United States Court of Appeals For the First Circuit
No. 18-1648
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN RIVERA GALÍNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado Hernández, U.S. District Judge]
Before
Thompson, Lipez, and Barron, Circuit Judges.
Rick Nemcik-Cruz for appellant. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
June 2, 2021 THOMPSON, Circuit Judge.
Overview
An apartment search by the Puerto Rico police led to
Christian Rivera Galíndez's arrest and indictment for possessing
and aiding and abetting the possession of drugs (cocaine, crack,
and marijuana) with intent to distribute them; and possessing and
aiding and abetting the possession of a gun (a green and black
.40-caliber Glock pistol with an obliterated serial number) in
furtherance of a drug-trafficking crime (we will sometimes shorten
the second charge to "gun possession" or some variant of that, for
easy reading).1 Culpable possession may be "actual or
constructive," as well as "sole or joint." See United States v.
Tanco-Baez, 942 F.3d 7, 25 (1st Cir. 2019) (quotation marks
omitted).2 And the government premised its case on his having
1Per "Spanish naming conventions, if a person has two surnames, the first (which is the father's last name) is primary and the second (which is the mother's maiden name) is subordinate." United States v. Martínez-Benítez, 914 F.3d 1, 2 n.1 (1st Cir. 2019). So we use "Rivera" instead of "Rivera Galíndez" from now on. Also keep the 2 following in mind as we approach the controversy before us: • Constructive possession exists if "a person knowingly has the power at a particular time to exercise dominion and control over an object." United States v. Nuñez, 852 F.3d 141, 145 (1st Cir. 2017) (quotation marks omitted). • "Dominion and control over an object" often "may be found through inference, based on a showing of dominion and control over the area in which the object is found." Id. - 2 - constructively possessed the drugs and the gun, because when the
police came to the apartment with a search warrant in hand, they
found him in a room with these items and only he had a key that
opened a padlock on the apartment's front gate (an officer tried
a key on Rivera's key chain, and it worked).
In the run-up to trial, Rivera moved to suppress the
seized evidence.3 Testifying at a motion hearing, he claimed that
the police had confronted him and his girlfriend as they sat in a
car near the apartment; searched them and his auto; ordered them
to go upstairs to the apartment's living room, on pain of being
tasered if they refused; kept them there as they rifled through
the rooms; showed him the drugs and the gun, a pistol he recognized
as being the one he had hidden in his car; and then hauled them
away in cuffs, with the seized items in tow. The defense's major
theme was that the police had taken the gun from his car and
planted it in the apartment to link him to the drugs there. The
district judge denied the motion, however, a ruling left
unchallenged on appeal.
• And "constructive possession may be found based wholly on circumstantial evidence." Id. FYI, one codefendant found in the apartment with Rivera pled 3
guilty to the gun-possession charge and another codefendant pled guilty to the cocaine-possession and gun-possession charges. - 3 - The trial proceeded apace. And we will have a lot to
say about what went on there. But for now it is enough to note
the following.4 The government elicited testimony showing that
agents found Rivera and others in one of the apartment's bedrooms
— the very room where they discovered the gun (on a bed, partially
obscured by a pillow) and some of the drugs. He — and only he —
had a key that opened the padlock (as we just said). And his
cellphone had photos of drugs. He did not take the stand at trial.
But his lawyer tried to poke holes in the government's
constructive-possession theory through cross-examination, which
Rivera's team hoped would persuade the jury that he had no control
over the apartment and so did not constructively possess the drugs
or the gun. Apparently unconvinced by the defense's efforts, the
jury convicted him on all charges.
Still proclaiming his innocence, Rivera attacks four
evidentiary rulings and three jury instructions. We move straight
to his arguments, laying out the relevant background as needed.
But to give away our conclusion up front, because he offers no
winning ground to reverse, we affirm.
4The background events are essentially undisputed unless otherwise noted. - 4 - Evidentiary Issues
Like the parties, we start with Rivera's complaints
about some of the judge's evidentiary decisions. The first
concerns the judge's ruling admitting evidence of Rivera's prior
gun conviction in a Puerto Rico court — a conviction since vacated
by a Puerto Rico appellate court. The second concerns the judge's
ruling barring the defense from impeaching an agent with a
statement in his police report by a codefendant that the
codefendant had bought the padlock and had a key to it. The third
concerns the judge's ruling excluding audio from a police video of
the apartment search that captured Rivera's telling an agent that
a key seized belonged to the car that the police had already
searched. And the fourth concerns the judge's ruling blocking the
defense from questioning an agent about the "work plan" for the
execution of the search warrant.
