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Date: 08-18-2021

Case Style:

United States of America v. JOSÉ PADILLA-GALARZA a/k/a Joey

Case Number: 18-2078

Judge: Bruce M. Selya

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief.

Defendant's Attorney:

Boston, MA - Criminal defense Lawyer Directory


Boston, MA - Criminal defense lawyer represented defendant with armed bank robbery and related crimes charges.

Defendant-appellant José PadillaGalarza, having created a ruckus before a jury empaneled to hear
criminal charges against him for armed bank robbery and related
crimes, tries to turn the tables. He asserts that his outburst
should have prompted the district court to grant his motion for a
mistrial. For good measure, he spells out an alphabet of putative
errors, ranging from allegations of arbitrary authorization of
protective orders to allegations that the district court failed to
zap excesses of prosecutorial zeal. Concluding, as we do, that
the appellant's claims lack force, we affirm the judgment below.

We start by briefly rehearsing the background of the
case, drawing the facts from a balanced assessment of the record.
To the extent that the government's evidence about the scheme and
the appellant's involvement in it differs from the appellant's own
testimony, we generally credit the government's evidence (as did
the jury). Cf. United States v. Maraj, 947 F.2d 520, 522 (1st
Cir. 1991) (providing that when reviewing a motion for judgment of
acquittal, all facts must be taken in the light most favorable to
the government). We then sketch the travel of the case.
On November 29, 2014, an armed heist took place at a
Banco Popular branch in Bayamón, Puerto Rico. Three individuals
— Johan Dávila-Rivera (Dávila), Jorge Camacho-Gordils (Camacho),
- 3 -
and Samuel Figueroa — entered the bank disguised as construction
workers and wearing helmets, black gloves, and fake facial hair.
Once inside, the trio brandished firearms, ordered everyone to the
floor, and demanded money from the bank's vault. A teller
complied, filling bags with what was later determined to be a total
of $64,633.13. But this was not all: the teller also inserted
electronic dye-pack devices designed to spew dye, smoke, and other
substances when removed from the premises.
Bags of money in hand, the three robbers fled. At that
point, their plan promptly began to unravel. Dávila was forced to
discard some of the bags when they began to smoke. With what loot
remained, the robbers sped off in a getaway car (a green Toyota
Tercel). Soon thereafter, they switched cars, abandoned the
Toyota, and scattered (with Figueroa retaining most of what money
Subsequent investigation revealed that Dávila, Camacho,
and Figueroa did not act alone in carrying out the robbery: the
appellant played a leading role both in recruiting a crew and in
developing and executing the scheme. Among other things, the
evidence supported findings that he did the planning, delivered
the disguises used in the robbery, and laid out the approach to
the bank.
When the authorities dug deeper, they learned that the
appellant's scheme extended beyond the bank robbery itself. As
- 4 -
part of the plot, two other coconspirators — Miguel Torres-Santiago
(Torres) and Jomar Hernández-Román (Hernández) — had been slated
to rob the nearby Abraham Rosa Credit Union earlier the same day.
The appellant enlisted their participation and met with them
several times at Hernández's residence. At the second such
meeting, the appellant mentioned that he intended to have fake
bombs planted as a distraction.
The appellant set both phases of the scheme in motion on
the morning of November 29. At approximately 8:00 a.m., Torres
and Hernández proceeded to the credit union to carry out that
aspect of the plot. The appellant had instructed Torres to enter
the credit union and pretend to cash a check, at which point he
would be "taken hostage" by Figueroa. Hernández was to serve as
the lookout.
What happened next was reminiscent of the legendary gang
that couldn't shoot straight. See Jimmy Breslin, The Gang That
Couldn't Shoot Straight (1969). Torres entered the credit union
but Figueroa never appeared. Consequently, Torres retreated in
confusion and the holdup at the credit union never materialized.
Meanwhile, acting on the appellant's instructions,
Camacho and Figueroa planted two bogus bombs furnished by the
appellant — one near the ATM outside Bayamón City Hall and the
other outside a Banco Popular branch in Loma Verde. Although the
record is nebulous as to when and how the bogus bombs were first
- 5 -
spotted, the local police force soon responded to reports about
suspicious objects. The officers deployed specialized personnel
to defuse any discovered explosives.
With the distraction operation underway, the robbers
proceeded to enter the Banco Popular branch in Bayamón. We already
have chronicled what transpired inside the bank. See text supra.
Both local police and agents of the Federal Bureau of
Investigation (FBI) responded to the scene of this robbery. It
did not take long for them to discover the abandoned Toyota a
quarter mile from the bank, dye-stained money littering the
interior. A discarded construction helmet and black gloves were
found in a nearby trash can. The Toyota yielded another important
clue: a receipt, found in the back seat, documented a transaction
that had taken place four days earlier at a Party City store in
San Patricio. Surveillance footage obtained from the store showed
the appellant, Hernández, and a third man purchasing fake facial
hair products that matched those used by the robbers.
When the FBI detained Hernández for questioning in
December of 2014, he made a number of incriminating statements
during a six-hour interview. He admitted, for example, that he
had participated in surveilling the bank, that he had accompanied
the appellant both to Party City and to Home Depot to purchase
accouterments similar to those used in effectuating the robbers'
- 6 -
disguises, and that he had transported a shotgun to the appellant's
home in the Barrio Macún neighborhood for use in the heist.
On January 9, 2015, the FBI obtained both an arrest
warrant for the appellant and a search warrant for his home. The
ensuing search turned up (as relevant here) ammunition rounds,
fake facial hair, and black gloves (still bearing manufacturer's
tags) identical to those discovered near the abandoned Toyota.
Following the search, the appellant submitted to
interviews. He described himself as a former police officer who
had transitioned into construction work. He admitted that he
previously had owned the Toyota used in the escape but claimed to
have sold it on the morning of the robbery. He also admitted to
making purchases at Party City and Home Depot during the week
before the robbery, but he claimed that those purchases were made
for innocent purposes.
The appellant was charged, alongside Hernández,
Figueroa, Dávila, Camacho, and Torres, in a five-count indictment.1
The charges included conspiracy to commit bank robbery, see 18
1 On the same day, the appellant was separately indicted for
possession of ammunition as a convicted felon and possession of
marijuana with intent to distribute (Criminal Case No. 15-78).
These charges arose out of the discovery of contraband during the
execution of the search warrant at the appellant's home. This
second indictment, which was tried before a different district
judge, is not before us.
- 7 -
U.S.C. § 371; armed bank robbery, see id. § 2113(a); conspiracy to
commit Hobbs Act robbery, see id. § 1951(a); Hobbs Act robbery,
see id. § 1951(a); and use and carriage of firearms during and in
relation to crimes of violence, see id. § 924(c)(1)(A)(ii).
Four of the defendants eventually entered guilty pleas
and two of them (Dávila and Torres) agreed to become cooperating
witnesses for the government. The appellant and Hernández
proceeded to stand trial.
The impending trial proved fertile terrain for extensive
pretrial motion practice. The district court dealt with questions
concerning subjects as diverse as severance, protective orders,
and the sometimes stormy relationship between the appellant and
his trial counsel (Melanie Carrillo). The trial, which lasted for
14 days, was tumultuous. The appellant appeared in court on the
first day, but his appearance was short-lived. He became
increasingly agitated and loudly declared that the trial should
not proceed. When his disruptive behavior escalated, the court
had him escorted from the courtroom, and he listened to and watched
most of the trial virtually from a remote cellblock. The court
appointed a second lawyer to be at the appellant's side in the
cellblock during trial proceedings.
On the ninth day of trial, the appellant was allowed
into the courtroom after having assured the court that he would
conduct himself appropriately. That assurance proved hollow: once
- 8 -
in the courtroom, he loudly disparaged Carrillo and hurled
accusations at the district court in front of the jury. The court
again ordered the appellant removed from the courtroom and denied
his ensuing motion for a mistrial.
At the close of the government's case, the appellant
moved for judgment of acquittal. See Fed. R. Crim. P. 29(a). The
district court denied this motion but permitted the government to
reopen its case in chief to clarify certain jurisdictional elements
of the crimes (not now in issue). The jury ultimately found both
the appellant and Hernández guilty on all five counts. The
district court subsequently sentenced the appellant to an
aggregate 228-month term of immurement (the components of which
are delineated in Part X, infra). In addition, the court ordered
the appellant to make restitution to Banco Popular in the sum of
This timely appeal ensued. Hernández also appealed, but
his appeal has been separately adjudicated. See United States v.
Hernández-Román, 981 F.3d 138 (1st Cir. 2020). In the pages that
follow, we set forth the standards of review that variously apply
to the appellant's manifold claims of error. We then discuss these
claims in roughly the order in which they surfaced below. We treat
them all as either preserved or deemed to be preserved, unless
otherwise indicated. Other claims of error, as to which further
- 9 -
discussion would be pleonastic, are patently meritless,
insufficiently developed, or both.
The appellant's claims of error trigger familiar
standards of review. To begin, we review preserved claims of legal
error (that is, claims that turn on pure questions of law) de novo.
See United States v. Simpkins, 978 F.3d 1, 6 (1st Cir. 2020);
United States v. Pinkham, 896 F.3d 133, 137 (1st Cir. 2018). In
contrast, we evaluate the district court's factfinding only for
clear error. See United States v. Tanguay, 811 F.3d 78, 81 (1st
Cir. 2016); United States v. Matos, 328 F.3d 34, 38 (1st Cir.
