pires. The documents
included statements that Daisy made to a social worker on August 8,
2019, which arguably undermined Daisy's credibility.
Pires expressed a desire to question Daisy about the
allegedly inconsistent statements. The government objected,
arguing that further questioning would be improper. In advocating
its position, the prosecutor stated (outside the presence of the
jury) that "if we're going to have [Daisy testify] again, in a
room full of strangers with the defendant, the only person who
should be seen putting her through that is the defense."
The district court permitted Daisy to testify as part of
the defense's case, allowing the defense to call Daisy back to the
stand during the government's case in chief. The district court
explained to the jury that Daisy was called out of order "just for
scheduling reasons." When Daisy took the stand, both Pires and
the government asked questions.
Summation occurred later that day. During the
government's closing argument, the prosecutor said:
I expect that you may be implored by the defense not to believe Daisy. And when they ask you not to believe her, ask yourselves what in the world would be her motivation to come in here and lie, to walk through those doors and take that witness stand twice and face a room full of strangers, to face the defendant, to discuss her body and what was done to it by multiple adult men with the help of the defendant, to be forced to view an advertisement selling her body, text message[s] detailing how much she was worth, pornographic images
- 52 - and videos that she knew about and, yes, some that she did not.
She did not tell the uniform male officers, who she met for the first time on August 1, 2019, that she had been trafficked. When the police -- the people she was evading came in and separated her from the person she thought she loved, she did not immediately tell on her boyfriend. On August 1st, 2019, or as Daisy was brought back in here today to tell you, on August 8, 2019, when she spoke with DCF. (Emphasis added.)
Pires objected at the conclusion of the government's
closing argument. He contended that the prosecutor's statement
impermissibly implied that he had "d[one] something improper by
making" Daisy come back into court to testify, and that the
statements also amounted to vouching. The district court noted
the objection but took no other action.
Pires's counsel then had an opportunity to close. Sure
enough, defense counsel sought to impugn Daisy's credibility,
calling her, among other things, "a troubled teenager, who had a
very strong will, and a fiercely independent and rebellious
streak." Defense counsel continued by attempting to paint Daisy
as the mastermind behind the commercial sex and describing her
story as inconsistent. In fact, on multiple occasions, defense
counsel said that Daisy lied. For instance, defense counsel
insisted that Daisy's story about having commercial sex with
Pires's uncle "simply did not happen," and directly stated that
"[s]he lied to you" (i.e., the jury) and "got caught lying to you"
(again, the jury) about who was communicating with the customers.
- 53 - Defense counsel likewise suggested to the jury that Daisy had
racial biases. In particular, to undermine Daisy's testimony that
Pires was the one who texted customers about their racial
identities, defense counsel stated that it was Daisy who sent the
texts and said: "race is something that appears to matter a great
deal to Daisy in that text," and, on another occasion, "[r]ace
matters to Daisy." Defense counsel took aim, too, at Burke's
credibility, calling her an "addict" and accusing her of lying
multiple times.
Next up, the prosecutor's rebuttal. The prosecutor
started with:
I'm not going to get up here and call people liars or addicts or racist because I'm not allowed to do that and because it's not my job to do that. You all were picked for a reason. You were picked because you bring with you common sense, and it is your responsibility, your sole responsibility to judge the credibility of witnesses who come into this room, who raise their right hand, and who take an oath to tell the truth. It is your job to judge that credibility, not mine, and certainly not [defense counsel's].
Although Pires did not object at trial, he now takes issue with
the prosecutor's remarks in rebuttal.
A. Preservation
Pires contends (1) that the prosecutor's statement, "as
Daisy was brought back in here today to tell you," implied to the
jury that Pires did something improper by recalling Daisy to
testify; and (2) that the prosecutor's initial remarks on rebuttal
- 54 - improperly impugned the role of defense counsel. Pires preserved
the former challenge but concedes that he did not preserve the
latter. We review preserved challenges to improper arguments
during summation de novo and unpreserved challenges for plain
error. See Pérez-Greaux, 83 F.4th at 30.
B. Closing Statements
We begin with the prosecutor's statement in closing: "as
Daisy was brought back in here today to tell you."16 Viewing that
statement in context, as we must, we discern no misconduct and
thus no error. See United States v. Bennett, 75 F.3d 40, 46 (1st
Cir. 1996) (viewing prosecutor's remarks "[i]n context"). The
statement was one of "incontrovertible truth" -- Daisy was brought
to court twice to testify before the jury. United States v.
Taylor, 848 F.3d 476, 490 (1st Cir. 2017). What is more, Pires's
contention that the statement implied to the jury that he did
something wrong by recalling Daisy to testify carries no water
because that "was not the comment's 'manifestly intended' or
'natural[] and necessar[y]' meaning when read in the context of
the defense's closing argument." United States v.