The government argues that the judge committed no error
— but if he did, any error was harmless.
Standards of Review
We review preserved objections to evidentiary rulings
for abuse of discretion, reversing only if any abused discretion
caused more than harmless error. See, e.g., United States v.
Taylor, 848 F.3d 476, 484 (1st Cir. 2017) (explaining that the
burden is on the government to show that any nonconstitutional
- 5 - evidentiary error did not affect substantial rights, i.e., that
"it is highly probable that the error did not contribute to the
verdict" (quotation marks omitted)); United States v. Shea, 159
F.3d 37, 40 (1st Cir. 1998) (same). But we review unpreserved
objections for plain error, which is — by design — extremely hard
to establish: an appealing party must show not just error but
error that is plain (which means an irrefutable error given binding
precedent), that is prejudicial (which almost always requires that
the error affected the proceeding's outcome), and that if not made
right by us (using our discretion) would seriously undermine the
fairness, integrity, or public perception of the judicial system.
See, e.g., United States v. Rivera-Carrasquillo, 933 F.3d 33, 48
n.14, 55 (1st Cir. 2019), cert. denied, 140 S. Ct. 2691 (2020).
Rivera's Since-Vacated Prior Conviction
About a month before Rivera committed the acts alleged
in the federal indictment, he (according to a Puerto Rico
complaint) illegally possessed and used a green and black .40-
caliber Glock pistol, one of five charges (including murder and
aggravated robbery) that a nonunanimous jury convicted him on in
a Puerto Rico court (a witness described the gun, apparently — the
police never recovered it). Over the defense's objection, the
judge in our case made two key rulings regarding the admissibility
of the illegal-gun-possession conviction. Citing Federal Rule of
- 6 - Evidence 404(b), the judge found the evidence "special[ly]
probative . . . for knowledge and intent," because it shows, "if
the jury decides to credit it," that Rivera "knew what the firearm
was, how to possess the firearm, how to carry and use a firearm"
— which was "a military green and black" pistol, like the one in
the federal case.5 And citing Federal Rule of Evidence 403, the
judge found the evidence's probative value not substantially
outweighed by any unfair prejudice, because the government would
introduce a redacted judgment omitting any reference to the other
convictions (including the ones for murder and aggravated robbery)
5 Taking a swipe at the judge's "knew what a firearm was" comment, Rivera notes how a district judge in a different circuit did not think much of the government's argument that a defendant's prior gun-related convictions should come in under 404(b) to show "[t]hat he knew what a firearm was," plus "he knew that what he had in his possession was in fact a firearm." "[D]o we really think that there's anybody in the world who doesn't know what a gun is?" the judge there asked. See United States v. Adams, 783 F.3d 1145, 1147 (8th Cir. 2015). But the problem for Rivera is that the Adams judge admitted the prior convictions. And the appellate court found no abuse of discretion. See id. at 1149 (commenting that "[w]e have held on many occasions that prior convictions of firearm offenses are admissible to prove that the defendant had the requisite knowledge and intent to possess a firearm"). - 7 - and because the judge would warn the jury against using this
evidence to infer bad character.6
Testifying for the government at trial, an agent
described the gun taken during the apartment search as "black on
the top and like military color on the bottom" — with the two-
tones being "unusual," because the gun "doesn't come from the
factory in that manner." The agent also noted that the police
found Rivera "in possession of a green, military green and black
pistol" roughly a month before the events giving rise to the
federal charges. And the government entered into evidence redacted
versions of the Puerto Rico complaint and judgment — which (among
other things) made clear that a Puerto Rico jury found him guilty
of carrying "a military green and black gun" (language taken from
the complaint).
