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United States of America v. Carlos Reyes, Jr.
Case Number: 19-2013
Judge: Robert Katzmann
United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Plaintiff's Attorney: Karen L. Eisenstadt, Assistant United States Attorney, with
whom Nathaniel R. Mendell, Acting United States Attorney
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Boston, MA - Criminal defense lawyer represented defendant with one count of conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine, and one count of possession with intent to distribute 500 grams or more of cocaine charges.
"We state the facts in the light most favorable to the
verdict." United States v. Vega-Figueroa, 234 F.3d 744, 747 (1st
Cir. 2000) (citing United States v. Duclos, 214 F.3d 27, 32 (1st
Cir. 2000)). Because "[m]any of the facts pertaining to
particular issues will be set forth in our discussion of the
issues[,] [a]ll we do now is state those facts that will give the
reader the necessary background information to understand the
- 3 -
different issues raised by defendant." Id. at 748.
In 2016, the United States Postal Inspector Service and
the Massachusetts State Police began investigating a potential
drug distribution conspiracy that law enforcement assessed was
using the mail to transport controlled substances from Puerto Rico
to Massachusetts. Investigators became suspicious after observing
packages bearing characteristics common to drug conspiracies,
namely parcels with: fictitious sender information (either a fake
sender name or undeliverable return address, or both);
deliverable, but slightly incorrect addresses for recipients;
postage paid in cash; and handwritten mailing labels all in the
same handwriting but listing different senders' names.
After additional investigation, law enforcement
identified Pablo Santiago-Cruz ("Santiago-Cruz") as the
conspiracy's central figure and Reyes as a "runner" who received
some of the drug shipments from Puerto Rico and then transferred
their contents to Santiago-Cruz. Of the more than thirty
suspicious parcels identified as part of the conspiracy, seven
were identified as addressed to Reyes; five of these packages were
delivered as "controlled deliveries" executed under law
Through these controlled deliveries and corresponding
surveillance, law enforcement observed that on three occasions,
shortly after Reyes took delivery of the packages, Santiago-Cruz
- 4 -
either came to Reyes's house or Reyes traveled to meet SantiagoCruz; on two of these occasions, law enforcement observed Reyes
carrying bags consistent with the size and shape of cocaine.
Additionally, telephone records obtained by investigators revealed
that on days parcels were shipped from Puerto Rico and delivered
in Massachusetts, Santiago-Cruz and Reyes had multiple telephone
On July 18, 2016, the investigative team carried out the
final controlled delivery that led to Reyes's arrest. At around
12:30 p.m., a postal inspector dressed as a mail carrier left the
controlled parcel addressed to Reyes at 45 Winthrop Street in
Framingham -- Reyes's correct address was in fact 47 Winthrop
Street -- on the shared porch of Reyes's duplex at 45-47 Winthrop
Street. Approximately ten minutes later, an unidentified person
came out and carried the parcel into 47 Winthrop. Reyes returned
home that night at around 7:00 p.m. and reemerged from his house
approximately ten minutes later carrying the parcel. Law
enforcement saw Reyes walk down his driveway to an out-of-sight
area behind the house and shortly thereafter observed Reyes pulling
into the street in his car.
Once mobile, members of the investigative team
surreptitiously followed Reyes for approximately thirty minutes,
driving in a "stack" of eight to ten unmarked vehicles and one
State Police cruiser. Trooper Dennis Lynch ("Trooper Lynch"), of
- 5 -
the Massachusetts State Police, -- who had been involved in
surveillance of some of the prior controlled deliveries to Reyes
-- drove the police cruiser. After another trooper in the "stack"
-- Trooper Keith Pantazelos -- conveyed over the radio that he had
observed Reyes tailgating, and after Trooper Lynch "clocked" Reyes
speeding, Trooper Lynch initiated a traffic stop of Reyes. As
Trooper Lynch pulled Reyes over to the side of the road, Trooper
Pantazelos and the other officers in the unmarked vehicles
continued driving to a nearby parking lot where they could covertly
monitor the traffic stop from a distance.
In order to avoid alerting Reyes to the larger drug
investigation, Trooper Lynch approached Reyes as if he were
conducting an ordinary traffic stop. Accordingly, Trooper Lynch
began by asking Reyes routine traffic-related questions through
the driver's side window, such as where Reyes was going; Reyes
could not identify his destination beyond "Boston". As the
conversation proceeded, Reyes acknowledged to Trooper Lynch that
he had previously served a 188-month sentence in a federal
narcotics case, and Trooper Lynch knew -- from his involvement in
the overarching drug investigation -- that Reyes had prior
convictions for firearms and assault, including assault and
battery on a police officer. Throughout their conversation,
Trooper Lynch observed that Reyes was extremely nervous and was
crumpling something in his left hand, which Trooper Lynch thought
- 6 -
at the time was cocaine. Upon inquiry, Reyes told Trooper Lynch
that it was a shipping label from a package with his name on it;
when Trooper Lynch asked for and took possession of the label, he
identified it as the Priority Mail label from that day's controlled
Trooper Lynch proceeded to ask Reyes for his consent to
search the car for drugs and weapons, which Trooper Lynch testified
-- and the district court found -- that he received. In order to
conduct the search, Trooper Lynch asked Reyes to exit his vehicle,
at which point, Trooper Lynch escorted him to the front of the
car. After conducting a brief scan of the immediate driver's
area, Trooper Lynch called for a canine team to assist. Trooper
Lynch testified -- and the district court found -- that as he
waited for the K-9 unit to arrive, Trooper Lynch reconfirmed
Reyes's consent to the search.
Once the canine team -- consisting of Trooper William
McSweeney and his dog -- arrived, Trooper Lynch handcuffed Reyes
and placed him in the back-passenger seat of his police cruiser
for the duration of the dog's search. Trooper Lynch informed
Reyes that he was not under arrest and that these measures were
just for safety. The dog then commenced its search; at some point
surrounding the dog's search, a third trooper -- Trooper Daniel
Mahoney -- arrived on the scene. After the dog finished searching
the passenger areas of the car, Trooper McSweeney opened the car's
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trunk and the dog jumped into it; the dog "alerted on" a box
containing a Girl Scout Cookie Oven, which the Troopers removed
from the trunk.
Prompted by the discovery of the Girl Scout Cookie Oven
box, Trooper Lynch asked Reyes if he "ha[d] kids," to which Reyes
replied that he had a nineteen-year-old daughter. When Trooper
Lynch expressed skepticism that a nineteen-year-old would want a
Girl Scout Cookie Oven, Reyes claimed the oven was for his twoyear-old niece. When Trooper Lynch expressed further skepticism
that a Girl Scout Cookie Oven was an appropriate toy for a twoyear-old, Reyes said that a girl had given him the box and that he
did not know what was inside of it.
Trooper Lynch picked up the Girl Scout Cookie Oven box
and assessed that it felt heavier than a toy oven. Accordingly,
Trooper Lynch opened the box and took out the actual oven. After
reconfirming his assessment that the Girl Scout Cookie Oven felt
heavier than a toy, Trooper Lynch peeled open the plastic top of
the oven and found what he believed to be -- and what was later
confirmed to be -- a kilogram of cocaine inside it. Trooper Lynch
returned to Reyes, informed him of what the dog had found, and
placed him under arrest. Trooper Lynch read Reyes his Miranda
- 8 -
rights1 at that time.
On July 19, 2016, law enforcement executed search
warrants of Santiago-Cruz's and Reyes's residences. Agents found
drugs, drug paraphernalia, and a quantity of U.S. currency at
Santiago-Cruz's residence and the discarded parcel box from the
July 18 controlled delivery with its mailing label removed in
On August 31, 2016, a federal grand jury returned an
indictment charging Reyes with one count of conspiracy to possess
with intent to distribute and to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846, and one count of
possession with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. § 841(a)(1).
On September 25, 2017, Reyes made a pre-trial motion to
suppress the physical evidence seized from his vehicle as well as
the statements he made to Trooper Lynch during the stop on July
18, 2016. Reyes argued that the physical evidence should be
suppressed because there was no valid basis for the stop and search
-- as he neither committed any traffic violations to justify the
1 Before a suspect is subjected to "custodial police
interrogation," an "accused must be adequately and effectively
apprised of his [Miranda] rights," which include the right to
remain silent. Dickerson v. United States, 530 U.S. 428, 440
(2000) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)).
- 9 -
initial stop nor did he consent to the search -- and that his
statements should be suppressed because the stop was a de facto
arrest that required Miranda warnings.2
Following an evidentiary hearing on January 10, 2018,
the district court denied Reyes's motion to suppress on April 9,
2018. Of relevance to Reyes's current appeal, the district court
made the following findings: (i) Reyes committed traffic
violations of tailgating and speeding, which justified the initial
traffic stop; (ii) Reyes twice voluntarily consented to the search
of his car; (iii) the "justified investigatory stop" did not become
a de facto arrest -- even after Reyes was handcuffed -- where
Trooper Lynch was "effectively alone" in attending to the defendant
throughout the stop; and (iv) the entire stop prior to arrest
lasted approximately twenty-six minutes, with Reyes in handcuffs
but not arrested, for nineteen of those minutes.
Trial began on September 24, 2018. At trial, Reyes's
defense focused on the Government's lack of evidence that he was
aware of the contents of the package seized from his car during
the July 18 stop. During the proceedings, Reyes objected to
certain statements given by Government witnesses, Trooper Lynch
and United States Postal Inspector Stephen Dowd. Of relevance to
2 "[T]he admissibility in evidence of any statement given during
[a] custodial interrogation of a suspect . . . depend[s] on whether
the police provided the suspect with [Miranda] warnings."
Dickerson, 530 U.S. at 435.
