United States Court of Appeals For the First Circuit
No. 20-1708
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Lipez, Circuit Judges.
Jean C. LaRocque, with whom Shea and LaRocque, LLP was on brief, for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
March 20, 2023 BARRON, Chief Judge. Eric Santiago appeals his 2020
conviction in the United States District Court for the District of
Massachusetts for violating 21 U.S.C. § 841 by "distribut[ing]" or
"possess[ing] with intent to . . . distribute" fentanyl. He claims
that his conviction must be reversed because the evidence presented
at trial did not suffice to support it and that, in the
alternative, it must be vacated due to various trial errors. We
affirm.
I.
The operative indictment charges Santiago with a single
count of distributing and possessing with intent to distribute 400
grams or more of fentanyl in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(vi). The charge arises from Santiago's alleged role
in dropping off a package of fentanyl at the home of Rafael Reyes
-- a cooperating witness working with federal agents who were
investigating drug-distribution networks in Boston -- and later
accepting payment from Reyes for that package. The jury found
Santiago guilty following a four-day trial, and separately found
that Santiago had been previously convicted of an offense that
qualified as a "serious drug felony" under 21 U.S.C.
§ 841(b)(1)(A).
Reyes was the key government witness at the trial. He
testified that on June 16, 2018, Santiago visited Reyes's home
when Reyes was not there, then when Reyes returned, told Reyes
- 2 - that he had some fentanyl for him, walked with Reyes into Reyes's
garage, and showed Reyes a package of fentanyl placed near Reyes's
car. Reyes then testified that Santiago told him to take the
package inside and unwrap it, which Reyes did (saving some wrapping
for federal agents to check for fingerprints). Reyes also
testified that, while he did not pay Santiago for the fentanyl
that day, the two had discussed a price of $70 per gram for the
approximately 500 grams, or $35,000.
Reyes, as well as federal agents working with him on the
investigation, testified that after Santiago left, the agents
instructed Reyes to deliver the package and wrapping to a police
officer working on the investigation. A fingerprint specialist
then examined the package and found one fingerprint, but it did
not match either Santiago or Reyes, and remained unidentified.
The agents also instructed Reyes to text Santiago to negotiate
payment for the fentanyl. For the following two weeks, Reyes and
Santiago exchanged numerous text messages referring to a
"motorbike," which Reyes testified was a coded conversation about
the price of the fentanyl and when Reyes had to pay.
Reyes then testified that on June 21, federal agents
instructed him to drive to Santiago's home in Lynn, Massachusetts,
and make a controlled payment of $5,000, which he did. He also
testified that agents instructed him to negotiate the purchase of
more fentanyl from Santiago, after which Reyes and Santiago
- 3 - exchanged text messages about a "scooter," which Reyes testified
referred to fentanyl. One week after that, on June 28, Reyes
texted Santiago asking to meet in New Bedford, Massachusetts, to
deliver the "titles," which Reyes testified referred to the
remaining $30,000 due for the fentanyl left at his home. When
Santiago arrived, Reyes handed him a bag of money, after which
Santiago drove away. A short time later, agents stopped Santiago's
vehicle and arrested him.
Santiago was convicted and sentenced to 180 months of
imprisonment and ten years of supervised release. He then filed
this timely appeal.
II.
We begin with Santiago's contention that his conviction
must be reversed because it is not supported by sufficient
evidence. Our review is de novo, though we must consider the
evidence in the light most favorable to the verdict. See United
States v. Charriez-Rolón, 923 F.3d 45, 51 (1st Cir. 2019).
Before diving into the analysis, it helps to clear some
ground about what the government was required to prove in light of
the underlying charge as set forth in the indictment. That charge
was set forth in a single count for "distribut[ing]" fentanyl in
violation of 21 U.S.C. § 841 or "possess[ing] with intent to
distribute" fentanyl in violation of that same statute.
- 4 - As Santiago asserts in connection with a challenge he
brings to the District Court's jury instructions, "distribution"
and "possession with intent to distribute" under § 841 can be two
distinct crimes, as the offense of "distribution" does not require
the element of possession, United States v. Cortés-Cabán, 691 F.3d
1, 19 (1st Cir. 2012); see also United States v. Tejada, 886 F.2d
483, 490 (1st Cir. 1989), while the offense of "possession with
intent to distribute" does not require the element of distribution,
Cortés-Cabán, 691 F.3d at 17. And because "[i]t is possible --
albeit unusual -- to be guilty of distribution of a drug without
also possessing it with intent to distribute," United States v.