The judge then gave an immediate limiting instruction,
telling the jurors that
6 The government first argued that the gun "was similar to the gun in this case" and later argued that it was "actually the same gun" given its "unique" and "peculiar" color scheme. Rivera's briefs claim that the prosecution's ballistics expert in the Puerto Rico case totally debunked the same-gun theory. As support, his briefs cite to defense counsel's argument to the district judge about what he heard had happened at the Puerto Rico trial (counsel did not represent Rivera during the Puerto Rico proceedings). But because attorney argument is not evidence, see United States v. Chisholm, 940 F.3d 119, 128 (1st Cir. 2019), this line of attack does not affect our analysis. - 8 - the conviction you just heard about is not evidence that the defendant has a bad character or that he acted here in conformity with any such character. You may consider that conviction as evidence that he knew what a firearm was, how to possess the firearm, how to carry it from one location to another location and how to use it.
The judge added that
[y]ou may also consider that conviction as evidence of intent to possess that firearm in this case. You should also know that the conviction, which took place in the Puerto Rico Court of First Instance, is on appeal.
The judge's final charge to the jurors included a similar
instruction. "A particular item of evidence," the judge said,
is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose and not for any other purpose. You may recall that such occurred during trial, and I instructed you on the purposes for which the item could and could not be used.
"In particular," the judge explained,
you heard evidence that the defendant was convicted in the Court of First Instance of Puerto Rico of carrying and using without a license in violation of Puerto Rico law a military green and black pistol. The conviction is on appeal.
"It is not evidence," the judge pointed out,
that the defendant has a bad character or that he acted here in conformity with any such character. You may consider it as evidence that he knew what a firearm was, how to possess it, how to carry it from one location to another, and how to use it, as well as for - 9 - whether [he] had the state of mind or intent necessary to commit the crime charged in . . . the [i]ndictment.
Rivera voiced no objections to these instructions.
Rivera thinks the judge gaffed it by ruling that the
prior-conviction evidence had special relevance and was not
unfairly prejudicial. The government, contrastingly, thinks the
judge got it exactly right.
404(b) bans other-acts evidence in some situations but
allows it in others. "Evidence of . . . crime[s], wrong[s], or
act[s]" (other than ones at issue in the case) may not be offered
to "prove a person's character" but may be offered if it has some
special, noncharacter-based relevance — like to prove knowledge or
intent. See, e.g., Fed. R. Evid. 404(b); United States v. Sabean,
885 F.3d 27, 35-36 (1st Cir. 2018). Pertinently for present
purposes, a judge performing a 404(b) analysis must ask whether
the other-acts evidence is specially relevant to something other
than a defendant's character, see Sabean, 885 F.3d at 35 — knowing
that the special-relevance "standard is not particularly
demanding," see United States v. Wyatt, 561 F.3d 49, 53 (1st Cir.
2009) (quotation marks omitted). If the answer is yes, the judge
must then ask whether the evidence's admission would violate 403
— which bars evidence that causes prejudice that substantially
outweighs its probative worth. See Sabean, 885 F.3d at 35; see
- 10 - also United States v. Saccoccia, 58 F.3d 754, 778 (1st Cir. 1995)
(emphasizing that we give a "high degree of deference" to a judge's
"balancing of probative value against unfairly prejudicial
effects"). And if the answer is no, the judge can admit the
evidence unless it is excludable under some other rule.
As a constructive-possession case — again, prosecutors
claimed Rivera constructively possessed the pistol — a key issue
was "whether the defendant was in knowing possession."7 See United
States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir. 1995); see
also United States v. Ridolfi, 768 F.3d 57, 61-62 (1st Cir. 2014)
(recognizing that "[c]onstructive possession of a firearm may be
established when a person knowingly has the power and intention at
a given time of exercising dominion and control over it either
directly or through others" (quotation marks and alteration
omitted)); United States v. McLean, 409 F.3d 492, 501 (1st Cir.
2005) (stating that, when it comes to constructive possession,
"the requisite knowledge and intention can be inferred from
circumstances, such as a defendant's control over the area where
the contraband is found"). And because this element can be hard
to establish, what with defendants often implying that they were
As we will see later (when we take up the instructional 7
issues), Rivera thinks the judge reversibly erred by using the "knowing" mental state for this offense — but he is wrong. - 11 - "merely . . . innocent and unknowing bystander[s]" (as Rivera's
team tried to do on cross-examination), other-acts evidence may be
specially relevant to establish knowledge and intention. See
Aguilar-Aranceta, 58 F.3d at 799; United States v. Powell, 50 F.3d
94, 100 (1st Cir. 1995). Powell nicely illustrates that point. A
case involving firearm possession by a felon, Powell held that
evidence of the defendant's prior gun possession "had special
relevance" to "whether [he] possessed firearms in the months
preceding" the charged crime, "had an opportunity to obtain
firearms," and "had knowledge of the availability of firearms."