- 10 -
Reyes's current appeal, the trial court overruled Reyes's
objections to statements by Trooper Lynch that: (i) past narcotics
investigations in which Trooper Lynch had been involved typically
resulted in arrests for narcotics violations; (ii) Reyes drove
like "[h]e knew where he was going" on the day of the July 18,
2016 traffic stop; and (iii) Reyes "was trying to make up a story
[about] where he was going" while responding to Trooper Lynch's
questions during the stop; the trial court also overruled Reyes's
objections to Inspector Dowd's lay testimony that the labels on
the parcels addressed to Reyes and others appeared to have common
authorship based on the similarity in handwriting.
Upon conclusion of the trial, the jury returned a verdict
finding Reyes guilty on both counts. The district court sentenced
Reyes to 210 months of imprisonment on each count to run
concurrently and forty-eight months of supervised release.
Reyes timely lodged this appeal.
We have jurisdiction under 28 U.S.C. § 1291.3 We review
the district court's findings of fact for clear error and accept
all reasonable inferences that it has drawn. See United States
3 28 U.S.C. § 1291 provides in pertinent part:
The courts of appeals (other than the United States Court
of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of the
district courts of the United States. . . .
- 11 -
v. Coombs, 857 F.3d 439, 445–46 (1st Cir. 2017) (first citing
United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994); then
citing United States v. Paneto, 661 F.3d 709, 711 (1st Cir. 2011)).
We review the district court's legal conclusions de novo. United
States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014) (citing Ornelas
v. United States, 517 U.S. 690, 691, 699 (1996)).
A. Suppression Ruling
First, Reyes challenges the district court's pre-trial
ruling denying his motion to suppress evidence. Specifically, he
challenges the admission of physical evidence collected as a result
of the search of his vehicle -- namely, the cocaine recovered from
the closed Girl Scout Cookie Oven box in the trunk -- and the
admission of statements made by Reyes while he was stopped prior
to being advised of his Miranda rights. On appeal, Reyes argues
that the district court's denial order was flawed because the
order: (i) relied on two clearly erroneous findings of fact; and
(ii) did not reflect the Supreme Court's guidance in Rodriguez v.
United States, 575 U.S. 348 (2015). We reject both contentions.
When reviewing a suppression ruling, we consider the
"evidence in the light most favorable to the suppression ruling"
and can affirm "on any basis apparent in the record." Arnott, 758
F.3d at 43. As noted, we review the district court's findings of
fact for clear error and "the court's legal conclusions, including
its answers to 'the ultimate questions of reasonable suspicion and
- 12 -
probable cause to make a warrantless search' de novo." Id.
(emphasis added) (quoting Ornelas, 517 U.S. at 691). Similarly,
when reviewing "whether [a] defendant w[as] 'in custody' for
Miranda purposes," we review factual questions for clear error and
the ultimate legal question de novo. United States v. Campbell,
741 F.3d 251, 265 (1st Cir. 2013) (citing United States v. Hughes,
640 F.3d 428, 435 (1st Cir. 2011)). "Given the textured nature
of these inquiries," we will "proceed circumspectly and with regard
for the district court's superior vantage point." United States
v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007) (citing Zapata, 18
F.3d at 975).
1. The District Court's Factual Findings
As has been noted, the district court declined to
suppress the physical evidence obtained during the stop, finding
that Reyes voluntarily consented to the search of his vehicle. In
addition, the district court declined to suppress the statements
made by Reyes during the execution of the search because the court
found that the investigatory detention was not transformed into a
de facto arrest by anything that transpired during the stop --
including the handcuffing of Reyes where Trooper Lynch was
"effectively alone" in attending to him. Reyes contests the
district court's factual findings that he consented to the search
of his vehicle and that Trooper Lynch was "effectively alone" in
dealing with Reyes.
- 13 -
a. The Consent Finding.
The district court, while noting that "[t]here is a
difference between giving consent happily and giving it
voluntarily," concluded that Reyes twice voluntarily consented to
the search of his vehicle and that "the actual search [conducted]
did not exceed the scope of [the] consent that was given." In
making these findings, the court relied largely on the testimony
of Trooper Lynch, who the court deemed to be credible. Because,
as the district court explained, "[i]t is well-established that 'a
warrantless search may be conducted with the voluntary consent of
a person authorized to give it,'" (quoting United States v.
Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008)), the court ruled that
both the warrantless search of Reyes's car and the admission at
trial of the physical evidence seized therein were permissible.
On appeal, Reyes objects to the fact that the district
court's finding of consent was based solely on the "uncorroborated"
testimony of Trooper Lynch.4 Reyes argues that the district
court's assessment that Trooper Lynch was credible was belied by
the lack of any contemporaneous record of Reyes's consent and
assessed inconsistencies in Trooper Lynch's affidavit and oral
4 In this overarching challenge, Reyes contests the finding that
he consented to the search at all; he has not lodged alternative
challenges to the district court's subsidiary conclusions that
such consent: (i) was voluntary and (ii) encompassed a search of
the car's trunk.
- 14 -
testimony. These arguments are unavailing.
Typically, consent -- including its voluntariness --
"turns on questions of fact" that must be assessed based upon "the
totality of the circumstances." United States v. Fornia-Castillo,
408 F.3d 52, 62 (1st Cir. 2005). "For that reason, a finding of
voluntary consent . . . is reviewable only for clear error."5 Id.
"Where a district court's factual findings" -- such as a consent
finding -- "are based on credibility determinations[,] . . . error
is seldom considered 'clear' unless the credibility assessments
were based on testimony which was inherently implausible,
internally inconsistent, or critically impeached." United States
v. Merlino, 592 F.3d 22, 27 (1st Cir. 2010) (alteration in
original) (internal quotation marks omitted) (quoting Awon v.
United States, 308 F.3d 133, 141 (1st Cir. 2002)). Reyes has not
made the requisite showing.
Reyes's initial contention -- that the lack of any
contemporaneous record of Reyes's consent belies Trooper Lynch's
credibility -- is unpersuasive. The lack of such records is
consistent with Trooper Lynch's evidentiary hearing testimony that
troopers generally do not create audio recordings of consent or
use consent forms at stops. Moreover, we have previously
considered and rejected the argument that a lack of contemporaneous
5 Unless the finding of consent is based on an erroneous legal
standard. Fornia-Castillo, 408 F.3d at 62.
- 15 -
records evidencing a defendant's consent undermines the
credibility of a government agent. See United States v. MeléndezSantiago, 644 F.3d 54, 61 (1st Cir. 2011) (where the district
court "afford[ed] total credibility" to a government agent's
testimony that defendant Meléndez voluntarily confessed to his
role in a conspiracy and agreed to cooperate, the Government's
"fail[ure] to produce a signed waiver, a cooperative agreement, a
recording of the interviews, or a signed statement from Meléndez
d[id] not establish inherent implausibility or other basis for a
finding of clear error" (internal citation omitted)).
Nor has Reyes succeeded in proving that Trooper Lynch's
narrative regarding Reyes's consent was inherently implausible on
its own terms. We disagree with Reyes's contention that there was
"no reason" for Trooper Lynch to ask for consent a second time
after Reyes had already consented to the search a few minutes
prior; after all, this was a pre-planned stop. Given the
expectation that the stop would produce evidence, it is logical
that Trooper Lynch would seek to protect the search by reconfirming
Reyes's consent. Although, as Reyes suggests, it might have made
more sense for Trooper Lynch to request consent a second time once
other officers -- who could serve as witnesses to the consent --
had arrived on scene, it is not our role to decide whether Trooper
Lynch acted optimally in securing Reyes's consent, but rather to
assess whether his account is credible. Because Reyes has not
- 16 -
shown that Trooper Lynch's consent narrative is inherently
implausible or inconsistent, we will not overturn the district
court's consent finding on such grounds.
Reyes's additional attacks on the district court's
assessment of Trooper Lynch's credibility are, likewise,
unsuccessful. Reyes contends that there were several
inconsistencies in Trooper Lynch's written and oral statements on
matters unrelated to the consent issue that show that Trooper Lynch
is such an incredible witness overall that his testimony on the
question of consent should, correspondingly, not be believed.
Because the Government offers a persuasive rebuttal to each of
Reyes's contentions, Reyes again fails to satisfy his burden of
proving that the district court's credibility determination was
Reyes first points to the fact that the Government asked
the district court to disregard in deciding the motion to suppress
the statement in Trooper Lynch's affidavit that he learned from
fellow officers that Reyes arrived at his home on the day of the
traffic stop at approximately 7:00 p.m. and that soon thereafter
Reyes placed a box taken from the suspicious parcel into the trunk
of his car and drove away. While Reyes suggests that the
Government's request itself reveals that Trooper Lynch is not
credible, the Government explained in its closing argument on the
motion to suppress that its request was motivated by the fact that
- 17 -
certain predicate observations did not come into evidence at the
evidentiary hearing. The Government made clear both that its
request did not stem from any conceded inaccuracy or dishonesty on
the part of Trooper Lynch, and that it was not asking the district
court to ignore Trooper Lynch's testimony at the hearing. The
Government was merely moving to withdraw aspects of the affidavit
that were not elicited during the evidentiary hearing.
Second, Reyes argues that Trooper Lynch's testimony
about the traffic violations committed by Reyes was "inconsistent
and dubious." Specifically, Reyes takes issue with Trooper
Lynch's claim on direct examination that he personally observed
Reyes tailgating. Reyes claims that on cross-examination, Trooper
Lynch changed his testimony about where in the "stack" of officer
vehicles he was in relation to Reyes and admitted that it was in
fact Trooper Pantazelos who observed the tailgating, while Trooper
Lynch learned of this traffic violation via radio transmission.