Sepulveda, 102 F.3d 1313, 1317 (1st Cir. 1996), the offense of
"possession with intent to distribute" is not a lesser-included
offense of "distribution," see Tejada, 886 F.2d at 489–90
(discussing test established in Blockburger v. United States, 284
U.S. 299, 304 (1932), for determining whether two crimes may be
punished as independent offenses).
Thus, we must reject Santiago's sufficiency challenge so
long as the evidence suffices to permit a rational jury to find
beyond a reasonable doubt that Santiago committed the offense of
either distributing fentanyl or possessing fentanyl with the
intent to distribute it. See Jackson v. Virginia, 443 U.S. 307,
318–19 (1979). In contending that the evidence does not suffice
to permit us to affirm his conviction for either offense, Santiago
- 5 - emphasizes the lack of eye-witness testimony that he personally
handled the fentanyl in question, the lack of a single mention of
"fentanyl" or "drugs" in any of the phone calls or text messages
that were introduced at trial, the fact that the fingerprint
recovered from the package that contained the fentanyl was not
his, and the implausibility of the notion that "Santiago suddenly
surprised [Reyes] at his . . . home to 'front' him half a kilo of
fentanyl that Reyes was not expecting without any down payment."
Thus, he contends that there is no evidence in the record that
could suffice to tie him to the fentanyl in question in a way that
would permit his conviction based on either distributing that drug
or possessing it with the intent to distribute it. See United
States v. Valerio, 48 F.3d 58, 64 (1st Cir. 1995) ("[W]e are loath
to stack inference upon inference in order to uphold the jury's
verdict.").
"[I]t is well-settled," however, "that '[t]estimony from
even just one witness can support a conviction.'" United States
v. Maldonado-Peña, 4 F.4th 1, 54 (1st Cir. 2021) (second alteration
in original) (quoting United States v. Negrón-Sostre, 790 F.3d
295, 307 (1st Cir 2015)), cert. denied sub nom. Rivera-Alejandro
v. United States, 142 S. Ct. 729 (2021), Rivera-George v. United
States, 142 S. Ct. 1184 (2022), and Rivera-Alejandro v. United
States, 142 S. Ct. 1185 (2022). And, here, the government called
to the stand Reyes, who testified that Santiago visited Reyes's
- 6 - home, showed Reyes the package of fentanyl in the garage, stated
"I put it right over there," (emphasis added), and invited Reyes
to take possession of it.
Santiago does contend that Reyes was not credible. In
support of this contention, he notes that the record shows that at
the time of events in question Reyes had agreed to become a witness
for the government in return for his release from prison and a
downward departure from a ten-year sentence he otherwise expected
to face.
But, "[o]ur framework for reviewing this kind of
challenge means we give the government the benefit of the doubt
and resolve any questions of witness credibility against the
defendant." Maldonado-Peña, 4 F.4th at 54. Moreover, the
government introduced evidence to corroborate Reyes's testimony in
the form of the package that contained the fentanyl at issue, the
text messages between Reyes and Santiago, and the two controlled
payments that Santiago received from Reyes. See id. at 54–55
(holding that evidence was sufficient not only because one
witness's testimony would alone be sufficient, but also because
additional evidence corroborated the witness's testimony).
Thus, we conclude that Reyes's testimony provides a
sufficient basis for a rational juror to find Santiago guilty of
violating 21 U.S.C. § 841. That is so because the evidence
suffices to show that Santiago possessed fentanyl with the intent
- 7 - to distribute it (based at the least on Reyes's testimony that
Santiago had stated that he had placed the package of the fentanyl
in Reyes's garage) and because it also suffices to show that
Santiago was engaged in distributing fentanyl (given Reyes's
testimony regarding the series of events concerning the placing of
that package in the garage).
III.
We turn, then, to Santiago's contention, in the
alternative, that his conviction must be vacated. Here, he relies
on various claimed trial errors. As we will explain, none has
merit.