2003). On clear error review, we will "not . . . upset findings
of fact or conclusions drawn therefrom unless, on the whole of the
record, we form a strong, unyielding belief that a mistake has
been made." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990).
When a defendant interposes a contemporaneous objection
at trial — challenging, say, an evidentiary ruling or the phrasing
of a jury instruction — we ordinarily review the district court's
actions for abuse of discretion. See, e.g., United States v.
Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987) (describing rationale
for requirement that litigants "alert the district judge to errorin-the-making when and as the occasion arises"). The abuse of
discretion standard is not monolithic but, rather, encompasses "de
- 10 -
novo review of abstract questions of law, clear error review of
findings of fact, and deferential review of judgment calls."
United States v. Lewis, 517 F.3d 20, 24 (1st Cir. 2008) (footnote
omitted). The variegated nature of this standard is consistent
with a recognition that a district court exercises considerable
latitude with respect to many aspects of a trial. See Indep. Oil
& Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864
F.2d 927, 929 (1st Cir. 1988).
Different rules obtain when a party remains silent at
trial only to surface a claim of error for the first time on
appeal. In such an event, appellate review is ordinarily limited
to plain error. See United States v. Rodriguez, 919 F.3d 629, 634
(1st Cir. 2019). The proponent of plain error must carry the
devoir of persuasion as to each of four showings: "(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001). In practice, the plain error doctrine allows
an appellate court to correct egregious missteps but not the
"ordinary backfires" that are apt to occur during any trial.
Griffin, 818 F.2d at 100.
Of course, a party sometimes may identify an issue at
trial but then "relinquish[] or abandon[]" any objection to it.
- 11 -
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). In
such circumstances, we generally consider the argument waived.
See id. Once waived, an argument is dead and cannot be
resuscitated on appeal. See United States v. Coleman, 884 F.3d
67, 71 (1st Cir. 2018).
These several standards variously inform our subsequent
discussion of the appellant's claims.
Our appraisal of the appellant's asseverational array
begins with his claim that the district court abused its discretion
by denying his pretrial motion to sever his case from that of his
codefendant (Hernández). See Fed. R. Crim. P. 14(a) ("If the
joinder of offenses or defendants . . . appears to prejudice a
defendant or the government, the court may order separate trials
of counts, sever the defendants' trials, or provide any other
relief that justice requires."). Where, as here, defendants are
charged with the same crimes in the same indictment, joinder is
prima facie appropriate and severance ordinarily will not lie.
See Fed. R. Crim. P. 8(b); United States v. Houle, 237 F.3d 71,
75-76 (1st Cir. 2001). But this general rule — like most general
rules — admits of exceptions.
The appellant asserts that such an exception applies in
this case. The impetus for his severance motion draws its essence
from Hernández's December 2014 interviews with the FBI. During
- 12 -
those sessions, Hernández made statements that inculpated both
himself and the appellant in the charged crimes. Although there
is no evidence that the appellant set foot in either the Banco
Popular branch bank or the credit union, Hernández's narrative
identified him as having been involved in virtually every
preparatory step.
Aware of Hernández's confession, the appellant filed a
pretrial motion for severance, arguing that Hernández's
statements, if introduced into evidence at a joint trial, would
violate his Sixth Amendment rights. See Bruton v. United States,
391 U.S. 123, 137 (1968) (holding that a defendant's Sixth
Amendment right to confront his accusers through cross-examination
is abridged when the incriminating statements of a nontestifying
codefendant are admitted at trial). He also argued that "where
the powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defendant,
are deliberately spread before the jury in a joint trial," a court
cannot employ "limiting instructions as an adequate substitute for
[the defendant's] constitutional right of cross-examination."
Faced with the appellant's motion, both the government
and the district court recognized that the Bruton rule does not
present courts with an all-or-nothing proposition. The case law
makes manifest that redaction is an acceptable means of curing a
potential Bruton violation. See Richardson v. Marsh, 481 U.S.
- 13 -
200, 209 (1987). Even so, prophylactic revisions must be carefully
tailored in order to satisfy the Bruton standard. Put another
way, the law recognizes that a clumsy or incomplete modification
may still point unerringly to a nontestifying defendant. See Gray
v. Maryland, 523 U.S. 185, 188 (1998). On appeal, we must assay
"the efficacy of redaction on a case-by-case basis, paying careful
attention to both a statement's text and the context in which it
is offered." Foxworth v. St. Amand, 570 F.3d 414, 433 (1st Cir.
In the case at hand, the government responded to the
appellant's severance motion by advising the district court that
it had a plan to avoid potential Bruton pitfalls. It would elicit
evidence of Hernández's confession only through the testimony of
a law enforcement officer rather than by proffering, say, a tape
recording or written transcript. Relatedly, it would ensure that
the testifying officer substituted generic phrases (e.g., "another
person") in lieu of Hernández's specific references to the
appellant. Based on these representations — and with the
acquiescence of the appellant's trial counsel — the district court
denied the severance motion.
On the first day of trial, the parties and the district
court again discussed Hernández's statements. The government
acknowledged its awareness of the potential Bruton issue and
assured the court that the proposed agent-witness "ha[d] been
- 14 -
instructed" in line with the earlier agreement. The court
interrupted, noting that the agreement was that "[a]ny statement
made by a co-defendant will not be stated as to him." The
appellant's trial counsel responded in a single word: "[e]xactly."
During the trial, the government called the FBI agent to
testify about Hernández's statements. At that juncture, the
appellant's trial counsel questioned whether, even with the use of
generic references that "sanitized" the agent's testimony to the
extent the government had represented, the jury nonetheless might
identify the appellant as one of the persons who visited Home Depot
and Party City. The prosecutor responded that the government would
take care to "lead [the agent] through these questions and we'll
avoid the Bruton issue." Following this assurance, the appellant's
counsel did not press her objection. The district court apparently
deemed it withdrawn,2 see United States v. Rogers, 918 F.2d 207,
212 (D.C. Cir. 1990) (describing objecting party's burden "to make
clear to the district court that he is pressing his point" (quoting
Krause v. Chartier, 406 F.2d 898, 901 (1st Cir. 1968))); cf. United
States v. Potts, 644 F.3d 233, 235-36 (5th Cir. 2011) (deeming
claim unpreserved when objecting party failed to "reassert his
2 The district court made no formal ruling but merely told
the parties to "[g]o ahead." On appeal, the appellant makes no
mention of this colloquy; but in his reply brief, he acknowledges
that his trial "counsel did not object to the Government's proposed
solution" to the potential Bruton issue.
- 15 -
objection" subsequent to proposed curative action), and the
prosecutor conducted the remainder of the examination in
accordance with her assurance.
Against this backdrop, the appellant mounts a claim that
the district court's decision to allow the agent's testimony
constituted an abuse of discretion. The lynchpin of his argument
is that the government's proposed redaction insufficiently
neutralized the incriminating impact of Hernández's statements and
that, therefore, the district court should have severed the trials
of the two defendants.
In examining this claim of error, Bruton and its progeny
would normally supply the guardrails that we must honor. Here,
however, there is a bend in the road: although appellate review
of a Bruton challenge is ordinarily de novo, see United States v.
Vega Molina, 407 F.3d 511, 519 (1st Cir. 2005), the record
indicates that the appellant waived this line of argument below.
See United States v. Olano, 507 U.S. 725, 733 (1993) ("[W]aiver is
the 'intentional relinquishment or abandonment of a known right.'"
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))). We explain
The Bruton issue first surfaced at a pretrial
conference, prompted by the appellant's severance motion. At this
conference, the prosecutor spelled out the government's planned
procedure for handling Hernández's confession. The appellant's
- 16 -
trial counsel assented to the prosecutor's proposal, stating
explicitly that the appellant "ha[d] no objection" to going forward
in the manner described. And on the first day of trial, counsel
verified that the parties had agreed to proceed in this manner.
Counsel's statements satisfy the accepted definition of
waiver. She expressly acknowledged the appellant's potential
Bruton claim and, in response to the prosecutor's representations,
deliberately relinquished this appreciated right. So viewed, the
waiver doctrine "fits this case like a glove." United States v.
Orsini, 907 F.3d 115, 120 (1st Cir. 2018).
The appellant has a fallback position. He contends for
the first time on appeal that the presentation of Hernández's
redacted confession, when viewed alongside certain other trial
evidence, allowed the jury to infer that the appellant was the
unnamed individual mentioned in the agent's redacted account of
Hernández's statement. In particular, the appellant emphasizes
the prosecutor's statement during closing argument that the
appellant lived in Barrio Macún. This links up, the appellant
suggests, with a statement in Hernández's confession to the effect
that he (Hernández) delivered a shotgun to a person residing in
Barrio Macún for use in the Banco Popular robbery.
Even apart from the fact of the appellant's waiver, this
is whistling past the graveyard. The Supreme Court has held that
an out-of-court confession of a non-testifying defendant that only
- 17 -
"inferential[ly] incriminat[es]" a codefendant who is on trial
through deductive links to other evidence does not animate that
codefendant's Sixth Amendment concerns in the same manner as a
head-on accusation. Richardson, 481 U.S. at 208. That is the
situation here, and we discern no error — plain or otherwise — in
connection with this unpreserved claim of error.