Contrary to Reyes's contention, there is no ipso facto
inconsistency. As the Government explained in oral argument,
tailgating is not necessarily an instantaneous phenomenon that
only one person can observe. Common sense dictates that if a
driver is tailgating over a period of time, two people could see
it. Thus, it could be simultaneously true that Trooper Lynch
first learned of Reyes's tailgating via the radio transmission of
Trooper Pantazelos and also observed the tailgating for himself
- 18 -
when he eventually moved into position behind Reyes in the State
Police cruiser. As such, Trooper Lynch's testimony on the traffic
violations is not inherently implausible or inconsistent such that
the district court's credibility determination should be
disturbed. See Merlino, 592 F.3d at 27.
Finally, Reyes contends that because Trooper Lynch's
testimony on "how long . . . Reyes was in handcuffs before being
questioned was different from that in his affidavit and at odds
with [Massachusetts State Police] records," he is an incredible
witness. Contrary to Reyes's assessment, Trooper Lynch's
statement in his affidavit that Reyes was in handcuffs for ten
minutes prior to his arrest is consistent with his testimony at
the evidentiary hearing that it was approximately ten to fifteen
minutes. Ignoring the fact that the district court found that
Reyes was handcuffed for around nineteen minutes before his arrest,
on appeal, Reyes invokes Trooper Lynch's evidentiary hearing
testimony that he stopped Reyes at 7:40 p.m. and an Administrative
Journal Extract that reads "20.20" to suggest that Reyes was
actually in handcuffs for approximately 35 minutes. For his part,
when asked at the evidentiary hearing, Trooper Lynch testified
that the entry "20.20" did not mean 8:20 p.m., but rather was "just
a number" assigned to the extract, unrelated to time. Thus, Reyes
has not identified any inconsistencies in Trooper Lynch's
testimony on the handcuffing, as Trooper Lynch has been entirely
- 19 -
consistent in his estimates and explanations.6
In short, Reyes's multifaceted attacks on the
credibility of Trooper Lynch are insufficient to show that the
district court clearly erred in holding that Reyes consented to
the search of his vehicle. We, therefore, affirm the factual
finding that Reyes twice consented to the search.7
b. The "effectively alone" Finding.
The district court found -- in part -- because Trooper
Lynch was "effectively alone" in attending to Reyes throughout the
stop, that Trooper Lynch's use of handcuffs "was reasonably
6 Moreover, Reyes has not succeeded in proving that Trooper Lynch's
testimony was inherently implausible. While there may be some
appeal to Reyes's contention that the label "20.20" on the
Administrative Journal Extract translated to 8:20 p.m. such that
a court could find that Reyes was in handcuffs for 35 minutes,
that argument was presented to and rejected by the district court;
instead, the trial court apparently chose to credit Trooper Lynch's
testimony that the entry "20.20" did not represent a time and that
the other times recorded in the Administrative Journal Extract
were inaccurate. Because "a district court's choice between two
plausible competing interpretations of the facts cannot be clearly
erroneous," United States v. Weidul, 325 F.3d 50, 53 (1st Cir.
2003) (citing United States v. Palmer, 203 F.3d 55, 60 (1st Cir.
2000)), Reyes has not satisfied his burden and we must respect
"the district court's superior vantage point" on this matter,
Espinoza, 490 F.3d at 46 (citing Zapata, 18 F.3d at 975).
7 As previously stated, in light of its finding of consent, the
district court further ruled that both the warrantless search of
Reyes's car and the admission at trial of the physical evidence
seized therein were permissible. In our forthcoming discussion
regarding Reyes's argument that the district court's denial order
did not reflect Supreme Court guidance, as embodied in Rodriguez
v. United States, 575 U.S. 348 (2015), we reject Reyes's Rodriguezbased contention and affirm these additional consent rulings of
the district court. Infra p. 21–32.
- 20 -
necessary" to mitigate legitimate safety concerns presented by the
specific facts and circumstances of the stop. More broadly, the
district court assessed that nothing that transpired during the
stop -- including the handcuffing of Reyes -- transformed the
investigatory detention of Reyes into a de facto arrest in which
administration of Miranda rights was necessary. Accordingly, as
Mirandization of Reyes was not required, the District Court found
Reyes's statements made during the execution of the search to be
On appeal, Reyes argues that because on-the-scene
officers outnumbered Reyes during the stop and because additional
officers covertly monitored the stop from a parking lot nearby,
the district court's "finding that Trooper Lynch was 'effectively
alone' cannot survive appellate review even under the deferential
clear error standard." While Reyes raises a nonfrivolous
challenge to the district court's "effectively alone" finding,
ultimately, we must ask what the impact of any such finding of
clear error would be: Would it transform the detention of Reyes
into a de facto arrest, such that Reyes's statements were
improperly admitted at trial given the lack of Miranda warnings?
Of particular -- and dispositive -- note, Reyes does not
articulate such an argument on appeal; the most he says is that
the district court's order denying his motion to suppress relied
on the erroneous finding of fact that Trooper Lynch was
- 21 -
"effectively alone" during the stop without referencing Miranda,
let alone explaining the broader admissibility consequences of
such a factual error. It cannot be said that these admissibility
consequences are inherent in Reyes's "effectively alone"
contention such that explicit argumentation is unnecessary, and
"[w]e [do] not consider potentially applicable arguments that are
not squarely presented in a party's appellate brief," BaybankMiddlesex v. Ralar Distribs., Inc., 69 F.3d 1200, 1203–04 n.5 (1st
Cir. 1995) (citing United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)). A litigant must "'spell out [his] arguments squarely
and distinctly,' or else forever hold [his] peace." Zannino, 895
F.2d at 17 (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635
(1st Cir. 1988)).
Because we find that Reyes has waived the broader
admissibility argument, we conclude that, even assuming arguendo
error in the district court's "effectively alone" finding, that
error is of no consequence. At least on the basis argued by Reyes,
we discern no reason to disturb the district court's decision
denying the motion to suppress Reyes's statements made during the
2. Reyes's Rodriguez Argument
The district court found that the Government met its
burden of establishing that the stop and warrantless search of
Reyes were reasonable under the Fourth Amendment. On appeal,
- 22 -
Reyes argues that the district court's denial order was flawed
because the court did not adhere to the Supreme Court precedent,
Rodriguez v. United States, where the Court was clear that police
may not prolong a traffic stop to conduct a dog sniff unless the
officer has "the reasonable suspicion ordinarily demanded to
justify detaining [the] individual." 575 U.S. 348, 353-55 (2015).
By the defendant's assessment, Rodriguez illuminates that the stop
of Reyes "became an unreasonable search and seizure in violation
of the Fourth Amendment when Trooper Lynch detoured from the
mission of traffic enforcement in pursuit of evidence to further
an unrelated criminal investigation without reasonable suspicion."
We are unpersuaded by Reyes's Rodriguez argument.
As a threshold matter, the Government argues that
because Reyes (i) never raised a Rodriguez-based suppression
argument to the district court and (ii) made no attempt on appeal
to show "good cause" for the delay in raising it, the argument is
waived.8 While Reyes acknowledges that he did not specifically
8 Fed. R. Crim. P. 12(b)(3)(C) enumerates "suppression of evidence"
as a motion that must be made before trial. Fed. R. Crim. P.
12(c)(3) further specifies that "[i]f a party does not meet the
deadline for making a Rule 12(b)(3) motion, the motion is
untimely." However, "a court may consider the defense, objection,
or request if the party shows good cause." While there is a
circuit split as to whether defendants may still receive plain
error review for Rule 12 arguments not made before the district
court, see United States v. Lindsey, 3 F.4th 32, 41 n.6 (1st Cir.
2021) (collecting cases), we have recently clarified that in the
- 23 -
invoke the Rodriguez case by name in the district court, he
nevertheless contends this does not mean that he waived the
argument that the traffic stop morphed into an unconstitutional
search for drug evidence. Even assuming Reyes's argument below
was sufficient to preserve this issue, we nonetheless find that
the stop accords with the requirements of Rodriguez.
The essence of Reyes's Rodriguez-centered argument on
appeal is that accepting the district court's finding that Reyes
violated the traffic laws -- and the corresponding conclusion that
the stop was initially justified -- the stop became an
unconstitutional seizure "when Trooper Lynch detoured from the
mission of traffic enforcement in pursuit of evidence to further
an unrelated criminal investigation without reasonable suspicion."
We adopt, arguendo, Reyes's contention that the core of this
argument was articulated in his initial Memorandum in Support of
Motion to Suppress, which read in part: "[L]aw enforcement lacked
reasonable suspicion -- let alone the more stringent standard of
probable cause -- to believe that Reyes or [his car] were involved
in drug-related activity" and "nothing that occurred during the
traffic stop provided law enforcement probable cause to search the
First Circuit, unpreserved arguments under Fed. R. Crim. P.
12(b)(3) and (c)(3) "cannot be raised on appeal absent a showing
of good cause," id. at 40–41, and parties are "not entitled to
plain error review," id. at 42.
- 24 -
We proceed to consider and reject Reyes's argument on
The district court found that both the stop and
warrantless search of Reyes were reasonable under the Fourth
Amendment and, thus, declined to suppress the items seized from
the vehicle. While we agree with the district court's ultimate
conclusion, our rationale is slightly different from that
articulated in the suppression decision. "[W]e are not wed to the
district court's reasoning but, rather, may affirm its suppression
rulings on any basis apparent in the record." Arnott, 758 F.3d
9 Reyes's Memorandum in Support of Motion to Suppress further read:
That the [car] was purportedly involved in a traffic
violation, which Reyes denies (see Reyes Aff., attached
hereto as Ex. B), was not sufficient to provide law
enforcement with probable cause to search the vehicle.