A.
Santiago first contends that the District Court erred by
failing to instruct the jury that to render a guilty verdict it
must be unanimous as to whether his offense was for distributing
the fentanyl or possessing it with the intent to distribute it.
This contention starts from the premise -- which is entirely
correct -- that when an indictment charges two or more distinct
offenses in a single count, it is duplicitous, and thus raises the
prospect of a jury finding the defendant guilty on that count
without being unanimous as to which of the two crimes set forth in
that count the defendant committed. See United States v. Newell,
658 F.3d 1, 23 (1st Cir. 2011). This contention also rests on the
premise -- itself entirely correct -- that a district court may
- 8 - ensure this prospect does not come to pass by instructing the jury
that, to convict the defendant based on the count set forth in the
indictment, the jury must be unanimous in finding him guilty beyond
a reasonable doubt of at least one of the offenses set forth in
that charge. See id.
In light of these premises, there is at first blush some
force to Santiago's challenge. The single count of which Santiago
was convicted did combine two seemingly distinct offenses -- the
offense of "distribution" and the offense of "possession with the
intent to distribute" -- and so was duplicitous, thereby
threatening to undermine Santiago's right to a unanimous jury.
See id. Moreover, the District Court chose not to give the
curative unanimity instruction to the jury, even though Santiago
requested that instruction.
Of course, the need for a curative instruction in the
face of a duplicitous indictment only arises if at the time the
instructions are provided there still are two possible offenses in
play, such that a verdict of guilty by the jury on the charged
count would not necessarily reflect a unanimous verdict of guilt
as to either offense. And, although possession with intent to
distribute fentanyl is in principle a distinct offense from the
crime of distributing fentanyl, these distinct offenses "merge"
into a single offense when "the distribution itself is the sole
evidence of possession, or where possession is shown to exist only
- 9 - at the moment of distribution." Sepulveda, 102 F.3d at 1317
(quoting United States v. Rodriguez-Cardona, 924 F.2d 1148, 1159
(1st Cir. 1991)). Thus, the critical question here is whether, at
the time the District Court declined to give the instruction on
unanimity, those theoretically distinct offenses had merged into
one based on what the evidence had shown.
The government contends that the answer to that question
here is in the affirmative, because in this case the sole evidence
that could suffice to support the conviction for "distribution"
-- Reyes's testimony -- also ensured that the offense of
"distribution" merged with the offense of "possession with intent
to distribute." And that is so, the government argues, because
Reyes's testimony was such that both "the distribution itself [was]
the sole evidence of possession" and the "possession [was] shown
to exist only at the moment of distribution." Id.
Santiago disputes this merger-based ground for rejecting
his challenge to the District Court's failure to give the requested
unanimity instruction. He points to the fact that the fingerprint
recovered from the package did not match his own and that no
witnesses testified to seeing him in possession of the fentanyl.
He then contends, based on that feature of the record, that some
jurors could have believed that an unknown "third party" physically
placed the drugs in Reyes's garage. On that reading, Santiago
argues that some jurors could have believed that he was involved
- 10 - in distributing the fentanyl at issue only by showing Reyes where
the package was and inviting him to take possession of it without
ever having handled it, even while other jurors also found based
on Reyes's testimony that Santiago himself had dropped off that
package. Santiago contends in this regard:
If six [jurors] thought Santiago had not possessed the drugs (a likely scenario given the lack of fingerprints, no actual witness seeing possession[,] and the unbelievability of any drug dealer 'fronting' someone half a kilo of fentanyl by haphazardly dropping it off at a garage), with six thinking he had distributed drugs without possessing them, through a third party for example, it would not be a unanimous verdict . . . ."
(Emphases added).
In pressing this argument, Santiago lays out a scenario
in which the jurors would have found him guilty of distribution
through different findings of brute facts -- with some finding him
guilty of that offense while having possessed the fentanyl and
others finding him guilty of that offense without finding that at
any point he possessed the fentanyl.1 However, Santiago has failed
1 The District Court instructed the jury that "possession" includes both "actual possession" and "constructive possession," meaning "when a person who is not in physical control of the item nonetheless has both the power and the intent to exercise dominion and control over it." See also United States v. García- Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007) ("Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others." (emphasis added) (quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005))).