See 50 F.3d at 100 (quotation marks omitted); see id. (noting our
prior approval of "the power and the intention" formulation in
discussing "actual or constructive" possession (quotation marks
omitted)).
That Rivera had the same or similar gun about a month
before the facts giving rise to the federal indictment is specially
relevant to the constructively-possessing-a-gun charge
(independent of any taboo character inferences). See id. at 100-
01; see also United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st
Cir. 2008) (holding that prior robberies "occurr[ing] within
fifteen months of the [charged] robbery" were not too remote in
time to be specially relevant); United States v. Fields, 871 F.2d
188, 198 (1st Cir. 1989) (explaining that "there is no absolute
- 12 - rule governing the number of years that can separate offenses").
But wait, says Rivera. The other-acts evidence, he correctly
notes, must be "similar" to the charged crime "to demonstrate the
unlikeliness that the defendant" had innocent-and-unknowing-
bystander status. See Aguilar-Aranceta, 58 F.3d at 799 (emphasis
added). And to his way of thinking, the requisite similarity is
missing here, because (for example, and to quote his brief) the
federal "charge is possessing a gun (constructively) in
furtherance of a drug trafficking crime" while the Puerto Rico
charge was "carrying a firearm without a license." We think
otherwise, however, given the dead-on similarities between the gun
in the federal case and the gun in the Puerto Rico case — both
were green and black .40-caliber Glocks, do not forget. See Wyatt,
561 F.3d at 53 (stressing that other-acts evidence need not be
identical to the charged offense as long as it has "enough . . .
similarity" to allow a jury to infer defendant's knowledge).
Which segues into Rivera's next argument. Perhaps
sensing vulnerability on the similarity front, he attacks the idea
that a "two-toned" Glock is in any way "unique" or "unusual."
Telling us that Glocks are "ubiquitous in Puerto Rico," he claims
that the manufacturer produces pistols with two tones — without,
however, citing any record evidence to support either assertion.
Having failed to raise these arguments below, he must establish
- 13 - plain error. But he makes no attempt to do so. And because it is
not our job to fill in that gap, his "failure waives this claim."
See United States v. Cruz-Ramos, 987 F.3d 27, 40 (1st Cir. 2021)
(citing a bunch of cases); see also United States v. Rodríguez-
Torres, 939 F.3d 16, 40 (1st Cir. 2019); Rivera-Carrasquillo, 933
F.3d at 49.8
Shifting gears, Rivera contends that the other-acts
evidence had "negligible" probative value on the "knowledge or
intent" issues. And that is because, the argument continues
(emphasis ours), "he didn't bring his pistol to the apartment,"
but rather the police did. Not only did he surface this argument
in his reply brief (he omitted it from his opening brief), which
means it comes too late. See Cruz-Ramos, 987 F.3d at 43; Small
Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313, 323 n.11 (1st
Cir. 2017). But his appellate lawyer (who was not his trial
lawyer) conceded at oral argument that he could not say that this
theory ever reached the jury, because he did not order a transcript
"of that part of the case." See Rodríguez v. Señor Frog's de la
8 Sticking with the color issue, Rivera blasts the judge's "limiting instruction" for "higlight[ing] the similar color of the two guns." But his silence in the face of this instruction means he must prove plain error — a feat he does not even try, which dooms this argument. See, e.g., Cruz-Ramos, 987 F.3d at 40; Rodríguez-Torres, 939 F.3d at 40; Rivera-Carrasquillo, 933 F.3d at 49. - 14 - Isla, Inc., 642 F.3d 28, 37 (1st Cir. 2011) (holding that because
the "[p]art[y] pursuing appellate review" did not provide a
transcript we need to perform our appellate function, that party
could not "prevail on [an] issue" it sought to press). Either
way, this aspect of his 404(b) complaint is not a difference-
maker.
Rivera's next argument requires a little more context.