See [California v.] Acevedo, 500 U.S. [565,] 569-570
[(1991)] ("If the officer goes beyond a brief
investigatory stop and actually searches or seizes a
vehicle in the absence of a warrant, the officer must
have 'probable cause to believe that the vehicle
contain[s] evidence of crime in the light of an exigency
arising out of the likely disappearance of the
vehicle.'") Nor was the fact that Reyes was nervous an
adequate reason to search the [car]. See United States
v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (holding that
there was not reasonable suspicion to justify pat frisk
of defendant solely based upon the dangerousness of the
neighborhood and the defendant's "nervous demeanor," as
"[n]ervousness is a common and entirely natural reaction
to police presence. . . .").
- 25 -
at 43. Accordingly, in affirming here, we supplement the analysis
in the denial order, which did not consider the Rodriguez argument
Reyes now presses expressly.
The Fourth Amendment guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend. IV. "Temporary detention of individuals during the stop
of an automobile by the police, even if only for a brief period
and for a limited purpose, constitutes a 'seizure' of 'persons'
within the meaning of this provision." Whren v. United States,
517 U.S. 806, 809–10 (1996). "[W]here the police have probable
cause to believe that a traffic violation has occurred," "the
decision to stop an automobile is reasonable" under the Fourth
Amendment, id. at 810, and a police investigation of that violation
is justified, Rodriguez, 575 U.S. at 354. While "[a] traffic stop
is a 'relatively brief encounter' intended to 'address the traffic
violation that warranted the stop,'" United States v. Cruz-Rivera,
14 F.4th 32, 43 (1st Cir. 2021) (quoting Rodriguez, 575 U.S. at
354), it is well-established that "where there is reasonable
suspicion of further criminal wrongdoing," id. (citing United
States v. Lee, 317 F.3d 26, 33 (1st Cir. 2003)), an officer may
use a traffic violation as a pretext to stop a car in order to
obtain evidence for some more serious crime, United States v.
McGregor, 650 F.3d 813, 820 (1st Cir. 2011) (citing Whren, 517
- 26 -
U.S. at 810). However, where "a seizure is 'justified only by a
police-observed traffic violation,' officers may not prolong a
stop [to investigate another crime] 'absent the reasonable
suspicion ordinarily demanded to justify detaining an
individual.'" Cruz-Rivera, 14 F.4th at 46–47 (quoting Rodriguez,
575 U.S. at 350, 355).
In the case at bar, the district court explained that
because it found "as a factual matter that [Reyes] did commit
traffic violations," "[t]his gave Trooper Lynch probable cause to
stop [Reyes] for those traffic violations even if doing so was
'just an excuse to investigate something else.'" Accordingly, the
stop was reasonable under the Fourth Amendment. Furthermore,
because the district court found that Reyes "voluntarily consented
to the search of his vehicle, including the trunk," it held "the
search was reasonable under the Fourth Amendment." Having found
that Reyes gave voluntary consent, the district court held there
was "no need to address whether law enforcement had probable cause
to conduct the warrantless search."
Supreme Court case law indicates that an additional link
is needed. For example, the Court explained in Illinois v.
Caballes, that even when a traffic stop is based on probable cause
-- as the district court found the stop of Reyes to be in light of
his tailgating and speeding violations -- "a seizure that is lawful
at its inception can [ultimately still] violate the Fourth
- 27 -
Amendment." 543 U.S. 405, 407 (2005). Specifically, tasks not
related to the traffic mission, such as "[o]n-scene investigation
into other crimes," are "unlawful" if they prolong the stop absent
independent reasonable suspicion. Rodriguez, 575 U.S. at 355–57.
Here, without Rodriguez squarely invoked before it, the district
court did not -- or at least did not explicitly -- find that
independent reasonable suspicion existed to justify extending the
stop of Reyes beyond an investigation of traffic violations into
an investigation of unrelated drug crimes.
This lack of an explicit independent reasonable
suspicion finding complicates the district court's conclusion that
Reyes's consent validated the search of his vehicle. In Florida
v. Royer, the Supreme Court affirmed that because "the bounds of
an investigative stop had been exceeded" at the time that the
defendant Royer gave consent to search his luggage, Royer's consent
was "tainted by . . . illegality" and therefore "ineffective to
justify the search." 460 U.S. 491, 501, 507–08 (1983).
Importantly, the Court clarified that "had Royer voluntarily
consented to the search of his luggage while he was justifiably
being detained on reasonable suspicion," id. at 502, or while he
was not yet seized, id. at 503–05, "the products of the search
would be admissible against him," id. at 502.
In Reyes's case, there is no question that he was seized
at the time he gave his consent to the vehicle search. Whren, 517
- 28 -
U.S. at 809–10 ("Temporary detention of individuals during the
stop of an automobile by the police . . . constitutes a 'seizure'
of 'persons' within the meaning of [the Fourth Amendment].").
Thus, applying Royer and Rodriguez, in order for Reyes's consent
to have been effective to justify the search of his vehicle, Reyes
must have been legally detained at the time such consent was given
-- either because Trooper Lynch was still in the process of
completing tasks related to the valid traffic mission10 or because
independent reasonable suspicion justified extending the stop
beyond the investigation of traffic violations. Again, without
Rodriguez squarely presented, the district court did not consider
whether independent reasonable suspicion was necessary to extend
the stop, but instead declared that because Reyes's consent had
blessed the search, it was unnecessary to address whether law
enforcement also had probable cause for that search.
Consequently, because the district court did not explicitly find
that Reyes's detention continued to be lawful at the time he gave
his consent, it is not clear from the denial order that Reyes's
10 We note that the Supreme Court has declared that "a dog sniff
is not fairly characterized as part of [an] officer's traffic
mission." Rodriguez, 575 U.S. at 356. Thus -- in the absence of
independent reasonable suspicion justifying extension of the
traffic stop into investigation of other crimes -- the traffic
stop of Reyes would, at a minimum, become unlawful at the
commencement of the canine search of Reyes's vehicle. We
ultimately conclude that law enforcement here had the requisite
independent reasonable suspicion to extend the stop. Infra p. 30–
- 29 -
consent was valid to justify the search.
We note that in Rodriguez, the Supreme Court did not
definitively rule out the possibility that independent reasonable
suspicion of additional criminal wrongdoing existed to justify
detaining Rodriguez beyond the completion of the traffic
investigation, but rather left that question open for the Eighth
Circuit's consideration on remand. 575 U.S. at 358. Here too,
the district court did not rule on whether independent reasonable
suspicion existed to justify extending the traffic stop. Of
course, "the general rule is that a 'federal appellate court does
not consider an issue not passed on below,'" N.H. Motor Transp.
Ass'n v. Flynn, 751 F.2d 43, 52 (1st Cir. 1984) (quoting Singleton
v. Wulff, 428 U.S. 106, 120 (1976)), however, the Supreme Court
The matter of what questions may be taken up
and resolved for the first time on appeal is
one left primarily to the discretion of the
courts of appeals, to be exercised on the
facts of individual cases. . . . Certainly
there are circumstances in which a federal
appellate court is justified in resolving an
issue not passed on below.
Id. (alteration in original) (quoting Wulff, 428 U.S. at 121).
Because we review district courts' legal conclusions on reasonable
suspicion de novo, Arnott, 758 F.3d at 43 (emphasis added), and
because we assess that we would not be materially aided by
additional fact or credibility findings by the district court, we
- 30 -
deem remand unnecessary here. Compare Rodriguez, 575 U.S. at 358,
with United States v. Berryman, 717 F.2d 651, 663 (1st Cir. 1983)
(Breyer, J., dissenting) (making a first-instance finding of
reasonable suspicion on appeal), and United States v. Berryman,
717 F.2d 650, 650 (1st Cir. 1983) (en banc) (adopting the dissent
upon rehearing en banc). We now consider whether independent
reasonable suspicion existed to extend the stop of Reyes.
"No simple, mechanical formula tells us what reasonable
suspicion is, though we know that it is less than probable cause
and more than a naked hunch. . . . [C]ourts must gauge its presence
in a commonsense, case-by-case way, taking in the whole picture."
Cruz-Rivera, 14 F.4th at 43 (alteration in original) (quoting
McGregor, 650 F.3d at 821). Considering the "totality of the
circumstances," id. at 44, we find that Trooper Lynch had
sufficient independent reasonable suspicion of additional criminal
wrongdoing to support his continued detention and questioning of
We are informed by our recent opinion in Cruz-Rivera, in
which we affirmed a finding of independent reasonable suspicion on
the basis of similar factual elements to those presented here. 14
F.4th at 44–47. In Cruz-Rivera, as part of a larger, ongoing
investigation into a heroin distribution conspiracy, law
enforcement executed a "walled-off" stop in which the police pulled
over the defendants for a pretextual -- though valid -- traffic
- 31 -
violation with the aim of furthering the drug investigation. Id.
at 40. We found that the valid traffic violation justified the
initial stop, id. at 44, and moreover, that the officer executing
the stop had independent reasonable suspicion to extend the
investigative detention beyond the initial traffic infractions
into possible drug crimes given: (i) the trooper's pre-existing
knowledge that the vehicle had likely been involved in a drug
transaction; and (ii) the defendants' noticeable nervousness and
inconsistent answers upon police questioning, id. at 44–47.
Similarly, here, law enforcement identified Reyes as a
suspected participant in a drug distribution conspiracy via an
ongoing investigation that began in February 2016. On July 18,
the investigative team carried out a controlled delivery of drugs
to Reyes and targeted Reyes for a "walled-off" traffic stop at a
time in which the surveillance team believed Reyes would be
transporting the drugs. Trooper Lynch -- a member of the
investigative team -- executed the "walled-off" stop after Reyes
committed traffic violations of speeding and tailgating. On
appeal, Reyes accepts the district court's finding that at least
one traffic violation occurred, justifying the initial stop.
