United States Court of Appeals

For the First Circuit

No. 20-1236

UNITED STATES OF AMERICA,

Appellee,

v.

EDILIO BENJAMIN-HERNANDEZ,

Defendant, Appellant.

No. 20-1295

UNITED STATES OF AMERICA,

Appellee,

v.

JOHANNI BALBUENA-HERNANDEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Kayatta and Howard, Circuit Judges,

and Casper, District Judge.*

* Of the District of Massachusetts, sitting by designation.
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Mariángela Tirado-Vales for appellant Edilio BenjaminHernandez.

German A. Rieckehoff for appellant Johanni BalbuenaHernandez.

Julia M. Meconiates, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, were on brief, 

for appellee.

September 21, 2022

 
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HOWARD, Circuit Judge. Following a lengthy period of 

pretrial detention, appellants Edilio Benjamin-Hernandez

(Benjamin) and Johanni Balbuena-Hernandez (Balbuena) were 

convicted on multiple charges stemming from a conspiracy to 

transport cocaine from the Dominican Republic to Puerto Rico. They 

now argue that the district court should have dismissed the 

indictment against them and that the evidence presented at trial 

cannot sustain their convictions. Benjamin also lodges two 

evidentiary challenges. But their panoply of claims falls short, 

and we affirm their convictions. 

I.

Benjamin and Balbuena were first indicted in November 

2015 on multiple charges of conspiracy and importation of 

controlled substances. Following hearings in December, both were 

detained pending trial. Superseding indictments adding new codefendants followed in March and July of 2016. 

The parties engaged in extensive motion practice, with 

Benjamin and Balbuena together filing more than forty pretrial 

motions. Balbuena eventually filed over two years later a motion 

to dismiss the indictment based on alleged violations of both the 

Speedy Trial Act ("STA") and the Sixth Amendment. Benjamin joined 

this motion, which the court denied, finding no STA or 

constitutional violation in the length of the challenged period of 
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detention. In June 2018, the court set Benjamin and Balbuena's 

cases for joint trial the following October.

During the four-day trial, the government presented 

evidence supporting its theory that Benjamin and Balbuena had 

transported drugs from the Dominican Republic aboard a yawl, which 

they ultimately abandoned near the shore in Vega Baja, Puerto Rico,

when detected by local law enforcement. A jury convicted Benjamin 

and Balbuena of conspiracy to possess with intent to distribute at 

least five kilograms of cocaine, and of aiding and abetting the 

importation of at least five kilograms of cocaine.1 Following the 

verdict, Benjamin and Balbuena each filed renewed motions for 

acquittal pursuant to Federal Rule of Criminal Procedure 29(c), 

which the court denied. 

On appeal, Balbuena, joined by Benjamin, challenges the 

district court's denial of their motion to dismiss. Balbuena and 

Benjamin also argue that the evidence presented at trial was 

insufficient to support their convictions. In addition, Benjamin 

raises two evidentiary challenges. We address each claim in turn.

1 The jury also convicted Benjamin of improper entry as a

noncitizen and Balbuena of unlawful reentry as a removed 

noncitizen. Neither appellant challenges these convictions on 

appeal. 
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II.

A. Speedy Trial Act

"The STA provides generally that, upon motion, an 

indictment must be dismissed if the defendant's trial has not 

commenced within 70 days from the latter of the return of the 

indictment or the defendant's first appearance before a judicial 

officer." United States v. Gates, 709 F.3d 58, 64 (1st Cir. 2013) 

(citing 18 U.S.C. § 3161(c)(1)). But "[t]his 70-day limit is not 

absolute," and certain periods of time may be excluded. Id.

(citing 18 U.S.C. § 3161(h)). "If a defendant is not brought to 

trial" within the required time limit, "the information or 

indictment shall be dismissed on motion of the defendant." 