Next, the appellant contends that the district court
abused its discretion in granting a protective order relating to
certain discovery materials. Some stage-setting is useful.
Prior to trial, the government fulfilled its obligation
under the Jencks Act to disclose certain evidentiary materials to
the defense. See 18 U.S.C. § 3500(b); see also United States v.
Sepúlveda-Hernández, 752 F.3d 22, 32 (1st Cir. 2014) (explaining
that "[t]he Jencks Act obliges the government . . . to proffer
upon a defendant's timely request any statement of [a particular]
witness in its possession, whether or not exculpatory, that relates
to the subject matter of the witness's testimony"). These
materials included transcripts of grand jury testimony given by
two of the government's cooperating witnesses (Dávila and Torres).
Citing security concerns,3 the government asked the district court
3 The government's initial motion for a protective order cited
the appellant's potential exposure to "lengthy periods of
incarceration" as a likely incentive for him to "resort to extreme
measures." When the appellant later questioned the need for the
- 18 -
for a protective order barring defense counsel from leaving copies
of the cooperators' statements with the appellant (although
counsel would remain at liberty to review the contents of those
statements with him). The district court granted the government's
motion and rejected the appellant's subsequent efforts to vacate
or modify the protective order — efforts that included attacks on
the protective order both at the beginning of the trial and in a
post-conviction motion.
The appellant argues that the protective order was
"[un]substantiated by fact" and issued "blindly." Even though the
protective order allowed the appellant's counsel to review the
Jencks Act materials with him, the appellant brands this
accommodation as ineffectual in view of the dysfunctional
relationship between the two. Thus, the appellant concludes, the
terms of the order deprived him of his Sixth Amendment right to
assist meaningfully in his own defense. See McKaskle v. Wiggins,
465 U.S. 168, 174 (1984) ("The [Sixth Amendment]
. . . implies a right in the defendant to conduct his own defense,
with assistance at what, after all, is his, not counsel's trial.");
order, the government explained that two prospective witnesses
against the appellant had recently become unavailable. One was in
a vegetative state because he had fallen (or been pushed) off a
jail roof; the other had declined to afford any cooperation after
the murder of his wife. Despite the lack of any evidence that the
appellant was directly involved in either incident, the government
argued that this pattern of events justified incremental security
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LaChappelle v. Moran, 699 F.2d 560, 564 (1st Cir. 1983) ("A central
principle derived from the confrontation clause [of the Sixth
Amendment] is the defendant's right to participate in his own
The Criminal Rules require that a movant demonstrate
"good cause" for a protective order. Fed. R. Crim. P. 16(d)(1);
see United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007). In
turn, "[a] finding of good cause must be based on a particular
factual demonstration of potential harm, not on conclusory
statements." Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir.
1986). We review the district court's decision to grant a
protective order for abuse of discretion. See United States v.
Rosario-Peralta, 175 F.3d 48, 55 (1st Cir. 1999). In conducting
this tamisage, we remain mindful that district courts possess
considerable latitude both in determining whether to issue
protective orders and in fashioning their terms. See Danny B. ex
rel. Elliott v. Raimondo, 784 F.3d 825, 834 (1st Cir. 2015). We
will reverse the grant of a protective order only "when it is
sufficiently prejudicial and based upon an incorrect legal
standard or a misapplication of law to fact." Id.
Applying these constructs, we conclude that the district
court's protective order passes muster. At the first step, the
appellant acknowledges that witness protection is a proper
rationale for a protective order. See Fed. R. Crim. P. 16(d)(1)
- 20 -
advisory committee's note to 1966 amendment (confirming that "the
safety of witnesses" and "witness intimidation" are proper bases
for protective order). Although there is no direct evidence that
the appellant was responsible for the sudden unavailability of two
prospective witnesses against him, the pattern of harm described
by the government in chambers was both sufficiently specific and
sufficiently worrisome to ground the precautionary measures. See,
e.g., United States v. Ramos-Cruz, 667 F.3d 487, 501 (4th Cir.
2012) (deeming heightened threat "sufficient[ly]" specific to
sustain protective order, allowing witnesses to testify under
pseudonyms, even though defendant was "not himself accused of
threatening [] witnesses"); United States v. Celis, 608 F.3d 818,
832 (D.C. Cir. 2010) (affirming protective order despite lack of
showing that any appellant "had personally threatened any
government witness"). Thus, the district court did not abuse its
discretion in concluding that the government had shown good cause
for the issuance of the protective order.
To cinch the matter, there is no reason to believe that
the appellant suffered any cognizable prejudice due to the
protective order. The appellant was not entitled to receive Jencks
Act materials as to a particular witness until that witness had
testified on direct examination. See Fed. R. Crim. P. 26.2(a);
see also United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979)
("Appellant's reliance on the Jencks Act as a pre-trial discovery
- 21 -
tool is completely misplaced. . . . [T]he Act specifically provides
that no statement of a government witness is discoverable until
the witness has testified on direct examination."). Dávila
testified on the sixth day of trial and Torres testified on the
ninth day. Yet, the government delivered the Jencks Act materials
relative to both cooperating witnesses to defense counsel several
days before trial commenced. This extra time offset (at least to
a substantial extent) the unavailability of the materials in the
defendant's cell. See, e.g., United States v. Dukes, 758 F.3d
932, 938 n.4 (8th Cir. 2014) (rejecting defendant's claimed
entitlement to extra time for personal review of Jencks Act
materials when materials had been supplied ahead of jury
selection); United States v. Nicolapolous, 30 F.3d 381, 383-84 (2d
Cir. 1994) (finding no prejudice resulted from defendants' "lack
of unconditional access" to Jencks Act materials). And the record
reflects that the appellant took due advantage of this opportunity
to preview the Jencks Act materials: he and his lawyer reviewed
at least half of the materials before a jury was even empaneled.
Nor do we think that this conclusion is undermined by
the appellant's claim that he had a dysfunctional relationship
with his trial counsel. The claim of a dysfunctional relationship
was made below in connection with trial counsel's pretrial motion
to withdraw, and the district court — after a hearing in which the
appellant himself participated — denied the motion. The appellant
- 22 -
has not appealed from that ruling, and there is no basis for us to
second-guess the district court's on-the-spot determination that
the relationship between the appellant and his trial counsel was
functional. See United States v. Jones, 778 F.3d 375, 388 (1st
Cir. 2015).
No more need be said. Striking a balance between a
defendant's rights and the need to protect witnesses must be left,
in the first instance, to the sound judgment of the district court.
See, e.g., United States v. El-Mezain, 664 F.3d 467, 492-93 (5th
Cir. 2011). From what we can tell, the court below held that
delicate balance steady and true.
On this record, we are satisfied that the court did not
abuse its discretion either in issuing the protective order or in
determining that the appellant had an adequate opportunity to
familiarize himself with the Jencks Act materials. See United
States v. Arboleda, 929 F.2d 858, 863-64 (1st Cir. 1991).
The appellant's invocation of the Sixth Amendment does
not advance his cause. He contends that the protective order
deprived him of the opportunity to assist in his own defense
because he could neither study the Jencks Act materials ahead of
trial nor adequately confer with his lawyer during the trial
itself. This contention, though, comprises more cry than wool.
The appellant had no pretrial right to the Jencks Act materials,
and any limitations on his ability to consult with trial counsel
- 23 -
concerning those materials were the direct result of his own
intentionally disruptive behavior (which caused him to be excluded
from the courtroom for most of the trial).4 On these facts, we
discern no Sixth Amendment violation. See United States v.
Cordova, 806 F.3d 1085, 1090-91 (D.C. Cir. 2015); United States v.
Rivera, 153 F. App'x 758, 760 (2d Cir. 2005) (finding no Sixth
Amendment infringement by a protective order preventing defendant
from retaining Jencks Act materials at his detention facility).
Relatedly, the appellant argues that the district court
abused its discretion by declining to order the government to
produce notes supposedly taken by law enforcement agents who
interviewed a cooperating witness (Dávila). This argument runs
headlong into a threshold obstacle: it is luminously clear that
the existence of Jencks Act materials is an implicit precondition
to the government's obligation to produce those materials. See
United States v. Amaya-Manzanares, 377 F.3d 39, 42-43 (1st Cir.
2004); United States v. Nickell, 552 F.2d 684, 689 (6th Cir. 1977).
4 We hasten to add that even though the appellant was confined
to the cellblock for most of the trial, the district court made
certain that he had an appointed lawyer by his side. This second
lawyer's duties included answering the appellant's questions and
conveying "idea[s]" back to the courtroom. There is no reason why
this lawyer could not have reviewed Jencks Act materials with the
appellant during the trial.
- 24 -
In this case, the appellant has not shown that any such notes ever
The relevant facts are uncomplicated. The appellant's
claim has its origins in his attorney's cross-examination of
Dávila. One line of questioning dealt with how many times Dávila
had been interviewed by representatives of law enforcement and at
which meetings notes were taken. From Dávila's replies, the
appellant's attorney seemingly came up with a hunch that the
government possessed agent notes, comprising Jencks Act materials,
that it had failed to disclose. See United States v. Neal, 36
F.3d 1190, 1196-97 (1st Cir. 1999). The government repeatedly
denied the existence of any such notes. Lacking a tenable
foundation for a conclusion that any such notes had been prepared,
the district court refused to order their production.