- 11 - to lay out a theory in which, based on this record, any juror could
have found him guilty of "possession with intent to distribute"
but not "distribution." And we understand why, for we similarly
cannot conceive of any reading of the record that would permit a
rational jury to find him guilty of the charged count without
unanimously finding him guilty of at least the offense of
"distribution." Accordingly, this challenge fails because, by
virtue of these two crimes having merged into a single crime in
this case, the District Court had no cause to give a specific
unanimity instruction, and therefore did not err in deciding not
to give one.
B.
Santiago next contends that the District Court erred by
denying his motion for a mistrial based on testimony that Agent
Carl Rideout gave at trial while being cross-examined by Santiago's
counsel. The relevant exchange is as follows:
Q: [Y]ou testified before in the grand jury, correct? Yes?
A: Yes, yes.
Q: And you were asked about the other [drug] investigations that [Reyes] was participating in, correct?
A: Yes.
Q: All right. And [the prosecuting attorney] asked you, how were those going, and you said "good and bad"?
- 12 - A: Correct.
Q: Okay, what was bad about the investigations?
A: So after the arrest of Mr. Santiago, we were looking at a bigger organization. The New Bedford and Boston organization had -- they were essentially the source to Mr. Reyes before he was arrested. . . . After the arrest of Mr. Santiago, all those platforms dropped. We think they dropped their phones and they stopped dealing with Mr. Reyes, so we didn't know the connection between Mr. Santiago and the Boston/New Bedford-based people.
Q: Let's be honest. You have no connection whatsoever to Mr. Santiago and those other individuals, correct?
A. False.
In the motion for a mistrial, Santiago contended that a
portion of Rideout's testimony during this exchange implied a
connection between Santiago and a broader drug organization even
though the government was not planning on introducing any evidence
to that effect. The motion contended that the trial had been
irrevocably tainted, and that due to this unfair prejudice, a
mistrial was required under the Due Process Clause of the Fifth
Amendment to the United States Constitution.
We review denials of a motion for mistrial for manifest
abuse of discretion. See United States v. Chisholm, 940 F.3d 119,
126 (1st Cir. 2019). In doing so, "we consider the totality of
the circumstances to determine whether the defendant has
demonstrated . . . clear prejudice," United States v. Trinidad-
- 13 - Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting United States
v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)), while mindful that
"the trial court has a superior point of vantage, and that it is
only rarely -- and in extremely compelling circumstances -- that
an appellate panel, informed by a cold record, will venture to
reverse a trial judge's on-the-spot decision," id. (quoting United
States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000)).
To carry out this review, we assess four factors: "the
context of the improper remark, whether it was deliberate or
accidental, the likely effect of the curative instruction, and the
strength of the evidence against the appellant[]." United States
v. Cresta, 825 F.2d 538, 549–50 (1st Cir. 1987).
The passages quoted above from Rideout's testimony, as
well as a review of the record of the four-day trial, establish
that the assertedly improper "comment was isolated." Id. at 550;
see also United States v. Johnston, 784 F.2d 416, 424 (1st Cir.
1986) ("The quoted remarks were the only such comments in the
course of an eight-day trial . . . . The limited extent of the
comments 'makes it less likely that the minds of the jurors would
be so influenced by such incidental statements . . . that they
would not appraise the evidence objectively and dispassionately.'"
(quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240
(1939))). Thus, the context of the comment, by showing the comment
to be a "single, isolated statement" in a four-day trial, points
- 14 - against a conclusion that the District Court manifestly erred here.
See Trinidad-Acosta, 773 F.3d at 304, 307 (holding same in five-
day trial); see also United States v. Diaz, 494 F.3d 221, 227 (1st
Cir. 2007) ("[A]fter [the improper remark], that fact was never
mentioned again, either in the balance of [the witness's] lengthy
testimony or in the prosecutor's closing arguments. The isolated
nature of the offending remark further cuts against any need for
a mistrial.").
Nor was the comment from Rideout that undergirds this
challenge to the conviction one that was "deliberately elicit[ed]"
by the prosecution "in bad faith." Cresta, 825 F.2d at 550.