After initial briefing and oral argument here, the Supreme Court
issued Ramos v. Louisiana, 140 S. Ct. 1390 (2020) — a decision
holding that the Constitution requires a unanimous verdict to
convict a defendant of a serious offense. Id. at 1394, 1402. Hard
on the heels of Ramos, Puerto Rico's appeals court vacated Rivera's
conviction for illegally possessing the green and black pistol
(along with the other convictions in that case) and remanded for
a new trial. See People v. Rivera Galíndez, KLAN 201701085, 2020
WL 4741358 (P.R. Ct. of App. May 20, 2020) (certified translation
provided by Rivera and on file with the First Circuit, at Docket
No. 52) (noting that Puerto Rico's Supreme Court has "held that,
in light of [Ramos], a conviction entered by way of a nonunanimous
verdict in our jurisdiction transgresses the procedural safeguards
inherent to the fundamental right to a trial by jury"). So we
ordered supplemental briefing to address the following question:
What impact (if any) does the Ramos decision and Appellant Rivera-Galíndez's vacated prior - 15 - conviction have on the challenged admissibility of the government's evidence at trial and any other issues raised on appeal before this Court?
Responding to our directive, Rivera argues that because
"[t]he prior conviction was overturned" following the Supreme
Court's recently issued Ramos opinion, it should play no role in
the 404(b) analysis. To hear him tell it, "[t]he void conviction
negates the validity of the documentary evidence of [his] prior
bad acts," creates "serious doubt" as to "the validity of" the
agent's testimony, and "constitute[s] a due process violation."
Not true, writes the government, pointing to a Supreme Court case
holding other-acts evidence admissible under 404(b) even though a
jury had acquitted the defendant of that act, see Dowling v. United
States, 493 U.S. 342, 348-49 (1990), and a sibling circuit case
finding a prior conviction admissible under 404(b) even though an
appellate court later reversed that conviction, see United States
v. Sneezer, 983 F.2d 920, 924 (9th Cir. 1992).9
The government also notes (without contradiction) that
Rivera never argued below that the other-acts evidence was
inadmissible because of the nonunanimous verdict. Of course, "[t]o
9 We ourselves have noted that "404(b) by its own terms is not limited to evidence of offenses resulting in convictions, as it refers to other crimes, wrongs, or acts." United States v. Arboleda, 929 F.2d 858, 867 (1st Cir. 1991) (quotation marks omitted). - 16 - preserve a claim, a litigant must" put it forward in the district
court even if the law "is against him" at that time — or else he
must show plain error. See United States v. Acosta-Colón, 741
F.3d 179, 201 n.12 (1st Cir. 2013); see also United States v.
Cotton, 535 U.S. 625, 628-29, 631-32 (2002); Johnson v. United
States, 520 U.S. 461, 464 (1997).10 But by not even trying to
make that showing, he waived this facet of his 404(b) challenge.
See, e.g., Cruz-Ramos, 987 F.3d at 40; Rodríguez-Torres, 939 F.3d
at 40; Rivera-Carrasquillo, 933 F.3d at 49.11
So despite what Rivera argues, the other-acts evidence
had special relevance to the knowledge and intent issues in the
10 That we requested supplemental briefs on Ramos does not excuse Rivera from having to show plain error. A case in point is McLean. There, like here, the Supreme Court issued an important opinion after oral argument before us — i.e., United States v. Booker, 543 U.S. 220 (2005), where the Supreme Court held that mandatory application of the federal sentencing guidelines infracted the Constitution. So we ordered supplemental briefing on that case's impact. 409 F.3d at 504. But because the appellant had not raised any point below that could have preserved the issue — e.g., he had not argued that the then-existing guideline regime offended the Constitution — he had to prove plain error. Id. at 505. 11 A couple more comments before turning to the unfair- prejudice prong of the admissibility test. One: Given our ruling, we need not consider the many arguments in Rivera's supplemental brief for why the judge's decision was not harmless error. Two: We need not consider his supplemental brief's claim that the judge imposed an "erroneous" sentence. After all, our order limited the supplemental briefs to explaining what effect (if any) the Ramos decision and the vacating of his Puerto Rico conviction had on the "issues raised on appeal." And Rivera raised no sentencing issues in his initial briefs. - 17 - case. And we can quickly dispose of his claim that the judge
should have excluded the evidence as unfairly prejudicial under
403 (recall that even if specially relevant, the danger of unfair
prejudice cannot substantially outweigh the evidence's probative
value). As best we understand his prejudice theory, he argues
that the judge's error in admitting the other-acts evidence caused
him not "to testify because his credibility before the jury was
damaged." But the premise of his argument is wrong — his bid to
show error here fails under the applicable standards of review, as
we just explained. His theory therefore has no force. See United
States v. Sutton, 970 F.2d 1001, 1008 (1st Cir. 1992) (noting that
"rare" is the "case in which we should attempt to refigure the
trial court's assessment of the probative worth/prejudicial impact
calculus"). And even if he thinks he raised other prejudice
arguments, we would consider them "waived for lack of development."