We discern no abuse of the district court's discretion.
Where, as here, a Jencks Act claim surfaces, the district court
must "conduct an independent investigation" into the
discoverability of the disputed materials. United States v.
Landrón-Class, 696 F.3d 62, 73 (1st Cir. 2012) (quoting United
States v. Gonzalez-Melendez, 570 F.3d 1, 3 (1st Cir. 2009) (per
curiam)). The court below satisfied this obligation by eliciting
testimony from Agent Tews (one of the agents present at Dávila's
interviews) about the extent of any notetaking activity. The court
found credible the agent's testimony that no notes had been taken.
- 25 -
This inquiry was an appropriate way in which to resolve the dispute
over the existence vel non of the notes,5 see United States v.
Gonzalez-Melendez, 594 F.3d 28, 35-36 (1st Cir. 2010), and the
court's finding that no notes existed was not clearly erroneous.
Indeed, the court spent appreciable time attempting to help Dávila
parse the relevant distinctions between her initial interviews by
law enforcement personnel and her subsequent trial-preparation
sessions as a cooperating witness.
That ends this aspect of the matter. Although the Jencks
Act imposes a solemn obligation on the government in a criminal
case, the government cannot be expected to produce that which has
never existed. The appellant's claim of error therefore fails.
This brings us to the appellant's mid-trial outburst.
As previously explained, the appellant observed most of the trial
virtually from his cellblock6 but the court gave in to his
entreaties on the ninth day of trial and allowed him to come to
the courtroom. This concession was premised on the appellant's
assurance that he would abide by the usual rules of courtroom
5 The prosecutor contemporaneously argued that Dávila's
inconsistencies were attributable to the combination of a language
barrier and confusion over which interviews the cross-examiner was
6 The appellant does not advance any claim of error relating
to the district court's original decision to exclude him from the
courtroom. We therefore omit any more elaborate discussion of the
circumstances undergirding that decision.
- 26 -
decorum. That assurance proved to be mere window dressing: once
in the courtroom, the appellant launched into a voluble tirade in
front of the jury. The record does not precisely capture the
appellant's comments, which were delivered in Spanish. However,
the appellant's counsel subsequently described the essence of the
outburst in the following terms:
[W]hat [the appellant] said is that the judge
forced him to go to trial . . . [and he]
basically said I forced him. That I was lazy,
that I was not defending him as I was supposed
to, and that I was not doing my job. And,
basically, everyone was against him.
The district court endorsed this summary, and we — like the parties
— treat it as a fair representation of what the appellant actually
In this venue, the appellant characterizes his pent-up
frustration with his trial counsel as the trigger for his outburst.
Building on that foundation, he argues that the district court
abused its discretion by denying his ensuing mistrial motion. In
his estimation, witnessing the scene necessarily prejudiced the
jury against him and — to make a bad situation worse — his comments
may have been construed as an admission of guilt.
Appellate review of the denial of a mistrial motion is
for abuse of discretion. See United States v. Lee, 317 F.3d 26,
34 (1st Cir. 2003). This is a deferential standard: "[o]nly in
rare instances will we . . . substitute our judgment for the trial
- 27 -
court's first-hand determination that the interests of justice
could be served without aborting a trial already in progress."
United States v. Rodríguez-Vélez, 597 F.3d 32, 43 (1st Cir. 2010).
In this instance, deference is especially appropriate because the
appellant's mistrial motion is premised on his own conduct,
witnessed at firsthand by the district court. The court,
therefore, had a unique opportunity to see and hear the outburst
and to gauge its effects on the jury in real time.
Here, moreover, the genesis of the mistrial motion must
be factored into the mix. We previously have considered — and
decisively rejected — the argument that a defendant can force a
mistrial in a criminal case by the simple expedient of behaving
badly before the jury. See id. (explaining that "[w]hen a
defendant has willfully disrupted the proceedings, a trial court
ordinarily acts within its discretion in refusing to grant a
mistrial by reason of that disruption"). To rule otherwise would
create a "perverse incentive[]" for a defendant to throw any
semblance of decorum to the winds. Id.; see United States v.
McCormac, 309 F.3d 623, 626 (9th Cir. 2002).
The appellant struggles to put his outburst in a
different light. He tries to distinguish Rodríguez-Vélez and
similar cases on the ground that those cases — unlike this case —
involved only "comments [which] themselves did not impart
information prejudicial to the defense." He argues that, by
- 28 -
contrast, his comments can reasonably be construed as an admission
of guilt (an argument to which we shortly shall return).
The distinction that the appellant labors to draw is one
of degree, not of kind. Whatever the content of a defendant's
comments made in the course of a courtroom outburst, the same
principles must guide an appellate court's appraisal of whether
the district court abused its discretion in denying an ensuing
mistrial motion. See United States v. Harris, 2 F.3d 1452, 1456
(7th Cir. 1993); United States v. West, 877 F.2d 281, 288 (4th
Cir. 1989).
Of course, abuse-of-discretion review does not denote
that a district court is free to turn a blind eye and a deaf ear
to the effect of a defendant's antics. In the wake of such an
outburst, a trial court is obliged to take reasonable steps to
mitigate "any untoward effects that the outburst might have on the
jury." Rodríguez-Vélez, 597 F.3d at 43. Sensitive to this
obligation, the court below immediately gave a prophylactic
[N]othing stated by Mr. José Padilla is to be
taken by you as evidence in the case, nor can
you use his expressions, that is, the conduct
that you saw. That is not evidence in this
case . . . I address it standing up because I
want you to take that instruction that you
just heard seriously, as important as any
other instruction that I may provide, have
provided, or will provide.
- 29 -
This instruction was well-phrased and delivered in a timely manner.
As with all jury instructions, we must presume — in the absence of
any evidence to the contrary — that the jurors heeded it. See
Richardson, 481 U.S. at 206; United States v. Sepulveda, 15 F.3d
1161, 1185 (1st Cir. 1993).
The appellant's related argument — that the jury likely
perceived his comment that "the judge forced him to go to trial"
as an admission of guilt — suffers from a lack of development.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(elucidating need for "developed argumentation"). While the
appellant asserts that the words "impl[y]" his guilt, he does not
give any rationale for the self-serving claim that such an
implication was inherent in his remark. And in any event, the
district court's prophylactic instruction sapped the force of
anything that was said. It is, therefore, unsurprising that
similar statements by defendants in other cases have been held not
to mandate the declaration of a mistrial.7 See, e.g., McCormac,
309 F.3d at 625 (discussing defendant's vocal refusal to proceed
with trial because it was "a biased situation"); Harris, 2 F.3d at
1454 (finding district court acted appropriately in denying
7 In an effort to construct an off-ramp, the appellant cites
Arizona v. Washington, 434 U.S. 497 (1978). This off-ramp goes
nowhere: the Court's opinion in Washington addressed prejudicial
conduct by defense counsel, to the detriment of the prosecution.
See id. at 499-500. Nothing comparable occurred here.
- 30 -
mistrial after defendant asserted in front of jury that "he was
being tried against his will").
In sum, the appellant's outburst in the courtroom may
have placed him in an unflattering light. But if that is so, the
appellant was the architect of his own misfortune. Faced with an
incipient problem of the appellant's contrivance, the able
district court handled the matter with considerable
circumspection. The court's prompt intervention and its carefully
chosen words minimized any potential for prejudice. We thus
discern no abuse of discretion in the court's denial of the
appellant's motion for a mistrial.
The next stop on our itinerary brings us to the
appellant's claims of improper vouching. As relevant here,
vouching occurs when a prosecutor tries to bolster the government's
case by implying "personal belief in a witness's veracity or
[suggesting] that the jury should credit the prosecution's
evidence simply because the government can be trusted." United
States v. Rodríguez-Adorno, 695 F.3d 32, 40 (1st Cir. 2012)
(quoting United States v. Valdivia, 680 F.3d 33, 49 (1st Cir.
2012)). So, too, vouching may occur when the trial judge's
comments convey this same sort of message. See Rush v. Smith, 56
F.3d 918, 921-22 (8th Cir. 1995) (explaining that "the influence
of the trial judge on the jury is necessarily and properly of great
- 31 -
weight" and that the judge's "lightest word or intimation is
received with deference, and may prove controlling" (quoting Starr
v. United States, 153 U.S. 614, 626 (1894))).
Plotting the dividing line between permissible comments
and impermissible vouching can be difficult. See United States v.
Innamorati, 996 F.2d 456, 483 (1st Cir. 1993) (describing this
line as "hazy"). Special caution is required in instances in which
"[a] prosecutor flaunts the government's skills and purity of
motive or where the context . . . impl[ies] private knowledge of
the defendant's guilt that unfortunately cannot be shared with the
jury." United States v. Gomes, 642 F.3d 43, 47 (1st Cir. 2011).
In this case, the appellant alleges that both the
prosecutor and the court improperly vouched for the credibility of
a cooperating witness (Dávila). The prosecutor, he avers, crossed
the line by emphasizing during closing argument that Dávila was
"required to tell the truth" as a condition of her plea agreement.