18 U.S.C. § 3162(a)(2). 

Typically, we review a "denial of a statutory speedy 

trial claim de novo as to legal rulings, and for clear error as to

factual findings." United States v. Irizarry-Colón, 848 F.3d 61, 

65 (1st Cir. 2017) (quoting United States v. Carpenter, 781 F.3d 

599, 616 (1st Cir. 2015)). But "a defendant can waive or forfeit 

a claim of error in the application of the Act by failing to timely 

raise the claim in the district court," thereby limiting our 

review. United States v. Gottesfeld, 18 F.4th 1, 6 (1st Cir. 2021) 

(citing United States v. Valdivia, 680 F.3d 33, 41 (1st Cir. 

2012)), pet. for cert. filed, No. 21-1313 (U.S. Apr. 1, 2022). 
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Balbuena argues that his initial appearance on 

November 23, 2015, started the seventy-day clock, which ran until 

he filed his motion to dismiss on March 6, 2018. This totaled 834 

days, "of which only 503 days were properly excluded." But 

Balbuena's claim hits a threshold problem: his motion before the 

district court challenged only the period between his initial 

appearance on November 23, 2015, and May 4, 2016, the day that the 

case was transferred to a new judge following the original judge’s

retirement. "[W]e do not go hunting for nonexcludable time; 

exclusions of time not specifically challenged in the district 

court are waived on appeal." United States v. Laureano-Pérez, 797 

F.3d 45, 57 (1st Cir. 2015) (citing Gates, 709 F.3d at 67-68); see

United States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014). We thus 

limit our analysis of Balbuena's challenge to the specific 

timeframe that he raised before the district court. 

The STA excludes "reasonable period[s] of delay when the 

defendant is joined for trial with a codefendant as to whom the 

time for trial has not run and no motion for severance has been 

granted." United States v. Casas, 425 F.3d 23, 31 (1st Cir. 2005)

(alteration in original) (quoting 18 U.S.C. § 3161(h)(6)). "The 

Supreme Court has interpreted this section to mean that the clock 

does not, in effect, begin to run until the date of the most recent 

defendant's initial appearance before the court." Id. (citing

Henderson v. United States, 476 U.S. 321, 323 n.2 (1986)); see
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also United States v. Barnes, 251 F.3d 251, 257 (1st Cir. 2001) 

("[T]he time line for the last defendant joined usually becomes 

the time line for all defendants."). Here, defendants were 

indicted in a second superseding indictment on July 20, 2016, which 

also charged several new co-defendants. Accordingly, the district 

court found that "the 70-day clock remained tolled until at least 

the last co-[d]efendant's triggering event, namely [the last codefendant's] arraignment on February 1, 2017." This meant that 

"there was no violation of the STA’s 70-day limit" within the time 

frame challenged by Balbuena because the clock effectively did not 

start until February 2017. 

Balbuena now argues that "he was not 'joined for trial' 

within the meaning" of the STA with the co-defendants added in the 

second superseding indictment because, ultimately, he was tried 

with only Benjamin. Balbuena also argues that the district court 

failed to make a reasonableness finding before concluding that the 

second superseding indictment tolled the clock. But Balbuena

failed to preserve these arguments because he did not raise them 

before the district court. See Rockwood v. SKF USA Inc., 687 F.3d 

1, 9 (1st Cir. 2012) ("Our case law is clear that 'arguments not 

raised in the district court cannot be raised for the first time 

on appeal.'" (quoting Sierra Club v. Wagner, 555 F.3d 21, 26 (1st 

Cir. 2009))). At most, we can review for plain error, see

Gottesfeld, 18 F.4th at 5-6, but Balbuena "makes no attempt to 
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show how his . . . claim[s] satisf[y] the demanding plain-error 

standard -- his brief fails to even mention plain error, let alone 

argue for its application here." United States v. Cruz-Ramos, 987 

F.3d 27, 40 (1st Cir. 2021).2 That failure definitively waives 

these arguments and denies us the opportunity to consider them

further. 