Rather, it was elicited by Santiago's defense counsel through a
question that he asked during his cross-examination of Rideout.
See Trinidad-Acosta, 773 F.3d at 307–08 ("It is well-established
that when, as here, defense counsel elicits a response from a
witness, the defense cannot then 'complain of the alleged error.'"
(quoting Cresta, 825 F.2d at 552)).
Santiago counters that on a pre-trial phone call, the
prosecution told defense counsel that there was no connection
between the first investigation and the case on trial. But, even
setting aside that the prosecutor disputed the contents of the
phone call and argued that none of his representations would
"reasonably have assured [defense counsel] that the question he
asked of . . . Rideout would have a negative answer," we agree
- 15 - with the government that any such conversation was far from a
guarantee to defense counsel that Rideout would answer the question
in a particular way if Rideout were asked about it. Thus, the
"deliberate or accidental" factor also weighs against Santiago's
challenge, because it was defense counsel who chose to seek
testimony on a matter that was not otherwise part of the
prosecution's case.
The factor concerning curative instructions weighs
against this challenge as well. The District Court denied the
motion but instructed the jury to ignore that portion of Rideout's
testimony both immediately after it was elicited and again at the
end of trial. The District Court also struck that testimony from
the record. The District Court thus twice gave the sort of
"strong, explicit cautionary instruction to completely disregard
the statement" that we have previously found "sufficient to
counteract prejudice that may have flowed from [a witness's
improper] remark." Cresta, 825 F.2d at 550; see also Johnston,
784 F.2d at 425 ("This explicit instruction addressing the
inadmissible evidence directly was sufficient to counteract any
prejudice that may have flowed from [the witness]'s testimony.").
And the District Court did so "promptly," Freeman, 208 F.3d at 339
(quoting United States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998)),
such that the first curative instruction was the next thing the
jurors heard after the improper remark and resulting sidebar.
- 16 - Finally, the evidence against Santiago was strong, see
Diaz, 494 F.3d at 227 ("[S]trong independent evidence of guilt
tends to lessen the effect of an improper comment by a witness,
making a mistrial unnecessary."), while the witness who made the
improper remark was not, like Reyes, a key witness in the case.
Thus, the question of prejudice did not in this case turn on
whether the jury could credit that witness's testimony without
being unduly swayed by the same witness's improper remark. See
Cresta, 825 F.2d at 550 (concluding that "[t]he evidence against
the two defendants was very strong if the jury believed [the
lengthy testimony of the witness who made the improper remark]").
For these reasons, we conclude that the District Court
did not manifestly abuse its discretion when it denied Santiago's
motion for a mistrial.
C.
Santiago next argues that the District Court erred by
permitting Reyes to testify as a lay witness under Federal Rule of
Evidence 701. That Rule provides that opinion testimony by a lay
witness is admissible if it is: "(a) rationally based on the
witness's perception; (b) helpful to clearly understanding the
witness's testimony or to determining a fact in issue; and (c) not
- 17 - based on scientific, technical, or other specialized knowledge
. . . ." Fed. R. Evid. 701.
Santiago's challenge focuses on the second prong. He
argues that the meaning of the text messages between himself and
Reyes "was clear" and that Reyes's testimony "was of no help in
understanding the dialogue," therefore violating the requirement
that the testimony be "helpful." Santiago points more specifically
to Reyes's testimony that a message mentioning a "motorbike" was
in fact a coded conversation about drugs.
We review a district court's admission of evidence under
Federal Rule of Evidence 701 for manifest abuse of discretion.
United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012).
Applying that standard here, we discern no error.
As Santiago concedes, "it is settled beyond hope of
contradiction that a witness with personal knowledge of slang or
jargon commonly employed in the drug trade may, consistent with
Rule 701, be allowed to interpret ambiguous language used
conversationally by drug traffickers." United States v. Valbrun,
877 F.3d 440, 443 (1st Cir. 2017). It is also well-established
that a participant in a conversation may give lay opinion testimony
interpreting ambiguous statements in the conversation in which
they participated. See United States v. George, 761 F.3d 42, 59
(1st Cir. 2014).
