United States Court of Appeals

For the First Circuit

No. 18-2078

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ PADILLA-GALARZA,

a/k/a Joey,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lynch, Selya, and Lipez,

Circuit Judges.

Rafael F. Castro Lang for appellant.

Alexander L. Alum, Assistant United States Attorney, with 

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

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, were on brief, for appellee.

March 5, 2021
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SELYA, Circuit Judge. 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.

I

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.

A

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), 
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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 

remained).

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 
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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
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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'
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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.

B

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.
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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 
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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 

$64,000.

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 
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discussion would be pleonastic, are patently meritless, 

insufficiently developed, or both.

II

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 
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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. 
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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.

III

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 
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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. 

2009).

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 
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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. 
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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 

briefly.

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 
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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 
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"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.

IV

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 
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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 

measures.
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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 

defense."). 

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) 
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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
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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).

V

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

existed.

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.

VI

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 

targeting. 

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 

said. 

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 

instruction:

[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.

VII

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 

testimony.
- 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. 

A

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.

B

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 -

VIII

We turn now to the appellant's claims of instructional 

error. There are two such claims, and we treat them separately.

A

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.

B

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 

burden.

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.

IX

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).

X

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. 

1990). 

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.

A

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 

boards.

B

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

C

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 

sentencing.

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 

commendations.

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.

D

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 
- 53 -

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.

XI

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 

lost.

"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. 

2004). 
- 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.

XII

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.

XIII

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.