B. Sixth Amendment Violation

When the government violates a criminal defendant's

Sixth Amendment "right to a speedy and public trial[,]" the 

criminal charges against the defendant "must be dismissed." United

States v. Lara, 970 F.3d 68, 80 (1st Cir. 2020) (first quoting 

U.S. Const. amend. VI and then quoting United States v. Dowdell, 

595 F.3d 50, 60 (1st Cir. 2010)), cert. denied sub nom. Williams

v. United States, 141 S. Ct. 2821 (2021). "To assess whether a 

defendant's Sixth Amendment right has been violated, we consider 

four factors: (1) 'the length of delay'; (2) 'the reason assigned 

by the government for the delay'; (3) 'the defendant's 

responsibility to assert his right'; and (4) 'prejudice to the 

defendant, particularly "to limit the possibility that the defense 

2 It may be possible that, in the context of the STA, arguments 

not raised before the district court are waived on appeal, rather 

than forfeited, thereby preventing even plain error review. See

Valdivia, 680 F.3d at 41; Gottesfeld, 18 F.4th at 5-6. But, 

because Balbuena has waived plain error review, the present case 

does not require resolution of that question.
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will be impaired."'" Id. (quoting United States v. Handa, 892 

F.3d 95, 101 (1st Cir. 2018)). 

We typically apply the abuse of discretion standard to 

a district court's resolution of a defendant's motion to dismiss 

based on a Sixth Amendment violation. See United States v.

Maldonado-Peña, 4 F.4th 1, 15 (1st Cir. 2021). But "there is some 

debate about whether" this is the appropriate standard, and 

Balbuena asserts that we should review his constitutional claim de 

novo. Id. at 15, n.6. Since, for the reasons discussed below, 

Balbuena's claim fails under either standard, we may sidestep this 

issue for now.

Considering the first factor, "[d]elays of around a year 

or longer are presumptively prejudicial," and the district court 

correctly found that the roughly thirty-three month delay that 

Balbuena and Benjamin experienced weighed in their favor. Lara, 

970 F.3d at 81.3 

The "second factor concerns the explanation for the 

delay" and is the focal point of our inquiry. Id. at 82 (quoting 

Souza, 749 F.3d at 82). The district court found that the second 

factor "weigh[ed] heavily against Defendants" given the complexity 

of the case, numerous pretrial motions (including 43 filed by 

3 The district court denied the motion to dismiss in late 

August 2018 and the appellants' trial began roughly a month and a 

half later, bringing the total delay between their arrest and trial 

to approximately thirty-four and a half months.
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Balbuena and Hernandez), lack of any evidence indicating bad faith 

by the government, and circumstances out of the parties' control, 

including the Hurricane Maria natural disaster and the 

unavailability of Balbuena's first counsel due to illness. We 

agree that the reasons for the delay described by the district 

court, which the record supports, "weigh against a finding of [a]

Sixth Amendment violation." Casas, 425 F.3d at 34; see id. at 33-

34 (noting defendants' filing of numerous pretrial motions and 

lack of allegations of bad faith by the government, and explaining 

that "the joint prosecution of defendants involved in the same 

drug trafficking conspiracy is justified as a means of serving the 

efficient administration of justice"); see also Lara, 970 F.3d at 

82 (explaining that lack of "evidence that the delay was a product 

of bad faith or inefficiency on the government's part" weighed 

against finding a Sixth Amendment violation); United States v.

Worthy, 772 F.3d 42, 49 (1st Cir. 2014) (holding that delay 

attributable to "the number of defendants, the multiplicity of 

motions and events . . . , and the complexity of the case" did not 

violate the Sixth Amendment).

As for the third factor, the district court correctly 

found that the undisputed fact that defendants had asserted their 

speedy trial right on multiple occasions weighed in their favor. 