See Cruz-Ramos, 987 F.3d at 35 n.5; see also Págan-Lisboa v. Soc.
Sec. Admin., 996 F.3d 1, 7 (1st Cir. 2021) (finding any supposed
arguments "too skeletal or confusingly constructed[,] and thus
waived" (quotation marks omitted)).
Enough said about the other-acts evidence.
Codefendant's Statement
The defense wanted to impeach an agent who testified at
trial that Rivera had "the only keys . . . available at the time
- 18 - . . . that opened" the apartment door. And the defense wanted to
do the impeaching by using the agent's report, which included a
codefendant's claim that he (the codefendant) had purchased the
lock and had a key for it. The judge, however, sustained the
government's objection on hearsay grounds.
The parties spend some time on the hearsay issue. But
it is enough for us to note that even if the judge erred in this
respect (and we are not saying either way), the error was harmless.
As we wrote in the opening paragraph, constructive possession may
be joint — it need not be exclusive, i.e., two people can share
constructive possession over something. See, e.g., United States
v. Hicks, 575 F.3d 130, 139 (1st Cir. 2009); see also United States
v. Howard, 687 F.3d 13, 18 (1st Cir. 2012) (emphasizing that
"[j]oint possession occurs when both the defendant and another
person share power and intent to exercise dominion and control
over contraband" (quotation marks omitted)). And as the government
notes (without any denial from Rivera), the codefendant's comment
would have shown only that another person besides Rivera had a key
to the apartment — not that the codefendant had exclusive control
over the flat. Which gives us "a high degree of assurance" that
the judge's ruling made no difference to the verdict. See United
States v. Kilmartin, 944 F.3d 315, 339 (1st Cir. 2019), cert.
denied, 140 S. Ct. 2658 (2020). Hence our harmless-error holding.
- 19 - Rivera's Statement
Rivera next faults the judge for excluding audio from
part of the apartment-search video that caught him telling an agent
that a key on his chain was for the car that the police had just
searched. Acting on the government's motion in limine, the judge
— over the defense's objection — ruled the statement inadmissible
for hearsay reasons (the video came in, but the jurors did not
hear the statement the defense wanted them to hear).
Trying to get us to reverse this ruling — he thinks the
statement supports his the-police-set-me-up theory — Rivera argues
that the judge had to admit the statement either under the excited-
utterance or the business-record hearsay exceptions. The
government disagrees. But we need not take sides on the parties'
debate, and for a simple reason. Even if one key was for the car,
another key was for the apartment (an agent successfully used a
key to open the padlock, remember) — which linked him to the
apartment, meaning he was not some mere bystander but rather a
constructive possessor of the drugs and the gun given his "control
over the area where the contraband [was] found." See, e.g., Tanco-
Baez, 942 F.3d at 25 (quotation marks omitted). So we think it
"highly probable" that the judge's decision did not influence the
trial's outcome. See Kilmartin, 944 F.3d at 338. In other words,
any error — and we do not intimate there was any — would be harmless
- 20 - at worst. And Rivera gives us no convincing reason that we are
wrong (e.g., he has not adequately developed an argument that the
statement's exclusion affected his ability to present his theory
about how the police brought his gun into the apartment). See
United States v. Henderson, 911 F.3d 32, 37 (1st Cir. 2018)
(pointing out how the defendant had not "rebut[ted] the
government's" harmless-error argument).
Police's Work Plan
The same goes for the judge's decision stopping the
defense from asking an agent about a work plan her supervisor came
up with for the search — a decision based principally on hearsay
grounds, consistent with what the government had argued.
In Rivera's telling, the work plan "indicated" that the
police expected two people at the apartment, neither of whom was
him — which backed up his "defense" that he "was not in control of
the apartment," or so he argues. And, he continues, the judge had
to admit the sought-after evidence either under the business-
record or the existing-state-of-mind hearsay exceptions. Unmoved,
the government says the judge got the hearsay issue exactly right.