During questioning, Trooper Lynch, who "knew more about Mr. Reyes
than [he] let on to believe," observed that Reyes was both
extremely nervous -- his hands were shaking -- and was unable to
provide basic details on his professed destination beyond
- 32 -
"Boston". Moreover, Trooper Lynch saw that Reyes was crumpling a
shipping label in his left hand, which Trooper Lynch confiscated
and identified as the Priority Mail label from the parcel that had
been delivered earlier that day as part of the controlled delivery.
Thus, following the model of Cruz-Rivera and taking into account
the "totality of the circumstances," we conclude that Trooper Lynch
had the necessary independent reasonable suspicion to justify
extending Reyes's detention beyond an investigation of traffic
violations into unrelated drug crimes.
Having determined that the requisite independent
reasonable suspicion existed to justify extending the stop, we
correspondingly find that Reyes was not illegally detained at the
time he consented to the vehicle search, such that his consent was
effective to justify the search under Royer. Supra p. 27–28. We
can, thus, affirm the district court's finding that because Reyes
consented to the search of his vehicle, the warrantless search was
reasonable under the Fourth Amendment and the items seized from
the vehicle were properly admitted at trial.
B. Evidentiary Rulings
Reyes raises evidentiary challenges to the district
court's admission of certain statements by witnesses Trooper Lynch
and Postal Inspector Stephen Dowd. On appeal, Reyes argues the
contested statements were not proper lay testimony as they did not
- 33 -
help the jury to understand any facts,11 but rather unfairly
prejudiced him and tainted the proceedings such that a new trial
is required. By contrast, the Government defends the propriety
of each of the challenged rulings, while also arguing that even if
the district court erred in admitting some or all of the contested
evidence, such admissions did not influence the verdict and were,
therefore, harmless. We agree that the contested evidence was
either properly admitted or was harmless.
"We review a district court's admission of lay opinion
testimony under Fed. R. Evid. 701 for manifest abuse of
discretion." United States v. Jackman, 48 F.3d 1, 4 (1st Cir.
1995). To be admissible under Rule 701, lay opinion must be: (i)
"rationally based on the witness's perception," Fed. R. Evid.
701(a); (ii) "helpful to clearly understanding the witness's
testimony or to determining a fact in issue," Fed. R. Evid. 701(b);
and (iii) "not based on scientific, technical, or other specialized
11 We note that the heading of the evidentiary section of Reyes's
brief appears to contain a typographical error. The brief asserts
that the district court erred in permitting testimony of Inspector
Dowd and Trooper Lynch that "failed to meet the second requirement
of F.R.Evid. [sic] 702 as it did not help the jury understand any
fact." The second requirement of Fed. R. Evid. 701 on lay
testimony -- and not that of Fed. R. Evid. 702 on expert testimony
-- enumerates a requirement that testimony be helpful to
determining a fact in issue. In light of the Rules' wording and
because nothing else indicates that Inspector Dowd or Trooper Lynch
were, or should have been, qualified as expert witnesses under
Fed. R. Evid. 702, we assume -- as the Government did in its
briefing -- that Reyes intended to lodge objections to Inspector
Dowd's and Trooper Lynch's statements under Fed. R. Evid. 701.
- 34 -
knowledge," Fed. R. Evid. 701(c). As these are conjunctive
requirements, lay witness testimony that fails to satisfy a single
prong of Rule 701 is not properly admitted. See Fed. R. Evid.
However, "[n]ot all erroneous evidentiary rulings
require reversal." United States v. Obiora, 910 F.3d 555, 560–61
(1st Cir. 2018). "It is settled that '[a] non-constitutional
evidentiary error is harmless (and, therefore, does not require a
new trial) so long as it is highly probable that the error did not
influence the verdict.'" United States v. Flemmi, 402 F.3d 79,
95 (1st Cir. 2005) (alteration in original) (quoting United States
v. Piper, 298 F.3d 47, 56 (1st Cir. 2002)). Such a determination
"requires a case-specific examination of . . . 'the centrality of
the tainted material,' its prejudicial impact, and any other
indications that 'the error affected the factfinder's resolution
of a material issue.'" United States v. Meises, 645 F.3d 5, 24
(1st Cir. 2011) (quoting United States v. Sepulveda, 15 F.3d 1161,
1182 (1st Cir. 1993)).
In the case at bar, the parties agree that the central
question -- and indeed the only material issue -- is whether Reyes
knew that the package he was transporting at the time of the
traffic stop contained cocaine, and thus, whether Reyes was a
participant in the conspiracy. Defense counsel made explicit in
closing argument at trial that Reyes does not contest: (i) the
- 35 -
existence of an overarching drug-distribution conspiracy; (ii)
that he had been receiving packages for Santiago-Cruz; or (iii)
that the Girl Scout Cookie Oven found in his car held concealed
cocaine; Reyes only disputes that he knew that said Girl Scout
Cookie Oven contained drugs. Because Reyes's defense focused
exclusively on his knowing participation, in order for us to hold
that it was "highly probable" that the district court's evidentiary
rulings "influence[d] the verdict," Flemmi, 402 F.3d at 95 (quoting
Piper, 298 F.3d at 56), we must determine that such admitted
testimony concerned the "central question" of Reyes's knowledge,
see, e.g., Obiora, 910 F.3d at 563 (finding admission of contested
testimony harmless because it was "irrelevant to the central
question of whether [the defendant] agreed in the first place to
distribute heroin").12 As such, we will examine each of the
challenged evidentiary admissions through this lens.
1. Trooper Lynch's Testimony
At trial, Reyes objected to Trooper Lynch's statements
that (i) past narcotics investigations in which Trooper Lynch had
been involved typically resulted in arrests for narcotics
violations; (ii) Reyes drove like "[h]e knew where he was going"
12 Contra Meises, 645 F.3d at 25 (granting a new trial where "the
tainted evidence was central to the prosecution's case and
potentially disastrous to the appellants' defense," such that we
"[could] not say that it [wa]s 'highly probable' that the errors
did not affect the jury's resolution of the case").
- 36 -
on the day of the July 18, 2016 traffic stop; and (iii) Reyes "was
trying to make up a story [about] where he was going" while
responding to Trooper Lynch's questions during the stop. We
conclude that each of these statements was either properly admitted
or its admission was harmless error.
a. Narcotics Investigations Typically Result in Arrests.
At the beginning of direct examination of Trooper Lynch
at trial, the Government engaged in the following exchange with
Q. Okay. So over the last five plus years
have you had an opportunity to conduct such
investigations into narcotics?
A. Yes, sir.
Q. And on approximately how many different
A. Hundreds of investigations, sir.
Q. Okay. And what were the results or
findings of those investigations?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Q. When you finished those investigations,
what would typically happen?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled. You may answer
A. We would arrest individuals for narcotics
Reyes objected below and on appeal now contends that such testimony
was "in the nature of overview testimony" that served to
- 37 -
impermissibly bolster Trooper Lynch's credibility. (emphasis
added). The Government counters that this exchange was not
"overview testimony" and did not in any way suggest that Reyes was
guilty of the crime charged. While we think that this minimally
probative exchange toed the line of propriety, we conclude that
any error in its admission was ultimately harmless.
Typically, "[a]n 'overview witness' is a government
agent who testifies as one of the prosecution's first witnesses
and . . . provides an overview or roadmap of the prosecution's
case to come." United States v. Etienne, 772 F.3d 907, 913 (1st
Cir. 2014) (citing United States v. Brown, 669 F.3d 10, 24 (1st
Cir. 2012)). While there is no "blanket ban on all overview
testimony," id. at 914, such testimony is "[d]isfavored" in the
drug conspiracy context where a law enforcement agent "based on
the results of the agency's overall investigation, rather than on
his own personal knowledge or participation" "testif[ies] about a
defendant's specific role in [a] charged conspiracy," id. at 913-
Here, the contested exchange with Trooper Lynch was not
"overview testimony"; Trooper Lynch did not "provide a . . .
roadmap of the prosecution's case to come." Id. at 913. However,
Reyes's concerns that the testimony made representations about
matters not before the trial court and served only to enhance the
jury's confidence in Trooper Lynch -- verging on witness bolstering
- 38 -
-- are nonfrivolous. See United States v. Fields, 660 F.3d 95,
97 n.3 (1st Cir. 2011) (defining "bolstering").13
But ultimately, we hold that even if the trial court
erred in admitting this exchange, any such error was harmless.
This is so because Trooper Lynch's generalized statement did not
mention Reyes, let alone discuss his "specific role in the charged
conspiracy," Etienne, 772 F.3d at 914; we, therefore, cannot say
that this testimony implicated the central question of Reyes's
knowledge such that it was "highly probable" that the error
"influence[d] the verdict," Flemmi, 402 F.3d at 95 (quoting Piper,
298 F.3d at 56). Our conclusion is buttressed both by the weight
of the evidence suggesting that Reyes was a knowing participant in
the drug conspiracy, and not just innocently receiving parcels for
a friend,14 as well as by the fact that Trooper Lynch was subject
13 We note that the contested exchange with Trooper Lynch amounted
to a recitation of certain language contained in his affidavit
presented to the district court in support of the Government's
opposition to Reyes's motion to suppress. While such language is
commonplace in affidavits presented to a district court judge, lay
jurors are not in the same position as a trial judge to analyze
such representations in a circumscribed form.
14 Namely: Reyes received multiple packages for Santiago-Cruz; most
of these packages were addressed from relatives of Reyes, despite
being for Santiago-Cruz; the packages had slightly incorrect
addresses for Reyes and non-deliverable return addresses, a
reportedly common characteristic of parcels containing drug
contraband; Reyes and Santiago-Cruz had multiple telephone
contacts on the days the parcels were shipped and delivered; Reyes
met with Santiago-Cruz after the deliveries; Reyes removed the
mailing label from the parcel before discarding the box; during
the stop, Reyes lied to Trooper Lynch about why he had a Girl Scout
Cookie Oven in his car; and so on.