See Casas, 425 F.3d at 34. 
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Turning to the final factor, the court explained that 

defendants had not demonstrated "undue pressures" aside from their 

lengthy period of detention. "[W]e have previously 'recognized 

three types of prejudice: "oppressive pretrial incarceration, 

anxiety and concern of the accused, and the possibility that the 

accused's defense will be impaired by dimming memories and loss of 

exculpatory evidence."'" Maldonado-Peña, 4 F.4th at 17 (quoting 

Lara, 970 F.3d at 82-83). Balbuena asserts that during his 

pretrial detention his "anxiety reached such levels that he became 

antagonistic and upset" and he "lost faith in his attorney." 

Balbuena further argues that he was taken "away from his family 

and country and deprived of the opportunity to work" and "was 

forced to endure the terrible conditions resulting from Hurricane 

Maria while deprived of his liberty." We do not doubt the 

challenging nature of Balbuena's time in pretrial detention, 

particularly during Hurricane Maria. But Balbuena has not 

identified "undue pressures" that go "above and beyond the 

'considerable anxiety [that] normally attends the initiation and 

pendency of criminal charges,' as [is] necessary to show 

prejudice." Worthy, 772 F.3d at 49 (first alteration in original) 

(quoting United States v. Maxwell, 351 F.3d 35, 41 (1st Cir.

2003)); see also Carpenter, 781 F.3d at 615 ("While [defendant]

argues convincingly that he has suffered great stress throughout 

the proceedings, he does not demonstrate why his anxiety was 
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greater than that suffered by many other defendants, other than 

that it continued longer." (citing United States v. Colombo, 852 

F.2d 19, 26 (1st Cir. 1988))). 

Balbuena also argues that the length of his detention 

alone renders it presumptively prejudicial. Balbuena did not 

clearly raise this argument before the district court and thus 

likely waived it. See Arrieta-Gimenez v. Arrieta-Negron, 859 F.2d 

1033, 1037 (1st Cir. 1988). In any event, his argument falls 

short. Balbuena cites Doggett v. United States, 505 U.S. 647 

(1992), and our opinion in RaShad v. Walsh, 300 F.3d 27 (1st Cir. 

2002). But the delays in those cases were significantly longer 

than the one here. See Doggett, 505 U.S. at 650 (eight and a half 

years between indictment and arrest); RaShad, 300 F.3d at 36 (five 

years and eight months delay between indictment and trial). In 

RaShad, moreover, we noted "that the presumption is [n]either 

automatic or inexorable" but rather kicks in only "[i]n aggravated 

cases, involving grossly excessive delay." 300 F.3d at 34, 42. 

And we have repeatedly looked for actual prejudice in cases where 

the delay exceeded the length of the delay here. See, e.g., 

Maldonado-Peña, 4 F.4th at 18. We therefore decline to depart 

from the "general rule" that "the 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.
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Applying that general rule, the district court concluded 

that Balbuena and Benjamin's "lengthy pretrial detention [gave] 

cause for concern," but nevertheless found that the balance of the 

factors did not show that appellants' speedy trial rights had been 

violated. The district court's observation that the length of 

their pretrial detentions was concerning cannot be gainsaid. The 

length of time the defendants spent in detention while awaiting 

trial is deeply unsettling. No one should assume that, in the 

proper case, with a defendant alert to his rights, this or any 

other of our cases countenance a holding that the Constitution 

accepts pretrial detention of virtually any length for people 

waiting to have their day in court. Cf. Maldonado-Peña, 4 F.4th 

at 18–19 (explaining this court's concern with the government's 

practice of "monolithically process[ing] 'mega-cases'" that result 

in some defendants -- presumed innocent -- waiting incarcerated 

for years while the trial court resolves codefendants' pleas and 

motions); Shon Hopwood, The Not So Speedy Trial Act, 89 Wash. L. 