The district court, he avers, crossed the line by describing Dávila
as "a cooperator for the United States of America." The appellant
exhorts us to find that each of these comments had the forbidden
effect of placing the prestige of the United States behind Dávila's
- 32 -
The appellant made no contemporaneous objection to
either of the comments that he now calumnizes.8 Our review,
therefore, is for plain error. See Duarte, 246 F.3d at 60. Neither
aspect of the appellant's vouching challenge clears this bar.
Dávila's plea agreement with the government was admitted
into evidence without objection. This is a salient fact because
it is common ground that a prosecutor may "point[] to specific
record evidence (e.g., a plea agreement), and suggest[] to the
jury how these particular facts may have provided the witness with
an incentive to testify truthfully." United States v. Page, 521
F.3d 101, 107 (1st Cir. 2008); see United States v. Hansen, 434
F.3d 92, 101 (1st Cir. 2006). Here, the prosecutor's challenged
comment was of this genre: the prosecutor merely restated a
condition of Dávila's plea agreement, already in evidence, without
incorporating either "personal assurances" or any suggestion that
"facts not before the jury support[ed] the witness's testimony."
United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st. Cir 2000).
Nor do we accept the appellant's argument, tendered without
8 Hernández did object to the prosecutor's statement on the
ground of improper vouching. But a codefendant's objection,
without more, does not preserve any other defendant's claim of
error. See United States v. Flores-Rivera, 787 F.3d 1, 27 n.20
(1st Cir. 2015) (deeming claim unpreserved when appellant failed
to join codefendant's objection); United States v. Acosta-Colón,
741 F.3d 179, 189 (1st Cir. 2013) (rejecting argument that
codefendants may "piggyback" on each other's objections).
- 33 -
citation to any relevant authority, that the prosecutor's
repetition of the information by some thaumaturgical alchemy
transformed a proper statement into an improper one.
The district court's description of Dávila as a
"cooperator of the United States of America" was likewise
permissible. This comment did no more than reiterate a fact
already disclosed to the jury when Dávila testified. And nothing
about the court's comment impermissibly placed the prestige of the
United States behind the witness's forthcoming testimony. See
United States v. Sutherland, 929 F.2d 765, 776 (1st Cir. 1991).
Here, moreover, the appellant's attack on the comment is
an excellent example of the aphorism that no good deed goes
unpunished. After all, the court made the statement while
cautioning the jury not to either believe or disbelieve Dávila's
testimony based simply on her status as a cooperating witness.
The court went on to explain, in pertinent part, that "cooperators
can be truthful, but they can also invent stories to help
themselves." The propriety of this even-handed statement is
apparent, and we discern no basis for a claim of error, much less
plain error. See United States v. Mercado Irizarry, 404 F.3d 497,
502 (1st Cir. 2005); United States v. Dailey, 759 F.2d 192, 200
(1st Cir. 1985).
- 34 -
We turn now to the appellant's claims of instructional
error. There are two such claims, and we treat them separately.
At trial, the appellant opted to testify. He asserts
that the district court erred by instructing the jury to consider
his testimony "in the same manner" as that of "any witness with an
interest in the outcome of the case." In the appellant's view,
this instruction unfairly tarnished his credibility by
spotlighting his potential motive to deceive.
Because the appellant did not interpose a
contemporaneous objection to this instruction, our review is for
plain error. See United States v. Paniagua-Ramos, 251 F.3d 242,
246 (1st Cir. 2001). The plain error hurdle, invariably high,
"nowhere looms larger than in the context of alleged instructional
errors." Id.; see United States v. McGill, 952 F.2d 16, 17 (1st
Cir. 1991).
"[Appellate review] of jury instructions focuses on
'whether they adequately explained the law or whether they tended
to confuse or mislead the jury on the controlling issues.'" United
States v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006) (quoting
Federico v. Order of Saint Benedict, 64 F.3d 1, 4 (1st Cir. 1995)).
That review is context-dependent and must take into account the
jury instructions as a whole. See United States v. Troy, 618 F.3d
- 35 -
27, 33 (1st Cir. 2010). Examined through this prism, the
challenged instruction easily passes muster.
In rejecting this claim of error, we do not write on a
pristine page: we defused a virtually identical argument in United
States v. Gonsalves, 435 F.3d 64 (1st Cir. 2006). There, we
elaborated upon the distinction between a permissible instruction
that merely "call[s] attention to the testifying defendant's
interest in the [case] outcome," id. at 72, and an impermissible
instruction that unfairly belabors the defendant's interest in the
outcome, see id. We made pellucid, however, that a garden-variety
jury instruction that focused on the interests of a testifying
defendant was appropriate and that only "egregiously phrased"
instructions regarding a testifying defendant's credibility were
to be avoided. Id. The instruction challenged here is not
egregiously phrased but, rather, is modestly worded and
appropriate in tone. Indeed, it closely tracks the instruction
that we approved in Gonsalves, including the district court's
important caution that the jury should not "disregard or disbelieve
[Padilla-Galarza's] testimony simply because he is charged in the
case." Plain error is plainly absent.
The appellant's second claim of instructional error is
more troubling. As an outgrowth of his Bruton argument, see supra
Part III, the appellant posits that the district court committed
- 36 -
an error of omission by failing to provide the jury with a needed
limiting instruction. Specifically, he submits that the court
should have advised the jury that the evidence of Hernández's outof-court statements could not be used against the declarant's
codefendant (namely, the appellant). Because no such limiting
instruction was requested below, our review is once again for plain
error. See Paniagua-Ramos, 251 F.3d at 246.
The first two elements of plain error are satisfied here.
"[C]ase law unambiguously requires the trial court to instruct the
jury that an out-of-court confession," when admitted under Bruton,
"may not be considered as evidence against the declarant's
codefendants." Vega Molina, 407 F.3d at 522; see Richardson, 481
U.S. at 211 ("[T]he Confrontation Clause is not violated by the
admission of a nontestifying codefendant's confession with a
proper limiting instruction . . . ."). Here, the government has
confessed error: in its brief, "[t]he government recognizes that
under [Vega] Molina, 407 F.3d at 521, the instruction should have
been given." Gov't Br. at 80. Thus, we can safely assume, without
further inquiry, that the district court's failure to supply the
requisite limiting instruction constituted a clear and obvious
error. See United States v. Rodríguez-Durán, 507 F.3d 749, 770
(1st Cir. 2007); Vega Molina, 407 F.3d at 521.
This brings us to the third element of plain error
review, which demands an inquiry into whether the error "affected
- 37 -
[the appellant's] substantial rights." Duarte, 246 F.3d at 61.
To satisfy this element, the appellant must provide an affirmative
answer to the inquiry with "some level of certainty and
particularity." United States v. Bramley, 847 F.3d 1, 7 (1st Cir.
2017). We conclude that the appellant has failed to shoulder this
To establish that an error affected a defendant's
substantial rights, the defendant must show a fair probability
that, but for the error, the trial would have produced a different
outcome. See United States v. Takesian, 945 F.3d 553, 566 (1st
Cir. 2019). In other words, "a defendant must show . . . 'a
reasonable probability' that the flawed instruction led to a flawed
conviction." Id. (quoting United States v. Marcus, 560 U.S. 258,
262 (2010)).
In this instance, the record reflects, with conspicuous
clarity, that the government's evidence against the appellant was
powerful. This evidence included testimony by two cooperating
witnesses (members of the gang) that the appellant played a central
role in planning and orchestrating the plot; the fruits of the
search of the appellant's home; receipts and surveillance footage
that firmly linked the appellant to items used in the Banco Popular
robbery; cell phone tower data that documented the appellant's
proximity to the bank at the time of the offense; and the
appellant's admission that he was the recent owner of the getaway
- 38 -
vehicle. Given this overwhelming evidence of the appellant's
guilt, there is no reason to think that any impermissible inference
that the jury might have drawn from the testifying agent's
description of Hernández's confession would have been a
determinative factor in the jury's decisional calculus. See Jones
v. United States, 527 U.S. 373, 394-95 (1999) ("Where the effect
of an alleged error is so uncertain, a defendant cannot meet his
burden of showing that the error actually affected his substantial
rights."); Vega Molina, 407 F.3d at 521 (holding absence of
limiting Bruton instruction harmless when considered alongside
"mass of other evidence"). Put another way, the appellant's claim
of error fails because he has not shown that the omission of the
limiting instruction affected his substantial rights. Thus, he
has failed to satisfy the third element of plain error review.
We can make short shrift of the appellant's claim of
cumulative trial error. Under the cumulative error doctrine, "a
column of errors may [] have a logarithmic effect, producing a
total impact greater than the arithmetic sum of its constituent
parts." Sepulveda, 15 F.3d at 1196. In such rare instances,
justice requires the vacation of a defendant's conviction even
though the same compendium of errors, considered one by one, would
not justify such relief. See United States v. Sampson, 486 F.3d
13, 51 (1st Cir. 2007).
- 39 -
Cumulative error claims are necessarily sui generis, and
such claims are typically raised — as here — for the first time on
appeal. Sepulveda, 15 F.3d at 1196. Consideration of such claims
must proceed with an awareness that "the Constitution entitles a
criminal defendant to a fair trial, not a perfect one." Delaware
v. Van Arsdall, 475 U.S. 673, 681 (1986). Factors to be weighed
in assessing the force of a claim of cumulative error include "the
nature and number of the errors committed; their
interrelationship, if any, and combined effect; how the district
court dealt with the errors as they arose . . . ; and the strength
of the government's case." Sepulveda, 15 F.3d at 1196; see United
States v. Villarman-Oviedo, 325 F.3d 1, 18 (1st Cir. 2003).