- 39 -
to substantial cross-examination at trial. See, e.g., United
States v. Torres-Galindo, 206 F.3d 136, 140-42 (1st Cir. 2000)
(deeming harmless the erroneous admission of a testifying agent's
generalized statement that suspects frequently first deny and then
later admit their involvement in a crime where the agent's
credibility was fully explored at trial and the weight of the
evidence against the defendant was "so great" that the "testimony
did not likely affect the jury's verdict").
Although we ultimately deem harmless any error in
admitting Trooper Lynch's generalized account that narcotics
investigations typically result in arrests, in closing, we note
that by soliciting this minimally probative testimony, the
prosecution created an unnecessary appellate issue.
b. Reyes Drove "like he knew where he was going".
Reyes next objects to the admission of Trooper Lynch's
testimony that prior to the stop on July 18, 2016, Reyes was
driving "like he knew where he was going," elicited in the context
of the following exchange:
Q. Now, are you familiar with the most direct route
between 47 Winthrop Street [Reyes's address] and 185
Metropolitan Ave. [Santiago-Cruz's address]?
A. Yes, sir.
Q. And how would that route compare to the route that
Mr. Reyes took on that day?
A. In my opinion, it's the most direct route.
Q. And with respect to the route that he took that day,
how would you characterize his driving?
- 40 -
A. He knew where he was going.
[DEFENSE COUNSEL]: Objection. Move to strike.
The Government contends that such lay opinion was admissible, but
argues as a threshold matter that because Reyes "fail[ed] to
specify the nature of his complaint" concerning the statement, it
should be "deemed waived for lack of development." (citing
Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a perfunctory
manner . . . are deemed waived.")). Because Reyes's briefing on
this objection consisted of one conclusory sentence, we agree with
the Government that Reyes's objection is waived.15
c. Reyes "was trying to make up a story [about] where he was
Reyes further objects to the admission of statements by
Trooper Lynch describing Reyes's behavior during the traffic stop.
In particular contention is Trooper Lynch's assertion that Reyes
15 But waiver aside, Reyes's objection is unavailing. This is so
because the Government solicited the contested statement from
Trooper Lynch in order to establish its theory that Reyes was
driving to Santiago-Cruz's house at the time of the traffic stop.
Crucially, Reyes did not dispute that he was going to give the
parcel containing the Girl Scout Cookie Oven -- and the concealed
drugs therein -- to Santiago-Cruz. Indeed, the defense's theory
of the case hinged on the jury simultaneously accepting that Reyes
intended to give the package to Santiago-Cruz, but that he had no
knowledge of the package's contents. Thus, whether or not Reyes
was in fact en route to Santiago-Cruz's house at the precise moment
of the traffic stop -- the theory to which Trooper Lynch's "he
knew where he was going" statement lent support -- was extraneous.
Because Trooper Lynch's contested statement shed minimal, if any,
light on the central question of Reyes's knowledge of the parcel's
contents, its admission -- even if erroneous -- was harmless.
- 41 -
"was trying to make up a story" in the following exchange:
A. . . . I said, "Where in Boston [are you
going]?" But he couldn't say where.
Q. How did his answers to that question differ
from his answers to your earlier questions?
A. His demeanor changed. He was holding the
steering wheel, and he was looking . . .
straight ahead, and he was holding onto the
steering wheel and I could see him crumpling
something in his left hand.
Q. Before we get to that, what, if any,
investigative value did his inability to give
you specifics about where he was going have?
A. Like I said to you, sir, I knew more about
Mr. Reyes than I let on to believe. So at
that time I knew he was trying to make up a
story where he was going.
[DEFENSE COUNSEL]: Objection. Move to
On appeal, Reyes contends that Trooper Lynch invaded the province
of the jury by opining on "facts relevant to innocence or guilt,"
including Reyes's veracity during the stop. By contrast, the
Government maintains that Trooper Lynch's testimony did not usurp
the jury's role, but rather met all of the requirements for lay
testimony under Rule 701. The Government's position prevails.
Trooper Lynch's statement satisfied each of Rule 701's
requirements for lay testimony: Trooper Lynch's testimony (i) was
rationally based on his perceptions under 701(a), as it recounted
Trooper Lynch's own interactions with and assessment of Reyes
during the stop; (ii) was "helpful" to the jury under 701(b)
because Trooper Lynch participated in the conversation with Reyes,
- 42 -
while the jury did not; and (iii) was not based on scientific,
technical, or other specialized knowledge under 701(c), because it
derived in large part from observations of Reyes's body language
and demeanor against the backdrop of Trooper Lynch's personal
involvement in the broader investigation.
Although "one can't actually read another person's mind,
one is often able to infer, from what the person says or from the
expression on his face or other body language, what he is
thinking." United States v. Prange, 771 F.3d 17, 29 (1st Cir.
2014) (quoting United States v. Curescu, 674 F.3d 735, 740 (7th
Cir. 2012)). Trooper Lynch, as a lay witness, was therefore "free
to state his rationally-based perception of what [Reyes] was
thinking during their face-to-face conversation." Id.
Reyes's argument to the contrary -- that by opining on
"facts relevant to innocence or guilt," including Reyes's veracity
during the stop, Trooper Lynch impermissibly usurped the role of
the jury -- is unavailing. First, the Federal Rules of Evidence
themselves dictate that "lay opinion 'is not objectionable just
because it embraces an ultimate issue.'" Id. at 30 (quoting Fed.
R. Evid. 704(a)). Here, Reyes does not contend that Trooper Lynch
opined on an ultimate issue, but merely implied that his statement
concerned "facts relevant to innocence or guilt." Because Trooper
Lynch's testimony would not have been ipso facto inadmissible even
had it "embrace[d] an ultimate issue," Fed. R. Evid. 704(a), we
- 43 -
cannot accept Reyes's broader proposition that Trooper Lynch's lay
opinion "invade[d] the jury's province" and was, thus,
inadmissible because it concerned "facts relevant to innocence or
guilt." (emphasis added). Nor has Reyes shown that it is
categorically impermissible for a lay witness to opine on the
veracity of another's out-of-court statements, as each of the cases
he invoked either concerned in-court statements, see, e.g., United
States v. Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) ("This Court
has held it is improper for an attorney to ask a witness whether
another witness lied on the stand.") (emphasis added),16 or were
otherwise inapposite, see United States v. Serrano-Osorio, 191
F.3d 12, 14-15 (1st Cir. 1999) (addressing no admissibility of
In light of the above, we conclude that Trooper Lynch's
assessment of Reyes during the traffic stop was admissible lay
testimony under Rule 701. Our finding of admissibility ends the
16 See also United States v. Sullivan, 85 F.3d 743, 750 (1st Cir.
1996) ("The rule . . . makes it improper to induce a witness to
say another witness lied on the stand.") (emphasis added); United
States v. Pereira, 848 F.3d 17, 21 (1st Cir. 2017) ("Over the past
twenty-five years, this court has consistently held that 'counsel
should not ask one witness to comment on the veracity of the
testimony of another witness.'") (emphasis added) (quoting
Sullivan, 85 F.3d at 750)); United States v. Akitoye, 923 F.2d
221, 223-24 (1st Cir. 1991) (finding in part that the trial court
"justifiably sustained" the defendant's objection to a question on
whether another witness was "lying to this Jury" because it was
the kind of "'was-the-witness-lying' question . . . by the
prosecutor . . . [that] should never have been posed").
- 44 -
matter; however, we note that even had the district court erred in
admitting Trooper Lynch's assessment, such an error would be
harmless for the same reasons that admission of Trooper Lynch's
generalized account of his past narcotics investigations was
harmless: namely, that Trooper Lynch was subject to extensive
cross-examination and the other evidence against Reyes was
sufficiently substantial. Supra p. 38-39. We determine this to
be true even though, here, the contested statement arguably touched
upon the case's "central question" of Reyes's knowledge.
Concerning the exploration of Trooper Lynch's
credibility, it is important that at trial, defense counsel
highlighted specific misperceptions of Trooper Lynch during the
traffic stop. For example, in closing, defense counsel noted:
"Trooper Lynch admitted that when he stopped Mr. Reyes and he saw
. . . little white crumbles in his hands, he assumed it was
cocaine. . . . Guess what? He was wrong. It wasn't cocaine."
Thus, shortly before the jurors were excused to deliberate, defense
counsel underscored that Trooper Lynch's perceptions and
assumptions were not infallible. As such, the accuracy of Trooper
Lynch's assessment of Reyes during the traffic stop was a matter
"presented to the jury for its evaluation." See Torres-Galindo,
206 F.3d at 141.
Moreover, the weight of the evidence continues to be
sufficiently substantial such that it is "highly probable" that
- 45 -
Trooper Lynch's assessment of Reyes's veracity during the stop
"did not influence the verdict." Flemmi, 402 F.3d at 95 (quoting
Piper, 298 F.3d at 56). In addition to the evidentiary proof
previously enumerated, supra p. 38 n.14, we also note that defense
counsel conceded at trial that Reyes lied to Trooper Lynch at least
once during the traffic stop. For example, in closing, defense
counsel acknowledged that after the canine unit alerted to the
presence of contraband in the Girl Scout Cookie Oven, Reyes was
not honest with Trooper Lynch about how or why he came to have the
oven in his possession. Thus, the jury had cause to doubt Reyes's
veracity during the stop even without Trooper Lynch's assessment.