We decline to referee this hearsay fight too (so we can set aside
the government's concern about whether Rivera did enough below to
preserve his argument). Suffice to say, his hoped-for evidence
would have shown not that he had no control over the apartment but
- 21 - that other people besides him also had control.12 So again, we
possess the required level of confidence that the jury would in
all likelihood have found him guilty had the fought-over evidence
come in, making any error on this score (if error there was)
harmless. See id.
Instructional Issues
We turn now to Rivera's issues with the jury
instructions. He first claims that the judge erred by instructing
the jury that the mental state required for the gun-possession
charge was "knowingly." He then claims that the judge erred by
telling the jury that "the intent element" for aiding-or-abetting
liability "is satisfied if the defendant had advance knowledge of
the facts that make the principal's conduct criminal," with
"'[a]dvance knowledge' mean[ing] knowledge at a time the defendant
can opt to walk away." And he finally claims that the judge erred
by instructing the jury "on actual possession . . . despite no
evidence of actual possession in the record." The government, for
its part, sees nothing amounting to reversible error.
Standard of Review
The pined-for evidence also may have potentially shown that 12
the police did not know about the evidence establishing Rivera's control until the warrant's execution — but even if true, that would be irrelevant to the jury's guilt-or-innocence determination. - 22 - Rivera concedes that he did not preserve these
challenges below. So our review is at best limited to plain error.
Again, a plain error is an error that is indisputable under current
law that not only affected the defendant's substantial rights but
also seriously endangers the judiciary's public reputation for
fairness and integrity.13 See, e.g., United States v. Takesian,
945 F.3d 553, 563 (1st Cir. 2019); Rivera-Carrasquillo, 933 F.3d
at 48 n.14, 55.
Gun Possession
We can make quick work of Rivera's lead claim. The law
books are full of First Circuit cases holding that knowingly is
the requisite mental state for possessing a gun in furtherance of
a drug crime. See, e.g., United States v. Bobadilla-Pagán, 747
F.3d 26, 35 (1st Cir. 2014); United States v. Bucci, 525 F.3d 116,
132 (1st Cir. 2008); United States v. Flecha-Maldonado, 373 F.3d
170, 179 (1st Cir. 2004). Rivera thinks these cases are wrongly
decided. But they "bind[] district courts and, indeed, this
panel." See In re TJX Cos. Retail Sec. Breach Litig., 564 F.3d
489, 501 (1st Cir. 2009). Which means the disputed gun-possession
13 The government also argues that Rivera intentionally relinquished these arguments below so that he cannot even challenge them as plain error. But we assume favorably to him that he did not. - 23 - instruction does not come "within a country mile of plain error."
See United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016).
Aiding or Abetting
Nor does the targeted aiding-and-abetting instruction.
Consider the first complained-of part — that "the intent element
. . . is satisfied if the defendant had advance knowledge of the
facts that make the principal's conduct criminal." Our caselaw
says (with "caveats" not at issue here) that "to establish criminal
liability . . . for aiding and abetting criminal behavior, . . .
the government need prove beyond a reasonable doubt that the
putative aider and abettor knew the facts that make the principal's
conduct criminal." United States v. Ford, 821 F.3d 63, 74 (1st
Cir. 2016). Now consider the second complained-of part — that
"'[a]dvance knowledge' means knowledge at a time the defendant can
opt to walk away." Supreme Court caselaw indicates that "a
defendant may be convicted of abetting" a firearms crime like
Rivera's "only if his intent reaches beyond a simple drug sale, to
an armed one" — which depends in part on whether he knew that a
colleague had a gun, in time to "do something with" that knowledge,
"most notably, opt to walk away." See Rosemond v. United States,
572 U.S. 65, 76, 78 (2014). The bottom line is that these parts
jibe with controlling law. And "[s]o what [Rivera] offers is
hardly the stuff of plain error." See Cruz-Ramos, 987 F.3d at 45.
- 24 - Actual Possession
Rivera's actual-possession complaint, appearing in a
passing sentence in the brief's summary of argument and then in a
fleeting sentence in the brief's conclusion, is too inadequately
developed to be meaningfully addressed. We thus deem it waived.
See, e.g., Rodríguez v. Municipality of San Juan, 659 F.3d 168,
175 (1st Cir. 2011); United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
Final Words
For the reasons itemized above, we affirm the judgment
entered below.
- 25 -