Here, the claim of cumulative error is fanciful.
Cumulative error is by its very nature a derivative claim, that
is, it is dependent upon the existence of error simpliciter. See
Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998). Error
simpliciter is, in turn, a necessary — but not a sufficient —
predicate for a valid claim of cumulative error. See, e.g., United
States v. Rodriguez, 735 F.3d 1, 14 n.6 (1st Cir. 2013). In short,
not every finding of error equates to a finding of cumulative
error. See United States v. Rosario-Pérez, 957 F.3d 277, 302 (1st
Cir. 2020).
In this case, the cumulative error doctrine simply does
not fit. The myriad trial errors claimed by the appellant have
- 40 -
winnowed down to a single claim — the district court's failure to
give a limiting instruction with respect to Hernández's
statements, see supra Part VIII — and that claim has been adjudged
insufficient, on its own, to warrant vacation of the jury's
verdict. A fortiori, there is no legally sufficient basis for a
finding of cumulative error. See United States v. DeMasi, 40 F.3d
1306, 1322 (1st Cir. 1994).
Having completed our tour of the appellant's claims of
trial error, we arrive at his four claims of sentencing error.
Three of these claims pertain to the sentencing process and the
fourth challenges the substantive reasonableness of the aggregate
228-month term of immurement.
The standard of review for preserved claims of
sentencing error is abuse of discretion. See Gall v. United
States, 552 U.S. 38, 56 (2007); United States v. Fields, 858 F.3d
24, 28 (1st Cir. 2017). We approach such claims through a twostep pavane. See United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008). "First, we address those claims that affect the
procedural integrity of the sentence. Second, we address any
residual question as to the substantive reasonableness of the
sentence." Fields, 858 F.3d at 28 (quoting United States v.
Rodríguez-Adorno, 852 F.3d 168, 175 (1st Cir. 2017)).
- 41 -
The starting point for most federal sentencing
determinations is the calculation of the Guidelines Sentencing
Range (GSR). See Gall, 552 U.S. at 40; United States v. DávilaGonzález, 595 F.3d 42, 47 (1st Cir. 2010). The sentencing
guidelines, though, are advisory, and a sentencing court retains
substantial discretion to vary up or down from the GSR based on
the idiosyncratic circumstances of each offense and each offender.
See United States v. Flores-Machicote, 706 F.3d 16, 20-21 (1st
Cir. 2013); United States v. Ocasio, 914 F.2d 330, 336 (1st Cir.
Before us, the appellant does not dispute the district
court's GSR calculations. When making those calculations, the
court grouped the first four counts of conviction and set the GSR
for each count at 87 to 108 months. Any sentence on count 1,
however, was constrained by a 60-month statutory maximum. See 18
U.S.C. § 371. The court proceeded to impose a 60-month sentence
on that count and top-of-the-range sentences of 108 months on
counts 2, 3, and 4. All of these sentences were to run concurrently
with each other.
The court treated count 5 independently. By statute,
the court was required to sentence the appellant to at least 84
months in prison and to run the sentence on that count
consecutively to the sentences on the other counts of conviction.
See 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii). Moreover, the
- 42 -
sentencing guidelines adopt the statutory mandatory minimum as the
GSR for the count 5 offense. See USSG §2K2.4(b). The court varied
upward and imposed a 120-month incarcerative sentence on this
count, running that sentence consecutively to the sentences
imposed on the first four counts.
These sentencing determinations, in gross, yielded an
aggregate 228-month term of immurement. In turn, this term of
immurement was to be served consecutive to the sentence imposed in
Criminal Case No. 15-78. See supra note 1.
The appellant's initial claim of sentencing error
relates to the fact that he faced other charges in a separate
proceeding, see supra note 1, apart from the charges that he faced
in this case. With respect to those other charges, he went to
trial and was convicted — prior to his trial in this case — on two
counts: possession of ammunition by a convicted felon and
possession of marijuana with intent to distribute. He was
sentenced to serve a term of 46 months on the possession-ofammunition count, and he argues that the court below committed
procedural error by directing that the sentences it imposed in
this case run consecutive to that sentence.
To put this claim of error into perspective, we must
pause to explain the relevant conduct doctrine. Under the
sentencing guidelines, disparate offenses may comprise "relevant
- 43 -
conduct" when they arise, say, out of a common scheme, plan, or
course of activity. USSG §1B1.3 cmt. n.5. As relevant here, the
key is whether the acts are "sufficiently connected or related to
one another as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses." Id. The
guidelines provide that a defendant who receives a sentence while
serving (or awaiting the start of) a previously imposed sentence
for relevant conduct is entitled to certain benefits, one of which
is having both sentences run concurrently. See id. §5G1.3(b)(2).
The appellant asserts that his possession-of-ammunition conviction
derives from the same "spree" as the offenses of conviction in
this case and, thus, warranted concurrent sentencing. In support,
he notes that the ammunition was seized during the bank-robbery
investigation; that evidence regarding what was discovered in that
search was adduced at trial in this case; that an FBI agent
testified below that the seized ammunition was "relevant to the
bank robbery investigation"; and that the presentence
investigation report (PSI Report) in this case referred to the
other case as a "related case." Summing up, he says that he was
entitled to — but did not receive — the "relevant conduct" benefits
at sentencing.
Although the sentencing court did not treat the earlier
conviction as one for relevant conduct, the appellant's assignment
of error does not get very far. The record makes manifest that
- 44 -
the appellant waived any relevant conduct argument. At the
disposition hearing, the appellant's new counsel (a successor to
his trial counsel but not his appellate counsel) offered only three
arguments. None of these three arguments bore any relation to
relevant conduct. Nor was this a mere fortuity: the attorney
advised the court that, under ordinary circumstances, he would
have contended that the other case "satisfies fully [as] relevant
conduct." But he made it crystal clear that — at his client's
direction — he was not advancing any such argument. Indeed, he
went so far as to withdraw his original reference to relevant
conduct, stating that he wanted to "take that away."
On this record, it plainly appears that the appellant
knowingly relinquished any right to press a relevant conduct
argument. For present purposes, that equates to a waiver. See,
e.g., Coleman, 884 F.3d at 71-72 (deeming relevant conduct claim
waived after defendant acknowledged potential claim at sentencing
but did not pursue it); Rodriguez, 311 F.3d at 437 (explaining
that identification and withdrawal of argument constitutes
waiver). Consequently, the appellant's claim of error is by the
The appellant's second claim of sentencing error centers
on the Supreme Court's decision in Dean v. United States, 137 S.
Ct. 1170 (2017). In Dean, the Court mulled whether a sentencing
- 45 -
court, when sentencing on counts that were not subject to a
mandatory minimum, could take into consideration that the
defendant already faced a mandatory minimum sentence on another
count. See id. at 1174. There, the defendant was statutorily
required to serve sentences for his two firearm offenses
consecutive to any sentences imposed for the other charged counts.
See id. at 1177. He asked the sentencing court to impose miniscule
sentences on the remaining counts because he faced mandatory
sentences totaling thirty years for the firearms offenses. See
id. at 1175. The sentencing court declined, accepting the
government's argument that it could not weigh the mandatory minimum
firearms sentences in its sentencing calculus on the other counts.
See id.
The Supreme Court took a different view. It held that,
in the absence of explicit statutory language to the contrary, a
sentencing court had discretion to consider the incidence of a
mandatory minimum sentence when formulating a sentence for another
charge in the same case. See id. at 1176.
Invoking Dean, the appellant complains that the court
below erred in refusing his entreaties for a shorter sentence
despite the fact that he faced a mandatory minimum sentence for
his firearms conviction. See 18 U.S.C. § 924(c). He argues that,
under Dean, his sentences on the remaining counts of conviction
should have been reduced.
- 46 -
In support of this argument, the appellant first attacks
the district court's factual findings. He maintains that the court
mistakenly believed that the appellant had a second robbery
conviction and relied on that mistake to justify sentences at the
top of the applicable GSRs. The record tells a different tale.
Although the court did inquire at one point whether the appellant
had a prior robbery conviction, it received a clarifying negative
response and — for aught that appears — that was the end of the
matter. Given the lack of record support, we conclude that the
appellant's attack is woven entirely out of flimsy strands of
speculation and surmise. Therefore, we reject it.
Alternatively, the appellant suggests that the
sentencing court improperly presumed that he would be found guilty
in yet a third (impending) trial involving unrelated robbery and
firearms charges: Criminal Case No. 15-633. This suggestion is
empty. The court below acknowledged the appellant's upcoming trial
in that case, referenced the presumption of innocence, and stated
unequivocally that it "was not going [to] touch [the unadjudicated
case] with a ten-foot pole." Nothing in the record provides the
slightest indication that the court altered its resolve when
fashioning the appellant's sentence.
Relatedly, the appellant says that the sentencing court
misunderstood the law in deciding not to rely on the Dean rationale
to shrink his sentences on counts 1 through 4. This claim of error
- 47 -
reads Dean through rose-colored glasses. The Dean Court
established that a sentencing court "may consider" a related
mandatory minimum in its ultimate sentencing determination on
another count, Dean, 137 S. Ct. at 1177; see United States v.