This justifiable doubt coupled with the weight of the other
evidence persuade us that it is "highly probable" that any
potential error in admitting Trooper Lynch's assessment of Reyes
during the stop "did not influence" the jury's resolution of the
In sum, although we determine that the district court
did not manifestly abuse its discretion in admitting Trooper
Lynch's statement that Reyes "was trying to make up a story," any
error in admission would also have been harmless.
2. Inspector Dowd's Testimony
Finally, Reyes objected to the admission of Postal
Inspector Stephen Dowd's lay testimony that the labels on the
parcels addressed to Reyes and others appeared to have common
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authorship based on the similarity in handwriting. The following
is an example of the Government and Inspector Dowd's exchanges on
Q. And do you have an opinion with respect to
the handwriting on both [labels]?
Q. And what is that opinion?
A. I believe the same person wrote these
Q. And, again, what's the basis for that?
A. By looking at the different letters, and
they appear to be exactly duplicates on both.
As Inspector Dowd gave his testimony, the various labels under
discussion were shown side-by-side on a split-screen for the jury
to view. On appeal, Reyes argues that Inspector Dowd's lay
testimony was not "helpful" to the jury under Rule 701 where "[t]he
jurors not only could view and compare the handwriting on the
various labels for themselves, but they did so." By contrast, the
Government maintains that Inspector Dowd's testimony was
While we tend to agree with the Government that Reyes's
"argument misapprehends the scope of Fed. R. Evid. 701,"17 in any
17 Our standard for excluding lay opinion testimony as "unhelpful"
under Rule 701 requires "that the witness [be] no better suited
than the jury to make" the judgment at issue. United States v.
Kornegay, 410 F.3d 89, 95 (1st Cir. 2005) (emphasis added) (quoting
Jackman, 48 F.3d at 4-5). We find it difficult to say that
Inspector Dowd was no better suited than the jury to assess the
labels where Inspector Dowd had relevant background from the
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case, even if the district court did err in admitting Inspector
Dowd's testimony, such error would again be harmless as the
testimony did not concern the central question of Reyes's
knowledge. The Government used Inspector Dowd's handwriting
testimony to help establish that a drug conspiracy existed; but
Reyes did not dispute the existence of a conspiracy. Reyes only
disputed that he was a knowing participant in said conspiracy.
For its part, the Government never attempted to argue that the
similar handwriting on the parcel labels was "probative of Reyes's
knowledge" or even that Reyes would have "noticed that the
handwriting was the same." Indeed, defense counsel itself argued
in opening statement that Inspector Dowd "w[ould not] be able to
[explain] why a normal, non-law enforcement person would consider
[the parcels] suspicious." Thus, because Inspector Dowd's
testimony addressed an uncontested issue, and because the
Government never invoked Inspector Dowd's testimony to prove the
central question of Reyes's knowledge, its admission, erroneous or
otherwise, was harmless.
In sum, having examined each of the challenged
evidentiary rulings, we conclude that the district court did not
investigation that the jurors did not and his assessment "was not
limited to three days in a sterile courtroom setting," Jackman, 48
F.3d at 5.
- 48 -
manifestly abuse its discretion in admitting the contested
statements or in the event of any error, such error was harmless.
"While we [may] have uncovered a . . . benign bevue, e.g.,"
admission of the minimally probative account of Trooper Lynch's
past narcotics investigations, this "error w[as] not portentous"
where "the government's case was very strong," Sepulveda, 15 F.3d
at 1196; supra p. 38 n.14. As Reyes has not "achiev[ed] the
critical mass necessary to cast a shadow upon the integrity of the
verdict," see 15 F.3d at 1196, we deny his request for a new trial.
C. Speedy Trial Claims
Reyes also lodges pro se claims, alleging -- for the
first time on appeal -- violations of his right to a speedy trial
under the Speedy Trial Act, 18 U.S.C. §§ 3161–3174, and the
Constitution; accordingly, Reyes asks us to vacate his conviction
and sentence and to order a new trial. The Government argues that
Reyes's claims under the Speedy Trial Act are waived and that his
constitutional claim is meritless. We agree with the Government.
1. Speedy Trial Act Claims
Reyes raises two issues under the Speedy Trial Act: He
claims that his statutory rights were violated first, because he
was indicted more than 30 days after his arrest, and second,
because his trial commenced twenty-six months after his arrest.
The Government correctly contends that because Reyes did not raise
- 49 -
any statutory speedy trial claims in the district court, such
claims are waived.
"The Speedy Trial Act . . . is generally concerned with
two periods of delay: delay in bringing an information or
indictment after arrest and delay in commencing trial after
information, indictment, or the defendant's first appearance."
United States v. Spagnuolo, 469 F.3d 39, 40 (1st Cir. 2006). The
deadlines for these periods are laid out in § 3161(b)-(c)(1):
namely, thirty days to indictment and an additional seventy days
to trial. 18 Sanctions for governmental non-compliance with
§ 3161's statutory deadlines include dismissal of charges for
overdue indictments and case dismissal for delayed trials. See
18 U.S.C. § 3162.19 In order to exercise one's remedy for a delayed
18 The Speedy Trial Act, at § 3161, provides in pertinent part:
. . .
(b) Any information or indictment charging an individual
with the commission of an offense shall be filed within
thirty days from the date on which such individual was
arrested or served with a summons in connection with
such charges. . . .
(c)(1) In any case in which a plea of not guilty is
entered, the trial of a defendant charged in an
information or indictment with the commission of an
offense shall commence within seventy days from the
filing date (and making public) of the information or
indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such
charge is pending, whichever date last occurs. . . .
19 Section 3162 of the Speedy Trial Act provides in pertinent part:
(a)(1) If, in the case of any individual against whom a
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trial, § 3162(a)(2) explicitly requires a defendant to file a
motion for dismissal; we have clarified that a defendant must also
file a motion to remedy a delayed indictment under § 3162(a)(1),
Spagnuolo, 469 F.3d at 44-46 (concluding "the motion and waiver
provision of § 3162(a)(2) also applies to § 3162(a)(1) speedy
indictment claims"). Thus, a defendant's failure to timely file
a motion to remedy speedy indictment and/or speedy trial violations
under the Speedy Trial Act will result in a waiver of such rights
for which "not even plain error review is available." Id. at 41.
Here, the Government maintains that Reyes failed to move
for dismissal under either § 3162(a)(1) or (2) prior to trial.
Because Reyes has not identified anything in the record that
preserves his statutory speedy trial claims, we find such claims
complaint is filed charging such individual with an
offense, no indictment or information is filed within
the time limit required by section 3161(b) as extended
by section 3161(h) of this chapter, such charge against
that individual contained in such complaint shall be
dismissed or otherwise dropped. . . .
(2) If a defendant is not brought to trial within the
time limit required by section 3161(c) as extended by
section 3161(h), the information or indictment shall be
dismissed on motion of the defendant. . . . Failure of
the defendant to move for dismissal prior to trial or
entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under this
- 51 -
2. Constitutional Claim
Reyes further argues that the twenty-six-month delay
between his arrest and trial violated his constitutional right to
a speedy trial. The Government counters that Reyes's
constitutional claim -- though not waived as a result of Reyes's
failure to raise it below -- is nevertheless meritless, and we
The Sixth Amendment provides, in relevant part, that
"[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial." U.S. Const. amend. VI. "[T]he
seminal Supreme Court case interpreting this directive," Barker v.
Wingo, supplies a "quadripartite balancing test for use in
evaluating potential speedy trial violations" under which courts
must consider the: (i) length of delay; (ii) reason for the delay;
(iii) defendant's assertion of his right; and (iv) prejudice to
the defendant. RaShad v. Walsh, 300 F.3d 27, 33-34 (1st Cir.
2002) (discussing Barker v. Wingo, 407 U.S. 514, 530-33 (1972)).
No single factor is dispositive, Barker, 407 U.S. at 533, but
rather courts must weigh the factors "on a case-by-case basis
'together with such other circumstances as may be relevant,'"
United States v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993) (quoting
Barker, 407 U.S. at 533).
While a defendant "does have some responsibility to
assert his speedy trial claim," United States v. Perez-Cubertier,
- 52 -
958 F.3d 81, 91 (1st Cir. 2020), (citing Look v. Amaral, 725 F.2d
4, 6-7 (1st Cir. 1984)), cert. denied, 141 S. Ct. 349 (2020), "a
defendant who fails to demand a speedy trial" under the Sixth
Amendment does not "forever waive his right," Barker, 407 U.S.
at 528. Instead, a "defendant's assertion of or failure to assert
his right to a speedy trial is one of the factors to be considered"
under the quadripartite inquiry, id., with a "failure to assert
the right [making] it difficult for a defendant to prove that he
was denied a speedy trial," id. at 532.
Applying the quadripartite balancing test, we find no
violation of Reyes's constitutional right to a speedy trial.
a. Length of Delay.
The first factor concerning the length of the delay
between arrest or indictment, on the one hand, and the date of
trial, on the other hand, weighs slightly in Reyes's favor. This
factor serves as a "triggering mechanism," meaning that "[u]ntil
there is some delay which is presumptively prejudicial, there is
no necessity for inquiry into the other factors." Barker, 407
U.S. at 530. "While '[t]here is no bright-line time limit dividing
the lengths that trigger further Barker inquiry from those that do
not,' a '[d]elay of around one year is considered presumptively
prejudicial.'" United States v. Handa, 892 F.3d 95, 102 (1st Cir.
2018) (alterations in original) (quoting United States v.
Irizarry-Colón, 848 F.3d 61, 68 (1st Cir. 2017)). Thus, we find
- 53 -
that the twenty-six-month delay between Reyes's arrest and trial
is sufficient to trigger further Sixth Amendment review. See
United States v. Lara, 970 F.3d 68, 82-83 (1st Cir. 2020) (finding
no speedy trial right violation despite delay of eighteen months
after weighing the factors in toto), cert. denied sub. nom Williams
v. United States, 141 S. Ct. 2821 (2021); see also United States
v. Muñoz-Franco, 487 F.3d 25, 60-62 (1st Cir. 2007) (finding no
speedy trial right violation despite delay of five years between
indictment and trial after weighing the factors in toto).
b. Reason for the delay.