Rev. 709, 739 (2014) (arguing that "[d]elay is a federal 

prosecutor's friend" because it increases "the chance a prosecutor 

has to flip a co-defendant into a cooperating witness"). 

But the district court's ultimate conclusion here falls 

within the limits permitted by our cases, and the absence of both 

bad faith on the part of the government and particularized 

prejudice to the appellants persuades us that no Sixth Amendment 
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violation occurred here. See, e.g., Maldonado-Peña, 4 F.4th at 18 

(explaining that "defendants' five-year wait for trial" was 

gravely concerning but nevertheless did not violate the Sixth 

Amendment where it was counterbalanced by defendants' 

"contributions to the pretrial delays" and failure to show "how 

their ability to mount an adequate defense was hampered by the 

delay"); Casas, 425 F.3d at 36 (holding that forty-one months in 

pretrial detention did not violate the Sixth Amendment given "the 

large and complex nature of the proceedings and the district 

court’s obligation to consider the multitude of pretrial matters 

filed by appellants and their co-defendants").

C. Sufficiency challenges

Balbuena and Benjamin next challenge the sufficiency of 

the evidence supporting their convictions. We review de novo the 

denial of a Rule 29 motion for judgment of acquittal. United 

States v. Gaudet, 933 F.3d 11, 15 (2019). "[W]e must affirm unless 

the evidence, viewed in the light most favorable to the government, 

could not have persuaded any trier of fact of the defendant's guilt 

beyond a reasonable doubt." Id. (alteration in original)(quoting 

United States v. Gómez-Encarnación, 885 F.3d 52, 55 (1st Cir. 

2018)); see also United States v. Davila-Nieves, 670 F.3d 1, 7 

(1st Cir. 2012). 
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1. Evidence in the record defeats Balbuena's sufficiency 

claim

Balbuena acknowledges the following evidence against 

him: 1) that he was "found in the general vicinity of the vessel 

and controlled substances," specifically in an abandoned, wooded 

area, where he was found wet, sandy, and agitated; 2) Balbuena's 

statement to a DEA agent that he was "there to pick up . . . the 

stuff you have there," which the agent took as a reference to the 

cocaine that the agents had seized; and 3) the testimony of a 

cooperating coconspirator who stated that Balbuena was present 

when he dropped off five kilograms of cocaine that the 

coconspirator understood was to be transported to Puerto Rico in 

a vessel, and which he later heard arrived in Puerto Rico but was 

"abandoned" near Vega Baja. This evidence notwithstanding, 

Balbuena argues that "there simply was no evidence that he ever 

participated in the planning of the drug transfer or importation"

or "that he was in the presence of drugs," and therefore "the 

government cannot possibly establish that [he] ever had 

constructive or knowing possession of the cocaine."

Balbuena "undervalues the evidence against him." United 

States v. Meises, 645 F.3d 5, 12 (1st Cir. 2011). Without even 

considering any of the numerous additional pieces of evidence that 

the government identifies, the evidence acknowledged by Balbuena 

himself is enough to sustain his convictions. See, e.g., United

States v. Ríos-Ortiz, 708 F.3d 310, 316 (1st Cir. 2013) (finding 
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evidence that defendant prepared food delivery orders for prison 

which were found to contain drugs was sufficient "circumstantial 

evidence to demonstrate the existence of an agreement to distribute 

controlled substances"); Meises, 645 F.3d at 12 ("The testimony of 

a single witness can be enough to support the government's case, 

and even the uncorroborated testimony of an informant may suffice 

'to establish the facts underlying a defendant's conviction.'"

(internal citations omitted)).

When the evidence is viewed in the light most favorable 

to the verdict, this is not, as Balbuena argues, a mere presence 

case. See, e.g., United States v. Rodriguez-Martinez, 778 F.3d 

367, 371 (1st Cir. 2015) ("We have said repeatedly that mere 

presence alone 'is insufficient to prove knowing possession of 

narcotics.'" (quoting United States v. Martinez, 922 F.2d 914, 923 

(1st Cir. 1991))). Rather, all three pieces of evidence "support 

the inference" that Balbuena "had knowledge of the crime." Id.