Matos-de-Jesús, 856 F.3d 174, 178 (1st Cir. 2017), but it did not
require a sentencing court to discount every such sentence. The
court below properly understood that it had discretion either to
discount or not to discount its sentencing calculus pertaining to
counts 1 through 4 on Dean grounds. See Dean, 137 S. Ct. at 1176-
77; United States v. Blewitt, 920 F.3d 118, 122 (1st Cir. 2019).
We find no abuse of discretion in the court's reasoned decision to
decline the appellant's invitation to impose lower sentences on
Dean grounds.9
The appellant's third claim of sentencing error relates
to his unsuccessful proffer of evidence of his "excellent
institutional behavior." This proffer originated with the
appellant's request, prior to sentencing, that the probation
office memorialize in the PSI Report certain comments by a mental
9 The sentencing court confronted this issue head-on and gave
ample reasons for not employing the Dean rationale to reduce the
appellant's sentences on counts 1 through 4. For instance, the
court cited the appellant's "serious criminal record," his role as
a "leader" of the gang, and the "emotional trauma and distress
[that the robbery caused] bank employees and customers, including
a pregnant lady."
- 48 -
health evaluator who had assessed the appellant's competency to
stand trial in connection with Criminal Case 15-78. See supra
note 1. The evaluator had reported that Bureau of Prisons (BOP)
personnel had described the appellant as "very polite," "a pleasure
to work around," and an "ideal" inmate whose interactions with
others emphasized "respect." The probation office amended the PSI
Report to include those statements.
At the disposition hearing, the sentencing court
rejected the evaluator's report as hearsay when defense counsel
attempted to highlight it. The appellant assigns error, arguing
that the court based this rebuff on the erroneous legal conclusion
that it was prohibited from considering hearsay evidence at
We agree with the appellant's premise that hearsay
evidence may sometimes be considered at sentencing. See United
States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992). We
disagree, however, with the appellant's conclusion that the court
below treated the hearsay nature of the proffer as a categorical
bar. Hearsay evidence is admissible at sentencing only if and to
the extent that the sentencing court concludes that it bears
sufficient indicia of reliability. See United States v. Rodriguez,
336 F.3d 67, 71 (1st Cir. 2003) (stating that a sentencing court
has "broad discretion" to consider hearsay evidence as long as it
has "sufficient indicia of trustworthiness"); Tardiff, 969 F.2d at
- 49 -
1287 (similar). In this instance, the record reflects that the
court was familiar with this principle; that it was aware that it
had discretion either to admit or exclude the proffered hearsay
evidence; that it examined the evidence and found it insufficiently
reliable; and that it decided not to exercise its discretion in
favor of admitting this particular hearsay evidence. Such a
decision was well within the encincture of the court's discretion.
See United States v. Cunningham, 201 F.3d 20, 26 (1st Cir. 2000).
We need not tarry. At sentencing, the Federal Rules of
Evidence do not apply. See Rodriguez, 336 F.3d at 71. Instead,
"the court has considerable leeway in deciding whether particular
evidence is reliable enough for sentencing purposes." United
States v. Mills, 710 F.3d 5, 16 (1st Cir. 2013). Such a reliability
assessment must be undertaken on a flexible, case-specific basis,
informed both by considerations of fairness and by the sentencing
court's accumulated experience. See United States v. Brewster,
127 F.3d 22, 28 (1st Cir. 1997); United States v. Gonzalez-Vazquez,
34 F.3d 19, 25 (1st Cir. 1994).
In this case, the district court did not elaborate upon
its reasons for concluding that the proffered evidence was not
sufficiently reliable. Yet, the absence of specific findings is
not fatal where, as here, the justification for the court's
ultimate conclusion can easily be gleaned from the record. See
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001)
- 50 -
(declining to require "express factual findings regarding the
reliability of . . . hearsay statements" at sentencing); United
States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000) (concluding
that such findings are not obligatory "where the reliability of
the statements is apparent from the record").
The district court's justification is evident from the
record, which reflects good reasons for the court to have refused
to admit second-hand reports about the appellant's behavior. The
court's statement that it "need[ed]" direct evidence of BOP
employees' assessment of the appellant's behavior can most
naturally be read as skepticism about the reliability of a
particular piece of double-hearsay evidence, not as a categorical
rejection of any and all hearsay evidence. Here, moreover, the
court had case-specific reasons for this skepticism, given both
the second-hand provenance of the proffer and the fact that the
appellant's trial had been plagued by his out-of-control antics
(which included "flushing the toilet every time [the judge] spoke,
putting his hands in his ears, and trying to interrupt [the judge]
with 'la la la la la la'"). The evaluator's report was the sole
source of evidence concerning the alleged praise of the appellant
by BOP personnel; the appellant offered no testimony, statements,
or other evidence from the BOP staffers themselves. In declining
to rely upon the proffered second-hand report, the district court
took the entirely sensible position that it would need to hear
- 51 -
from the BOP personnel directly in order to credit the
This disposes of the third of the appellant's sentencing
challenges. As we have said, a sentencing "court must take pains
to base sentencing judgments upon reliable and accurate
information." United States v. Tavano, 12 F.3d 301, 305 (1st Cir.
1993). So it was here.
The appellant's final shot across the sentencing bow
implicates the substantive reasonableness of his aggregate
sentence. The concept of a substantively reasonable sentence is
a protean one: "[t]here is no one reasonable sentence in any given
case but, rather, a universe of reasonable sentencing outcomes."
United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011). The
twin hallmarks of a substantively reasonable sentence are a
"'plausible sentencing rationale' and a 'defensible result.'"
United States v. Miranda-Díaz, 942 F.3d 33, 42 (1st Cir. 2019)
(quoting Martin, 520 F.3d at 96).
The appellant laments that a 228-month aggregate
custodial sentence is unreasonable because it is the "equivalen[t]
of a life sentence" for an older man whose crimes did not result
in serious physical injury. He adds that the sentencing court
overstepped by sentencing him at the top of the applicable GSRs
- 52 -
for counts 2 through 4 and imposing a 36-month upward variance for
count 5.
We review the appellant's plaint for abuse of
discretion, bearing in mind "the totality of the circumstances."
United States v. Perretta, 804 F.3d 53, 57 (1st Cir. 2015). This
is a deferential standard, and "it is not a basis for reversal
that we, if sitting as a court of first instance, would have
sentenced the defendant differently." United States v. MaderaOrtiz, 637 F.3d 26, 30 (1st Cir. 2011) (quoting Martin, 520 F.3d
at 92). Though we do not presume that a sentence within the
advisory range is per se defensible, see id. at 30, "a defendant
who attempts to brand a within-the-range sentence as unreasonable
must carry a heavy burden," United States v. Pelletier, 469 F.3d
194, 204 (1st Cir. 2006).
Here, the concurrent sentences on counts 1 through 4 all
fall within the applicable GSR. The district court stated
explicitly that it reached these determinations only after
considering the factors limned in 18 U.S.C. § 3553(a), and we must
take that statement at face value. See Dávila-González, 595 F.3d
at 49; United States v. Rivera-Berríos, 902 F.3d 20, 27 (1st Cir.
2018). The court deemed sentences at the high end of the range
appropriate (subject, of course, to the statutory maximum that
applied to count 1) in view of the appellant's serious criminal
history, his status as a former police officer, his prominent
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leadership role in organizing the criminal enterprise, the
deleterious impact of the offenses on the individual and
institutional victims, the firepower mustered by the gang, and the
need to safeguard the public from likely recidivism. Although the
appellant may disagree with the relative weight that the court
assigned to these factors as opposed to the weight that it assigned
to potentially mitigating factors, disagreement over the court's
"choice of emphasis" is not enough to undermine an otherwise
plausible sentencing rationale. United States v. Ledée, 772 F.3d
21, 41 (1st Cir. 2014) (quoting United States v. Ramos, 763 F.3d
45, 58 (1st Cir. 2014)).
Largely the same compendium of factors informed the
court's decision to vary upward with respect to the firearms
conviction. To be sure, a sentence that varies upward from the
guideline range requires more explanation than a sentence within
the range. See Rita v. United States, 551 U.S. 338, 357 (2007);
United States v. Gonzalez-Flores, __ F.3d __, __ (1st Cir. 2021)
[No. 18-1607, 19-1118, slip op. at 2]. Here, however, the court's
reasoning was adequate to satisfy this heightened standard. Cf.
United States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011)
("[A]n increased sentence is necessarily a judgment call and,
within wide limits, deference is due to the trier's on-the-spot
perceptions."). After all, the armed robbery of the bank involved
the brandishing of three firearms and easily could have resulted
- 54 -
in bystander injuries. The plot also involved the planting of
fake bombs — a cruelly cynical method of distraction. Given the
totality of the circumstances, the district court's rationale for
its modest upward variance on count 5 was within the realm of
plausibility. See id. at 132.