Vázquez-Larrauri, 778 F.3d 276, 286 (1st Cir. 2015) (alterations
16Pires also contends in his brief that "[t]he government used this improper argument to bolster the credibility of its witness." This lone sentence is unaccompanied by any developed argument, and so the argument is waived. See Zannino, 895 F.2d at 17.
- 55 - in original) (quoting United States v. Newton, 327 F.3d 17, 27
(1st Cir. 2003)). And we do "not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging meaning or
that a jury, sitting through a lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations." Id.
(quoting United States v. Taylor, 54 F.3d 967, 979 (1st Cir.
1995)); cf. Dagley v. Russo, 540 F.3d 8, 17 (1st Cir. 2008)
(explaining that the Supreme Court has "warned courts against
giving too much weight to stray remarks in the course of a closing
argument or assuming that the jury would interpret each and every
statement in the most damaging manner possible" (citing Donnelly
v. DeChristoforo, 416 U.S. 637, 647 (1974))).
C. Rebuttal Remarks
We are also unconvinced that the district court's
failure to sua sponte strike the prosecutor's statements in
rebuttal amounted to plain error.
"An error is only clear or obvious when it is
indisputable in light of controlling law." United States v.
Facteau, 89 F.4th 1, 27 (1st Cir. 2023) (quotation marks and
citation omitted). Discerning whether there was error here
requires us to determine whether the prosecutor's statements in
rebuttal crossed the blurry "line separating acceptable from
improper advocacy." United States v. Young, 470 U.S. 1, 7 (1985).
Not only that: even if there is "no doubt the prosecutor" crossed
- 56 - the line, "[r]eversal is appropriate only if the improper remarks
were so egregious as to amount to plain error." United States v.
Nickens, 955 F.2d 112, 121 (1st Cir. 1992). "We evaluate the
prosecutor's comments . . . 'not in sterile isolation, but within
the framework and context of the actual trial,'" id. (quoting
United States v. Rodriguez-Estrada, 877 F.2d 153, 159 (1st Cir.
1989)), which includes reviewing "the prosecutor's improper
remarks . . . in light of defense counsel's analogous impropriety
in provoking them," id. at 122.
In this case, even assuming that the prosecutor's
statements amounted to improper advocacy, we hold that the comments
were not so egregious as to constitute plain error. We have long
acknowledged that "summations in litigation often have a rough and
tumble quality." Bennett, 75 F.3d at 46. So we afford prosecutors
"some leeway to respond to inflammatory attacks mounted by defense
counsel." Nickens, 955 F.2d at 122 (quoting Rodriguez-Estrada,
877 F.2d at 158). On plain error review, we are reluctant to
reverse "when a prosecutor's remarks are made to rebut specific
statements by defense counsel[] and are proportionate to that end."
Taylor, 54 F.3d at 978.
Here, the prosecutor's statements in rebuttal, while
provocative, were short and directly refuted remarks by defense
counsel. The statements squarely addressed defense counsel's
similarly provocative remarks in closing -- i.e., that both Daisy
- 57 - and Burke lied to the jury on multiple occasions, that race
mattered a lot to Daisy, and that Burke was a drug addict lying to
absolve herself of liability. See Nickens, 955 F.2d at 121
("[B]oth parties have an obligation 'to confine arguments to the
jury within proper bounds,' and defense counsel, no less than the
prosecutor, 'must refrain from interjecting personal beliefs into
the presentation of his case.'" (quoting Young, 470 U.S. at 8–9)).
In short, "defense counsel's remarks set the tone for the
prosecutor's rebuttal," and the prosecutor made the complained-of
statements "only after defense counsel, in h[er] closing argument,
repeatedly expressed h[er] personal beliefs[ and] accused
prosecution witnesses of lying." Id. at 122.
To be clear, we do not suggest that "a trespass by the
defense gives the prosecution a hunting license exempt from ethical
restraints on advocacy." United States v. Capone, 683 F.2d 582,
586 (1st Cir. 1982) (citation omitted). Had the prosecutor found
defense counsel's statements objectionable, the more prudent
course of action was to object and "ask the District Judge to deal
with defense counsel's misconduct." Young, 470 U.S. at 14. But,
for the reasons outlined above, we cannot say that the district
court clearly erred here by failing to sua sponte strike the
argument.
- 58 - VI. CONCLUSION
For the foregoing reasons, the judgment of the district
court is affirmed.17
17Having upheld Pires's convictions on both counts, we need not reach his argument that vacating one count would warrant resentencing on the other.
- 59 -
Related
Cite This Page — Counsel Stack
138 F.4th 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pires-ca1-2025.