The second factor -- our "focal inquiry" concerning the
explanation for the delay, Muñoz-Franco, 487 F.3d at 60 (quoting
United States v. Santiago-Becerril, 130 F.3d 11, 22 (1st Cir.
1997)) -- weighs against Reyes. The Supreme Court has instructed
that "different weights should be assigned to different reasons"
offered to explain the delay between arrest or indictment and
trial. Barker, 407 U.S. at 531. For example, "deliberate
attempt[s] to delay the trial in order to hamper the defense should
be weighted heavily against the government," id.; whereas, "to the
extent that valid reasons cause delay," or the "delay . . . is
caused by the defendant," it "does not count against the state at
all," RaShad, 300 F.3d at 34. The defendant bears the burden of
proving bad faith or inefficiency on the part of the government in
causing the delay. See, e.g., Lara, 970 F.3d at 82 (finding the
- 54 -
"second factor point[ed] against . . . a speedy trial violation"
where the defendant "d[id] not identify any evidence that the delay
was a product of bad faith or inefficiency on the government's
Here, because Reyes has produced no evidence of bad faith
on the part of the government -- and in fact has only highlighted
valid actions that justified an appropriate delay -- the second
factor weighs against him. In his pro se appeal brief, Reyes
raises the fact that the district court granted fifteen
continuances of his trial over the span of twenty-six months.
However, the Government counters -- and a review of the case
filings cited by Reyes confirms -- that "Reyes caused or expressly
assented to nearly all, if not literally all, of the delay." For
example, in the time between Reyes's arrest and trial, Reyes asked
for more time both for discovery and to file his pre-trial motions,
as well as filed a pre-trial motion to suppress that took over six
months to resolve. Because the Supreme Court has declined to find
speedy trial violations where the defense failed to object to
continuances, see, e.g., Barker, 407 U.S. at 536, and we have
declined where the defense significantly contributed to the delay
through filing its own requests for continuances or pretrial
motions, see, e.g., Muñoz-Franco, 487 F.3d at 60-61, here too, we
do not find government action suggestive of a violation. The
second factor, thus, weighs against Reyes.
- 55 -
c. Defendant's Assertion of His Right.
As previously discussed, "[a]lthough a defendant does
not waive his constitutional right to a speedy trial by failing to
assert it" prior to trial, "his failure to do so means that he
must make a much stronger showing on the other factors in order to
succeed in his claim." RaShad, 300 F.3d at 34 (citing Barker, 407
U.S. at 532). Here, Reyes did not raise a constitutional speedy
trial claim below, which "significantly undermines [his] claim."
Perez-Cubertier, 958 F.3d at 91.
d. Prejudice to the Defendant.
Reyes also fails to prove that he has suffered cognizable
prejudice as a result of the delay. The prejudice prong seeks to
protect three interests: "(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense will be
impaired." Barker, 407 U.S. at 532. "Of these, the most serious
is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system." Id.
"[T]he defendant bears the burden of alleging and proving specific
ways in which the delay attributable to the [government] unfairly
compromised his ability to defend himself." RaShad, 300 F.3d at
34 (citing United States v. Aguirre, 994 F.2d 1454, 1455 (9th Cir.
- 56 -
Reyes has not carried this burden. Reyes alleges only
the third kind of prejudice pertaining to impairment of the
defense; specifically, Reyes contends that the prosecution "gained
a tactical advantage" via the twenty-six-month delay between his
arrest and trial because the Government ostensibly used that time
to "coach" Trooper Lynch on a narrative that would make the traffic
stop of Reyes appear to be constitutional. By contrast, the
Government maintains that Reyes's claim of prejudice is
unsupported and illogical given that Reyes and his counsel caused
much of the delay. We agree with the Government.
Although Reyes claims that differences exist in Trooper
Lynch's original statement on the traffic stop as compared to his
second statement taken seventeen months later, he provides no
explanation as to why Trooper Lynch's original statement would not
support the constitutionality of the traffic stop, while his second
statement would; put simply, Reyes has not explained how any
differences in Trooper Lynch's statements conferred a tactical
advantage to the Government. Moreover, Reyes's assessment of the
Government's motive is entirely speculative. Because we have
declined to credit speculation in the past, see, e.g., United
States v. Souza, 749 F.3d 74, 83 (1st Cir. 2014) ("Though Souza
speculates about prejudice, he points to nothing in the eighteenmonth period between his arrest and trial that impaired his ability
to mount a defense."), here too, Reyes has not carried his burden
- 57 -
in proving prejudice attributable to delay. The fourth factor,
thus, weighs against Reyes.
Having weighed all four of the Barker factors, we find
no violation of Reyes's right to a speedy trial under the Sixth
Amendment. We, therefore, decline Reyes's request to vacate his
conviction and sentence and to order a new trial.
D. Presence Claims
Finally, Reyes argues pro se that his absence at pretrial proceedings on October 11, 2016, April 4, 2017, and August 7,
2017, violated Fed. R. Crim. P. 43(a), the Fifth Amendment's Due
Process Clause, and the Sixth Amendment's Confrontation Clause
such that his conviction and sentence should be reversed and a new
trial ordered. The Government maintains that Reyes's claims have
"no legal basis." Because Reyes did not object to his absence
below, we review each of these claims for plain error; that is,
Reyes "must show, among other things, both that any error was clear
or obvious and that it affected his substantial rights." United
States v. Karmue, 841 F.3d 24, 27 (1st Cir. 2016) (citing United
States v. Savarese, 686 F.3d 1, 12 (1st Cir. 2012)) (applying plain
error review to claims under Fed. R. Crim. P. 43(a) and the Fifth
Amendment's Due Process Clause raised for the first time on
appeal); United States v. Acevedo-Maldonado, 696 F.3d 150, 155-56
(1st Cir. 2012) (same for unpreserved Confrontation Clause
objections). We find no plain error.
- 58 -
1. Fed. R. Crim. P. 43(a)(1) Claim
Reyes's statutory claim has no legal basis and fails.
Fed. R. Crim. P. 43 provides that a "defendant must be present at:
(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return
of the verdict; and (3) sentencing," Fed. R. Crim. P. 43(a)); the
rule further states "a defendant need not be present when '[t]he
proceeding involves only a conference or hearing on a question of
law,'" United States v. Veloz, 948 F.3d 418, 434 n.4 (1st Cir.
2020) (alteration in original) (quoting Fed. R. Crim. P. 43(b)(3));
see also Karmue, 841 F.3d at 28 (holding no clear or obvious
violation of Rule 43 where defendant was not present at pretrial
Daubert hearing). In Reyes's case, a review of the relevant case
filings reveals that the contested pre-trial proceedings from
which Reyes was absent were status conferences to discuss discovery
and scheduling. We, thus, find that Fed. R. Crim. P. 43 did not
require Reyes to be present, and Reyes has not established that
proceeding at these pre-trial hearings without him present
constituted a clear or obvious error.
2. Fifth Amendment Claim
We, likewise, reject Reyes's presence claim lodged under
the Fifth Amendment. The Due Process Clause of the Fifth Amendment
"requires that a defendant be allowed to be present 'to the extent
that a fair and just hearing would be thwarted by his absence,'"
- 59 -
Veloz, 948 F.3d at 435 (quoting Kentucky v. Stincer, 482 U.S. 730,
745 (1987)); "whenever [a defendant's] presence has a relation,
reasonably substantial, to the fulness of his opportunity to defend
against the charge," he has a due process right to be present at
the proceedings, United States v. Gagnon, 470 U.S. 522, 526 (1985)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934))
(rejecting claim of due process violation where in camera
discussion at trial did not include respondent). Here, "[i]t is
not clear or obvious . . . what the benefit of [Reyes]'s presence"
at the contested pre-trial status conferences would have been.
Karmue, 841 F.3d at 27. Because Reyes has not demonstrated that
his "absence 'affected [his] substantial rights, which in the
ordinary case means it affected the outcome of the district court
proceedings,'" id. (alteration in original) (quoting United States
v. Fernández–Hernández, 652 F.3d 56, 64 (1st Cir. 2011)), Reyes
has not shown any error -- obvious or otherwise -- and his Fifth
Amendment claim also fails.
3. Sixth Amendment Claim
Finally, Reyes's Sixth Amendment claim is inapposite.
The Sixth Amendment's Confrontation Clause provides that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him." U.S. Const.
amend. VI. The Confrontation Clause "has historically applied to
testimony elicited at, and evidence produced for, trial," United
- 60 -
States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011), and we
-- and the Supreme Court -- have thus far declined to extend the
reach of the Confrontation Clause beyond trial, see, e.g., id. at
50-53 (noting that defendant "d[id] not point to a single case
extending the right to confrontation beyond the context of trial");
see also Crawford v. Washington, 541 U.S. 36, 53–56 (2004)
(extending right to confrontation only to declarants whose
statements are offered at trial). Reyes's presence claims concern
only his absence at pre-trial proceedings and he offers no
arguments as to why we should extend the reach of the Confrontation
Clause beyond trial in this case. Moreover, even if we were to
extend the right to confrontation here, such a right would be
inapplicable as Reyes points to no evidence that was offered
against him at these proceedings; indeed, such pre-trial status
conferences would not present an opportunity to do so. Here too,
Reyes has failed to show plain error.
Accordingly, we decline to reverse Reyes's conviction
and sentence and to order a new trial because he was not present
at three of the pre-trial court dates.
Outcome: For the reasons stated above, the judgment of conviction