Balbuena's sufficiency claim thus fails. 

2. Benjamin waived his sufficiency claim

In his brief to this court, Benjamin begins his 

sufficiency argument by summarizing the government's evidence. He

then states that "[a]s it will be argued in the next section,

[this] evidence . . . is insufficient to support and sustain the 

conviction." But the next section of Benjamin's brief discusses 

the district court's alleged evidentiary errors, and Benjamin 
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never returns to his sufficiency argument. By failing to develop 

this argument, Benjamin has waived it. See Acevedo-Garcia v.

Monroig, 351 F.3d 547, 561 (1st Cir. 2003).4

D. Evidentiary challenges

Finally, Benjamin argues that the district court made 

two evidentiary errors: a) admitting unauthenticated telephone 

recordings, and b) allowing inappropriate opinion testimony by 

Agent Irvin Robert García-Martínez, a law enforcement agent with 

the National Directorate of Drug Control in the Dominican Republic. 

We review preserved objections to evidentiary rulings for abuse of 

discretion. United States v. Kilmartin, 944 F.3d 315, 335 (1st 

Cir. 2019). Unpreserved objections receive plain error review, 

"which is -- by design -- extremely hard to establish." United 

States v. Galíndez, 999 F.3d 60, 65 (1st Cir. 2021); see also

United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016).

Benjamin raises his argument about the authentication of 

the telephone recordings for the first time on appeal. Our review 

is thus limited to plain error. But Benjamin does not argue plain 

error; "he does not anywhere cite the four-factor test or attempt 

4 A generous reading of Benjamin's brief could take this 

section to mean that, without the telephone recordings and opinion 

testimony that Benjamin challenges later in his brief, the 

government's evidence is insufficient to support his conviction. 

But even taking that evidence out of the picture, Benjamin's 

sufficiency challenge would fail for the same reasons that 

Balbuena's fails.
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to establish its . . . factors," and has thus waived this claim. 

Pabon, 819 F.3d at 34; see also Cruz-Ramos, 987 F.3d at 40.

Benjamin's objection to Agent García's testimony fares 

no better. Benjamin raises "general grievances" with the testimony 

but fails to identify any specific portion of it as problematic. 

United States v. Belanger, 890 F.3d 13, 24 (1st Cir. 2018). In a 

footnote, Benjamin does cite a five-page section of the trial 

record where he objected to Agent García's testimony. Even if

this was sufficient to preserve this claim on appeal, our own 

unaided review of those five pages reveals one statement that 

perhaps Benjamin has in mind in alleging improper overview 

testimony, where the agent testified, apparently from background 

knowledge of the investigation, that Benjamin had used a different 

phone number not identified by law enforcement to contact another 

person about a proposal to act as drug courier. But, as the 

government notes, any error in permitting this testimony was 

clearly harmless given the evidence against Benjamin. See United 

States v. Flores-de-Jesús, 569 F.3d 8, 27 (1st Cir. 2009) ("The 

admission of improper testimony is harmless if it is 'highly 

probable that the error did not influence the verdict.'" (quoting 

United States v. Casas, 356 F.3d 104, 121 (1st Cir. 2004))).5

5 Threaded into Benjamin's discussion of Agent García's 

testimony are statements that 1) Agent García's testimony was not 

truthful, and 2) Agent García's testimony was "an attempt by the 

government to bolster the credibility of" a cooperating 
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III.

For the foregoing reasons, Benjamin and Balbuena's 

convictions are affirmed.

codefendant who testified after Agent García. To the extent that 

these statements can be considered additional claims outside of 

Benjamin's general objection to Agent García's overview testimony, 

they are waived for lack of development. See Acevedo-Garcia, 351 

F.3d at 561.