So, too, the aggregate sentencing outcome fell within
the wide universe of reasonable sentencing outcomes. On balance,
the period of incarceration, though lengthy, is proportionate to
the serious nature of the crimes committed and the characteristics
displayed by the offender, especially since the appellant was the
apparent mastermind of the criminal scheme. The appellant's age
— he was 52 years old at the time of sentencing — is not a
significantly countervailing factor. See Pelletier, 469 F.3d at
204 (rejecting 55-year-old defendant's age-based challenge to 151-
month sentence); see also United States v. Pacheco-Martinez, 791
F.3d 171, 180 (1st Cir. 2015) ("[A]ge could cut both ways in the
sentencing calculus. . . . [P]ersons convicted of a crime late in
life may be unlikely to recidivate . . . [b]ut it is also true
that 'engaging in criminal activity at such an age provides
evidence that [the defendant] may be one of the few oldsters who
will continue to engage in criminal activity until [he] drop[s].'"
(sixth, seventh, and eighth alterations in original) (quoting
United States v. Johnson, 685 F.3d 660, 662 (7th Cir. 2012))).
- 55 -
The short of it is that the district court offered a
plausible rationale for the aggregate sentence and that sentence
achieved a defensible result. The appellant's claim of substantive
unreasonableness is therefore meritless.
The sentencing court directed the appellant (along with
the others convicted of the bank robbery charge, jointly and
severally) to pay $64,000 in restitution to Banco Popular. The
appellant contests this restitution order.
The restitution order was issued in pursuance of the
Mandatory Victims Restitution Act (MVRA), which authorizes a
sentencing court to order a defendant to make restitution when an
identifiable victim suffers a pecuniary loss as a result of a
defendant's criminal conduct. See 18 U.S.C. § 3663A(a)(1),
(c)(1)(B). Importantly, the MVRA only reaches monetary losses
that a victim has actually sustained. See United States v. FleteGarcia, 925 F.3d 17, 37 (1st Cir. 2019). The thrust of the
appellant's assignment of error is that the court ordered him to
pay more than the victim of the robbery (Banco Popular) actually
"We review restitution orders for abuse of discretion,
examining the court's subsidiary factual findings for clear error
and its answers to abstract legal questions de novo." United
States v. Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012); see Flete-
- 56 -
Garcia, 925 F.3d at 37. The threshold that must be crossed in
order to validate a restitution order is familiar: the government
must carry the burden of demonstrating a proximate, but-for causal
nexus between the offense of conviction and the actual loss for
which restitution is ordered. See United States v. Alphas, 785
F.3d 775, 786 (1st Cir. 2015); United States v. Cutter, 313 F.3d
1, 7 (1st Cir. 2002). This standard is relatively modest in
application, as "a modicum of reliable evidence" may suffice both
to establish the requisite causal connection and to justify a
dollar amount. Flete-Garcia, 925 F.3d at 37 (quoting United States
v. Vaknin, 112 F.3d 579, 587 (1st Cir. 1997)); see United States
v. Salas-Fernández, 620 F.3d 45, 48 (1st Cir. 2010) ("[A]
restitutionary amount must have a rational basis in the record.").
Seen in this light, the appellant's assignment of error
is all meringue and no pie. It is uncontradicted that the
appellant's coconspirators left Banco Popular with slightly more
than $64,000 in purloined funds ($64,633.13, according to the
testimony of a percipient witness). Thus, the sentencing court
had before it more than a modicum of evidence to support the
factual premise of its restitution order.
The appellant struggles to portray subsequent events as
mitigating the loss and vitiating the force of the government's
evidence. He observes that some money was recovered from the crime
scene and the abandoned getaway car. He also observes that the
- 57 -
bank was federally insured and, thus, eligible for reimbursement
of any stolen funds from the Federal Deposit Insurance Corporation
(FDIC). The court below found these additional facts insufficient
to warrant either the elimination of restitution or a reduction in
the restitutionary amount. So do we.
To be sure, some bags of money were discarded as the
robbers fled and anti-theft devices implanted in the bags did their
work. By like token, damaged bills were found in the abandoned
getaway car. But testimony in the record supported (and no
testimony contradicted) a conclusion that the discarded money had
been functionally destroyed in the process.10 It is abject
speculation, unsupported by the record, to insist that these
damaged bills were somehow capable of rehabilitation and reuse.
Indeed, it would defy common sense to think that something like a
gentle rinse cycle would do the trick; a readily reversible antitheft dye would serve little purpose.
Nor is the appellant's conjecture that the bank may have
recovered a few stray bills undamaged by the anti-theft devices
sufficient to undermine the district court's findings. Where, as
here, the government has made a prima facie showing of a victim's
actual loss through competent evidence, a defendant must do more
10 FBI agents and Puerto Rico police officers described the
bills discovered near the bank building and inside the getaway car
as "dye-stained" and "all [] tinted."
- 58 -
than speculate about the possibility of mitigation in order to
obtain an offset. See United States v. Dickerson, 909 F.3d 118,
129-30 (5th Cir. 2018); United States v. Steele, 897 F.3d 606, 613
(4th Cir. 2018). He must, at a minimum, point to evidence adequate
to support a finding of a proposed offset in a specific amount.
See Flete-Garcia, 925 F.3d at 38; United States v. GonzálezCalderón, 920 F.3d 83, 86 (1st Cir. 2019). The appellant
identifies no such evidence in this record.
The appellant's reliance on the putative availability of
FDIC reimbursement is equally misplaced. Congress has made it
nose-on-the-face plain that a court may not reduce the amount of
restitution otherwise due under the MVRA because "a victim has
received or is entitled to receive compensation with respect to a
loss from insurance or any other source." 18 U.S.C.
§ 3664(f)(1)(B); see United States v. Gallant, 537 F.3d 1202, 1253
(10th Cir. 2008). It follows inexorably that the court below did
not err in declining to offset either FDIC insurance proceeds or
the possible future recoupment of such proceeds against the
restitutionary amount.11
11 For the sake of completeness, we note that the FDIC itself
may properly qualify as a victim eligible to receive restitution.
See Vaknin, 112 F.3d at 591. In such a situation, only the
recipient of the restitution would change as the FDIC "would step
into the victim['s] shoes as a subrogee of [its] restitution
claims." United States v. Bright, 353 F.3d 1114, 1122 (9th Cir.
- 59 -
To sum up, the appellant's grumbling about the district
court's factfinding rings hollow. The restitution order is
adequately supported by the record, and we uphold it.
In a final jab, the appellant lambastes his trial
counsel's performance. He contends, citing book and verse, that
Carrillo afforded him ineffective assistance of counsel in
derogation of his Sixth Amendment rights. See U.S. Const. amend.
VI; see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
This claim of error is better left for another day. It
was not made squarely in the district court, and "[w]e have held
with a regularity bordering on the monotonous that fact-specific
claims of ineffective assistance cannot make their debut on direct
review of criminal convictions." United States v. Mala, 7 F.3d
1058, 1063 (1st Cir. 1993); see United States v. Tkhilaishvili,
926 F.3d 1, 20 (1st Cir. 2019); United States v. Santana-Dones,
920 F.3d 70, 82 (1st Cir. 2019). This prudential precept has a
practical rationale: ineffective assistance claims "typically
require the resolution of factual issues that cannot efficaciously
be addressed in the first instance by an appellate tribunal."
Mala, 7 F.3d at 1063. The trial court, by contrast, has a superior
vantage from which to "assess both the quality of the legal
representation afforded to the defendant in the district court and
the impact of any shortfall in that representation." Id. The
- 60 -
upshot is that a defendant who wishes to press a newly minted
ineffective assistance of counsel claim — like the appellant —
ordinarily must raise it in a collateral proceeding brought in the
district court under 28 U.S.C. § 2255. See Santana-Dones, 920
F.3d at 82; Jones, 778 F.3d at 389.
We say "ordinarily" because there is an exception to the
Mala rule. United States v. Miller, 911 F.3d 638, 642 (1st Cir.
2018); United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).
Under this exception, an appellate court may proceed to determine
the merits of an ineffective assistance claim in the first instance
"where the critical facts are not genuinely in dispute and the
record is sufficiently developed to allow reasoned consideration."
Miller, 911 F.3d at 642 (quoting Natanel, 938 F.2d at 309). The
exception, though, is narrow, and its applicability depends on the
particular circumstances of a given case. See id.
The case at hand does not fit within the cramped confines
of the exception. Although the appellant complained about his
trial counsel several times in the proceedings below, the district
court's responses were guarded. Moreover, the record before us
does not illuminate critical parts of the necessary inquiry. For
example, information about why counsel either took or did not take
certain actions is scarce. So, too, the district court has made
no detailed appraisal of the lawyer's performance. Given these
significant gaps, the record is insufficiently developed to permit
- 61 -
an informed determination as to whether trial counsel provided an
obviously difficult client (the appellant) with the
constitutionally required level of effective assistance. See
United States v. Wyatt, 561 F.3d 49, 52 (1st Cir. 2009).
Attempting to adjudicate the appellant's ineffective assistance of
counsel claim without additional information would, therefore, be
tantamount to "playing blindman's buff." Mala, 7 F.3d at 1063.
For these reasons, we dismiss the appellant's
ineffective assistance of counsel claim, without prejudice to his
right to pursue it in a proceeding for post-conviction relief under
28 U.S.C. § 2255.

Outcome: We need go no further. For the reasons elucidated above,
we affirm the judgment of the district court; provided, however,
that the appellant's ineffective assistance of counsel claim is
dismissed without prejudice, leaving him free to pursue that claim,
should he so desire, in a collateral proceeding brought pursuant
to 28 U.S.C. § 2255.

So Ordered.

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