- 18 - Santiago argues here that none of the messages that he
sent to Reyes contained any ambiguities and thus that it was
improper for Reyes to be permitted to testify about the meaning of
the messages that he received from Santiago. For support, Santiago
cites to an out-of-circuit case in which the Fourth Circuit
determined that the jury did not need help to ascertain that "a
hundred forty five point" meant "145 grams of heroin," because
"simply pointing to the seizure of 145 grams of heroin, and then
the repeated mention of '145' in this [context] clearly would have
been enough for any juror to make the connection." United States
v. Garcia, 752 F.3d 382, 393 (4th Cir. 2014). Santiago contends
that the statements contained in the text messages that he sent to
Reyes were similarly clear in conveying their meaning, such that
it was not proper to permit Reyes to explain what they meant to
the jury.
As an initial matter, we note that Garcia concerned the
admissibility of expert witness testimony under Federal Rule of
Evidence 702, and held that the agent's testimony on the meaning
of "a hundred forty five point" was improper because it
"substituted information gleaned from her participation in the
investigation . . . for ostensible expertise," regarding calls in
which the agent otherwise did not participate. 752 F.3d at 393
(emphasis added). Thus, Garcia does not address the Rule 701 issue
before us here.
- 19 - But, that point of precedent aside, there is a more
fundamental problem with Santiago's challenge. Santiago argues
that Reyes's testimony "should have been limited to explaining the
typical meaning of particular words . . . rather than interpreting
the meaning and import of the conversations." But, we have
previously rejected exactly such an argument when an exchange
contains a "host of ambiguities." Valbrun, 877 F.3d at 444. We
explained in doing so that there is "no reason to require [a
cooperating witness] to parse his interpretative testimony word by
word as if he were a foreign language dictionary rather than an
interpreter of a conversation," precisely because "the witness
'can provide needed context to the events that were transpiring.'"
United States v. Obiora, 910 F.3d 555, 562 (1st Cir. 2018) (quoting
Valbrun, 877 F.3d at 444).
It is fatal to this challenge, therefore, that a host of
the statements in the messages from Santiago about which Reyes
testified were ambiguous. Some of the statements were ambiguous
in context because they arguably were using code, such as the
statements referring to the sale of a "motorbike" and a "scooter."
Valbrun, 877 F.3d at 444 ("[A] knowledgeable coconspirator may be
permitted to offer lay opinion testimony in a drug-trafficking
prosecution 'as to the meanings of "code words" used by fellow
conspirators in . . . conversations' in which he participated."
(quoting United States v. Lizardo, 445 F.3d 73, 83 (1st Cir.
- 20 - 2006))). Other statements were ambiguous because they used the
word "it" in contexts in which the antecedent was hardly self-
evident. See Lizardo, 445 F.3d at 83–84 (testimony helpful to
interpret references to "this place" and "those places" in
statements that otherwise "did not employ code words").
Furthermore, lay opinion testimony regarding an
allegedly coded conversation is particularly appropriate when "the
government la[ys] out an objective basis for the [witness's]
understanding that [the defendant] knew they were speaking in coded
terms and his impression of what [the defendant] actually meant."
United States v. Prange, 771 F.3d 17, 28 (1st Cir. 2014). Here,
the government provided such an "objective basis" not only through
Reyes's own testimony that the conversation was coded and that no
"motorbike" in fact existed, but also through the fact that the
messages were at times incoherent if read to refer to a
"motorbike," as well as the implausibility of believing that
Santiago thought the conversation to be about a real "motorbike"
when Reyes did not, given the vast number of text messages they
exchanged and Santiago's acceptance of two large cash payments as
a consequence of their negotiations in those messages.
We therefore reject Santiago's argument that the
District Court erred by permitting Reyes to testify as to the
meaning of the text messages that Santiago sent him.
- 21 - D.
Santiago's remaining contention is that the District
Court erred by allowing expert and non-expert testimony about the
weight of the drugs that was not properly disclosed to the defense
under Federal Rule of Criminal Procedure 16. This contention,
too, is without merit.
1.
Because Santiago was charged under 21 U.S.C.
§ 841(b)(1)(A)(vi), which specifies a minimum drug weight of "400
grams," the weight of the fentanyl was a material element of the
offense. Before trial, the prosecution disclosed to the defense
in discovery that a chemist had determined that the "net weight"
of the fentanyl without the packaging was "499 grams." However,
this chemist had retired by the time of trial, and the chemist who
would be testifying -- Vadim Astrakhan -- had only measured the
"gross weight" of the drugs with the packaging (which he had
determined to be 613.2 grams). At trial, the prosecution therefore
asked Astrakhan to "estimate based on his training and experience
. . . the weight of the packaging" and the net weight of the
fentanyl.
Astrakhan testified, over defense counsel's objection,
that the weight of the packaging was "about 100 grams," and that
the net weight of the fentanyl was "[a]pproximately half a
- 22 - kilogram." He later stated, however, that he was "not trained to
estimate the weights."
The following morning, the government informed the
District Court that Task Force Officer Kyle Montagano, who was on
the government's witness list, had weighed the fentanyl the
previous evening, and had determined that its net weight was 480
grams. The government also informed the District Court that it
had disclosed that new evidence to the defense. Thereafter, the
government called Montagano to testify, over defense counsel's
objection, that the net weight of the drugs was 480 grams.
2.
Santiago argues that the District Court erred by not
excluding Astrakhan's testimony because the basis for his
expertise in "estimat[ing]" the weight of the packaging was not
disclosed to the defense in violation of the "expert disclosure
provisions" of Federal Rule of Criminal Procedure 16(a)(1)(G).
Santiago further contends that Montagano's testimony should have
been excluded because it was disclosed too late under the same
rule.
We agree with the government that Santiago has waived
his Rule 16 objection to Astrakhan's testimony because he made no
such objection below, see United States v. Mercado, 412 F.3d 243,
247 (1st Cir. 2005), and on appeal has not attempted to satisfy
his plain-error burden, see United States v. Pabon, 819 F.3d 26,
- 23 - 33 (1st Cir. 2016).2 In any event, we can discern no Rule 16 error
because Astrakhan's testimony that the weight was "approximately
half a kilogram" was fully within the scope of the "499 grams"
figure disclosed to Santiago prior to trial. See United States v.
Lipscomb, 539 F.3d 32, 38 (1st Cir. 2008) ("Given that the defense
had full notice of the actual opinions to which the detectives
intended to testify, we are unpersuaded by the defendant's
criticism [based on Rule 16] of the lack of detail regarding the
bases for those opinions.").
As to Montagano's testimony, regardless of whether the
timing of the government's disclosure of this evidence could be
characterized as a Rule 16 violation, see Fed. R. Crim. P. 16(c)
("A party who discovers additional evidence or material before or
during trial must promptly disclose its existence to the other
party or the court . . . ."), Santiago has not shown how the
allegedly late disclosure was prejudicial, see United States v.
Melucci, 888 F.2d 200, 203 (1st Cir. 1989) ("Without a showing of
prejudice[] due to the late disclosure, the relief requested cannot
2 In his reply brief, Santiago recharacterizes his argument regarding Astrakhan's testimony as the one he made below relying on Federal Rule of Evidence 702: that the District Court failed in its "gatekeeping function" to evaluate whether Astrakhan's experience weighing drugs provided a sufficient basis for him to estimate the weight of the packaging. But, "arguments available at the outset but raised for the first time in a reply brief need not be considered." United States v. Tosi, 897 F.3d 12, 15 (1st Cir. 2018).
- 24 - be granted."). In arguing otherwise, Santiago contends that
defense counsel "had no chance to prepare cross-examination for
Montagano, unfairly hindering his ability to test the testimony."
However, Montagano's estimate of "480 grams" was consistent with,
and in fact lower than, the weight of "499 grams" already disclosed
to Santiago before trial. And Santiago does not explain how, if
given more time, he might have challenged Montagano's testimony.
See United States v. Bresil, 767 F.3d 124, 128 (1st Cir. 2014)
("[The defendant] makes no claim that any expert could have
materially challenged (or, indeed, challenged at all) the
technical claims upon which the testimony of the government's
expert was based.").
We therefore conclude that Santiago is not entitled to
a new trial based on these alleged errors regarding the testimony
about the weight of the fentanyl.
IV.
For the reasons given above, the judgment of the District
Court is affirmed.
- 25 -